(영문) 서울고등법원 2013.2.7. 선고 2012누10644 판결

2. The decision that the Defendant rendered against the Plaintiff on December 11, 2009 that the Defendant did not have the right to receive a disability pension shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. From October 1, 200, the Plaintiff was a person who joined the National Pension Scheme, and around November 20, 2009, claimed that the Defendant had a respiratory disability and claimed a disability pension payment.

B. On December 11, 2009, the Defendant rendered a decision on the Plaintiff’s failure to receive a disability pension on the ground that “the above disability is not a disease that occurred during the subscription of the National Pension Service” (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Eul evidence No. 1, Eul evidence No. 2-1, Eul evidence No. 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff was diagnosed with pulmonary tuberculosis in the past, the Plaintiff was completely cured, and was suffering from a serious health problem. After joining the National Pension Scheme, the pulmonary tuberculosis and chronic pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmon

(b) Fact of recognition;

1) The Plaintiff’s medical history

A) The contents stated in the medical record for the Plaintiff are as follows.

O B Hospital

- On June 27, 1991: The appeal that the Plaintiff had a respiratory disorder since one year prior to the radiation reading activity cannot be confirmed, but the view of pulmonary tuberculosis in both sides is visible, and the function of the pulmonary function has been deteriorated as a result of the examination of the pulmonary function.

- As of June 28, 1991: Institutional Geocheon-style (R/OBA: Brronthma)

- On November 1, 1993, 10.10 : A woman and a doctor of a acid sought opinions from the Plaintiff on November 11, 1993 on the king and the method of anesthesia taking into account abnormal pulmonary function and the ability of pulmonary tuberculosis diseases; a reply that the anesthesia and the doctor will be able to conduct spinal anesthesia, not general pulmonary anesthesia.

- With respect to vertebrate, 11 November 1993: Child birth to the king dog after spine anesthesia;

○ Public Health Center in Mag-si

On May 27, 1997, and May 25, 1997: The voice as a result of the examination of tuberculosis germs.

○ Medical record of April 8, 2008 at the Chungcheongnamnam University Hospital.

20 years ago after being diagnosed with Tuberculosis (Pul. TBC) and being judged as completely cured after being treated as a pharmacologic.

○○ Hospital’s medical records on January 15, 2009

20 years ago chronic closed diseases (COD) received treatment from D Hospital;

B) At the time of the examination of severe disability under the Act on Welfare of Persons with Disabilities, the term “Bals Ba prepared and submitted by the Plaintiff” includes that the Plaintiff had continuously been diagnosed of pulmonary tuberculosis in 1975, and that there was a lack of respiratory disorder caused by her schina from her schina to her schina around November 11, 1993.

C) According to the details of health insurance benefits issued by the National Health Insurance Corporation and the details of personal benefits for beneficiaries, the Plaintiff did not receive health insurance benefits or medical benefits due to pulmonary tuberculosis or chronic closed-pulmonary diseases between November 11, 1993 and April 8, 2008, by the time the Plaintiff started medical treatment of pulmonary pulmonary shields in the hospital of Chungcheong National University from November 11, 1993.

D) Since April 8, 2008, the Plaintiff received treatment for the difficulty in respiratory, etc. at the Chungcheongnamnam University Hospital, and on November 20, 2009, received a disability diagnosis from the above hospital that “pulmonary tuberculosis (B90.9) and chronic closed disease (J44.9)” and that the Plaintiff constitutes class 2 of the respiratory disability.

(ii) medical opinions

A) Defendant’s advice

Considering the fact that the medical records on April 8, 2008 at the Chungcheongnam-nam University Hospital received a diagnosis of pulmonary tuberculosis prior to 20 years, the progress of treatment and the degree of proof of video medical records, the Plaintiff’s pulmonary tuberculosis was generated prior to joining the National Pension Scheme.

(b)the advice on the request for review;

The Plaintiff’s respiratory difficulty is determined to have been caused by a chronic closed disease (the chronic or chronic pulmonary disease) and a pulmonary tuberculosis after pulmonary tuberculosis. The Plaintiff’s pulmonary tuberculosis is presumed to have occurred before being admitted to the National Pension Scheme. The Plaintiff’s pulmonary tuberculosis is presumed to have occurred before being admitted to the National Pension Scheme. The Plaintiff’s pulmonary tuberculosis is presumed to have occurred before being admitted to the National Pension Scheme, suspected of an institutional tent awareness in the medical records of B Hospital prepared in 191, there was a decline in the pulmonary function in the pulmonary function examination, and the Plaintiff also stated that there was a her chronic s

[Reasons for Recognition] In the absence of dispute, Gap evidence Nos. 1, Eul evidence Nos. 2-1, 2, Eul evidence Nos. 3, 6, Eul evidence Nos. 7-1, 2, Eul evidence Nos. 8-10, and each fact inquiry results with respect to the light market and the National Pension Service, the purport of the whole pleadings.

C. Relevant statutes

Attached Form is as shown in the attached Form.

D. Determination

1) Article 67(1) of the National Pension Act (wholly amended by Act No. 8541, Jul. 23, 2007; hereinafter “National Pension Act”) provides that “A disability pension shall be paid to a person who has a physical or mental disability even after he/she completely recovers from a disease that occurred during the subscription period (including where the first diagnosis date of the disease is currently being subscribed for and it was unaware of the fact that the disease occurred at the time of subscription) or injury.” Thus, even if the disease occurred before subscription to the National Pension, even if the first diagnosis date of the disease is in subscription period and the insured was unaware of the fact that the disease occurred at the time of subscription, a disability pension may be paid because the disease occurred during subscription period.” Meanwhile, Article 1 of the Addenda of the National Pension Act provides that “This Act shall enter into force from the date of its promulgation,” Article 36(1) provides that “Article 67(1) of the Addenda of the former National Pension Act shall, notwithstanding the provision of Article 67(1), be amended.”

2) "Initial date" under the National Pension Act refers to the starting date of medical treatment for a direct disease that causes a physical or mental disability, and it is reasonable to interpret that the starting date of medical treatment for a disease that causes the above disability or the starting date of medical treatment for a normal life under reasonable treatment for the previous disease, and that where a disease that causes the physical disability occurs thereafter, it does not mean the starting date of medical treatment (see, e.g., Supreme Court Decision 91Nu2205, Nov. 26, 191).

According to the above facts, the disease that is close to the result of the physical disability of this case and directly caused the second disability shall be considered as pulmonary tuberculosis and chronic pulmonary pulmonary disease. Thus, the first diagnosis date of this case shall be deemed to be April 8, 2008, which is the starting date of treatment for each of the above diseases. Although pulmonary tuberculosis, which is already completed treatment, has a causal relationship with the disease which is medically repeated, the diagnosis date of the previous disease shall not be deemed to be the first diagnosis date stipulated in the current National Pension Act. Furthermore, in light of the fact that the plaintiff was receiving medical treatment from April 8, 2008 as pulmonary tuberculosis, which is the cause of the pulmonary disability, and the chronic pulmonary tuberculosis, which is the cause of the pulmonary disability, except whether the pulmonary tuberculosis was completely cured before July 23, 2007, which is the effective date of the current National Pension Act, it cannot be deemed that the pulmonary tuberculosis and the chronic pulmonary disease have been completely cured.

3) Since the Plaintiff’s pulmonary tuberculosis and chronic closed-pulmonary disease were completely cured before July 23, 2007, the enforcement date of the National Pension Act, or two years have passed since the first diagnosis date, Article 58(1) of the former National Pension Act, which is the previous provision, cannot be applied to the instant case, and the amended provisions of Article 67(1) of the current National Pension Act should be applied.

4) The meaning of the "disease or injury" under Article 67 (1) of the National Pension Act should be deemed to mean that the disease or injury caused by the disability should occur during the period of the national pension coverage when determining medical or objectively (see Supreme Court Decision 2005Du16918, Jul. 28, 2006). Therefore, as seen earlier, in light of the fact that the Plaintiff did not undergo a medical examination and treatment for the pulmonary disease since 1993, and that the Plaintiff began to receive a voice examination in 196 and 1997, after receiving a voice examination and treatment for the pulmonary disease, the pulmonary tuberculosis, which was the cause of the pulmonary disability in the instant case, should be deemed to have occurred during the period of the national pension coverage.

5) Ultimately, the Plaintiff is entitled to receive a disability pension pursuant to the amended provisions of Article 67(1) of the National Pension Act.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by the defendant to cancel the disposition of this case and cancel it.