(영문) 부산고등법원 2017.11.8. 선고 2017누22749 판결

The reasoning of this Court concerning this case is as follows, except for adding the following judgments as to the grounds for the plaintiff's repeated assertion, so it is identical to the reasoning of the judgment of the court of first instance. Thus, this Court cites it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article

2. Determination on addition

A. The so-called administrative rules, which are issued by a superior administrative agency to a subordinate administrative agency, are generally effective only within the administrative organization and do not have external binding force. However, if a provision of a law does not specify the procedure or method of exercising its authority while granting a specific administrative agency the authority to determine the specific matters of the law, and the delegated administrative agency specifically determines matters that are the contents of the law in the form of administrative rules, such administrative rules are not a general effect of administrative rules as seen above, but have the function to supplement the contents of the law in accordance with the provisions of the law that granted the administrative agency the authority to supplement the specific matters of the law. Accordingly, such administrative rules have the effect of an external binding law order in combination with those of those regulations, unless they go beyond the bounds delegated by the law in question (see, e.g., Supreme Court Decision 2006Du3742, Mar. 27, 2008).

B. Article 57 of the Industrial Accident Compensation Insurance Act provides that disability benefits shall be paid to a worker when he/she is cured of an injury or disease due to his/her duties (Paragraph 1), and disability benefits shall be disability compensation annuities or lump-sum disability compensation benefits under [Attachment 2] according to the disability grade, and the criteria for disability grade shall be prescribed by Presidential Decree (Paragraph 2). According to the above delegation, Article 53 [Attachment 6] of the Enforcement Decree of the Industrial Accident Compensation Insurance Act (hereinafter “Enforcement Decree”) provides that the criteria for disability grade under Article 57(2) of the Act shall be determined again by Ordinance of the Ministry of Employment and Labor (Paragraph 1). Accordingly, Article 48 of the Enforcement Rule of the Industrial Accident Compensation Insurance Act provides that the detailed criteria for disability grade for physical parts shall be determined again by Ordinance of the Ministry of Employment and Labor (Article 48 of the Enforcement Rule of the Industrial Accident Compensation Insurance Act). Accordingly, as long as the detailed criteria in this case do not go beyond the delegated limit, it shall be deemed that they are external binding in combination with them, and it is difficult for the following reasons:

① First of all, Article 53(1) of the Enforcement Decree provides that the detailed criteria for the determination of disability grades according to physical parts shall be re-determined by Ordinance of the Ministry of Employment and Labor. Accordingly, according to delegation, it is difficult to deem that there is any error of law beyond the limit of delegation in relation to the designation of functional disorder, modified disorder, and spinal nee disorder (b).

(2) If there are two or more disabilities meeting the criteria for disability grades under Article 53 (2) of the Enforcement Decree, the disability grade for the worker concerned shall be that falling under the serious disability shall be that of the worker concerned, but if there are two or more disabilities of grade 13 or higher, the disability grade adjusted according to the following classification shall be that of the worker concerned. If there are two or more disabilities of grade 13 or higher, the grade shall be adjusted upward by one, and if the degree of the disability is deemed obviously lower than the degree of other disabilities set forth for the adjusted grade, the grade lower than one adjusted grade shall be the disability grade of the worker concerned:

(3) The Enforcement Decree (Attached Table 6) shall provide for the following obstacles:

-Class 8 of Class 10: Person who has remaining the function disorder of the middle-grade Do in the vertju, person who has suffered the dives disorder of the extreme changes in the vertju, person who has suffered the minor function disorder of the middle-grade Do in the vertju, person who has left the transformation disorder of the middle-grade Do in the vertju, or person who has left the left part of the vertebal root in the vertju.

-Class 7 of Grade 11: Persons who have remaining in the sonju the function disorder of latitude, persons who have suffered from a highly modified disorder in the sonju, persons who have suffered from a minor functional disorder in the sonju or a transformation disorder in the ebrate ebrate ebalism in the sonju and at the same time have left, or persons who have remaining after the ebalutism in the ebal chart in the sonju.

-Class 16 of Grade 12: A person who has a minor functional disorder in a son, a person who has a disability in the son, a person who has a disability in the sondo in the son, or a person who has a residual vertebal disorder in the sondo.

-Class 12 of Class 13: Persons whose physical changes are remaining on the part of the sea bed of the sea or those whose physical changes are remaining on the part of the sea bed of the sea bed of the sea.

As such, the Enforcement Decree [Attachment 6] provides for the provision on ‘persons with functional disorder or modified disorder in the son' and at the same time with the remaining persons with vertebrane root disorder, but there is no provision on ‘persons with remaining parts of vertebrane disorder' in the case of ‘persons with remaining parts of vertebrane disorder, at the same time.'

④ On the other hand, in the instant detailed criteria, '8. Madju, etc.', where both functional disorder and modified disorder are left separately in one exercise unit of rule-basedism and at the same time, in case where there are remaining in spinal flag root disorder, one of the higher grades of functional disorder and modified disorder shall be deemed to have occurred, and the grade shall be determined by applying mutatis mutandis the method of functional disability or modified disorder and adjustment, which are deemed not to have occurred, to have been determined by applying mutatis mutandis the grade of disability and spinal flag root disorder (f).

⑤ If the Plaintiff’s disability grade is adjusted without considering the detailed criteria of this case pursuant to Article 53(2) of the Enforcement Decree, the Plaintiff’s required disability grade also falls under class 11.

In other words, since the plaintiff's critical disorder is 'Gido functional disability (Grade 11), 'significantly modified disability (Grade 14), and 'vertebalutism (Grade 12),' it falls under class 10 if one grade is adjusted upward pursuant to Article 53 (2) 3 of the Enforcement Decree. However, [Attachment 6] of the Enforcement Decree provides that "the person who has minor functional disability in Gido and has remaining in the middle class 13 or higher, and at the same time the degree of the plaintiff's physical disorder is 'the person who has remaining in the middle class 13 or higher and has remaining in the middle class 13 and at the same time, it is clear that it does not reach the above grade 10 because it is lower than the grade 1 under the proviso of Article 53 (2) of the Enforcement Decree.

(6) In order to prevent any unreasonable result that may arise in the event of the adjustment of grades under the main sentence of Article 53(2) of the Enforcement Decree, the detailed criteria of this case are as follows: “In order to determine the grade of application by using the method of functional disorder or modified disorder and adjustment, it is difficult to view that “in order to determine the grade of application by applying the method of determining the grade of application by applying the method of determining the grade of application,” where both functional disorder and modified disorder are left separately in one exercise unit, and where there is a remaining disability in spine due to any one of the higher grades among the functional disorder and modified disorder, the grade is deemed to have occurred in any one of the higher grades among the functional disorder and the modified disorder.”

C. Even in cases where the detailed criteria of this case, unlike the opinion, cannot be a direct standard for determining a disability grade because it has no effect to externally bind citizens or courts, it is reasonable to view that the provisions of the Industrial Accident Compensation Insurance Act and the Enforcement Decree thereof, where it is difficult to determine a disability grade solely with the provisions of the Industrial Accident Compensation Insurance Act and the Industrial Accident Compensation Insurance Act, it may be considered within the extent that does not deviate from objective rationality. Therefore, the determination of a disability grade ought to be made by comprehensively considering not only the relevant provisions of the Industrial Accident Compensation Insurance Act, but also the opinions of experts

In the case of this case, in light of the above circumstances, namely, the degree of the Plaintiff’s disability, the detailed criteria of this case are difficult to be deemed to have exceeded the objective rationality, and it is reasonable to deem the degree of the Plaintiff’s disability to be class 11 even in the case of adjustment pursuant to Article 53(2) of the Enforcement Decree without considering the detailed criteria of this case, it is difficult to deem the disposition of this case which finally judged the Plaintiff’s disability grade to be unlawful.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.