(영문) 춘천지방법원 2016.5.25.선고 2015구합4189 판결

Disposition No. 1 and the defendant's decision on December 5, 2014 that constitutes the requirement of a person who rendered distinguished services to the State shall be revoked.

Reasons

1. Details of the disposition;

A. The plaintiff is the spouse of the deceased B (hereinafter referred to as "the deceased").

B. On October 31, 1992, the Deceased was appointed as the Army Master, and was on duty as CJ officer from November 1, 201 to CJ, and died on March 21, 2013, 07:3.

C. On September 5, 2013, the Plaintiff filed an application for registration of a person who has rendered distinguished services to the State or a person eligible for veteran’s compensation on the ground that the deceased died due to overwork and stress, but the Defendant decided on July 22, 2014 that the deceased did not meet the requirements for the deceased’s death on duty or for the deceased’s death on duty. On August 7, 2014, the Plaintiff issued a disposition that determined that the deceased’s death did not meet the requirements for the deceased’s death on duty or for the deceased’s death on duty.

D. The Plaintiff filed an objection on September 3, 2014 on the ground that the Plaintiff discovered new evidence.

E. On November 26, 2014, the Defendant considered the evidence submitted by the Plaintiff in the deliberation of the 291 Merit Deliberation Committee, but did not have a proximate causal relationship between the deceased’s performance of his duty and the death. Therefore, on December 5, 2014, the deceased decided that the deceased does not constitute a soldier or policeman killed in action or a soldier killed in action. On December 5, 2014, the Defendant notified the Plaintiff of the decision on non-conformity of the requirements for a person who has rendered distinguished service to the State (hereinafter “decision on non-conformity of the requirements for a person who has rendered distinguished service to the State”), and “the non-conformity of the requirements for a person eligible for veteran’s compensation” did not constitute a non-conformity of the requirements

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, 3, Eul evidence 1 to 5, before pleadings

The purport of body

2. The assertion and judgment

A. The plaintiff's assertion

In light of the above excessive work and stress before the death of the deceased who had not suffered from diseases related to ordinary hearts and has always maintained a healthy physical condition, and the cardiopulmonary color, which is the cause of the death of the deceased, was caused by the foregoing excessive work and stress. Therefore, the proximate causal relation between the deceased’s military duty and the death is recognized, each of the dispositions of this case in this case was unlawful even though it was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

The following facts may be acknowledged in full view of the records of Gap evidence Nos. 4 through 7 and 9 (including the branch numbers in the case of the family number), and the overall purport of the arguments as a result of the request for the examination of medical records to the Aju University Hospital in this Court.

1) The Deceased has managed a healthy physical strength by measuring physical strength in the Gun, and there was no fact that he suffers from a heart-related disease. In addition, the Deceased was 30 minutes of physical strength per day.

2) At the time of the death, the Deceased, while holding a general manager of the central headquarters, carried out such tasks as managing and repairing ancillary facilities, training for education, management of medical history, management of equipment and supplies, management of interested soldiers and noncommissioned officers, and assistant of the commander. In particular, on March 15, 2013, the Deceased carried out the preparation of the replacement commander’s relocation and taking-out meals, and at the same time, performed the tasks of managing non-commissioned officers of interest who have symptoms of game addiction.

3) During the three-month period before the deceased’s death, the deceased worked for a total of 584.38 hours exceeding 104.38 hours (the recognized excess work hours) compared to normal work hours (480 hours).

4) On March 20, 2013, the day immediately preceding the death day, the Deceased received physical fluence at the National Assembly members of the Republic of Korea, return to the unit at around 17:30 on the same day, and her physical fluenite and shower on the same day, and then her fluencing the spouse at around 19:21 on the same day, and her fluencing day after his fluencing with his her fluenction. At around 06:00 on the next day, her fluenction and respiratory distress were complaining of the bruction and respiratory distress during his fluencing preparation, and was sent to the hospital, but at around 07:33 on the same day,

5) In accordance with the court’s entrustment of the medical record appraisal of this court, it was shown that the increase in the deceased’s duty burden and the increase in direct stress on the deceased’s duty may enhance the risk of cardio-cerebrovascular diseases. In light of the result that the high risk of cardio-cerebrscular diseases is high in the event the deceased’s excessive duty is more than five hours per week, and more than 20 hours per month, it is determined that the severe duty would have increased the risk of cardio-cerebrscular diseases.

D. Determination

1) Determination as to the disposition of non-conformity of the instant persons eligible for veteran’s compensation

In order to constitute "the Presidential Decree of the Death and death of a disaster" under Article 2 (1) 1 of the Act on Support for Persons Eligible for Veteran's Compensation (hereinafter referred to as "the Veterans Compensation Act"), there should be a proximate causal relationship between the occurrence or aggravation of a disease caused by performance of duties, education and training, and death, and the burden of proof for such proximate causal relationship exists on a person who is responsible for the burden of proof. In determining the proximate causal relationship, the degree and duration of occupational duties and education and training to the degree of the occurrence of the deceased's health condition and the continued period, the circumstances leading up to the death caused by the deceased's disease, the physical and mental condition of the deceased, and the existence of documentary evidence shall be determined based on the health, physical and mental conditions of the relevant soldier, not on an average person (see, e.g., Supreme Court Decision 2013Du18933, Sept. 4, 2014).

Comprehensively taking into account the facts acknowledged earlier and medical opinions, the following circumstances, namely, ① the deceased was affected by excessive work for at least three months prior to the death. In particular, prior to the death, the deceased’s occupational stress appears to have increased due to the increase of duty burden in the process of managing interested noncommissioned officers. ② The deceased did not receive treatment due to cardio-cerebrovascular disease in the past and did not receive treatment due to it for thirty minutes, and the deceased maintained a healthy physical strength, ③ there was no circumstance to deem that the deceased was frequently involved in drinking or smoking, etc. which may cause cardio-cerebrs disease. ④ The deceased’s excessive work hours for three months prior to the death exceed 30 hours per month during the death, and thus, the deceased’s rapid causal relation and stress occurred between the deceased’s injury and stress during the process of performing his/her duty should be seen as rapidly aggravated and above the deceased’s death.

Therefore, the deceased constitutes a "accident of death in a disaster" as provided by the Veterans Compensation Act, and the defendant's non-determination of the criteria for a person eligible for veteran's compensation that caused the conclusion is unlawful.

2) Determination on the disposition that rendered non-conforming to the requirements of the person rendering distinguished services to the State

"A soldier or policeman who died on duty under the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (hereinafter referred to as the "Act on the Honorable Treatment and Support of Persons, etc.") refers to a soldier (including a person who died of a disease) who died on duty directly related to the protection and security of the State or the protection of the lives and property of the people (Article 4 (1) 5 of the Act on the Persons, etc. of Distinguished Services to the State), or a soldier who was directly related to the protection and security of the State or the protection of the lives and property of the people" (including civilian employees in the military), and the soldier's duty of care, search, seizure, transportation and management of munitions, such as handling of dangerous goods, such as chemical, biological, radiological, ammunition, explosives, and oil, transporting weapons of mass destruction (MD), investigation and judgment of a military crime, inspection, operation of accident at the time of a disaster, rescue and diving, handling of harmful materials such as chemical, etc., 3.1. of the Enforcement Decree of the Act on the Persons of Distinguished Services to the State

As determined earlier, even if a proximate causal relationship is recognized between the deceased’s death and the performance of his duties, it is difficult to view that the cause of aggravation of cardio-cerebral disease to the deceased was caused by the work in charge of the deceased, including the preparation for transfer and taking-out meals, the management of interested non-commissioned officers, etc., and that the above work is directly related to the protection of the national defense and security or the protection of the people’s lives and property, there is no evidence to support the deceased’s death due to the performance of duties or education and training directly related to the national defense and security or the protection of the people’s lives and property. Accordingly, the deceased cannot be deemed to fall under “the soldier or policeman on duty” under the Act on Persons of Distinguished Services to the State, and thus, the disposition that did not meet the requirements for the performance of the State in this

3. Conclusion

Therefore, the defendant's disposition of this case which did not correspond to the defendant's compensation requirement should be revoked in an unlawful manner. Thus, the plaintiff's claim for this part of this case is justified, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges

Kim Dong-dong (Presiding Judge)

immigration;

T. T.T.T.

Site of separate sheet

Related Acts and subordinate statutes

▣ 국가유공자 등 예우 및 지원에 관한 법률

Article 4 (Persons of Distinguished Service to State)

(1) Persons who have rendered distinguished services to the State, their bereaved family members or their family members (including persons provided for in other Acts to receive honorable treatment, etc. provided for in this Act) falling under any of the following subparagraphs shall be entitled to honorable treatment under this Act:

5. Soldiers or police officers killed in the line of duty: Military personnel, police officers, or fire-fighting officers of the State's defense, security, or lives of the people;

A person who died of a duty or during education and training directly related to the protection of property (a person who died of a disease);

(including)

Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service

Article 3 (Standards and Scope of Requirements for Persons of Distinguished Services to State)

(1) The standards and scope of persons who have rendered distinguished services to the State under Article 4 (2) of the Act shall be as follows:

3. Persons falling under Article 4 (1) 5 and 14 of the Act: Any of the persons referred to in subparagraph 2-1 through 2-8 of attached Table 1.

applicable deceased persons

[Attachment 1] Criteria and scope of persons of distinguished service to the State

2. Performance of duties directly related to the defense and security of the State or the protection of the lives and property of the people.

(b) A person killed or wounded during education and training (the protection and security of the State or the life of the people).

illness due to the performance of duties or education and training directly related to property protection;

(including a person who died of or died of such disease)

A person shall be appointed.

Act on Support for Persons Eligible for Veteran’s Compensation

Article 2 (Persons Eligible for Veteran's Compensation)

(1) Any of the following persons eligible for veteran's compensation and his/her bereaved family members or family members (including persons specified by other Acts as eligible for assistance under this Act) shall be eligible for assistance under this Act:

1. Military police officers killed in a disaster: Military personnel, police officers, or fire-fighting officers of the State's defense and security or the lives and property of citizens;

A person who died in the performance of duties or during education and training not directly related to protection (including a person who died of disease);

(2)

(2) Detailed criteria for determining whether a person meets the requirements for persons eligible for veteran's compensation and the scope of such persons shall be prescribed by Presidential Decree, considering the following matters comprehensively:

1. Relevant degree of duties or education and training, and national defense and security, or national life and property protection;

2. Circumstances where he/she was killed or wounded (including a disease), and the existence and degree of his/her negligence;

Enforcement Decree of the Act on Support for Persons Eligible for Veteran’s Compensation

Article 2 (Criteria and Scope of Requirements for Persons Eligible for Veteran's Compensation)

(1) The criteria for and scope of persons eligible for veteran's compensation under Article 2 (2) of the Act on Support for Persons Eligible for Veteran's Compensation (hereinafter referred to as the "Act") shall be as follows:

1. Persons falling under Article 2 (1) 1 or 2 of the Act: Any of subparagraphs 1 through 15 of attached Table 1;

dead or wounded person

(2) In order to medically determine that the occurrence or aggravation of the relevant disease has a substantial causal relationship with the performance of duties or education and training pursuant to subparagraph 11 of attached Table 1, the following records, matters, etc. shall be comprehensively considered:

1. Medical certificates, death certificates, certificates, clinical dogs, and medical records under Article 17, 21, or 22 of the Medical Service Act;

Record of nursing or nursing, and other records prescribed by Ordinance of the Prime Minister related to medical treatment under medical service-related statutes.

2. Environment, period of service, nature of duties, and circumstances at the time of performance of duties;

3. Whether the relevant deceased person or a person suffering from a disease had an existing disease.

(3) The criteria and scope of persons eligible for veteran's compensation for major diseases and major diseases specified in subparagraph 11 of attached Table 1 shall be prescribed by Ordinance of the Prime Minister.

[Attachment 1] Criteria and scope of persons eligible for veteran's compensation

A person shall be appointed.

C. Enforcement Regulations of the Act on Supporting Persons Eligible for Veteran’s Compensation

Article 4 (Medical Diseases Related to Performance of Duties or Education and Training)

(2) The general criteria for determining the requirements for persons eligible for veteran's compensation for a major disease and a disease defined in subparagraph 11 of attached Table 1 of the Decree shall be as specified in attached Table

[Attachment Table 1] Criteria and scope of persons eligible for veteran's compensation for each major disease

2. cerebrovascular diseases and heart diseases;

A case where it is medically determined or recognized that the brain-resistant fladism, prop-free fladism, brain fladism, or serious fladism has occurred or has significantly deteriorated due to any of the following causes in connection with the performance of duties or education and training:

(a) Where a significant physiological change occurs in the business environment due to a sudden change in the degree of unexpected and unpredictable business environment;

(b) the short-term period prior to the occurrence of changes, etc. in the quantity, time, intensity, responsibility and duty environment of performance of duties or education and training;

A significant impact on the normal functions of brain-dead or cardio-cerebrovascular due to an increase in the burden of internal duties;

In cases of causing physical or mental fruits;

(c) chronicly considering the quantity, time, strength, responsibility, changes in the occupational environment, etc. of performance of duties or education and training;

A person who may have a significant impact on the normal functions of brain-dead or cardio-cerebrovascular due to an excessive performance of duties.

When physical or mental burden has been caused. Finally, it is not possible to impose physical or mental burden.

참조조문

-국가유공자 등 예우 및 지원에 관한 법률

-국가유공자 등 예우 및 지원에 관한 법률 제4조 제1항 제5호

-국가유공자 등 예우 및 지원에 관한 법률 시행령

-국가유공자 등 예우 및 지원에 관한 법률 시행령 제3조 제1항 제3호

-보훈보상대상자 지원에 관한 법률

-보훈보상대상자 지원에 관한 법률 제2조 제1항 제1호

-보훈보상대상자 지원에 관한 법률 제2조 제2항

-보훈보상대상자 지원에 관한 법률 시행규칙

-보훈보상대상자 지원에 관한 법률 시행령