2014Nu54822. Revocation of a decision that falls under the requirements for persons of distinguished service to the State

A

The Head of the Seoul Southern Veterans Branch Office

Seoul Administrative Court Decision 2013Gudan2931 decided June 12, 2014

December 11, 2014

January 8, 2015

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition rejecting persons who rendered distinguished services to the State on December 12, 2012 is revoked.

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

The same shall apply to the order.

1. Facts of recognition;

(a) Service and injury to riot police units;

1) After having enlisted in active duty service on March 11, 191, the Plaintiff was transferred to a riot police unit that provides assistance to the public security as a special exception to the active duty service pursuant to Article 5(2) of the former Act on the Regulation of Special Cases of the Military Service (amended by Act No. 4369 of May 31, 1991) and Article 2-3(2) and Article 3(2) of the former Act on the Establishment of combat Police Units (amended by Act No. 4369 of May 31, 1991), and served as a riot police unit from around that time.

◆ 구 「병역의무의 특례규제에 관한 법률」 (1991. 5, 31. 법률 제4369호로 개정되기 전의 것)○ 제5조(전투경찰대원으로의 전임)② 국방부장관은 내무부장관으로부터 전투경찰대설치법 제3조 제2항 및 제3항의 규정에 의하여 치안업무의 보조를 임무로 하는 전투경찰순경임용예정자와 경찰대학졸업예정자로서 전투경찰대에 복무할 자를 추천받은 때에는 이들을 현역병지원자로보고 본적지 지방병무청장 또는 병무지청장으로 하여금 입영하게 하여 소정의 군사교육을 마친 후 전임시킬 수 있다.③ 제1항 및 제2항의 규정에 의한 전임기간은 현역병의 복무기간을 마칠 때까지로하며, 전임기간을 마친 때에는 현역복무를 마친 것으로 보아 전임을 해제하고 예비역에 편입한다.◆ 구 「전투경찰대 설치법」(1991. 5. 31. 법률 제4369호로 개정되기 전의 것)○ 제2조의3(전투경찰순경의 임용 및 전임된 경찰대학졸업자의 전투경찰대 복무)

(2) Members of the riot police units whose duties are to assist in the security affairs shall be appointed from among those transferred under Article 5(2) of the Act on the Special Regulation of Military Service. ○○ (Request and Recommendation for Persons subject to Transition), ② Persons to be appointed as riot policemen whose duties are to assist in the security affairs to be transferred under Article 5(2) of the Act on the Special Regulation of Military Service shall be recommended by the Minister of Home Affairs from among persons aged 18 or older (excluding those whose duties are determined as active servicemen), as prescribed by the Presidential Decree.

2) At around 17:00 on May 31, 1992, the Plaintiff, as a member of the combat police force of the Seoul Metropolitan Police Agency, was discharged on June 10, 1992 from the South-west-ro, Seoul, the South-west-ro, where the members of the Council of the Representative of Students of the Republic of Korea were performing their duties to prevent the entry into the luminous language of the costs of the demonstration that was the main axis, at the cost of the demonstration’s price return to the left-hand pipe, and sustained an injury from the high-frequency and the skin stimulsing down in the left-hand line. On the same day, the Plaintiff was hospitalized at the police hospital on the same day by opening a high-speed cloak on the left-hand left-hand side of June 1, 1992.

3) On October 28, 1993, the Plaintiff retired from office upon the expiration of the service period.

4) On June 8, 2012, the Plaintiff was diagnosed by the police hospital that the return to the left-hand side chilled.

(b) Application for and refusal of registration of persons rendering distinguished services;

1) On June 19, 2012, the Plaintiff, as a member of the combat police police unit, sustained the left-hand high-tension or blood transfusion while performing his/her official duty, and caused the decline on the left-hand side, and thus, it should be deemed that the Plaintiff caused the decline on the left-hand side due to the performance of official duties. The Plaintiff filed an application for registration with the Defendant pursuant to Article 8(1) of the former Act on the Establishment of combat Police Units (Amended by Act No. 11042, Sept. 15, 2011; Act No. 25695, Nov. 4, 2014); Article 56(1), (3), and (4) of the former Enforcement Decree of the Establishment of combat Police Units Act (Amended by Presidential Decree No. 25695, Nov. 4, 2014); Article 16(1)6(1) of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State.

◆ 구 「전투경찰대 설치법」 (2011. 9. 15, 법률 제11042호로 개정되어 2012. 7.1. 시행되기 전의 것)○ 제8조(보상 및 치료)① 전투경찰대의 대원으로서 전투 또는 공무수행 중 부상을 입고 퇴직한 사람과 사망(괄호 부분 생략)한 사람의 유족은 대통령령으로 정하는 바에 따라 「국가유공자등 예우 및 지원에 관한 법률」에 따른 보상 대상자로 한다.◆ 구 「전투경찰대 설치법 시행령」 (2014. 11. 4. 대통령령 제25695호로 개정되기전의 것)○ 제56조(보상)① 법 제8조 제1항에서 "상이를 입고 퇴직한 자"라 함은 상이정도가 예우법시행령제14조 제1항의 규정에 의한 장애에 해당하는 심신의 장애를 입고 퇴직하거나 면직된 자를 말한다.③ 제1항에 해당하는 자는 예우법 제4조 제4호 및 제6호에 규정된 전상군경 또는공상군경으로 보고, 제2항에 해당하는 자는 예우법 제4조 제3호 및 제5호에 규정된전몰군경 또는 순직군경의 유족으로 보아 동법에 의한 보상을 실시한다.

④ 제3항의 보상을 받고자 하는 자는 예우법시행령 제8조의 규정에 의한 국가유공자와 그 유족 또는 가족으로 등록을 하여야 한다.◆ 구 「국가유공자 등 예우 및 지원에 관한 법률」(2011. 9. 15. 법률 제11041 호로 개정되어 2012. 7. 1. 시행되기 전의 것)○ 제4조(적용 대상 국가유공자)① 다음 각 호의 어느 하나에 해당하는 국가유공자와 그 유족 등(괄호 부분 생략)은이 법에 따른 예우를 받는다.6. 공상군경 : 군인이나 경찰·소방 공무원으로서 교육훈련 또는 직무수행 중 상이(공무상의 질병을 포함한다)를 입고 전역하거나 퇴직한 자로서 그 상이정도가 국가보훈처장이 실시하는 신체검사에서 제6조의4에 따른 상이등급에 해당하는 신체의장애를 입은 것으로 판정된 자○ 제6조(등록 및 결정)① 국가유공자, 그 유족 또는 가족, 제73조의2에 해당하는 자가 되려는 자는 대통령령으로 정하는 바에 따라 국가보훈처장에게 등록을 신청하여야 한다.

2) On December 12, 2012, the Defendant rejected the registration of a person who rendered distinguished services to the State on the ground that the Plaintiff’s performance of official duties cannot be deemed to have chilled on the left-hand side due to chilling on the left-hand side while performing official duties (hereinafter “instant disposition”). As such, the Defendant rejected the registration of a person who rendered distinguished services to the State on the ground that the Plaintiff cannot be deemed to have chilled on the left-hand side due to official duties.

(c) Opinions of experts;

(i) Macheon University Seoul Hospital (AD medical specialist in urology);

The Seoul Hospital of the Macheon National University which appraised the cause of the decline on the left side of the plaintiff due to the entrustment of appraisal by the court of first instance, presented the following opinions:

(1) A high-pollution may be caused by post-damage damage to high exchange, after-treatment of high exchange infection, legacy in the current account, beer, congenital disorder, etc.

② As the degree of damage to high exchange based on the price is so severe that the above subsequent legacy is high, it is difficult to measure the degree of damage to high exchange as of May 31, 1992.

③ Inasmuch as the Plaintiff’s chilling cannot occur due to electric power plant infections and luminous diseases, it is reasonable to presume that the Plaintiff’s chilling of high refund by injury on May 31, 192 is reasonable in light of the circumstances.

(ii) Dental Modymology hospital (A medical specialist in urology)

In accordance with the request for appraisal by the court of first instance, the Korean Forest University Gangwon-do Hospital which has appraised the cause of the decline of the plaintiff's refund on the left-hand side has presented the following opinions:

① The Plaintiff’s right-hand turn back is 20cc, and the left-hand turn back is 10cc or more with a decline of 50% or more.

② At the time when the Plaintiff sustained an injury to the left-hand high refund in 1992, any chilling may occur due to abnormal schillings in the high-income bracket.

(iii) Police hospital (patology F) (V)

As to the fact inquiry of the court of first instance and the court of first instance, the police hospital presented the following opinions:

① The Plaintiff’s right-hand turn back is 20cc, and the left-hand turn back is 8cc or less.

(2) The chilling of high refunds from credit bags is not a dial complication.

③ Inasmuch as the Plaintiff has chilled only one height, it cannot be deemed that the Plaintiff has chilled its high refund due to a genetic disease, a hemon system, etc.

(4) Any cause of one of the chilling of high carbon shall have sericultural, high carbon, credit, etc.

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 1 and 2, Eul evidence Nos. 1 through 7 (including paper numbers), the result of the commission by the court of the first instance for each appraisal of the hospital in Seoul and the dental hospital in the Han River University, the result of the fact inquiry by the court of the first instance on Seoul and police hospital in the court of the first instance, the result of the fact inquiry by the police hospital in the police hospital in the court of the first instance, the purport of the entire arguments, as a whole.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The plaintiff claims as follows.

1) Since the Plaintiff, as a member of the combat police compounds, sustained an injury on the left-hand high spawn and down-to-undering blood, while performing official duties, and caused a decline on the left-hand high spawn, it should be deemed that such a decline on the left-hand high sc

2) Therefore, the instant disposition rejecting the registration of a person who rendered distinguished services to the Plaintiff on the ground that it cannot be deemed that the left-hand decline was caused due to the performance of official duties should be revoked as unlawful.

B. Determination

1) On May 31, 1992, the Plaintiff suffered from the high-frequency or stimulous blood from the left-hand side while performing official duties. As seen earlier, it is reasonable to view that (i) the Plaintiff suffered from the injury to the high-speed high-speed or stimulous blood from the stimula while performing official duties; (ii) there is no other cause to cause the Plaintiff to decline the high-speed, in addition to the high-speed and stimulaing blood from the above left-hand side; and (iii) in light of the opinion, it is reasonable to deem that the high-speed Seoul University Hospital and the Hancheon National University Drupe Hospital were caused by the high-speed and stimulaing blood from the above left-hand left-hand side, and that the high-speed is caused by the lower-hand side due to public duties. Therefore, it should be deemed that the high-speed and the high-end side of the Republic of Korea National University Hospital caused the decline on the left-hand side due to public duties.

2) Therefore, the instant disposition rejecting the registration of a person who has rendered distinguished services to the Plaintiff on the ground that it cannot be deemed that it was a decline on the left-hand side due to the performance of official duties, must be revoked on the ground that the instant disposition was not deemed to have been made on the ground that the Defendant cannot be deemed to have impaired on the left-hand side due to the performance of official duties, and the instant disposition was rendered on the ground that it cannot be deemed that the Defendant caused the decline on the left-hand side due to the performance of official duties, and the court did not judge whether the decline on the left-hand

3. Conclusion

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

The presiding judge shall appoint a judge;

Judges Hatry

Judges Kim Hyun-sik