2019Guhap23632 Disposition of revocation of enlistment in active duty service.

A

Attorney Kim Shin-soo, Counsel for the defendant-appellant

Daegu Superintendent General of the North Korean Military Manpower Office

December 11, 2019

January 15, 2020

1. The Defendant’s disposition of military service subject to enlistment in active duty service shall be revoked on July 4, 2019.

The same shall apply to the order.

1. Details of the disposition;

A. On November 20, 2007, the Plaintiff was assigned to the enlistment in the active service as a result of the draft physical examination on November 20, 2007, but the enlistment in the active service was postponed due to the cause of college attendance.

B. As a result of the follow-up draft physical examination on November 21, 2012, the Plaintiff was subject to the enlistment of Grade II in the active service, but the enlistment in the active service was postponed due to the cause of college attendance during the six-year period. Since then, on March 7, 2014, the Plaintiff was incorporated into a medical officer candidate (the training institution: the training institution’s sex surgery, the training period: from February 2014 to February 2019).

D. Around the end of the pertinent training period, the Defendant issued a notice of enlistment of medical officer candidates (the date of enlistment: March 8, 2019) to the Plaintiff. On February 13, 2019, the Plaintiff filed an application for a change in the disposition of military service on the ground that the Plaintiff’s exercise of “salutical balance of revenues and expenditures 2 (the date of enlistment or the date of salutical loss)” was limited to the Defendant’s exercise of “salutical balance of revenues and expenditures 1).” The Defendant extended the above enlistment date in order to proceed with the process of military service change.

E. On July 4, 2019, the Director of the Central Physical Examination Division, following the physical examination of the Plaintiff and the review of the Central Physical Rating Board twice, determined the Plaintiff’s physical grade as Grade 4 on the ground that “The Plaintiff’s physical grade constitutes “a congenital congenital type” as stipulated in attached Table 3 of the Regulations on Physical Examination, etc. (hereinafter “the assessment criteria of this case”) No. 183 (b) of the degree of mental and physical disorder in the draft physical examination (hereinafter “the assessment criteria of this case”). Accordingly, on July 4, 2019, the Defendant rendered a disposition of military service for the Plaintiff to be enlisted in active duty service (hereinafter “instant disposition”). Meanwhile, the assessment criteria of this case related to this case are as follows.

A person shall be appointed.

00 183 : Central light (combined with a sloping slopings, alley-ductals, a light-class 4 (Military Service) 194 - The knives knives - The knives knives - the knives - the knives - the knives - the knives - the knives - the knives - the knives - the knives - the knives - the knives - the knives - the knives - the knives - the 5 (military Service).

【Ground of recognition】 The fact that there is no dispute, Gap 1, 2, Eul 1 through 5, 7, and 8, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff was diagnosed by a multiple diagnosis institutions that there are difficulties in daily life or sports due to lectures on the part of the second balance of revenues and expenditures of the plaintiff. Since the above disease falls under two or more "two fingers and fingers and fingers and fingers," the plaintiff's physical grade should be determined as class 5.

Nevertheless, the Defendant excluded the application of subparagraph 194 solely on the ground that the Plaintiff’s disease was caused by a prior cause, and assessed the Plaintiff’s physical grade as Grade 4 by applying subparagraph 183 (hereinafter “No. 183”) of this case’s assessment criteria, and then rendered the instant disposition, it should be revoked in an unlawful manner.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Relevant legal principles

Article 12(1)1 through 3 of the Military Service Act provides that a doctor exclusively in charge of a draft physical examination who has conducted a physical examination shall be determined at Grade I, II, III, or IV according to physical condition and the degree of health of a person who can perform the active or recruit service, and a person who is capable of performing the second draft physical examination but is incapable of performing the active or recruit service shall be determined at Grade V, and a person who is incapable of performing the second draft physical examination due to a disease or a mental or physical disorder shall be determined at Grade VI. Article 12(4) of the same Act provides that the criteria for determination of physical grade shall be determined by Ordinance of the Ministry of National Defense. Article 11 of the Rules on Examinations, such as a draft physical examination, shall be applied strictly and equally. Accordingly, a doctor exclusively in charge of a draft physical examination, etc. shall be determined at the physical grade according to whether there is objective existence under the above criteria for determination, and it shall not be determined at any discretion of 203 doctors, etc. (see, e.g., Supreme Court Decision 2001Du304.).

(ii) the facts of recognition

The following facts can be acknowledged by taking into account the absence of dispute between the parties, the entry of Gap evidence 3 and Eul evidence 9, the results of each entrustment of appraisal to C Hospital in this Court (hereinafter referred to as the "court's results of appraisal") and the whole purport of arguments.

A) On February 7, 2019, the Plaintiff was diagnosed in D Hospital under the name of “the restriction on the exercise of the pipe of water in the second balance of earnings and expenditures on both sides”.

B) On February 18, 2019, the Plaintiff was diagnosed as “the construction of a salutic salutic salutic salutic salutic salutic salutic salutic salutic salutic salutic salutic salutic salutic salutic salutic salutic salutic salutic salutic salutic salc

C) On May 1, 2019, at G Hospital, the Plaintiff was diagnosed with the name of the disease of the 's subsection between the 2nd balance of the two sides'. The Plaintiff expressed that the 'W of the above hospital's sexual surgery was modified by both descendants’ and that it was limited to 30 degrees of the resect, 45 degrees of the resected, and 0 degrees of the resected, and the left side is limited to 0 degrees of the resected, and the left side is limited to 0 degrees of the resected.

D) On May 8, 2019, the Plaintiff was diagnosed by the I Hospital under the name of “streak part of the streak part of the balance of the streaks in the streaks of the GJ of the above hospital.” The Plaintiff is presumed to be under the influence of daily life and physical exercise, and the Plaintiff’s medical specialist appears to be in a position that it is difficult to expect the scope of normal physical exercise even if medical treatment and surgery are performed.”

E) On May 14, 2019, the Plaintiff was diagnosed by the Seoul National University Hospital under the name of “salutic part of the pipe part between the second and second resin”.

F) The Director of the Central Physical Examination Bureau explained as follows the reasons why subparagraph 183 of the instant assessment standard was applied to the Plaintiff’s disease.

(1) The term "gradation" means that there is a restriction on the operation of pipes, and the term "gradation" means a condition in which the diameter of pipes is difficult to move in by being connected with a steel or fiber structure, and the term "building" means a situation in which the length of an annual installments decreases, and the term "building" means a situation in which the length of the pipe is reduced. The above three terms are mixed, but the term is the most comprehensive term. (2) The Plaintiff's fingers are measured differently at the time of inspection (at least 30 degrees from 30 degrees to 60 degrees), so they fall under the construction of a new electric system (at least from 30 degrees to 60 degrees), and rather are deemed to fall under a astronomical cause, and thus, they are applied to the construction of a new electric system (at least from 30 degrees to 60 degrees), and thus, are considered to fall under a congenital cause

G) According to the court’s appraisal, as part of the Plaintiff’s right hand hand hand dynasium, the Plaintiff’s right hand dynasium dynasium dynasium 0 to 30 degrees dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynas

3) Specific determination

In light of the relevant legal principles, comprehensively taking account of the following circumstances revealed by the facts acknowledged as above and the purport of the entire pleadings, the Plaintiff’s physical grade should be assessed as class 5 pursuant to subparagraph 194 (a) or (b). Therefore, the instant disposition taken on a different premise should be revoked as it is unlawful.

A) In common, the Plaintiff was diagnosed by multiple examination institutions that there was physical restriction, establishment, and strong duty on both sides, i.e., the water table balance of the fingers, and in particular, in E hospital, G hospital, and court appraisal, the Plaintiff’s exercise scope of the second balance of the Plaintiff’s right is limited to 30 roads, or there was an obstacle to shooting and military training due to the softs of the second balance of the right side. Thus, the disease level of the Plaintiff’s disease is limited to the case where the Plaintiff is demoted to the steel table (a) or the water table table of the water table of at least two fingers as prescribed in subparagraph 194.

B) Meanwhile, the Defendant asserts to the effect that subparagraph 194 is applied only in the event of the latter, and only No. 183 shall apply in the case of a congenital flag, and that subparagraph 194 cannot be applied since the Plaintiff’s fingers are congenital.

However, the assessment criteria of this case do not clearly stipulate that subparagraph 194 shall apply only in the latter case; ② The assessment criteria of this case include the provisions that stipulate it when the classification of congenitality or congenitality is required (see, e.g., Articles 260 and 268); ③ subparagraph 183 provides the congenital type, but it cannot be deemed that subparagraph 183 provides all cases of congenitality in all cases of congenitality (the defendant's 183 (b) does not contain any content about 'loss' or 'loss'). In light of the fact that subparagraph 183 (b) is not applicable only in the case of congenital type, it cannot be deemed that only subparagraph 183 of the congenital type can be applied in the case of congenital type, and that another standard can not be applied in the case of congenital type not stated in subparagraph 183. Therefore, the defendant's above assertion is without merit.

C) The defendant also asserts that subparagraph 194 is premised on "full-time job," and that subparagraph 194 cannot be applied since the plaintiff's finger status constitutes "part-time job," not "full-time job," but "construction."

The facts are recognized as above, however, that the central physical examination center generally evaluates the fingers of the second resin of each plaintiff in terms of physical exercise restrictions, establishment, or lectures. However, the Central physical examination center's opinions are as follows: (1) The definition of "Grain" is defined as a case in which the exercise scope is not more than 1/3 of the normal range; (2) the definition of "Grain" is defined as a case in which the exercise scope is not more than 1/3 of the normal range; (3) No. 194 of the above definition is without any provision of this definition.

Even if the definition of ‘ad hocd' is similar to the definition of a position prescribed in subparagraphs 192 and 193, according to the court's appraisal results, the exercise range of the plaintiff's right-hand balance is measured from 0 degrees to 30 degrees (or 0 degrees to 35 degrees). Thus, in full view of the fact that the plaintiff's hand-on balance can be seen as falling within 1/3 of the normal range (0 degrees to 90 degrees), the plaintiff's hand-on balance can be seen as falling within 1/3 of the normal range (0 degrees to 0 degrees to 90 degrees). Therefore, the defendant's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

The presiding judge Park Jong-ho

Judges or private citizens;

Judges Kim Gi-su

1) The flaparation means the flapare of the bones of the first bones at the end of the fingers, and the flapare of the second bones at the end of the fingers.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.