[1] Whether Article 2(1) [Attachment 1] of the Enforcement Decree of the Act on Welfare of Persons with Disabilities lists a disabled person who is the object of protection (negative)

[2] Even though it is clear that a person with a certain disability falls under a disabled person under Article 2 of the Act on Welfare of Persons with Disabilities, whether an administrative agency may refuse to file an application for registration of a disabled person solely on the ground that such disability is not prescribed in Article 2(1) [Attachment 1] of the Enforcement Decree of the Act on Welfare of Persons with Disabilities

[3] Where the head of the competent Gun rejected the application for registration of disabled persons under Article 32 of the Act on Welfare of Persons with Disabilities, on the ground that the disability Gap had not been provided for in Article 2(1) [Attachment 1] of the Enforcement Decree of the Act on Welfare of Persons with Disabilities, although he was diagnosed as a "Tourgue Domination" Domination which shows both physical and voiceic symptoms at elementary school, and was treated for more than 10 years, but was under considerable restrictions in daily and social life for a long time due to the lack of symptoms, the case holding that the above disposition was unlawful

[1] In full view of Article 34(1) and (5) of the Constitution of the Republic of Korea, Articles 1, 2(1) and (2) of the Act on Welfare of Persons with Disabilities, Article 2(1) [Attachment Table 1] of the Enforcement Decree of the Act on Welfare of Persons with Disabilities, the purport of the Act on Welfare of Persons with Disabilities, profits from the registration of persons with disabilities, delegation provisions, and the form and content of the enforcement decree, etc., Article 2(1) of the Act on Welfare of Persons with Disabilities provides for the definition of persons with disabilities. Article 2(2) of the Act on Welfare of Persons with Disabilities provides for the types and standards of physical disabilities subject to the Act on Welfare of Persons with Disabilities, and provides for the predictability of the contents of the enforcement decree to be enacted accordingly, and provides for the limitation of discretion on administrative legislation. Accordingly, all disabilities that conform to the type and standard of disability under the Act on Welfare of Persons with Disabilities cannot be defined under Article 2(1) [Attachment 1] of the Enforcement Decree of the Act on Welfare of Persons with Disabilities.

[2] Even if a certain disability is not explicitly provided in Article 2(1) [Attachment 1] of the Enforcement Decree of the Act on Welfare of Persons with Disabilities, if a person with such disability falls under a disabled person as provided in Article 2 of the Act on Welfare of Persons with Disabilities, and in light of the contents and system of the parent law and the above Enforcement Decree, if the above Enforcement Decree provision cannot be new on the premise that the disability is excluded from the application of the Act on Welfare of Persons with Disabilities, and it is deemed that there is a lack of simple administrative legislation, an administrative agency may not refuse to apply for registration of persons with disabilities solely on the ground that the disability is not provided in the Enforcement Decree. In this case, an administrative agency should find and apply the provision on the type of disability most similar to the pertinent disability under the above Enforcement Decree so that it can conform to the purport and equality principle of the mother law

[3] In a case where the head of the competent Gun rejected the application for the registration of disabled under Article 32 of the Act on Welfare of Persons with Disabilities for reasons that the disability with Gap was not provided for in Article 2 (1) [Attachment Table 1] of the Enforcement Decree of the Act on Welfare of Persons with Disabilities, since it is evident that Gap constitutes a person subject to the Act on Welfare of Persons with Disabilities for a long time due to the internal disability or mental disease of the agency, or a person subject to considerable restriction in daily life or social life due to the mental disease of the group, and the above provision of the Enforcement Decree cannot be deemed as a purpose of excluding the disability subject to the Act on Welfare of Persons with Disabilities for more than 10 years due to the lack of symptoms despite the fact that the above provision of the Enforcement Decree does not apply to Gap's disability grade since it constitutes a person subject to the Act on Welfare of Persons with Disabilities for more than 2 (2) of the Act on Welfare of Persons with Disabilities for more than 10 years, and thus, the above provision of the Enforcement Decree does not apply to Gap's disability.

[1] Article 34(1) and (5) of the Constitution of the Republic of Korea; Articles 1, 2(1) and (2) of the Act on Welfare of Persons with Disabilities; Article 2(1) [Attachment 1] of the Enforcement Decree of the Act on Welfare of Persons with Disabilities / [2] Article 2 of the Act on Welfare of Persons with Disabilities; Article 2(1) [Attachment 1] of the Enforcement Decree of the Act on Welfare of Persons with Disabilities / [3] Articles 2 and 32 of the Act on Welfare of Persons with Disabilities; Article 2(

Plaintiff (Law Firm Man, Attorneys Shin Tae-ro et al., Counsel for the plaintiff-appellant)

Yangyang-gun (Law Firm One, Attorneys Gu-hun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Nu70883 decided August 19, 2016

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Article 34(1) of the Constitution provides that “All citizens shall have the right to a life worthy of human beings.” Article 34(5) provides that “All citizens without a livelihood due to a physical disability, disease, old age, or any other reason shall be protected by the State, as prescribed by the Act.” Accordingly, the Act on Welfare of Persons with Disabilities stipulates the responsibilities of the State, local governments, etc. to guarantee the human life and rights of the disabled, comprehensively promote measures for welfare of the disabled, by setting out programs for medical treatment, etc. of the disabled, and by providing for matters necessary for protecting the disabled and paying allowances, etc., thereby contributing to social integration through the promotion of welfare of the disabled, social participation of the disabled (Article 1). According to the Act on Welfare of Persons with Disabilities, persons with disabilities are subject to registration of the disabled, such as physical or mental disability (Article 2(1)), and persons with physical disability or mental disability falling under Article 2(2) of the Enforcement Decree of the Act on Welfare of Persons with Disabilities (referring to persons with Disabilities who are provided with physical or mental disability).

2. Comprehensively taking account of the structure of the relevant statutes, the purport of the Act on Welfare of Persons with Disabilities and the benefits from the registration of persons with disabilities, and the form and content of the delegation provision and the Enforcement Decree, Article 2(1) of the Act on Welfare of Persons with Disabilities provides for the definition of persons with disabilities, and Article 2(2) provides for the kinds of physical and mental disabilities subject to the Act on Welfare of Persons with Disabilities, which are subject to the Act on Welfare, and provides for predictability as to the contents of the Enforcement Decree enacted accordingly, and provides for the limitation of discretion on administrative legislation. It cannot be said that all disabilities meeting the types and standards of disability as prescribed by the Act on the Protection of Persons with Disabilities cannot be provided for in the Enforcement Decree without exception of the Act on the Protection of Persons with Disabilities. Accordingly, the provision of this case merely provides for 15 types of disabled persons within the maximum possible scope consistent with the definition provision of the Act on the Protection of Persons with Disabilities pursuant to the purport of delegation provision. Therefore, it cannot be deemed that the provision of this case merely provides for the provision that does not clearly comply with the principle of delegation of the Act.

Therefore, even if a certain disability is not expressly provided in the Enforcement Decree of this case, if it is clear that the person with the disability falls under the disabled under Article 2 of the Act on Welfare of Persons with Disabilities, and in light of the content and system of the parent law and the Enforcement Decree of this case, if the provision of this case cannot be new on the premise that the disability is excluded from the application of the Act on Welfare of Persons with Disabilities, and it is deemed that there is a lack of simple administrative legislation, the administrative agency may not reject the application for registration of persons with disabilities solely on the ground that the disability is not provided in the Enforcement Decree. In this case, the administrative agency should find and apply by analogy the provision on the type of disability most similar to the disability of this case in the Enforcement Decree of this case, so that the provisions of the Enforcement Decree of this case can be in accordance with

3. The reasoning of the lower judgment reveals the following facts.

(1) The “Saembrote” refers to a disease with symptoms exceeding one year as a whole, and medically accurate causes have not yet been identified. (a) The term “Saembrote” includes two symptoms: (b) the physical parts of the body, such as face, neck, shoulder, body leg, etc., that he knows, without any particular reason, are moving fast and fastly and repeatedly with the “sports”; and (c) the whole together refers to a disease with symptoms exceeding one year.

(2) The Plaintiff had been living in a state where he was completely cut off from around the sixth grade of elementary school without maintaining a fluorial relation or social life due to a trophical and voice symptoms all appearing, and had been gradually limited in daily life or social life for a long time, such as where he was given treatment for more than 10 years and has increased the clothes of a drug while taking medicine, and the symptoms have not been fluored, and it cannot be divided into normal conversations with other persons who may sit and work, and in the closed space, the symptoms have become more severe and cannot move for a long time.

(3) The Defendant rendered the instant disposition rejecting the Plaintiff’s application for registration of the disabled on the ground that the Plaintiff’s disability was not stipulated in the Enforcement Decree of the instant case.

4. Examining these circumstances in light of the legal principles as seen earlier, the following determination is possible.

Since it is clear that the Plaintiff falls under a person subject to considerable restrictions in daily life or social life for a long time due to an internal disorder or mental disease of an internal institution called Matuna-gun, the Plaintiff constitutes a disabled person subject to the Act on Welfare of Persons with Disabilities pursuant to Article 2(2) of the Act on Welfare of Persons with Disabilities. Dolla-gun has a similar aspect as “cerebral Bribery” (see attached Table 1] of the Enforcement Rule of the Act on Welfare of Persons with Disabilities (see attached Table 15.), and similar in that it is classified as a mental disability and has little possibility of social adaptation and social life (see attached Table 1). Considering the degree of the Plaintiff’s disability, restrictions in social life, etc., and each specific disability provided for in the Enforcement Rule of the Act on Welfare of Persons with Disabilities, the purport of the Enforcement Decree of the Act on Welfare of Persons with Disabilities cannot be deemed to be excluded from the application of the Act on Welfare of Persons with Disabilities.

Therefore, the administrative agency cannot reject the Plaintiff’s application for registration of the disabled solely on the ground that the Plaintiff’s disability is not stipulated in the Enforcement Decree of this case, and thus, the Defendant’s disposition of this case is unlawful. The Defendant should take measures such as granting disability ratings to the Plaintiff by analogically applying the provision on the type of disability most similar to the Plaintiff’s disability among the provisions of the Enforcement Decree of this case.

5. Although the lower court did not view the type of disability as a limited list under the Enforcement Decree provision of this case, it was justifiable to have determined that the instant disposition was unlawful. In so doing, the lower court did not err by misapprehending the legal doctrine on interpretation and application of Article 2 of the Welfare of Disabled Persons Act and the principle of equality under the Enforcement Decree of this case, thereby adversely affecting

6. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)