Standard for determining whether a soldier constitutes “Death during education, training, or in the course of performing his/her duty” under Article 4(1)5(a) of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State”

Article 4(1)5(a) and (6)4(current deleted) of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (Amended by Act No. 10471, Mar. 29, 201);

Supreme Court en banc Decision 2010Du27363 Decided June 18, 2012 (Gong2012Ha, 1300)

Plaintiff (Attorney Cho Jae-soo, Counsel for the plaintiff-appellant)

Chuncheon Head of Chuncheon Veterans Branch Office

Seoul High Court (Chuncheon) Decision 2011Nu1226 decided April 18, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A. Article 4(1)5(a) of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (amended by Act No. 10471, Mar. 29, 201; hereinafter “former Act on Persons, etc. of Distinguished Services to the State”) provides that “where a person who died during education and training or duty as a military personnel, police or fire-fighting officer (including a person who died of a disease in the line of duty) and his/her bereaved family members, etc. are entitled to honorable treatment under this Act” under Article 4(1)5(a) of the same Act, and Article 4(6) of the same Act provides that “where a person who meets the requirements for a person of distinguished services to the State dies or is wounded due to any of the following causes, he/she shall be excluded from a person of distinguished services

The legislative purpose of the former Act on the Persons of Distinguished Services to the State is to fully treat persons who have sacrificed or contributed to the State as well as their bereaved family members reasonably (Article 1). In light of Article 2, the basic principle of honorable treatment is to ensure that honorable lives of persons who have rendered distinguished services to the State and their bereaved family members are maintained and guaranteed in accordance with the degree of their sacrifice and contribution (Article 2), the term “ death during education and training or performance of duty” refers to cases where there is proximate causal relation between education and training or performance of duty and their death, and the same applies to cases where a soldier’s death is caused by self-injury. However, Article 4(6)4 of the former Act stipulates that “self-injury” as one of the reasons for the exclusion of persons of distinguished services to the State constitutes “self-injury” under subparagraphs 1 through 3 of the same Article, but, inasmuch as there is no reasonable causal relation between the death or self-injury in the performance of duty of persons who have rendered distinguished services to the State or the provision on education and training (Article 4).

B. The court below held that even if the deceased was in a situation where mental or physical stress was suffered due to excessive work and lack of water surface while in the military service, it is difficult to readily conclude that the deceased’s content and degree were in a state of mental disorder or mental distress due to adaptation disorder, and that the deceased’s death constitutes “self-injury,” which is a ground for exclusion from persons of distinguished service, and therefore, the Defendant’s disposition that the deceased did not constitute a person of distinguished service, was lawful.

However, the above judgment of the court below is judged only on the premise of the legal principle that if the suicide of the deceased constitutes "self-injury" unless the suicide of the deceased was committed in a state of mental disorder or mental disorder, and was completely excluded from his/her free will, it shall be excluded from the application of a person who has rendered distinguished services to the State, and there is an error of incomplete deliberation and determination as to whether there was a proximate causal relation between the deceased's performance of his/her duties and the death caused by suicide.

2. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)