(영문) 부산고등법원 2011.6.8. 선고 2010누2159 판결

가. 원고는 1988. 10. 11. 육군에 입대하여 25사단에서 복무하였는데, 1988. 12. 26. 야간 입사호(立射壕) 안에서 사격훈련을 하던 중 갑자기 일어난 다리 근육경련 때문에 총을 떨어뜨려 발사된 총알이 좌측 하퇴부를 관통하는 바람에 '좌측 비골신경 마비, 좌측 전(前) 경골 동맥 및 정맥 파열, 좌측 후 하퇴근 파열 등의 상해(이하 '이 사건 상이‘)를 입고, 1989. 9. 30. 의병전역하였다.

B. After that, the Plaintiff filed an application for registration of the person who rendered distinguished services to the State for the instant wounds with the Defendant, and the Defendant, after deliberation and resolution by the Board of Patriots and Veterans Entitlement, and physical examination of the Plaintiff, determined on June 21, 200 as a person of distinguished services to the State who rendered distinguished services to the Plaintiff, who falls under class 7 and class

C. (1) On March 27, 2007, the Plaintiff applied for a physical examination to the Defendant for the reclassification of the instant wound.

(2) On May 17, 2007, the Defendant rendered a disposition to the Plaintiff on May 17, 2007 that the Plaintiff’s disability rating fell under class 7, class 807 as before, and thus, there is no change in the disability rating (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 3, 6 evidence, Eul evidence 1, 2 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

According to the evidence submitted by the Plaintiff, the Plaintiff remains neromatic pains due to mathal damage. Accordingly, it is proved that the Plaintiff is difficult to engage in the Plaintiff’s occupation and the occupation using a bridge.

Therefore, the plaintiff (1) among the attached Table 3 of Article 14 (3) of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (amended by Presidential Decree No. 20514 of Dec. 31, 2007; hereinafter referred to as the "Enforcement Decree") 6th 122 of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State and Article 8-3 [Attachment Table 3] of the Enforcement Rule of the same Act (amended by Ordinance No. 848 of Jun. 20, 2007; hereinafter referred to as the "Enforcement Rule of the same Act") 6th 2th 44 of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (amended by Presidential Decree No. 20514 of Dec. 31, 2007; hereinafter referred to as the "Enforcement Rule of the Act"), the plaintiff's ability to work in this case falls

B. Relevant statutes

It is as shown in the attached Form.

(1) The progress of operation and treatment immediately after the accident;

On December 26, 1988, the plaintiff was sent back to the National Armed Forces Chang-dong Hospital due to the fact that it was sent back to the left-hand lower-hand hospital, and was sent back to the National Armed Forces Chang-dong Hospital on the following day. On the same day, the plaintiff was sent back to the National Armed Forces Capital Hospital to the National Armed Forces Capital Hospital, and received a close-quarters, e.g., c., e., g., e., g., g., g., e., g., g., g., g., g., g., g., g., g

(2) Medical opinions on the Plaintiff’s injury and disease

(A) The result of the examination of the Naneology C on April 16, 2007 by the doctor of the Naneology C

There is a severe bruptal and brush damage to the inner part of the left-hand side and the bruptal part of the bruptal part.

The main responsibility is to put the roots and sales into the upper part, and the non-alleys are responsible for the reduction of the upper part of the upper part.

(B) Medical certificate of July 23, 2007, issued by the doctor of the Busan Veterans Hospital.

Sicks are limited to 83 degrees in total (based on 0, 45, 18, and 110 degrees inside) and 70 degrees in total (based on 5, 40, 40, 20, 110 degrees inside) when actively measuring methods are based on the dynamic method of measurement of the Plaintiff’s alley climatic movement.

1) Results of a request for physical appraisal by the court of first instance

Of the instant wounds, “a person who has a disorder in the latitude and longitude” in the 7th degree 7th degree 80 degrees of the Plaintiff’s left-hand satisfaction with the 80 degree of the exercise scope (based on 0, 30, 30, 30, 20, and 110 degrees of mar). Of the instant wounds, “a person who has a disorder in the latitude and longitude 7,807 degree of the injury.” Of the instant wounds, “a person who has a disorder in the latitude and longitude” is a person who, as a result of the inspection of the previous phase, is a person who is subject to the observation of the non-athromatic mathy of the earth, and whose disability is 6th degree 6-2(4)44 degree of the injury.

2) Results of inquiry by the court of the first instance before remand

The plaintiff shall continue to do so due to a disorder in the Gal system, with constant dynamics, nearby booms, and franchising.

It is judged that it is possible to reflect, but the labor ability remains to some extent, it is difficult to work slowly due to the passage, and the occupation using a bridge is considered to be difficult.

3) Results of fact inquiry by the court of the trial after remand

The Plaintiff’s loss rate of labor capacity due to the Mabrid’s loss of labor capacity is an indoor worker.

10% of the employee and 14% of the outdoor employee.

(D) Results of fact-finding by the court of first instance on the director of Seoul Veterans Hospital

The Plaintiff has a common figure of the part 1/3 of the left-hand retirement, and the annual installments damage, etc. therefrom remains due to a merger and a testamentary gift after treatment. Accordingly, some parts of the Plaintiff remains abnormal, due to the restriction on the satisfaction-saving movement and the damage to the climatic pathy, etc. due to the damage to the climatic pathy, etc.

When integrating the symptoms referred to above, i.e., the control exercise and the abnormal sense of the part below the governmental trade:

The restriction on the exercise of the satisfaction hall may be applied to the disability rating, but the degree of disability of the satisfaction hall is judged not to fall under the disability subject to the disability rating.

A human body body body is composed of a combination of skins, annual installments, serums, serums, boness, verts, etc., so it is reasonable to judge the degree of disability by comprehensively considering symptoms, functions, etc. revealed by the comprehensive role of these components, etc. The results of the physical assessment of E Hospital that applied class 6 (2) 44 with the Plaintiff's disability rating are unreasonable application.

(E) The results of the fact-finding on the F Hospital Head of the court of the first instance after remand

Part of the results of the TRI's inspection accompanied by the decentralization of the Plaintiff's left-hand side;

있고, 원고를 복합부위통증증후군[작열통(灼熱痛)] 2형으로 진단하였으며(증상 : 극심한 이질통과 통각과민, 자율신경과민반응 등), 본원에서 2회에 걸친 신경차단에도 증상호 전 보이지 않으며, 현재 항경련제 복용 중이다.

(3) On 1989, the Plaintiff acquired a certificate of computerized data processing after discharge from the military service, and entered into a computer program development project from 1996 to 2001, and thereafter, had no special occupation until now due to the instant wounds.

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 1 through 3, 7, each statement and image of evidence No. 1 to 7, the body appraisal of the E Hospital of the court of first instance to E Hospital of the court of first instance, the director of Busan Regional Tax Office, the director of Busan Regional Tax Office, the director of Busan National Pension Service, the court of first instance to the E Hospital of the court of first instance before and after remand, and the fact inquiry results of each inquiry about the F Hospital of the court of first instance to the

D. Determination

(1) First of all, we examine whether the Plaintiff’s first assertion falls under “a person who has a significant confluence and a fluence in fluences” in the Enforcement Decree [Attachment 3] 6-Class 122, and the Enforcement Rule [Attachment 3].

Of the disability rating table [Attachment 3] of the Enforcement Decree, grade 6-1-22 of the disability rating table provides that a person who can not engage in any work except for easy service due to a disorder in the function of the neurosis, and [Attachment 3] 5-2 (a) of the Enforcement Rule provides that "any person who has an obvious connection with the relevant part of the relevant part of the relevant part of the relevant part of the case and the relevant part of the relevant part of the relevant part of the disability rating" as one of the disability parts corresponding to the above disability grade "any person who has an obvious connection with the relevant part of the relevant part of the case and the relevant part of the relevant part of the case." Thus, there is no evidence to prove that there is a per

(2) Next, we examine whether the plaintiff's second assertion, namely, whether the plaintiff's second assertion falls under "a person who has a significant flasium and flasium," in the Enforcement Rule [Attachment 3] 6-Class 2-44 of the Enforcement Decree, and [Attachment 3] 5-5 (a) of the Enforcement Rule.

(A) The Enforcement Decree [Attachment 3] 6-6-6-6-6-6-6-6-6-6 (2)-44 provides that a person who is partially subject to employment restriction due to a chronic disorder, and the Enforcement Rule [Attachment 3] 5-5 (a) provides that "a person who has a significant confluence and fluence in the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the disability" as one of the parts of the part of the part of the disability corresponding to the above disability grade. Although the Enforcement Rule [Attachment 3] 5-5 (a) provides that "the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the case of the part of the part of the part of the case of the part of the part of the part of the case of the part of the part of the part of the case of the part of the part of the wound shall not be excluded from the application of the above provision.

(B) According to the following circumstances revealed by the above facts, (1) G Hospital’s report on Apr. 16, 207 to the Plaintiff was confirmed to be damaged by cardio-cerebral typhism and thalphism, which did not leave the left-hand side of the Plaintiff; (2) due to the result of the first instance court’s entrustment of physical examination to the Head of E Hospital, and the fact-finding by the court of first instance, and each fact-finding by the court of the first instance after remand. (3) The Plaintiff’s report on thalphism was observed on the left-hand part of G Hospital’s report as well as the first instance court’s report. (4) The Plaintiff’s report on thalphical alphism and thalphical alphism, which did not constitute a part of the Plaintiff’s employment-related alphical alphism, and the Plaintiff’s report on alphical alphism and alphal alphism 2 (in addition, the head of E Hospital is assessed that the Plaintiff’s loss of work-related al alone.).

As to this, the defendant's disability rating 6 is recognized when he loses the labor ability of at least 1/3 of the average average person. Since the plaintiff only lost the labor ability of at least 10% through 14%, the plaintiff's assertion that it does not fall under the attached Table 3] 6-6-6-6-44 of the Enforcement Decree, but it is insufficient to recognize that the statement of Eul's evidence No. 8 must lose the labor ability of at least 1/3 in order to fall under Grade 6 of the disability rating, and there is no other evidence to support this, the defendant's above assertion

(3) Furthermore, we examine whether the Plaintiff’s third assertion, i.e., whether the Plaintiff’s labor ability remains to a certain extent in the case of negopathy due to brain negorithy, spine e.g. (e., [Attachment 3] (e) [Attachment 5] of the Enforcement Rule, and whether it constitutes “a person whose occupational scope is considerably limited

(A) [Attachment 3] 5 (e) (i) of the Enforcement Rule provides that "A person who has a dynamic to the extent that it may always interfere with work other than an easy one in the case of neutism and vertece, etc. due to negopathy or other causes, shall be recognized as Grade 5, while a person who has a significant limit in the scope of occupation available due to negopathy remains in his ability to work but has considerably limited work ability shall be recognized as Grade 6, and a person who has a egopathy or abnormal labor shall be recognized as Grade 7," while a mathy is composed of negopath and egopathy, which is composed of negopathy and egopathy, and the literal meaning of negopathy and vertepathy is not excluded from negopathy, and it is reasonable to interpret negopathy or mathy in light of the function of negopathy and ethy.

(B) According to the above facts, it is reasonable to view that the Plaintiff lost labor ability equivalent to 10% of indoor workers and 14% of outdoor workers due to the instant wounds, etc., and that the Plaintiff was unable to engage in the work and the job type using a bridge using a eromatic system, etc. due to the eromatic damage, and as a result, the Plaintiff’s assertion on this part is with merit, since the Plaintiff’s work ability remains to a certain extent in the case of negopathy caused by the eromatic injury and spine, but the scope of work available due to the eromatic injury and other causes remains to a considerable extent, and thus, this part of the Plaintiff’s assertion is also justified.

As to this, the defendant's disability rating 6 is recognized when he loses the labor ability of at least 1/3 of the average average person. Since the plaintiff only lost the labor ability of at least 10% or 14%, the plaintiff's assertion that it does not fall under attached Table 3] 5 (e) of the Enforcement Rule, but it is insufficient to recognize that the statement in Eul's evidence 8 alone should be lost the labor ability of at least 1/3 in order to fall under Grade 6 of the disability rating, and there is no other evidence to support this, the defendant's above assertion is rejected.

(4) The theory of lawsuit

Ultimately, the Plaintiff’s disability rating constitutes at least Grade 6(2)4 of the Enforcement Decree [Attachment 3] or Grade 6 of the Enforcement Rule [Attachment 3] 5(e)(1) of the Enforcement Rule, and thus, the instant disposition based on the premise that the Plaintiff’s disability rating falls under Grade 7(807 as in the previous case is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked, and the disposition of this case is revoked, and it is so decided as per Disposition.