(영문) 서울고등법원 2017.9.5.선고 2017누34782 판결

The reasons for this part are as follows: Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act are as follows, except for the case where "B" in the second part of the judgment of the court of first instance is "B" as "B."

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) At the time of the instant disposition, the Defendant: (a) served as the ground for disposition that the habitor of each of the instant dispositions cannot be objectively recognized; (b) added the ground for disposition that the Plaintiff’s difference cannot be deemed to have been fixed at the time of the instant disposition; (c) the ground for the initial disposition and the additional disposition cannot be deemed identical in the basic point of view with the social factual relations that form the basis for the disposition cannot be deemed to be identical

2) As a result of the MRI’s inspection, the Plaintiff confirmed Heglass disease caused by the knives and a slopes from both sides, and all training reactions are shown in the Egys test, and thus, re-regratives are recognized as a re-regrative tool. Thus, even though at least Grade 7124 of the disability rating is recognized, the Defendant’s disposition that judged otherwise to fall short of the disability rating criteria is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether additional grounds for disposition are permitted

A) In an appeal seeking the revocation of an administrative disposition, a disposition agency may add or change other grounds only to the extent that the basic factual relations are recognized identical to the original grounds for the disposition. The existence of the basic factual relations in this context is determined based on whether the basic social factual relations are identical in the basic point of view by citing the specific facts prior to the legal evaluation of the grounds for disposition. As such, the purport of the interpretation is to realize substantial rule of law and protect the other party's trust in the administrative disposition by guaranteeing the other party's right to defense against the administrative disposition, and the additional or modified grounds are not expressly stated in the original disposition, but are already existing in the disposition and are not identical to the initial grounds for the disposition (see, e.g., Supreme Court Decisions 2013Du2618, May 16, 2014; 2011Du8197, Dec. 11, 2003; 2019Du81979, Dec. 19, 2003).

B) Regarding the instant case, the Defendant issued the instant disposition against the Plaintiff’s application for a reexamination on the grounds that “the degree of physical sacrifice of the Plaintiff does not meet the disability rating standards prescribed by the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (hereinafter “Act”) and the Enforcement Decree of the same Act, and added the grounds that “the instant case cannot be deemed to have been fixed because it cannot be deemed that the instant case was fixed, such as failing to provide an operational treatment,” etc. In the instant lawsuit, the foregoing additional grounds cannot be deemed to have the identity of the original reasons for the disposition and basic factual relations because they are separate grounds unrelated to the original reasons for the disposition, and thus, it is not allowed for the Defendant to add them to the new reasons for the disposition (see Supreme Court Decision 2015Du35192, Apr. 23, 2015).

C) As to this, the Defendant: (a) based on the premise that the division of a disability rating according to the degree of body disability is completed and the functional disability is fixed; (b) the instant disposition was conducted on the basis that it cannot be deemed that there was a fixed disability because there was no proper treatment such as operation and treatment; and (c) it was based on the facts that had already existed at the time of the instant disposition, not on the basis of new facts after the instant disposition, but on the basis of the fact that there was a new one at the time of the instant disposition; (d) the Defendant’s assertion about the fixed disability does not constitute an addition of a new one. However, even based on all evidence submitted, including evidence Nos. 4, 8, 10, and 11, it cannot be deemed that the instant disposition was fixed, such as the time of the instant disposition, and it cannot be deemed that there was a fixed disability as at the time of the instant disposition, or there was no evidence to acknowledge it otherwise. This is not acceptable, based on the premise that there was a new one after the instant disposition.

2) Whether the Plaintiff fell short of disability rating standards

A) Article 6(2) of the Act on Support for Persons Eligible for Veteran’s Compensation provides that Articles 6-3 through 6-5 of the Act on Persons of Distinguished Service to the State shall apply mutatis mutandis to the types of physical examinations of persons eligible for physical examinations, the validity of determination of disability ratings, and additional recognition of wounds, etc., and Article 6-3 through 6-5 of the Act on Persons of Distinguished Service to the State shall apply mutatis mutandis. According to Article 6-4 of the Act on Persons of Distinguished Service to the State, Article 14(3) and [Attachment 3] 7, and Article 14(3) of the Enforcement Decree of the Act on Persons of Distinguished Service to the State, "persons who have disabilities in light of their ability in one part among three parts of three parts of one part of the three parts of one part shall be 7124, and Article 8-3 and [Attachment 4] [Attachment 7] of the former Enforcement Rule of the Act on Persons of Distinguished Service to the State (amended by Ordinance of the Prime Minister No. 1263, Feb. 29, 2017).

B) As to the instant case, it is reasonable to view that the Plaintiff’s 4th 6th dynasium was subject to the Plaintiff’s 1st 6th dynasium 5th dynasium 5th dynasium 5th dynasium 4th dynasium dynasium 5th dynasium dynasium 5th dynasium 5th dynasium dynasium 5th dynasium dynasium 5th dynasium dynasium dynasium dynasium 5th dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted with the reasons, and since the judgment of the court of first instance is unfair with different conclusions, it is so decided as per Disposition by accepting the plaintiff's appeal and cancelling the judgment of the court of first instance and cancelling the disposition of this case.