(영문) 부산고등법원 2016.5.13. 선고 2015누24345 판결

In the first place, the decision that the Defendant rendered to the Plaintiff on August 14, 2014 equivalent to the requirements of a person of distinguished service to the State shall be revoked. In the second place, the decision that the Defendant rendered against the Plaintiff on August 14, 2014 partially corresponding to the requirements of a person of distinguished service

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

Reasons

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff sought revocation of the determination of non-conformity of persons who have rendered distinguished services to the State with respect to ① high-speed high-speed, ② both sides, ③ both sides, knenenee, lue, and right-hand injuries, ② as a preliminary measure, revocation of the determination of non-conformity of persons who have rendered distinguished services to the State. However, the first instance court accepted only the claim for revocation of the determination of non-conformity of persons who have rendered distinguished services to the State with respect to the injury, and dismissed all the remainder of the claims. Accordingly, the subject of the judgment of this court is limited to the claim for revocation of the determination of non-conformity of persons who have rendered distinguished

2. Details of the disposition;

A. On July 16, 199, the Plaintiff was appointed as civilian personnel in the military service on July 16, 199, and was dismissed from office at Grade 8 on December 31, 2005.

B. The Plaintiff sustained from the Defendant 2014, 28 April 28, 201, hereinafter referred to as “the instant wounds”) during military service, and applied for registration of a person of distinguished service to the State.

A. On August 14, 2014, the Defendant decided that the Plaintiff constitutes the requirements for persons eligible for veteran’s compensation. Meanwhile, on the ground that the instant wounds cannot be deemed as having been directly related to the protection and security of the State, or to the performance of duties or education and training for the protection of the lives and property of the people, the Defendant rendered a decision not to correspond to the requirements for persons who rendered distinguished services to the State (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, a civilian military employee, who was in charge of the distribution and management of munitions, was wounded in this case due to violence by his superior, thus falling under the requirements for persons who rendered distinguished services to the State.

B. Defendant’s assertion

Since the distribution and management of munitions performed by the Plaintiff does not pose a high risk, they cannot perform their duties directly related to the protection of the State, etc., and it cannot be deemed that they constitute the requirements for persons who have rendered distinguished services to the State, even if the harmful act of the Plaintiff was involved in purely causing the harmful act.

1) The Plaintiff was appointed as a civilian military employee B on July 16, 1999, and was in charge of the analysis of fire-explication in the storage and distribution space for October 31, 200, from November 1, 200 to February 13, 2003, from the original unit of the materials space for distribution space to the original unit of the materials space for distribution space, the analysis of fire-explication and 10, the warehouse management, from February 14, 2003 to July 31, 2005, and the FM/mail/communication and communication material receipt from the unit of the supply space for storage from August 1, 200 to December 31, 205, respectively.

2) On November 1, 2005, the Plaintiff, at around 08:40 on November 1, 2005, was in charge of the partial duties of 24 warehouse No. 20 on the 1st distribution window of the Gun company No. 1, who was returned to the second warehouse No. 20 on the 20th warehouse No. 20 on the 1998, but the Plaintiff was in charge of the duty of confirming goods for 100 V, for which H was requested as requested by H due to the failure to properly grasp inventory and report, suffered the instant difference that requires three-day medical treatment from the commercial person C, on the ground that he did not properly grasp inventory and report.

3) As a result, on June 16, 006, the above judgment was finalized as it became final and conclusive on August 14, 2007 by reducing a fine of KRW 4 million from the High Court for Armed Forces to a fine of KRW 7 million.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 to 1, the purport of the whole

(d) Relevant statutes;

The entries in the attached Table-related statutes are as follows.

E. Determination

1) Details of the amendment of the Act on Persons of Distinguished Services to the State and the issues of this case

Article 4(1)6 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State before the amendment (amended by Act No. 11041, Sep. 15, 201; hereinafter collectively referred to as the "Act of Persons of Distinguished Services to the State") requires "the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State" as the requirement for "the Act on the Honorable Treatment and Support of Persons of Distinguished Services to the State". However, the Act on the Persons of Distinguished Services to the State was amended by Act No. 11041, Sept. 15, 2011; the Act on the Honorable Treatment and Support of Persons of Distinguished Services to the State (hereinafter referred to as the "Act on the Honorable Treatment and Support of Persons of Distinguished Services to the State") was enacted and implemented on July 1, 2012, and persons wounded in the performance of their duties or education and training or education and training or the Act on the Compensation of Persons of Distinguished Services to the State."

Therefore, the issues of the instant case can be divided into whether there is a proximate causal relationship between the performance of duties and the instant difference, and whether the duties performed by the Plaintiff are directly related to the national defense and security or the protection of the lives and property of the people.

2) Whether there exists a proximate causal relationship between the performance of duties and the instant injury

Article 4(1)6 of the Act on Persons of Distinguished Services to the State refers to the injury or disease of military personnel or police officers during education and training or in the performance of their duties (including diseases in official duties). Thus, in order to be different as prescribed by the above provision, there is a proximate causal relationship between education and training or in the performance of their duties and the injury or disease, and regarding the causal relationship between the injury or disease, etc., the claimant must prove it: Provided, That the causal relationship does not necessarily have to be proved clearly in medical and natural science, but it is presumed that there is a proximate causal relationship between education and training or in the performance of their duties and the injury or disease thereof when considering all the circumstances, it shall be deemed that the causal relationship exists between education and training or in the performance of their duties and in the performance of their duties, and it shall be included in the case where it is proved that the basic disease or existing disease that can normally perform their duties has aggravated rapidly above the natural progress speed. The existence of the causal relationship between the injury or disease and the education and training performance of their duties should be determined based on the health and physical conditions of the relevant military personnel.

In accordance with the above legal principles, the difference occurred between the plaintiff and his superior's harsh act on the ground that the plaintiff is not well-grounded in the performance of his duties or his duties while carrying out the maintenance, distribution, and management of munitions. Therefore, there is a proximate causal relation between the plaintiff's performance of his duties and the difference in this case.

The defendant asserts that the plaintiff's pure performance of his duties, such as the maintenance of munitions, did not directly cause the difference in this case, and that his conduct of harsh treatment was involved in the middle, and thus does not constitute the requirements for persons who have rendered distinguished services to the State. However, as examined below, the defendant's above assertion is without

① Although the Plaintiff’s performance of duties and the instant injury involved in the harsh treatment of superior, it was generated in the process of putting the above superior into good faith during the performance of duties or putting the matter at mind during the performance of duties, and thus, it cannot be deemed that the proximate causal relation between the difference in the performance of duties and the instant accident is severed, and it is reasonable to determine proximate causal relation in that the inherent risk of the Plaintiff’s performance of duties can be seen as realizing.

② If it is interpreted to the effect that the causal relationship is denied in all cases where a cause exists different from the performance of duties by reducing the scope of proximate causal relationship, the relationship of direct cause provided for in the above Enforcement Decree shall not be considered as one of the persons who rendered distinguished services to the State, because the inherent risks inherent in the performance of duties have been realized, and thus, it would be inconsistent with the conclusion that the same and similar treatment should not be considered as the requirements for persons who rendered distinguished services to the State in determining the extent of relief compared with the cases where there are considerable causes different from the performance of duties

3) Whether the person constitutes a person of distinguished service to the State

According to the above facts, the Plaintiff’s duties performed at the time of the occurrence of the instant wound constitute “maintenance, distribution, transportation, and management of munitions, such as equipment, materials, etc.” as provided in attached Table 1 2-1.a. (a) of the Enforcement Decree of the Act on Persons of Distinguished Service to the State, and thus, it constitutes a person of distinguished service to the State

Although the Defendant asserts to the effect that even if the instant difference occurred during the performance of duties stipulated in attached Table 1 of the Enforcement Decree of the Act on Persons of Distinguished Services to the State, it constitutes the requirements for persons of distinguished services to the State only if the performance of duties is highly dangerous, it shall not be accepted merely because

4) Sub-determination

Therefore, the instant disposition that the instant wound does not fall under the requirements for persons who rendered distinguished services to the State should be revoked in an unlawful manner.

4. Conclusion

If so, the plaintiff's claim is justified, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed.