Plaintiff (Attorney Yu-il, Counsel for plaintiff-appellant)

The Minister of National Defense

May 7, 2015

Seoul Administrative Court Decision 2013Guhap56591 Decided September 25, 2014

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

On October 17, 2012, the Defendant revoked the decision not to revise the disability rating for the deceased non-party 1.

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

(The plaintiff corrected the date of the disposition in the appellate court as stated in the Disposition and withdrawn the claim for a higher rating adjustment.

1. Details of the disposition;

The court's reasoning in this part is as stated in the corresponding part of the reasoning of the judgment of the court of first instance (as stated in Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, except that the second 5 of the judgment of the court of first instance ", Dec. 31, 2005" is " October 31, 2005."

2. Whether the disposition is lawful;

A. The plaintiff's assertion

From December 1, 2003, the deceased showed mar marry and otomathy. On June 1, 2005, after being judged as above 4th mar, performed a operation to remove the whole of a disguised and flasor, and died on May 13, 2012, the same disease was repeated. From 2003 to 2012, the deceased’s disability may be deemed to have been fixed as class 3 4. Accordingly, the instant disposition based on the different premise is unlawful.

B. Relevant statutes

Attached Form 3 is as specified in the relevant Acts and subordinate statutes.

C. Relevant legal principles

"Disability caused by a disease or injury" under Article 23 (1) of the Military Pension Act refers to a case where the disease or injury was cured but a permanent mental or physical damage to the body remains. In this case, healing refers to a case where the treatment effect of the disease or injury was unable to be expected, or where the symptoms were fixed (Supreme Court Decision 87Nu121 delivered on May 24, 198). Thus, if the state of disability caused by the disease or injury is difficult to expect recovery or defense or it cannot be ruled out entirely, or if the symptoms were attached to a very uncertain state, a wounded veterans' pension may be paid according to the classification of disability ratings under Article 23 (1) of the Military Pension Act, but if the symptoms were not fixed and the condition of temporary disability that occurred in the course of death, it cannot be paid according to the classification of disability ratings corresponding to the aggravated state.

D. Facts of recognition

1) The Deceased discharged on October 31, 2005, while serving in the Army on February 9, 1992, and discharged from military service on October 31, 2005.

2) From December 2003 in the military service, the deceased showed symptoms such as marlim, stoves, and stoves, etc. on April 28, 2005. On June 1, 2005, the deceased was judged to be the 4th marum at Samsung Seoul Hospital, and on June 1, 2005, the deceased performed the "exed marcing pre-exed marction" for disguised and stoves at the above hospital, and received anti-marction and radiation treatment.

3) The letter of disability diagnosis issued on November 4, 2005 by the president of the National Armed Forces Water Service Hospital on the ground that there are side effects of the deceased, such as the area of navigation cancer treatment and radiation therapy after the operation, stopy and food therapy, etc., and that there is a possibility that the life might be at risk at the time of the recurrence of cancer, and that continuous outpatient observation is necessary.

4) The Deceased was judged on January 17, 2006 No. 3 grade 4 of the disability rating.

5) On May 2, 2011, a disability diagnosis issued by Nonparty 2 of the Korean War Hospital’s doctor Nonparty 2 stated that, after the deceased’s performance of the aforementioned pre-pactation, the deceased is judged to have failed to observe the recurrence or side effects, etc. due to antichemical and radiological therapy, and to have a high possibility of recurrence or aggravation in the future. However, considering that the deceased was unable to engage in an operation other than an easy operation due to the overall decline, etc. after the operation, and that the weapons before the operation were so high, the disability rating under the Military Personnel Wage Act is continuously required, and that the disability rating under the Military Personnel Wage Act is determined as class 5 (referred to as “a person who has a significant obstacle to the chest long-term function of chest-do, and is not able to engage in other than an easy service).

6) In the Military Pension Benefits Council held on June 29, 201, notwithstanding the above disability diagnosis by the Armed Forces Daejeon Hospital, according to the expert opinion that “it is reasonable to lower the disability rating to Grade 7, inasmuch as there is no special provision to determine it as Grade 5, it is reasonable to lower the disability rating for the Deceased to Grade 7.” On July 4, 201, the Defendant notified Nonparty 1, who is the Deceased and the Plaintiff’s children, of the foregoing results of the deliberation.

7) On March 19, 2012, the Deceased received medical treatment at Samsung Seoul Hospital and the doctor in charge thereof, and “I have a pain from the front day of the two months to the bottom of the right side. I knew that these symptoms have come to a drum, and I have a drum. I have a drum. I have a drum. I have a drum to prescribe a drum. I have a drum.” After that, the Deceased was diagnosed with a ductal ductal dus of cT and dus around April 3, 2012 as a result of the inspection of the cT and organization of the clothes and dus. The Deceased was treated at Samsung Seoul Hospital and the Jeonbuk University Hospital. At the time, the Deceased was treated at the Samsung National University Hospital and the Jeonbuk National University Hospital, at the same time, it was in a state that it was extremely difficult without

On May 15, 2012, Non-party 3 of the Armed Forces Daejeon Hospital issued on May 15, 2012 on the basis of the medical records of Samsung Seoul Hospital and the medical certificate of Jeonbuk University Hospital (such as the deceased's death knowing the deceased's death after the deceased's death) stated that the deceased is in the state of providing supporting treatment, such as blood transfusion and medical control, without any overall treatment due to the deterioration of the cryption and the aggravation of the crypization, and the injury rating is determined as class 1 (as the condition of the cryption and the cryption of the cryption and the cryption of the cryption of the cryp is determined as class 1 (as the crypump's death remains a significant obstacle to the cryp's function at all times).

8) On May 13, 2012, the Deceased died of the Masan and Maternal Alley at the Jeonbuk University Hospital, and the Maternal Alley was presumed to have been transferred.

9) Since the Deceased was under disguised and booming operations, he was unable to drink food as soon as possible or she was unable to drink food at the time of death because it was not fire-fighting, and complained of the difficulty at all times due to the lack of nutrition supply to the surrounding and skin.

[Ground for Recognition: Facts without dispute; Gap evidence Nos. 1 through 7, 10 (including a branch number; hereinafter the same shall apply); Eul evidence Nos. 1, 2, and 4; fact-finding results on non-party 3 of the military branch of the Daejeon Hospital of the first instance court; the purport of the whole pleadings

E. Determination

In full view of the following circumstances revealed based on the above facts, it is reasonable to view that the condition of disability of the deceased prior to his death was fixed in the status of class 3-4 (or at least class 5-7 (or class 7) of the disability rating. Thus, the instant disposition based on a different premise should be revoked as unlawful.

1) On June 1, 2005, the Deceased had been administered with a dypical dypology in the expansion of a disguised and sypical agents, and accordingly, the Deceased’s disguised and sypical agents were continued until the time of death.

2) Although there was a somewhat change in the degree of side effects such as air cancer treatment areas, earth and breath, etc. by the time of death after the operation, the Deceased appears to have no significant change in the functional disorder such as fire extinguishing and brush due to disguised and brush agents.

3) The degree of disability rating shall be determined on the basis of the degree of long-term functional disability and whether it is possible to engage in labor. On July 4, 2011, when the Defendant adjusted the disability rating of the deceased under class 3 through class 4, class 7, and class 5, it appears that there was no significant difference between the disability status and disability rating of the deceased. This is also known in light of the fact that the deceased was within one year after the adjustment of the above disability rating, and the deceased died from the aggravation and bones of the above cancer ( therefore, it is difficult to view that the disability status and disability rating of the deceased were sharply improved and raised by the doctor two months before the deceased’s death). Nevertheless, the Military Pension Benefits Council, which deliberated on the disability rating of the deceased, determined that the deceased was in charge of the deceased’s disability rating under class 3 to class 4 to class 75, and that the Defendant was in charge of the deceased’s bereaved family members at the time of the adjustment of the disability rating.

4) The Plaintiff’s application for revision of the disability rating includes the purport of raising the disability rating of the deceased again because the above Defendant’s lower-ranking determination of the disability rating (hereinafter “previous determination”) is unlawful. The meaning of the Plaintiff’s rejection of the Plaintiff’s application lies in maintaining the disability rating of the deceased together with the previous disposition. All the previous disposition or the instant disposition can be deemed a disposition that determines whether the disability rating of the deceased falls under any grade, and thus gives rise to a legal effect. To determine whether the Plaintiff’s application for amendment of the disability rating of this case is proper, it must be prior to the determination as to whether the disability status of the deceased is fixed, and the previous disposition is legitimate. The instant disposition also rejected the Plaintiff’s application for revision of the disability rating of this case on the premise that the previous disposition is legitimate. Accordingly, if the previous disposition is unlawful, the disability rating of the Deceased cannot be maintained as the previous disability rating of the deceased or at least as the legitimate disability rating of the deceased, and the previous disposition cannot be seen as unlawful in light of the purport of the Supreme Court’s previous disposition that it becomes unlawful.

5) The state of disability of the deceased was fixed without a large change from the surgery to the time of death after the surgery, and therefore, it is reasonable to deem that the disability rating of the deceased still falls under class 3 subparagraph 4 (see, e.g., Supreme Court Decision 2009Do1448, Apr. 2, 2009). Thus, the previous disposition is an unlawful disposition that did not comply with the criteria for determination of disability rating, and the previous disposition rejecting the Plaintiff’s application on the premise that the previous disposition is lawful cannot be deemed as a fixed disability.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted with due reason, and since the part concerning the disposition of this case among the judgment of the court of first instance is unfair with different conclusions, the part concerning the disposition of this case in the judgment of the court of first instance shall be revoked and the disposition of this case shall be revoked.

[Attachment Omission of Related Acts]

Judges fixed-type (Presiding Judge) and Gangnam-gu, Gangnam-gu