(영문) 부산고등법원 2018.10.10. 선고 2017누24530 판결

1. The part of the first instance judgment regarding the conjunctive claim that orders revocation below shall be revoked. The decision that the Defendant rendered against the Plaintiff on April 27, 2017 at the time of his/her entitlement as bereaved family members is revoked.

2. The plaintiff's appeal as to the main claim is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The first instance judgment shall be revoked. In the first instance judgment, the first instance judgment that the Defendant rendered against the Plaintiff on April 27, 2017 shall be revoked. In the first instance, the decision that the Defendant is ineligible as a bereaved family member of a person who has rendered distinguished service to the Plaintiff on the same day shall be revoked.

Reasons

1. Details of the disposition;

(a) B Death;

On May 3, 2004, the Plaintiff’s ASEAN (hereinafter referred to as “the deceased”) was trained on and around July 30, 2004, and was appointed to the Army Staff on and around July 30, 2004. On or around November 3, 2004, the Plaintiff’s ASEAN was discovered after being transferred to the 30th class of the 52nd class of the 30th class of the 52nd class of the 30th class of the 30th class of the 91st class of the 30th class of the 30th class of the 52nd class of the 19:53th class of the 19:53 class of the 19th class of the goods storage.

(b) Decision on the truth-finding of the Finding of Military Languages and Photographss;

The deceased's leakage or I demanded against the Ministry of National Defense to clarify the cause of death of the deceased. On November 26, 2008, on the grounds of the following circumstances, the Military Literature Finding Committee decided that "the deceased's excessive expenditures and personal causes, such as extinguishment of his family members, and environmental causes arising from the imposition of excessive concentration of work, and depression caused by this conflict of environmental causes arising from the imposition of excessive concentration of work, thereby causing death."

① Although the Deceased dealt with a confidential document at the direction of his superior, it cannot be deemed that the Deceased died of pressure due to pressure on the part of his superior, as the Deceased acquired the essential information inside the military.

② 망인이 2005. 5. 10. 이후에도 집안의 부채 등으로 경제적 부담을 가졌다고 볼 수는 없다. 다만, 망인이 사망 직전의 방만한 씀씀이로 인하여 가족과 갈등을 초래했을 수 있고 이는 우울증 상태에 있는 망인에게 부정적으로 작용하였을 것으로 판단된다.

③ Since the deceased not only possesses various technical qualifications but also performs it well without influence as directed, it is recognized that the superior imposes an excessive imposition on the deceased, in addition to his/her heavy duties, on the deceased, on the part of his/her subordinate and heavy support duties. As such, it is determined that the additional duties imposed on the deceased ordinarily accumulated, beyond the limit of the deceased’s withstanding, could have been reduced due to physical and mental illness.

④ Considering the deceased’s testimony on a blost, and the relationship between suicide and depression, it can be presumed that the deceased was suffering from depression at the time. The blostal relationship was determined by the blostal, environmental stress factors, and depression had a mutual impact.

⑤ The Deceased had a outstanding computer and maintenance ability, and had a personal identification certificate, etc. to take charge of a lot of duties, and thereby accumulated as a result, he/she. Nevertheless, his/her superior and fellows are presumed to have caused the occurrence and aggravation of the Deceased’s depression by giving additional duties on the grounds that the Deceased is sincere and lacks work ability.

1) On July 12, 2012, D, the Plaintiff’s husband, claimed against the Defendant that he died of suicide due to depression caused by an environmental cause that was caused by excessive concentration of duty, and filed an application for registration of a person eligible for veteran’s compensation.

2) On March 4, 2013, the Defendant rendered a decision that D does not constitute all persons of distinguished service to the State (person who died on duty and bereaved family members) on the ground that D does not fall under the requirements of Article 2(1)1 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (hereinafter “Act on the Honorable Treatment of Persons of Distinguished Service to the State”) for the reason that it is difficult to acknowledge proximate causal relation between the death of the deceased and the performance of military duties.

3) A judgment dismissing D’s claim was rendered on June 13, 2014 on the ground that there is no proximate causal relation between the deceased’s performance of duties and the death caused by suicide, which was filed by the Defendant against D on March 4, 2013 (No. 2013Guhap110). However, on the grounds that D’s appeal did not comply with the order to dismiss the petition of appeal on July 18, 2014, and the aforementioned judgment (hereinafter “previous judgment”) became final and conclusive as it is, although D appealed appealed, it did not comply with the order to dismiss the petition of appeal on July 18, 2014.

(d) Determination of the deceased who died on duty;

On December 24, 2015, E, who is the deceased, filed a request for review of the death on duty with the Ministry of National Defense. On December 15, 2016, the Minister of National Defense, following deliberation by the Central Major Death Review Committee, determined the death of the deceased as a soldier or policeman on duty (III-1) on the ground that there is a proximate causal relation with public duties, and the reasons for such determination are as follows.

1. It is presumed that any additional work irrelevant to the deceased’s duty has been under serious stress due to his excessive work, as the deceased’s concentration was made on the deceased.

② The Deceased is presumed to have discussed the difficulties and complaints with respect to military service in Blogs, etc., and to have caused depression for three months prior to his death due to extreme stress.

3. The superior officers of the affiliated unit did not take any measures despite being aware of the deceased’s difficulties and complaints.

(4) In addition, it is not confirmed that the deceased had a serious personal factor to the death.

(e) Application for registration as bereaved family members;

On April 27, 2017, the Plaintiff filed for registration as a bereaved family member of a person who has rendered distinguished services to the State against the Defendant. On the ground that the deceased does not meet the requirements for persons who have rendered distinguished services to the State and persons eligible for veteran’s compensation, the Plaintiff determined that the deceased does not constitute all persons who have rendered distinguished services to the State (hereinafter “instant disposition”).

【Ground of recognition】 The fact that there has been no dispute, Gap Nos. 1, 4, 5, Eul Nos. 1, 2 through 4 (if any, including a serial number; hereinafter the same shall apply), the purport of all pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

The Plaintiff asserts that the instant disposition is unlawful on the following grounds.

① The Deceased was the owner of a strong sense of duty and sense of responsibility, and of a clear and comfortable nature. However, his superior was in charge of an excessive duty imposed by him, and his superior was under severe pressure and stressed by his production instructions from five days prior to the suicide accident.

② Ultimately, the Deceased’s occurrence of depression with physical stress, psychological pressure, etc. caused by excessive work, but without effective treatment, led to suicide in a state of mental abnormal disorder that could not be considerably controlled.

③ In recognition of a proximate causal relationship between the deceased’s death and his duty as a soldier, the Defendant erred by failing to meet the requirements for persons who rendered distinguished services to the State or persons eligible for veteran’s compensation.

B. Relevant statutes

It is as shown in the attached Form.

The following facts are recognized as the absence of dispute between the parties, or as the whole the purport of the entire pleadings with respect to Gap evidence Nos. 2, 4, and 5, and testimony by the witness G of the party.

① The Deceased was assigned by the number of small and medium-sized vehicles No. 1, and was assigned with a unit technician’s license, information processing technician’s license, and a face-to-face license. As a result, the Deceased was in full charge of the duties related to the contact, and the Deceased was engaged in the duties of supporting the Deceased while making a tour of a serious and large scale. Moreover, G, etc., which is the vice-chief of the unit of the deceased, had a car maintenance license and had a superior ability to maintain his/her vehicles. As can be seen, the Deceased carried out many additional duties other than his/her own duties.

② The Ministry of Administration and Distribution of the Deceased’s unit’s unit, which did not receive confidential treatment, performed a drum work on the exhibition agents classified as external expenses, and the Deceased performed a new wall after the hour of the work to perform such additional work.

On the other hand, the deceased entered the following contents in his tables:

○ 2005, 7. 17. 21:45 제목 : 나-살아 있다???요즘 진짜 말도 안되게 바빠서, 빨래도 못하고 음악도 못 듣고, 밥도 제대로 못 먹고, 아-힘들다. 더무 바빠서 숨도 못 쉬겠는데○ 2005, 7. 21. 23:12 제목 : 속상하다. TT오늘 너무 바쁘고 정신없고 퇴근해서 전화기도 안 가져가고. 10시에 퇴근해서○ 2005. 9. 4. 02:53 제목 : 솔직하게 - 으악솔직히! 나는 워드 작업 잘한다. 근데 3일간에 걸친 18시간 동안 계속된 워드작업에 완전넉다운이다! 으악!! 새벽 3시에 결국 넉다운되다! 목이 아프고 눈이 따가워서 더는 못하겠다!

○ on September 6, 2005: more than 22:55 Item : B. Mah L Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Lyh Ly

③ On October 26, 2005, on the day of the deceased’s death, the deceased’s company was conducting the assessment of material combat force, including the chemical and biological measurement, and the environmental adjustment of the previous and warehouse in the A.M. Meanwhile, the deceased was conducting the night work on October 25, 2005, as a serious chemical and biological institute institute, on the day of his death.

G, the vice president of the sub-committee of the deceased, did not properly perform the coloring work of the pre-wheel cycle that was directed to sick workers 3 to 4 days before the death, and on October 26, 2005, ordered the deceased to complete the coloring work of the pre-wheel cycle that was unscheduled by 5 days before the death, and ordered the deceased to re-produced the re-produced of the re-produced re-making of the re-making of the re-making of the re-production that was not attributable to the mind of mind (see, e.g., evidence 5-28, 3 pages).

④ At the time of the death, the deceased told K that there was a military unit called ‘the appointment of a military unit leading to the death of the deceased,’ and that ‘it is not good that there is a gap between herb and her monetary problem.’ In addition, the deceased also revealed complaints such as “F, a noncommissioned officer of the same kind, who was unable to governance.” On October 21, 2005, the vice president sent answers to the following: (a) on October 21, 2005, stating that “the person who responded to the direction of the day, and without his mind, would create a fake article.”

⑤ The Deceased’s summary statement (No. 5-49 of Evidence A) states that “the two children shall have a right to care for the two children, while divorced with LA as of January 31, 2005, and thereafter, they did not pay the child support for the two children, and they were married with MA around October 28, 2005.”

On December 11, 2005, the final repayment was completed on the loans of KRW 48 million for the purchase of a house by the deceased’s father D, and the deceased did not remit money any more after he remitted money of KRW 500,000 to D on May 10, 2005.

④ Around the time of death, the Deceased deposited KRW 365,00,000, out of monthly salary of KRW 1120,000, and used credit cards in July 2005 KRW 463,940, August 634,710, and KRW 707,950 in September.

7) A psychiatrist may presume that the deceased was suffering from depression on the basis of his/her fluence and speech, etc. based on his/her fluence and that both the genetic and environmental stress of the deceased at the time may have an impact on both the genetic and environmental stress of the deceased, and if he/she was under stress due to excessive work at the time, he/she can themselves become one of the various factors affecting the outbreak of depression.

D. Determination as to whether a person constitutes a person of distinguished service to the State (determination as to a principal claim)

1) Relevant legal principles

According to the delegation of the Act on Persons of Distinguished Services to the State, the Enforcement Decree of the Act on Persons of Distinguished Services to the State that sets the specific standards and scope of requirements for persons of distinguished services to the State shall be determined by comprehensively taking into account "the degree of conduct directly related to the performance of their duties or education and training and the protection of the lives and property of the State or the protection of property of the people," and "the circumstances during which death or injury (including illness) occurred" and "the existence and degree of negligence of the persons of distinguished services to the State" under Article 3(1)3 [Attachment 1] and Article 2-1 and 2-2 of the Enforcement Decree of the Act on Persons of Distinguished Services to the State, which are directly related to the protection and security of the State, or the protection of the lives and property of the people of distinguished services to the State (hereinafter referred to as "national defense, etc.") separately from those of persons of distinguished services to the State under Article 2-1 (a) of the Enforcement Decree of the Act on Persons of Distinguished Services to the State" and the scope of persons of distinguished Services Act.

2) Determination

In light of the above legal principles, it is determined that the deceased's performance of "maintenance and management of munitions directly related to the protection, etc. of the state" is a direct cause for the reason that the deceased did not return to his her lag lag, but did not return to his lag, and that his lag was found to have committed suicide in his lag warehouse.

Therefore, the deceased is not a soldier or policeman who died on duty under Article 4 (1) 5 of the Act on Persons of Distinguished Service to the State. Thus, the defendant's decision is legitimate, and the plaintiff's primary claim is without merit.

E. Determination as to whether a person constitutes a person eligible for veteran's compensation (determination as to preliminary claims)

1) Relevant legal principles

Article 2(1)1 of the Patriots and Veterans Compensation Act provides that “A soldier, police officer, or fire-fighting official who died in the course of performing duties or education and training not directly related to national defense or security, or the protection of the lives and property of the people” as a person eligible for veteran’s compensation. Article 2(2) of the Act provides that the detailed criteria and scope of persons eligible for veteran’s compensation under each subparagraph of Article 2(1) shall be determined by Presidential Decree in consideration of the degree and degree of the State’s defense, etc., the status and degree of the injury caused by the death or injury, and the existence and degree of his/her negligence. According to the delegation above, Article 2(1)1 and 2 of the Enforcement Decree of the Patriots and Veterans Compensation Act provides for the criteria and scope of persons eligible for veteran’s compensation. Of that, Article 2(1)1 of the Enforcement Decree of the Act provides that “A soldier, police officer, or fire-fighting official who died in the course of performing duties or education and training shall be determined as a person eligible for veteran’s compensation.” [Attachment 1]

Meanwhile, Article 2(3) of the Patriots and Veterans Compensation Act provides that persons eligible for veteran’s compensation shall be excluded from persons eligible for veteran’s compensation, their bereaved family members, or their family members if they were killed or wounded for reasons falling under “in cases where they were killed or wounded for reasons, such as intentionally or by gross negligence, or significantly in violation of relevant statutes or orders of their superior officers (Article 1(1)), or where private acts, such as distress or fighting, which cannot be deemed as the performance of official duties, were caused (Article 2(2)).” In light of the purport of Article 2(3) of the Veterans Compensation Act, the Act on Persons of Distinguished Services to the State, which recognized persons of distinguished Services to the State based on proximate causal relation between the performance of duties and the death or wound, shall be amended to the Act on Persons of Distinguished Services to the State, which is directly related to the protection of the State, and thus, their livelihood stability and improvement are reasonable, and, in light of the purport of Article 2(2) of the Veterans Compensation Act separately enacted to compensate persons who died or were excluded from their official duties.

On the other hand, in order to become a person eligible for veteran's compensation as prescribed by the above provision, there should be a proximate causal relationship between education and training or performance of duty and suicide, and this should be proved on the part of the claimant. However, such causal relationship does not necessarily have to be proved clearly in medical or natural science, and it should be proved even in cases where it is presumed that there is a proximate causal relationship between education and training or performance of duty and suicide, and the existence of such causal relationship should be determined based on the health and physical conditions of the relevant soldier, not on the average person (see, e.g., Supreme Court Decisions 2006Du6772, Sept. 6, 2007; 2009Du9079, Oct. 29, 2009).

2) Determination

A) In light of the following circumstances, the deceased’s suicide is deemed to have a proximate causal relationship with his/her performance of duties in light of the facts acknowledged earlier and the purport of the entire argument by witnesses G of the trial party.

① In contrast to motive noncommissioned Officers, the Deceased had much ability to perform his duties and strong sense of responsibility for his duties, and there were cases where he held various qualification certificates, such as DD technician and information processing technician, and he would assist another person in his duties. For this reason, he received a lot of duties compared to the motives, and carried out support duties by making a tour of company and company. Nevertheless, the deceased’s superior did not take any particular measures to lower the work burden concentrated on the Deceased, and instead, he did not take any measures to reduce the work burden that the deceased performed, and rather did not take any additional burden that is irrelevant to the deceased’s duties, such as taking charge of his vehicle maintenance.

② The Deceased served as a relatively free Army noncommissioned officer compared to a general injury or illness, and there is no evidence to deem that there was a cruel act, such as physical mouth and verbal abuse, against the Deceased. However, the Deceased was granted excessive duties on the ground that he/she had an outstanding job ability and a variety of qualification certificates. However, in the process of handling documents in violation of relevant provisions, physical skin and stress had been continuously accumulated during that process, and physical skin and stress had been continuously accumulated during that process, as well as physical burden on treating confidential documents without authorization (see, e.g., the content of the deceased’s tables).

③ After graduating from the Changwon University, on May 3, 2004, the Deceased was on July 30, 2004, and was on the part of a specialized commander on July 30, 2004, and on November 5, 2004, the Deceased served in the unit to which he belongs (see, e.g., “accommenity classification” in the evidence No. 5-49), and there was no physical or mental symptoms before that period, or there was no history of having received medical treatment. Furthermore, even after noncommissioned Officer’s officers, the Deceased maintained a sound private life by showing the intention to perform his duties and continuously endeavor to develop himself.

In this context, it is difficult to view that the deceased’s debt for the purchase of his father D’s house was over-paid on or around the end of October 2005, since the end repayment was completed on December 11, 2005. In fact, the deceased did not transfer additional money after he remitted 500,000 won to D on May 10, 2010. The deceased did not bear child support liability any longer when he divorced on or around the end of January 2005. The deceased’s family members demand considerable monetary support to the deceased, and there is no other material to deem that the deceased’s family members were economically making economic efforts. In addition, it is difficult to view that the deceased’s credit card’s debt was over-paid, and that it is difficult to view that it was a large amount of money to continuously carry out normal economic activities due to his monthly wage, and that it is difficult to view that there was no dispute between the deceased and the deceased’s suicide and the deceased’s suicide.

④ In fact, the Deceased mentioned several times of stress caused by ordinary person’s work and K’s work, and described that it is difficult for him to do so. In addition to the fact that the Deceased’s character was attached to ordinary person’s work, but it was active to assist the Deceased in performing his duties and to perform his duties with respect to his duties, and the fact that his superior or her fellows were given a large number of duties to the Deceased, it is difficult to see that the expression is serious enough to cause the Deceased to make the extreme choice of suicide based on ordinary person, but it is deemed that the Deceased’s expression can be regarded as an expression by blocking a very serious situation.

⑤ On October 21, 2005, the Deceased, who had committed suicide, had a complaint against the second half-time sergeant G in the father’s house ledger F. On October 21, 2005, the Deceased engaged in night work on night work as a pathology training relationship for the chemical and biological measurement on October 26, 2005. On the date of death, the Deceased was assessed on October 26, 2005. As seen earlier, the Deceased had already been in a very physical and mental distress due to excessive work, and the Deceased appears to have been in a limited condition. G, on the day of death, was instructed to do the deceased to do the booming work, which was irrelevant to the schedule of the deceased, on the day of death, and as a result, sound the deceased to make a new order to manufacture the deceased on the ground that the deceased was dried by his own direction.

In full view of the situation at the time, the deceased who had already been engaged in an excessive work seems to have been aware of not only the painting but also the re-promotion of the re-production of the re-production of the re-production of the re-production, and thus, he would have been under severe stress.

(6) In light of the deceased’s speech and behavior, it can be presumed that the deceased was suffering from depression at the time of writing his/her writing on the Blogs. If he/she was under severe stress due to excessive burden of work, color work on the day of death, and production of a re-production order, he/she itself seems to have affected the aggravation of depression and suicide attempt.

7) As seen earlier, as seen in the relevant legal principles, a person eligible for veteran’s compensation should not be excluded from a person eligible for veteran’s compensation on the ground that the proximate causal relation between his/her performance of duties and his/her death is not recognized, or that his/her free will is not committed even after his/her suicide was completely excluded. If, due to stress or excess caused by his/her performance of duties, the deceased’s free will was considerably limited due to his/her severe depression, this ought to be deemed to meet the requirements of “the state in which free will is excluded” as set forth in [Attachment 1]

In this case, the Deceased appears to have caused depression due to excessive work and stress that was continued after he was dismissed as the sergeant, and at the time, the Deceased was living in the armed forces in need of obeyion to his superior, organized and controlled life, and his superior continued to assign excessive work to the Deceased without taking any particular measure, and thus, the degree of depression seems to have been serious within a long period of time. From October 25, 2005 to October 26, 2005, the Deceased was caused by the physical and mental limit conditions while performing night work due to the medical education relationship for the measurement of chemical death, and it was determined that he received additional work instructions, which was irrelevant to the schedule on October 26, 2005, and carried out suicide.

In full view of these facts, the deceased committed suicide as a direct cause for performing his duties, and it seems that he was excluded from the free will at the time.

(8) Although the Defendant’s father D, on March 4, 2013, sought revocation of a non-competent decision on the application for the registration of bereaved family members against D on March 4, 2013, the previous judgment dismissing the claim became final and conclusive, the Minister of National Defense determined the death of the deceased as a soldier or policeman on duty (III) on the ground that there was a proximate causal relation with the death of the deceased on the part of his duty, and the fact that D’s decision became final and conclusive was that D did not comply with the order of correction as to the petition of appeal. In light of the above, it cannot be readily concluded that the Plaintiff’s preliminary claim in this case, on the ground of the previous judgment, on the premise that the deceased constituted a person eligible for veteran’

B) Therefore, the Defendant’s disposition of determining whether a person eligible for veteran’s compensation who caused the Plaintiff was not a bereaved family member is unlawful.

F. Sub-committee

As examined earlier, the plaintiff's primary claim of this case (the claim for revocation of a non-applicable decision of bereaved family members of the person who died on duty) is without merit, since the plaintiff's primary claim of this case (the claim for revocation of a non-applicable decision of bereaved family members of the person who died on duty) is the main cause for the maintenance and management of the munitions

However, the deceased committed suicide as a direct cause for performing his/her duties and was excluded from free will at the time. Therefore, the plaintiff's preliminary claim (the plaintiff's claim for revocation of the decision-making disposition on the non-existence of bereaved family members) in this case is justified.

3. Conclusion

Therefore, the plaintiff's main claim in this case is dismissed as it is without merit, and the conjunctive claim is accepted as reasonable. Since the part concerning the conjunctive claim different from the judgment of the court of first instance is unfair, part of the plaintiff's appeal is accepted, and the part concerning the conjunctive claim in the judgment of first instance is revoked and the plaintiff's conjunctive claim is accepted. It is so decided as

Judges

Judge Park Jong-hoon

Judges Choi Jin-hee

Judges Lee Jae-chul

Note tin

1) The deceased on duty or during the course of performing duties or education and training not directly related to national defense and security, or the protection of the lives and property of the people, shall be determined as Type III on duty. The deceased on duty was determined as Category III (Standard Number, 2-3-9) in attached Table 8 of Article 60-23(1)2 of the Enforcement Decree of the Military Personnel Management Act.