(a) Whether a soldier serving in barracks falls under the category of persons who have rendered distinguished services to the State under the Act on the Honorable Treatment of Persons of Distinguished Services to the State and the Enforcement Decree of the same Act where he died on holidays

(b) Whether a subordinate’s act and behavior, which is the cause of death caused by violence by his superior, constitutes grounds for exclusion under the proviso of Article 3bis of the Enforcement Decree of the same Act unless it is intentional or grossly negligent (negative)

(c)The case holding that an accident that a superior has caused death by assaulting a subordinate who was on a legal holiday while on a legal holiday does not constitute a ground for exclusion from the above paragraph B;

A. Military personnel performing internal duties in barracks are performing day-to-day daily life even when education, training, and work are on holidays as well as during education, training, and work hours. It should be viewed as the rest period during the performance of official duties. Therefore, when military personnel performing internal duties in barracks died of an accident or disaster due to a holiday, it constitutes a person of distinguished service to the State as a soldier or policeman on duty under the Act on the Honorable Treatment of Persons of Distinguished Service to the State and the Enforcement Decree of the same Act

B. Where a subordinate unilaterally dies of an indecent act by reason of his / her decent act to his / her superior on the ground that he / she did not act, even if such act constitutes a cause of assault, it does not constitute a cause of exclusion under the proviso of Article 3-2 of the Enforcement Decree of the same Act unless it was intentional or grossly negligent

(c)The case holding that an accident caused by a superior to a holiday to die by assaulting a subordinate who has served in the barracks does not constitute a ground for exclusion from the foregoing paragraph (B);

Article 4 (1) 5 of the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State and attached Table 1-2 through 6 of the Enforcement Decree of the same Act.

[Defendant-Appellant] Defendant 1

Head of Msan Veterans Branch Office

Busan High Court Decision 91Gu3512 delivered on March 20, 1992

The judgment below is reversed, and the case is remanded to Busan High Court.

The Plaintiff’s attorney’s ground of appeal is examined.

1. Article 4 (1) 5 of the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State stipulates that a soldier or policeman who died during education and training or in the performance of duty (including a person who died of a disease in the line of duty), who is subject to the application of the said Act, shall include cases where a soldier or policeman died of an accident or a disaster during preparation or adjustment of public duties before commencement, during the period of rest, or during the period of rest, among the criteria of the soldier or policeman who died on duty; and

However, according to Articles 47, 49(1) and 50(1) of the Military Service Rule that was enforced at the time of the instant case, the work of soldiers living within barracks shall be composed of education, training, work, internal duty, etc., and they shall be classified into weather, points (examination), flasing, national flag, and lectures, meals, Mys, Mys, climate, free time, and invasion. The internal duty team members shall be subject to the instruction and supervision of the head of the internal duty team, and in particular, military personnel living within barracks shall be subject to the instruction and supervision of the head of the internal duty team during the period from the completion of the task to the commencement of the task. Thus, military personnel living within barracks shall be deemed to fall under the period of rest in performing official duties, and therefore, if military personnel living within barracks dies due to an accident or a national holiday that occurs during the military service within barracks, it shall be deemed to fall under the period of rest in performing official duties as well as the hours of education, training, and work.

In addition, according to the proviso of Article 3-2 of the Enforcement Decree of the above Act, the case of death caused by a person’s intentional or gross negligence, or by a private act which cannot be seen as a performance of his/her duties, such as distress or fighting, is excluded from the criteria of soldiers and policemen. Thus, even if a subordinate unilaterally dies from a superior due to an indecent act on the ground that the subordinate did not act and act, the act and act of the subordinate did not constitute grounds for exclusion under the proviso of Article 3-2 of the Enforcement Decree of the above Act, unless it was intentional or gross negligence.

2. According to the reasoning of the judgment below, the court below rejected the above non-party 1 (date of birth omitted) on the deceased's 3th day after the death of the deceased and the non-party 1 (the non-party 2) on the 10th day after the death of the deceased, who was on the 3th day after the death of the deceased, and was on the 3th day after the death of the deceased, and was on the 10th day after the death of the deceased, and was on the 3th day after the death of the above 3th day after the death of the deceased, and was on the 3th day after the death of the deceased, the non-party 2 was on the 1st day after the death of the deceased, and was on the 3th day after the death of the deceased, and was on the 1st day after the death of the deceased, and was on the 3th day after the death of the deceased, the non-party 2 was on the 3th day after the death of the deceased and was on the 3th day after the death.

3. According to the record, upon examining the evidence prepared by the court below, the above deceased non-party 1 asked the above non-party 3 to the rank, and asked the above non-party 3 at the end of half, knowing that he was a superior, and asked the above non-party 3 to sit, sit, and see the above non-party 3 as a sworn, and the above non-party 4, the statement of the non-party 2, which is the only witness, is written evidence as to the non-party 3, the perpetrator, as evidence consistent with the facts at the original inquiry that he continued to sit.

However, in light of the record No. 4-5, which is the suspect examination of Nonparty 2, employed by the court below, Nonparty 2 stated that since Nonparty 1 and the above Nonparty 3 weared a string without the warrant of rank since the date of the accident, the above non-party 1 and the above non-party 3 met each other's rank, and on the same day, Non-party 1 stated that the above non-party 1 went into the management office and "I am in front" and "I am in front," and "I am out of the management office," the above non-party 1 called "I am in front, I am in front," and again, the above non-party 1 called "I am in front, and I am out of the management office," and the above non-party 3 took the face of the above concrete suspect examination statement "I am in front of the military life or for eight months and late, I am in front of the defendant's face."

In addition, according to the evidence No. 4-1 of the above non-party 3 and the above non-party 2 who investigated the above non-party 1 as a superior as a result of the investigation, it is recognized that the above non-party 3 and the above non-party 2 made a false statement to rationalize the act of assault death, even though they knew that the non-party 1 continued to incur a trial expense on the counter-party 3 as a result of the investigation, and in the military unit, the military police officer reported that the contents of the change of the complaint by the non-party 3 and the above non-party 2 were to be a false statement in order to rationalize the act of assault, without the intention or gross negligence of the person himself/herself within the original military unit, and the military unit was scheduled to be dealt with

In light of the above evidence relations, there is room to regard the contents of Non-party 3's suspect statement as distorted statement in order to justify his act as the perpetrator who assaulted and killed a subordinate, and the contents of the original statement of Non-party 2, who was the witness, as well as the false statement in order to support the above non-party 3's defense. Thus, the court below should have carefully examined the contents and values of the evidence.

In this respect, the judgment of the court below is erroneous in the misapprehension of the rules of evidence and incomplete deliberation, which affected the conclusion of the judgment.

In addition, with respect to the above non-party 1 who lives within barracks even after being on a legal holiday, even if he was on a legal holiday, it should be viewed as the rest period for performing official duties as mentioned above. If the above non-party 1 first made the death of the above non-party 3 as a result of an unilateral assault against the above non-party 1 on the ground that the non-party 3 knew that he was a superior, even though he was unaware of his superior, he did not know that the above non-party 3 was a superior, or was not a superior, even if he did not know that he was a superior, he could not be said to have caused the above non-party 1's intentional or gross negligence, and it cannot be said that the above non-party 1 was due to a private act, such as an accident and a fighting.

On the contrary, the judgment of the court below is erroneous in the misapprehension of the legal principles as to persons who died on duty under Article 4 (1) 5 of the Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State and Article 3-2 of the Enforcement Decree of the same Act, which affected the conclusion

4. Therefore, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.