2011Guhap1228 Revocation of Disposition of Disposition of Disqualification for Military Action or Action

Plaintiff:

2. Ten Dao-dong in Jeonju-si

Law Firm Tae-a, Counsel for the plaintiff-appellant

Attorney Kim Jong-chul

Head of Jeonju Veterans Affairs Office

Free of flowing water of a litigation performer

o October 11, 201

November 22, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

On February 15, 2011, the Defendant’s decision on the promotion of the military service rendered by the Plaintiff was revoked.

1. Details of the disposition;

A. On January 26, 2004, the Plaintiff entered the Army and was discharged from military service on April 23, 2004, and served on April 29, 2004 as the ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked ranked on November 1, 2007, and was discharged from military service on April 22, 2008.

B. On July 24, 2008, the Plaintiff asserted that “A person who rendered distinguished services to the Defendant was registered as a person of distinguished services to the State, asserting that “A person who rendered distinguished services to the State, while serving in the military, sustained in the upper sick soldiers (hereinafter referred to as “the instant injury and disease”) of the post signboard escape certificate No. 3 - 4 during the military service, the post signboard escape certificate No. 5, and the conical signboard escape certificate between 1,00,000.”

Cheong-gu made the Office.

C. On January 8, 2009, the Defendant rendered a decision to the Plaintiff on the ground that “(i) there was no medical record to recognize that each of the above drilling escape symptoms occurred in connection with the Plaintiff’s performance of his duties, and there was no previous medical record that the Plaintiff was treated as “consceptic”, and (ii) the above vertebrate operation failure failure group was caused by medical malpractice from the military officer in charge, and thus, it does not constitute an official duty, and thus, it does not constitute an official duty.” (hereinafter referred to as the “former refusal disposition of this case”).

D. On April 1, 2009, the Plaintiff filed a lawsuit seeking revocation of the previous rejection disposition of this case with 2009Guhap680 on April 1, 2009. On February 16, 2010, the above court rejected the Plaintiff’s 1 military life, such as conducting various training and duties without any specific progress, from April 2, 2007 to April 13, 2007, the base of escape (hereinafter referred to as the “instant construction”), which was conducted on the ground that the Defendant’s judgment was conducted on April 14, 207, on the ground that there was no need to perform the duty of care of the Defendant for escape from the first time to the point of view of the fact that there was no need to perform the duty of care of the Defendant on the ground that there was no need to perform the duty of care of the Defendant on the ground that there was no need to perform the duty of care of the Defendant on the ground that he was found to have been performing the duty of care of the emergency.

E. After December 3, 2010, the Defendant requested the Board of Patriots and Veterans Affairs of the Republic of Korea to review whether the Plaintiff constitutes an official wound under Article 73-2(1) of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (hereinafter “Act on Persons of Distinguished Service to the State”). The commission did not confirm any evidence to deem that the instant accident occurred due to inevitable reasons, and on January 10, 201, on April 13, 2007, the date when the Plaintiff was 12 days after the date when the accident occurred. At the time, the Plaintiff was deemed to have been fully aware of the geographical features, risks, etc. of the instant construction. Accordingly, the instant accident was determined to have occurred due to neglecting to pay attention, and therefore, the Defendant appears to have deliberated on the instant case’s support by the Plaintiff 1’s negligence or the instant accident without any inevitable reason and deemed to have occurred due to the Plaintiff 1’s negligence.

【Uncontentious facts, Gap evidence Nos. 1 through 7, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Chapter 1

The purport of the provision of Article 73-2 (1) of the Act on the Persons of Distinguished Services to the State is to establish a legal basis for classifying wounded persons due to the above violence or traffic accident as persons of distinguished services to the State, if the status of a person of distinguished services to the State is recognized as a person of distinguished services to the State even if they were wounded due to violence, accidents, etc., it is likely that the status of the person of distinguished services to the State would be relatively deteriorated. Thus, the above provision applies only to cases where it is difficult to deem that the wounded person himself/herself is performing the direct contents of his/her duties, such as violence or traffic accident. On the contrary, it is not intended to exclude the soldier from the person of distinguished services to the State by evaluating whether he/she was negligent in performing his/her duties, and in cases where he/she was killed or wounded in the course of performing his/her duties, such as actual combat action, training, etc., and thus, it is unlawful to apply the above provision to the plaintiff caused by the accident in this case due to inevitable danger.

2) Chapter 2

According to the provision of Article 73-2 (1) of the Act on Persons of Distinguished Services to the State, among persons who meet the requirements of Article 4 (1) 5, 6, 13, or 14 of the same Act and who suffered from wounds due to their own negligence or their own negligence without any inevitable reason, the defendant bears the burden of proof against the defendant, who is the disposition authority. The defendant issued the disposition of this case, which is an infringing administrative act that refuses to apply for registration of a person of distinguished services to the State to the plaintiff and determines as a volunteer soldier or policeman for assistance, without any proof as to whether the plaintiff's negligence or negligence was concurrent with the plaintiff's negligence without any inevitable reason, since the date of occurrence of the accident of this case was 12 days after the plaintiff performed the duty of direction of the construction of this case, it seems that the plaintiff was sufficiently aware that the plaintiff's administrative act of this case was legitimate by negligence.

3) Chapter 3

In addition, the construction site of this case was in the form of a picture, and the steel view was increased at the front of the patrol, and the width of the patrol route that the plaintiff could walk was about 80 cm or 1m. In particular, the traffic protection and patrol route of the point where the plaintiff was fallen was the most narrow and protruding-out relationship, and there was a substantial risk of accidents. The work at the time was completed, and the width of the patrol route was the most narrower than that of ordinary, and the accident was the most narrow, and the construction site of this case was the most narrow, and the construction site of this case was the one where the width of the patrol route was the most narrow, even though the plaintiff fulfilled his best duty of care, and the accident was caused by the accident of this case, and the accident was not caused by the plaintiff's negligence on the ground that the plaintiff did not suffer excessive treatment and the plaintiff's negligence on the part of this case (the plaintiff's disease of this case after the accident of this case, which was caused by the accident of this case.)

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Determination

1) As to Chapter 1:

Article 4 (1) 6 of the Act on the Persons of Distinguished Services to the State provides that a soldier or policeman discharged from active service or retired from office by suffering from wounds during education and training or in the performance of duty (including diseases caused by official duties), who is determined to have suffered physical disability falling within that degree of injury under Article 6-4 of the same Act, in a physical examination conducted by the Minister of Patriots and Veterans Affairs, shall be classified as a soldier or policeman wounded on duty, and Article 73-2 (1) of the same Act provides that the Minister of Patriots and Veterans Affairs shall meet the requirements under Article 4 (1) 6 of the same Act, and shall exclude a wounded person who was registered pursuant to Articles 4 (1) and 6 of this Act and his family members from the name of a person of distinguished service to the State who was wounded on account of concurrent or negligent reasons for the same reason as those of the person of distinguished service to the State without any inevitable reason; Article 9, 11 through 62 of the same Act provides that the wounded person and his family members shall be compensated for the same reason as those of distinguished service to the State.

Article 73-2 (1) of the Act on Persons of Distinguished Service to the State is applied only where it is difficult for the wounded to be deemed that the wounded person himself/herself is directly performing his/her duty, and it does not purport to exclude him/her from the State-owned meritorious person by evaluating his/her negligence even in cases where he/she was wounded in the course of performing his/her duty. However, there is no ground for such interpretation. Rather, as seen earlier, Article 73-2 (1) of the Act on Persons of Distinguished Service to the State is the requirement of Article 4 (1) 6 of the Act on Persons of Distinguished Service to the State, i.e., Article 4 (1) 6 of the Act on Persons of Distinguished Service to the State, or a police officer, who sustained wounds during his/her duty as a soldier, police officer, or fire officer, even though the defendant is deemed to fall under the requirements of Article 4 (1) 6 of the Act on Persons of Distinguished Service to the State, and thus, he/she cannot be recognized as being wounded by the plaintiff's negligence or 2.

2) As to the second proposal

On the other hand, the burden of proving that there is a causal relationship between education and training or duty performance under Article 4 (1) 6 of the Act on Persons of Distinguished Service to the State is applied for registration of persons of distinguished service to

In addition, if a person is a person who is a person who has rendered distinguished services to the State without any inevitable reason, and the purpose of the person's intentional or gross negligence without any inevitable reason is to be defined as a case where the person's intention or gross negligence is not different in the line of duty, the person's intention or gross negligence is not to bear the burden of proving and proving that the person's intention or gross negligence was "in the case of the person's intentional or gross negligence without any inevitable reason" (see Supreme Court Decision 2003Du13595 delivered on May 14, 2004), and the burden of proving that the person's negligence did not conflict with the other person's negligence under Article 73-2 (1) of the Act on Persons of Distinguished Services to the State is still the person who applied for a record of persons of distinguished services to the State, etc.

Therefore, the plaintiff's assertion on the premise that the defendant has the burden of proving that the plaintiff's negligence or the plaintiff's negligence caused the injury or disease of this case due to minor negligence without any inevitable reason is without merit.

3) As to the third proposal

Based on the above legal principles, we examine whether the injury or disease in this case occurred due to unavoidable reasons or the negligence of the plaintiff is not concurrent.

Comprehensively taking account of the purport of evidence No. 3, if the Plaintiff had been negligent in carrying out the instant construction work at the point of 30 p.m. or 5 p.m. on April 2, 2007 through April 13, 200. The content of the instant construction work is construction of about 1.5 km to 2 m. and about 20 p.m. between them, the Plaintiff was negligent in carrying out the construction work at the point of 15 to 20 p.m., and the Plaintiff was not negligent in carrying out the construction work at the point of 20 p.m. on the ground that it was difficult for him to view that there was an inevitable reason for the Plaintiff to have carried out the construction work at the point of 12 p.m. on April 14, 207, which was the 12 p.m. on the ground that there was an inevitable reason for the Plaintiff to have carried out the construction work at the time of the instant accident.

In addition, as seen earlier, Article 73-2(1) of the Act on Persons of Distinguished Service to the State provides that not only those who were wounded entirely due to their own negligence, but also those who were wounded due to concurrent causes with other persons who were in need of support, but also those who were excluded from persons of distinguished service to persons of distinguished service to the State. Thus, even if the instant injury was caused by the medical malpractice of the military officer in charge of spinebrate Nos. 2-3 (vertebrate Stabilization Certificate) among the instant injury, the first cause of the injury was caused by the Plaintiff’s negligence, as long as the instant accident, which was the first cause of the injury of this case, was caused by the Plaintiff’s negligence, and the Plaintiff received an operation from a military doctor, and thus, the Plaintiff cannot be considered as a person who was a person of distinguished service to the State.

Therefore, this part of the plaintiff's assertion is without merit.

4) Sub-decisions

Therefore, by applying Article 73-2(1) of the Act on Persons of Distinguished Services to the State, the instant disposition that the Plaintiff deemed as a soldier or policeman on duty who was not a national contributor (military soldier or policeman on duty) is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Jong-hwan

Judges Yoon Dok-gi

Judges Kim Jong-young

(i) a board to move safely between Jin and Jins;

Related Acts and subordinate statutes

/Act on the Honorable Treatment and Support of Persons of Distinguished Service

Article 4 (Persons of Distinguished Service to State)

(1) Persons who have rendered distinguished services to the State and their bereaved family members, etc. (including persons specified by any other Act as persons eligible for honorable treatment, etc. under this Act) shall be entitled to honorable treatment under this Act:

6. A soldier or policeman wounded on duty (or a soldier or policeman wounded on duty): A soldier, police officer, or fire-fighting officer who was wounded in the course of education and training or in the line of duty, and is judged to have suffered physical disability falling within that degree of injury under Article 6-4 in the physical examination conducted by the Minister of Patriots and Veterans Affairs;

(6) Where a person who meets the requirements for persons who have rendered distinguished services to the State under paragraph (1) 3 through 6, 13 or 14 dies or is wounded due to any of the following causes, he/she shall be excluded from the persons who have rendered distinguished services to the State, their bereaved family members or families registered pursuant to paragraph (1) and Article 6:

1. Where an event is caused by the principal's intentional or gross negligence without any inevitable reason, or by a substantial violation of any relevant statute or an order of his/her superior, without any inevitable reason;

2. Where it is caused by an accident or disaster while he deserts his official duties; and

3. Where a private act (private) which cannot be deemed a performance of duties, such as a disaster or fighting, has caused it;

4. Where he/she does self-harm.

Article 73-2 (Compensation for Military Security, etc. Equivalent to Persons of Distinguished Service to State)

(1) Where a person who meets the requirements under Article 4 (1) 5, 6, 13 or 14 was killed or wounded (hereafter referred to as "Death or wounded" in this Article) or wounded due to the negligence of the person himself/herself or his/her family members concurrently with other persons' negligence without any inevitable reason, and his/her bereaved family members or families are excluded from persons who have rendered distinguished services to the State, their bereaved family members or families registered pursuant to Articles 4 (1) and 6, but where he/she has killed or wounded (including where he/she died before an application for registration under Article 6 (1) after having been discharged from military service or retired from military service by suffering from wounds) due to any cause corresponding to the criteria for the death or injury (including where he/she died before an application for registration under Article 6 (1) after having been discharged from military service or retired from military service), the Minister of Patriots and Veterans Affairs shall compensate for the deceased person or his/her family members by applying mutatis mutandis the provisions of Articles 9 and 11 through 62.

/ Enforcement Decree of the Act on the Honorable Treatment and Support of Persons of Distinguished Service

Article 94-3 (Grounds Equivalent to Criteria for Death or Official Duty Death)

"Grounds corresponding to the criteria for death or injury on duty prescribed by Presidential Decree" in Article 73-2 (1) of the Act means cases of death or injury caused by the principal's negligence or by a concurrent reason due to the principal's negligence without any inevitable reason among death or injury under the provisions of subparagraph 2-2-1 through 2-15 of attached Table 1.

[Attachment 1] Criteria for and scope of persons who have rendered distinguished services to the State (Article 3 related thereto)

2. A person who died or was wounded in the course of or in the line of duty.