2020Nu2326 Disposition of revocation of enlistment in active duty service.

A

Attorney Lee Jae-soo, Counsel for the plaintiff-appellant

OOO director general of the regional military manpower office

Litigation Performers ○○

Daegu District Court Decision 2019Guhap23632 Decided January 15, 2020

July 17, 2020

August 11, 2020

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. The Defendant’s disposition of military service subject to enlistment in active duty service, which the Plaintiff rendered on July 4, 2019, shall be revoked. 2. The purport of the appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The following facts may be acknowledged by the parties to a dispute or by their respective descriptions of Gap evidence Nos. 1, 2, and Eul evidence Nos. 1 through 5, 7, and 8 (including the branch numbers, if not specially indicated; hereinafter the same shall apply) and by the purport of the whole pleadings, and no counter-proof exists:

A. On November 20, 2007 and November 21, 2012, the Plaintiff was determined as physical grade 2 (Grade II, Grade II, and Grade II) in the draft physical examination and the follow-up draft physical examination, and was subject to military service disposition from the Defendant for those in active duty service, but was determined as postponement of enlistment on the ground of university restructuring.

B. On March 7, 2014, the Plaintiff was incorporated into a medical officer candidate (the training institution: the Sungsan branch of B University C Hospital and the training period: from February 2014 to February 2019), and the Defendant issued a notice of enlistment of the medical officer candidate (the date of enlistment: March 8, 2019) to the Plaintiff at the time of the completion of the training period. On February 13, 2019, the Plaintiff filed an application for change of the disposition of military service on the ground that “the military officer candidate was included in the military officer candidate candidate candidate candidate candidate candidate candidate candidate candidate candidate candidate candidate candidate candidate candidate candidate candidate candidate candidate candidate candidate (the date of enlistment: March 8, 2019).”

D. On July 4, 2019, the defendant postponed the date of enlistment of the plaintiff, while the director of the central physical examination office rendered a judgment that "the plaintiff constitutes an extra-presidential type which is set forth in attached Table 3 [Attachment Table 3] No. 183 (b) [Attachment 3] of the Rules on Inspection, such as Physical Examination for the Military Service (hereinafter "Rules on Physical Examination for the Military Service"), following the physical examination of the plaintiff and the deliberation by the central physical examination committee on two occasions."

On the same day, a military service disposition of a person subject to enlistment in active duty service (hereinafter referred to as "instant disposition") was rendered to the Plaintiff to reject the above application for change of military service disposition

E. The statutes related to the disposition of this case are as shown in the attached Form 2.

2. The plaintiff's assertion

The plaintiff suffered difficulties in daily life or physical exercise due to lectures on the part of the second balance of revenues and expenditures, and such disabilities constitute a case where the fingers and part of the physical grade 5 of attached Table 3 of the Military Service Physical Examination Rules (attached Table 3) is located due to the reasons of Grade 5 of the physical grade 194.

Nevertheless, the Defendant merely excluded the Plaintiff from applying subparagraph 183 of the Regulations on the Physical Examination for Military Service solely on the ground that the Plaintiff’s grandchildren constituted a congenital disability, and applied only subparagraph 183 to the Plaintiff, thereby rendering the disposition of military service subject to enlistment in active duty service. Therefore, the instant disposition should be revoked in an unlawful manner.

3. Determination

A. The contents and interpretation of attached Table 3 of the Regulations on the Physical Examination for Military Service

1) Article 11(1) and [Attachment 3] of the Military Service Act provides for the criteria for evaluation of illness or mental or physical disorder of a person subject to a physical examination as delegated by Article 12(1) and (4) of the Military Service Act. Among them, Article 11(1) and [Attachment 3] provides for the criteria for evaluation of physical disability of a person subject to a physical examination. Of them, the term "man's length of fingers and fingers" (see subparagraph 1 of Article 194(a) and 194(b) or the term "one fingers and fingers (see subparagraph 1 of Article 194(b))" provides for physical grade 5.

However, Article 194 on the water balance swap does not stipulate any provision on the concept of ‘Gradity', unlike Article 192 or 193 on the water balance sheet (which is located from the floor of the second part which constitutes the fingers) with respect to the water balance sheet (which is close to the floor of the second part which constitutes the fingers), so the specific meaning and scope cannot depend on the interpretation, and it must meet social and normative standards in that it is a professional fishing in the medical field, as well as (necessary conditions), in that it is used as the criteria for the assessment of the disposition of military service (the conditions of loyalty).

2) Comprehensively taking account of the following circumstances, the meaning and scope of 'galary duty' under the subparagraphs 194 of the Regulations on the Physical Examination for Military Service (Attached Table 3) is reasonable to deem that even if the level of his/her assignment does not reach 1/3 or less of the scope of his/her movement as a result of the 'galary examination,' which is based on the nearest part of No. 192 or the deep part of No. 193, the scope of his/her assignment is difficult to normally perform the duty of military service on the ground of the existence of the state of his/her assignment recognized in medical aspect.

① The rules of the physical examination for military service stipulate that “where the scope of movement by a passive examination does not exceed 1/3 of normal conditions in the past part of the past part of the past part of the past part of the military service area, the scope of movement shall be regarded as demotion (see attached Table 2).” However, the above detailed rules were extended to the original part of the police through partial revision on October 19, 2015 (see attached Table 3), but no detailed rules are still provided for in [Attachment Table 3] subparag. 192 of the Ministry of National Defense (see attached Table 3]. In light of the above amendment process, the concept of demotion in the part of the balance of revenues and expenditures cannot be separately provided for in [Attachment Table 3] Section 194, considering that the concept of demotion is not erroneous or omitted in legislation, but it cannot be applied to the original part of the balance of the military service area as a result of a policy decision.

② Although the Military Service Rule [Attachment 3] No. 194 does not explicitly stipulate the concept of demotion, considering that the original purpose of the Regulation is to select persons who are suitable for performing the duty of military service by type under Article 5 of the Military Service Act by classifying the degree of illness or physical and mental difficulties of the persons subject to physical examination into classes 1 through 7, and to select those who are suitable for performing the duty of military service by type under Article 5 of the Military Service Act, and that subparagraphs 192 and 193 specifically stipulate the scope of demotion in relation to the collection and balance of the revenues and expenditures, the meaning and scope of ‘career' prescribed in subparagraph 194 can be specified through interpretation.

③ As a pipe connecting fingers with fingers and fingers, it not only serves as the basis for determining the ability of the entire fingers, but also serves as an essential part of the act of piling or carrying out miscellaneous activities with hand an object, the ratio occupied in the physical function is much higher than that of the nearbys or the diameters. In the case where there is a transition position in a water area, excluding the land where the beerline table is located, the ratio of the disability of the beer part section 25%, 35%, and the ratio of the disability of the beer part section 45%, and the ratio of the disability of the beer part section 45%, respectively, are set in such ratio of the functional part of the watershed part.

Considering the nature of it, we seem to have taken into account (Mabrodrid Table 14 - Dublodon - Madon (other than unclaimed) - I. B. N. T. T. T. T. T. T. T. T. H. T. T. H. T. T. T. H. T. T. T. T.

④ As long as the function or role of the head of a balance sheet is deemed more important than that of a balance sheet and a balance sheet, if there is a restriction on the exercise ability to normally perform the duty of military service in the pertinent physical grade due to the demotion of the head of a balance sheet, even though the degree of such restriction is not lower than that of a balance sheet provided for in Articles 192 and 193 of the Military Service and Physical Examination Regulations, it may be recognized as a "degree of class" provided for in the head of a balance sheet in 194 even if the degree of restriction is not sufficiently lower than that of a balance sheet.

(b) Fact of recognition;

The following facts are either in dispute between the parties or in accordance with Gap evidence 3, Eul evidence 9, the results of the entrustment to the D University E Hospital by the court of first instance, and the purport of the whole pleadings, and there is no counter-proof.

A) On February 7, 2019, the Plaintiff was diagnosed as 'the restriction on the exercise of a scopical scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopics’ at G Hospital on February 18, 2019.’

B) On May 1, 2019, the Plaintiff was diagnosed as 's second half tier steel in the bilateral side'. On May 8, 2019, 'J Hospital's diagnosis as 's second half tier steel in the bilateral part', 'the second part of the balance of the J Hospital', and 'the second part of the balance of the K Hospital' at K Hospital on May 14, 2019, 'the second part of the balance of the congenital 2019.' The Plaintiff was diagnosed as 'the second half el in the both hands.' The Plaintiff was changed into 30 degrees of the second half el in the two hand, and the second son was limited to 30 degrees of the upper half son, the left 45 degrees in the upper part, and the second 0 degrees in the new mal.', it is difficult to expect that the Plaintiff's daily life movement and the first mal part of the J Hospital will be implemented in a normal state.

C) According to the result of the first instance court’s entrustment of appraisal to D University E Hospital, the Plaintiff’s 2 balance of revenues and expenditures was measured respectively at 0-30 degrees in the dynamic test, and at 0-35 degrees in the rehabilitation department (the normal scope is 0-90 degrees in the dynamic test, and the appraiser explained that the degree of the result of the measurement at 0-90 degrees in the dynamic test is 5 degrees in the dynamic surgery and the rehabilitation medical department is 5 degrees in the dynamic test).

(c)review;

According to the above facts, it is acknowledged that the plaintiff's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son.

Therefore, notwithstanding the fact that the military service disposition of a person to be enlisted in active service should be changed in accordance with Article 194 (a) 1 of the Military Service Regulations, since the plaintiff was demoted to the second balance of the second balance of the revenues and expenses, it is unlawful for the defendant to refuse the plaintiff's application by deeming that the plaintiff's physical grade of the plaintiff was below this level. Therefore, the disposition of this case should be revoked, and the plaintiff's assertion is reasonable. [In the event that the plaintiff determined that the plaintiff's physical grade 5 under subparagraph 1 (a) of Article 194 due to the strong position of the second balance of the revenues and expenses of the second balance of the expenses and expenses of the second balance of the expenses and the second balance of the expenses and the second grade of the expenses and expenses of the second degree of the expenses and expenses of the second degree of the expenses and the second degree of the expenses and expenses of the second degree of the expenses and whether the plaintiff's physical grade 5 (b) falls under the physical grade 5 (b) is not determined].

D. Judgment on the defendant's assertion

1) Exclusive application of Regulations on Physical Examination for Military Service [Attachment 3] 183

A) Defendant’s assertion

In light of the reasons and symptoms, the congenital disease can be classified into a congenital, trauma, telegraphic, and chromatic disease. The Military Service Regulations [Attachment Table 3] provides for a comprehensive criteria for determination as to overall congenital disease under subparagraph 183 (congenital type). Since subparagraph 6 (self-deficiency disease), and subparagraph 182 (s) separately provide criteria for assessment as to overall congenital and chromatic disease under subparagraph 194 (s) and subparagraph 194 (s) of the Regulations on the Physical Examination for Military Service, it should be noted that only the congenital disease is applicable. However, since the Plaintiff’s kylmatic disease constitutes a congenital disease, it is only applicable to subparagraph 183 of the attached Table 3, and it cannot be applicable to subparagraph 194 of the subsequent congenital disease.

B)Review

Comprehensively taking account of the following circumstances, Article 194 of the Regulations on the Physical Examination for Military Service (Attached Table 3) is subject only to the astronomical diseases, disorders, or congenital diseases and disorders, and only subparagraph 183 is applicable exclusively, and subparagraph 194 is not subject to the application. Accordingly, the defendant's above assertion cannot be accepted.

(1) Article 194 of the Regulations on the Physical Examination for Military Service only provides that "in the case of fingers and fingers, it is inconsistent with the meaning of the language and text that reduces the number of hands-off by astronomical causes."

(2) The Regulations on the Physical Examination for Military Service [Attached Table 3] shall expressly state the requirements for distinguishing the causes of illness or disability, as seen in No. 260 (congenital or chronic chronological chronology), 268 (Operation for Mental Disease).

③ Article 183 of the Regulations on the Physical Examination for Military Service (Attached Table 3) provides for a typical disability level in the field of emotional distress, such as scam and scams, scams, scams, scams, scams, and prone, and it is difficult to view that a congenital organ type, including fingers, is all exposed to such special parts as fingers.

④ As alleged by the Defendant, even if Subparag. 183 of the Regulations on the Physical Examination for Military Service [Attachment 3] falls under the general and comprehensive criteria for assessment of congenital styles in the area other than the fixed one, insofar as the provisions of Articles 192, 193, and 194 specifically stipulate separate criteria for assessment of fingers and fingers and fingers and 194, it is in accord with the purport or system of the above provision that Subparag. 194 is applied preferentially or at least subparagraph 183 and 194 are applied in cases where fingers and fingers and fingers are included in the prescribed in subparagraph 194.

6) If there is no room for the application of Nos. 192, 193, and 194 with respect to fingers and fingers by exclusively applying Nos. 183 of the Regulations on the Physical Examination for Military Service for all congenital disorders, a fair and accurate determination may not be made because it disregards part of the disability with respect to a person who is a physical examination who has a congenitally and simultaneously the disability of the father and the fingers and fingers.

2) Failure to meet the requirements under [Attachment 3] 194 of the Regulations on Physical Examination for Military Service

A) Defendant’s assertion

(1) Article 194 of the Regulations on the Physical Examination for Military Service [Attachment 3] does not provide for detailed provisions on the scope of demotion as set forth in 192 or 193, so the term “nicker’s occupation” means only the complete occupation and does not include the partial demotion.

(2) Even if the concept of ‘Given class No. 194' includes not only the complete lecture but also the partial lecture, considering the purport that No. 192 or No. 193 regulates the reckless expansion of the concept by providing detailed provisions on the scope of the demotion, the ‘Given class’ of No. 194 is also limited to the case where the scope of the movement following the passive examination is less than 1/3 of the normal conditions, just like the ‘Given class’ of No. 192 or No. 193.

(3) However, the Plaintiff’s second balance of revenues and expenditures does not correspond to the complete lectures but to the partial lectures or construction, and the movement scope also exceeds 1/30 of 0-90 degrees, which is the normal exercise scope, as a result of a passive examination, as the result of the passive examination exceeds 1/30 degrees from the dynamics and 0-35 degrees, which are the normal exercise scope. Thus, the Plaintiff’s disability falls short of the “Grain” standard as stipulated in subparagraph 194, and therefore, subparagraph 194 cannot be applied.

B)Review

(1) Since Article 194 of the Regulations on the Physical Examination for Military Service only provides for the term "ad hocment", there is no ground to interpret that the term "ad hocment for the full term and the exclusion of part-time demotion" is limited. The chief of the Central Physical Examination Office generally expresses his opinion that the establishment, ad hocment, and ad hocment are used in combination.

(2) The fact that there is no detailed provision regarding the concept of demotion in attached Table 3] 194 is reflected by the person who has the authority to enact the rules, and thus, it is not possible to apply or apply mutatis mutandis the detailed provision concerning the method and scope of the measurement of the demotion, which is stipulated in subparagraph 192 or 193, as to the part of the part of the party and the part of the original part.

(3) Therefore, any of the Defendant’s above arguments cannot be accepted on a different premise.

4. Conclusion

Thus, the plaintiff's claim shall be accepted with the reasons, and the judgment of the court of first instance shall be justified with the conclusion, and the defendant's appeal shall be dismissed as it is without merit.

Justices Kim Jae-han

Judge Gyeong-man

Judges Soh Hospital