(영문) 대구고등법원 2017.3.24. 선고 2016누5731 판결

1. On March 14, 2013, the decision that the Defendant rendered to the Plaintiff on March 14, 2013, on the ground that an exchange change was made in the trial, shall be revoked.

2. All costs of the lawsuit are borne by the Defendant.

Purport of claim and appeal

1. Purport of claim

A. The primary purport of the claim

The same shall apply to the order.

B. Preliminary purport of claim

The Defendant’s decision on March 14, 2013 that rendered against the Plaintiff was revoked.

[Plaintiff at the first instance court, on August 30, 2013, sought revocation of a decision made by a person who rendered distinguished services to the State or a person eligible for veteran's compensation, which was made by the Defendant to the Plaintiff, and changed the lawsuit in exchange for the above reasons in the trial];

2. Purport of appeal

The judgment of the court of first instance is modified as follows. The defendant's decision on August 30, 2013 against the plaintiff is revoked as non-applicable disposition for review of the requirements for a person of distinguished service to the plaintiff.

Reasons

1. Details of the disposition;

A. On June 20, 2011, the Plaintiff was discharged from military service on June 13, 2012, following the diagnosis of “Bankart soldier’s rank (e.g., e., damage and credit),” and “Wankart soldier’s rank (e.g., damage and credit).”

B. On September 14, 2012, the Plaintiff filed an application for registration with the Defendant for registration of a person of distinguished service to the State, on the basis of the difference in the application for 'Woo-man Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle

C. On March 14, 2013, following the deliberation of the Board of Patriots and Veterans Entitlement, the Defendant rendered a disposition against the Plaintiff on the ground that there is no proximate causal relation with the military performance of official duties, and thus, the Defendant rendered a decision on the eligibility of a person who rendered distinguished services to

[Reasons for Recognition] Unsatisfy, entry of evidence Nos. 5, 6, 15, and 18, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Before entering the military hospital, the Plaintiff was receiving treatment with "chrouds and tensions" before entering the military, and entered the first level of active duty service in a state without a large number of shoulders. On July 6, 2011, the Plaintiff received unreasonable PRI training (PR) during the course of a new path training, which led to symptoms on the right shoulder, and continued training after receiving only formal treatment without undergoing a proper inspection conducted at the military hospital. The Plaintiff was able to undergo an operation at the private hospital on October 4, 201, and the Plaintiff was forced to undergo an operation at the private hospital on his own, but was forced to undergo an operation on 4 days after the operation, and was forced to undergo an operation again due to the aggravation of appropriate treatment and management during the military service.

The difference between the Plaintiff and the instant case is a soldier or policeman on duty as defined in Article 4(1)6 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (hereinafter referred to as the “Act”), because the difference between the Plaintiff and the instant case occurred due to an accident that directly caused the training for practical exercise, which is a part of the training for practical exercise (PRI training) directly related to the protection and security of the State or the protection of the people’s lives and property (hereinafter referred to as “state protection”), or a disease occurs due to urgency as a direct cause for the performance of duties or education and training directly related to the national protection, etc.

Even if the Plaintiff is not a soldier or policeman wounded on duty under Article 4(1)6 of the Act on Persons of Distinguished Services to the State, a proximate causal relationship may be acknowledged between the injury of this case and the performance of duties or education and training. Thus, the Plaintiff constitutes a soldier or policeman as defined in Article 2 subparag. 21 of the Act on Support for Persons Eligible

Therefore, the Defendant’s decision that did not constitute a person of distinguished service to the Plaintiff on the ground that there is no proximate causal relationship between the instant wounds and the performance of military duties is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Facts of recognition

1) The Plaintiff, on November 23, 2008, went beyond stairs, etc. from the front entrance, was treated three times from the front entrance to the front entrance, to November 28, 2008 as salt pansium and tensions.

2) On June 20, 201, the Plaintiff received a draft enlistment judgment of Grade I in the physical examination, and entered the Army in the Army, and received a new path training at the Position training center. On July 6, 2011, the Plaintiff received a diagnosis of “other conditions and the right side of the unknown details” as a result of the Position of the Posito during the Position training due to an unreasonable Domination of the Position, which occurred during the Position training, and was transferred to the Posito Hospital in the Army Training Zone.

3) The Plaintiff received medical examination and treatment at the Armed Forces Daegu Hospital, but did not take IMI photographs, and was placed in her place for her own care. Even after her face-to-face placement, the Plaintiff got out of the stage after her face-to-face placement, but was only her physical treatment due to an out-to-face care and an unclaimed surgery.

4) On September 201, the Plaintiff received a medical examination at a hospital around D, and filed an application for sick leave after undergoing a diagnosis that “after the shooting of RI from a private hospital (a hospital) on September 23, 201, it is urgently needed to conduct a surgery due to a rheat in the order of the post-face rupture after the shooting of RI.”

5) On October 4, 201, at E Hospital, the Plaintiff was under the diagnosis of Madern Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle, and Madle Madle Madle Madle Madle Madle Madle.

6) Meanwhile, the Plaintiff was discharged from military service after a final diagnosis on February 7, 2012, 201, which was conducted by the National Armed Forces Water Service Hospital (hereinafter “National Defense Water Service Center”). On February 20, 2012, the Plaintiff was hospitalized in the area of military service on November 201, 201, under the diagnosis of 's situation of post-control and post-control operation,' and 's risk of emulsion and emulsion.’ On May 9, 2012, the Plaintiff was under the diagnosis of 's post-control and emulation of emulsion.’ On June 13, 2012.

7) Opinions of the first instance court’s request for physical examination of the president of the Ganbuk University Hospital and the appraisal of the request for the supplementation of the appraisal are as follows.

The plaintiff's self-cover symptoms appeal to the right check, etc. In other words, there is a subletin to the right check.

On October 4, 2011, the Plaintiff carried out scambling and net scambling with respect to "after-scambling and net scambling" in the scambling, which is different from general scambling diseases.

Even if there are kings that were treated as a salt field or a tension in 2008, if there are no additional grounds for having received a serious credit prior to the accident on July 6, 2011, the above opinion is presumed to have occurred due to the accident on July 6, 201.

- If there is clear evidence of the exit from the right angle of the specific time prior to the accident on July 6, 201, it would be reasonable to regard the time as the first exit. However, if there is no objective evidence to support this, it would be reasonable to regard the time when the damage of the check as the first time is objectively confirmed, i.e., the time when the disturbance of the check is first confirmed in the check, i.e., the time when the attack of the control and the order is first confirmed.

On September 23, 201, a video examination submitted at the time of the first physical examination was the first objective evidence, and there was no clear evidence of the escape from the right at a specific time prior to July 6, 201. Therefore, in order to verify that the heat from the air level and the air level occurred due to the credit at a specific time prior to July 6, 201, it is necessary to attach it based on the objective medical record or video examination at the corresponding time. If it is not possible to view it as the credit on July 6, 201 due to the credit on September 23, 2011 as the ground of the code and the net order due to the credit discovered at the shoulder control inspection at the specific time prior to July 6, 2011.

[Ground of recognition] A without dispute, Gap evidence 2 through 5 (including paper numbers; hereinafter the same shall apply), Eul evidence 4, Eul evidence 8 to 14, Eul evidence 16 to 18, Eul evidence 16 to 18, and the result of the first instance court's entrustment of physical examination and supplementary evaluation to the director of the Ganbuk University Hospital; the purport of the whole pleadings

D. Judgment on the main claim

1) In full view of the contents of Article 4(1)6 of the Act on Persons of Distinguished Services to the State, Article 2(1)2 of the Act on Persons of Distinguished Services to the State, Article 3(1)2 of the Enforcement Decree of the Act on Persons of Distinguished Services to the State, Article 2(1) [Attachment 1] 2 of the Enforcement Decree of the Act on Persons of Distinguished Services to the State, legislative background, and literal differences in the language and text of the Act on Persons of Distinguished Services to the State and the Act on Persons of Distinguished Services to the State, in order to be recognized as a soldier or policeman on duty under the Act on Persons of Distinguished Services to the State, there is insufficient proximate causal relation between his/her duty, education and training, and death or wounds. The death or wounds should be the main reason for the performance of duties or education and training directly related to the national defense and security, or the protection of people’s lives and property

2) First, we examine whether the nature of the new disease training (PRI training) claimed by the Plaintiff as the cause of the instant difference constitutes performance of duties or education and training directly related to national protection, etc.

Article 3 (1) 4 and 2 of the Enforcement Decree of the Act on the Persons of Distinguished Services to the State, which was established pursuant to the delegation of Article 4 (2) of the Act on the Persons of Distinguished Services to the State, provides that a soldier is a soldier who was injured in the performance of duties or during education and training directly related to the national defense and security, or the protection of the lives and property of the people, and includes a person who was directly involved in maritime misconduct, such as the control of maritime crimes, investigation and trial activities, inspection activities, patrols at the time of a disaster, rescue and diving activities, rescue and relief of chemicals, etc., or the maintenance, distribution, and management of munitions, such as equipment, etc., such as handling of dangerous substances, such as chemical weapons, transportation of weapons of mass destruction (WMD) and narcotics, etc., and a person who was injured or wounded in the performance of duties, such as rescue and relief from disasters, or other acts equivalent thereto (Article 2-1 (a) and 2-1).

PRI training (preliminary training) conducted in the course of a new illness training is a training to cultivate the necessary shooting and combat forces basically in performing the duty of boundary, search, and happiness, which are the national defense and security, or the protection of the lives and property of the people. Thus, it shall be deemed that the training is included in the "education and training for practical training directly related to the boundary, search, clothes, inspections, or the performance of duties corresponding thereto" as stipulated in Article 3 (1) 4 [Attachment 1] 2-2-2 of the Enforcement Decree of the Act on Persons of Distinguished Services to the State. Therefore, the new illness training (PRI training) claimed by the Plaintiff as the cause of the instant difference constitutes education and training directly related to national defense, etc.

3) Next, in full view of the facts seen earlier and the following circumstances revealed by each of the aforementioned evidence, as to whether the instant difference occurred as the main reason for the instant new training, the instant difference can be acknowledged as having resulted from the preliminary training conducted in the course of the new training.

① Around November 23, 2008, the Plaintiff was receiving treatment from C in the form of an accident that was taken place in stairs, etc. on or around November 23, 2008, 2008, with C in the shape of “satis and tensions” over three times on November 28, 2008 (the Plaintiff was receiving treatment from C in the form of a satch in October 16, 2009; however, the said satise was different from the instant wound as the left satis, and even according to the Plaintiff’s assertion, it appears that there was a minor symptoms that it was caused by the satisfying of the satum in the event of an unreasonable action. However, in light of the Plaintiff’s medical view that the Plaintiff had been judged to have been subject to 10 years after receiving treatment for the first time until December 28, 2008, it appears that it had not been affected by the satisfy.

After entering the military, the Plaintiff had a shocked to the right shoulder by a unreasonable training conducted on July 6, 201 in the course of the training of the PRI training conducted on July 6, 201, and caused a shock to the right shoulder. After which, the Plaintiff did not receive proper treatment, performed education and training and performance of duties for three months, and received the surgery on October 4, 201.

③ On February 7, 2012, the Plaintiff was hospitalized in the National Armed Forces Capital Hospital on February 20, 2012, when continuing to serve in the military without proper treatment, and was hospitalized in the military unit. On February 20, 2012, the Plaintiff was under the diagnosis of 's condition of post-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-face-to-face-face-to-face-to-face-face-to-face-to-face-face-to-face-to-face-face-to-face-face-to-face-face-to-face-to-face-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face (

④ The physical appraisal at the first instance court presented a opinion that “The post-control and net fever of a young age group who is ordinarily the Plaintiff is suffering from acute wounds after severe external wounds, such as falling and collision.” Thus, even if there is a streking which was treated as a streke and tension before the accident on July 6, 201, if there is no ground for having received serious external wounds before the accident on July 6, 201, it is presumed that the post-control and net fever were caused by an accident on July 6, 201.” As such, in light of the fact that the post-control and net fever in the check were caused by severe external wounds, and that the Plaintiff was suffering from a streke during the preliminary training process, it should be deemed that the instant accident was caused by an accident during the instant preliminary training.”

⑤ Even if there was an existing disease on the Plaintiff’s right shoulder, which was partly related to or affected the occurrence or aggravation of the instant wound, it cannot be denied that the accident during the preliminary training was the main cause of the instant wound, in light of the fact that the instant accident was partially related to or affected by the occurrence or aggravation of the instant wound, and that the 'aftermath and marr fever' in the field of the preliminary training was the disease caused by the acute wound after severe external wound, different from that of the general check.

4) The instant difference constitutes a difference in education and training directly related to national protection, etc., which falls under Article 4(1)6 of the Act on Persons, etc. of Distinguished Service to the State, and thus, the Defendant’s decision-making of non-conformity of the requirements for a person of distinguished service to the State should be revoked on a different premise.

3. Conclusion

Thus, the plaintiff's main claim of this case is reasonable, and it is decided as per the disposition (as long as the main claim is accepted, it shall not be judged separately).