Plaintiff (Law Firm Gyeong-Gyeong, Attorney Park Jong-il, Counsel for the plaintiff-appellant)

The Minister of National Defense

November 13, 2013

Seoul Administrative Court Decision 2013Guhap6442 decided June 14, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant's refusal to pay pension for wounds issued to the plaintiff on September 17, 2012 shall be revoked.

1. Quotation of the first instance judgment

This court's reasoning is as follows, except for the addition of the judgment below as to the plaintiff's assertion that is especially emphasized or re-emphasized by this court, and therefore, this court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. The plaintiff's assertion

As a result of a new physical examination, the Plaintiff asserts that: (a) the disability rating under the Act on the Persons of Distinguished Service to the State was elevated from Grade 7 to Grade 6 2 on June 19, 2007; (b) on June 19, 2012, the Plaintiff’s right to receive a wounded veterans’ pension was raised from Grade 7 through Grade 6 2; and (c) on June 19, 2012, the part of the arms’s upper part is negohying due to the left shouldering debrising debrising debrising symptoms, and the part of the arms’s upper part is likely to have trouble in the middle of the shouldering part; and (d) on June 19, 2012, even if the new provision is effective in the future, the Plaintiff’s entitlement to a wounded veterans’ pension falls under the subject of a wounded veterans’ pension; (d) the Plaintiff’s right to receive a wounded veterans’ pension ought to be retroactively applied to the court without reasonable grounds, and thus, should be retroactively applied to the Plaintiff’s right to appeal.

3. Determination

A. As to the Plaintiff’s assertion ①

The term " disability caused by a disease or injury" means a case where a disease or injury was cured but a permanent mental or physical damage remains, and in this case, the healing refers to a case where the effect of treatment for a disease or injury cannot be expected or where the symptoms thereof are fixed (see Supreme Court Decision 2003Du3048, Jun. 13, 2003).

According to Gap evidence Nos. 11 (including paper numbers; hereinafter the same shall apply), the plaintiff can be found to have been diagnosed as Grade 6 of the Enforcement Decree of the Military Pension Act [Attachment Table 2] (2] [Attachment Table 6] (two joints of three joints of one arms), but considering the purport of arguments as to Gap evidence Nos. 5, 7, and 8, the plaintiff is already diagnosed as one of Grade 2 disability ratings under the Act on the Protection of Persons of Distinguished Service to the State on June 19, 2012, the plaintiff constitutes one of Grade 2 disability ratings under the Act on the Protection of Persons of Distinguished Service to the State, and the plaintiff constitutes one of Grade 2 disability ratings under the Act on the Protection of Persons of Distinguished Service to the State in Daegu District Court on December 23, 2012 (the plaintiff is judged as one of Grade 2 disability ratings under the Act on the Protection of Persons of Distinguished Service to the State, and the remaining one constitutes one of Grade 2 disability ratings under the Act on the Protection of Persons of Distinguished Service to the State.

Therefore, in light of the fact that the degree of the difference between the Plaintiff and the Plaintiff’s disability was in a physical examination conducted on or around June 2007 and that it was no longer aggravated or has not been improved in the physical examination conducted on or around August 29, 2012, it is difficult to deem that the Plaintiff’s disability solely based on the diagnosis conducted at ○○ Hospital on June 19, 2012 by the Plaintiff did not reach the state of disability when it came to the state of disability on or around June 2012. Rather, it is reasonable to deem the Plaintiff to have reached the state of disability finally and conclusively reached the state of disability around June 207.

Therefore, the plaintiff's above assertion is without merit.

B. As to the Plaintiff’s assertion

The legislative authority has a wide range of legislative formation that can decide the right to receive the military pension at a reasonable level that can achieve the legislative purpose by comprehensively taking into account various social and economic conditions. As long as the Constitutional Court has delegated the duty to revise the legal provisions unconstitutionally, the Constitutional Court's ruling of inconsistency with the Constitution should be deemed to have reached the legislative discretion as to whether to apply the amended provisions retroactively and the scope thereof. Although the Constitutional Court confirmed the unconstitutionality of the provisions of the former Act, the legislators did not have any transitional provisions concerning the retroactive application of the provisions of the new Act. In the application of the new provisions of the former Act, there is a concern that the legislator's intention without transitional provisions would make the legislative intent without transitional provisions and excessively expand the compensation object. The Military Pension Act newly established Article 24 (6) of the Military Pension Act Article 23 (1) and applies the new provisions to a person who becomes a wounded veterans' pension pursuant to the new provisions after adding a lump-sum retirement pension, lump-sum retirement pension, lump-sum retirement pension deductions, interest deductions at the time of retirement, and retirement pension deductions.

Meanwhile, inasmuch as the Constitutional Court has imposed the duty to revise or abolish the provisions of a law in a constitutional manner by making a ruling of inconsistency with the Constitution as to a certain legal provision, the legislative amendment and the scope of retroactive application depends on the legislative discretion. However, considering the purport of the ruling of inconsistency with the Constitution as to the provisions of the former Act or the specific norm control effectiveness of the adjudication of inconsistency with the Constitution as to the relevant legal provision, the retroactive effect of the ruling of inconsistency with the Constitution as to the cases where the legal provision of the former Act has become controversial at the time of the ruling of inconsistency with the Constitution and where the court is pending at the time of the ruling of inconsistency with the Constitution, shall affect the retroactive effect of the ruling of inconsistency with the Constitution as to the relevant case. Thus, even if the legal provision does not take transitional measures as to the application of the provisions of the former Act, the provisions of the former Act cannot be applied as they are, and the new law provision to which the unconstitutionality has been removed (see Supreme Court Decision 2008Du1885, Sept. 29, 2011).

Therefore, the plaintiff's above assertion is without merit.

4. Conclusion

Thus, the plaintiff's appeal is dismissed as it is without merit.

Judges Cho Dong-dong (Presiding Judge)