[1] In a case where a public official is injured by a tort committed by another public official during the performance of his/her duties, whether the amount of compensation paid under the Public Officials Pension Act should be deducted from the passive amount of damages under the State Compensation Act (affirmative)

[2] In calculating the amount of damages under the State Compensation Act, whether nursing allowances paid under the former Act on Honorable Treatment of Persons of Distinguished Service to the State are deducted (negative)

[1] The amount of compensation for disability under Article 51 (1) of the Public Officials Pension Act is one of the amounts to be deducted under the above provisions, and Article 27 (1) 2 of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 14858 of Dec. 29, 1995) provides that the amount of compensation for a public official retired under the condition of disability caused by a disease or injury caused by a public official in the line of duty shall be equal to passive compensation for damages caused by a tort in that it is paid to compensate for losses caused by a disease or injury caused by a public official in the line of duty. Meanwhile, Article 33 (1) of the same Act provides that "the person who receives the same kind of benefits as the one under this Act at the expense of the State or a local government under other Acts and subordinate statutes shall be paid with the amount equivalent to the benefits under this Act after deducting the amount of compensation for a public official paid from the State or a local government's passive compensation for the same reason as the one under the State Public Officials Pension Act."

[2] In light of the purpose of the compensation system under the former Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State (amended by Act No. 5291 of Jan. 13, 1997) and the purport of relevant provisions, the system that pays pension and various allowances to persons, etc. of distinguished service to the State has the character of social security promoting their stabilization of livelihood and improvement of welfare, and it differs from the system that compensates for losses because it provides honorable treatment for their contributions and sacrifices for their countries. Thus, even if a public official has received a monthly nursing allowance from the State under the same Act and has continued to receive a nursing allowance in the future, it shall not be deducted from the amount of damages to be paid under the State Compensation Act, and the damage is not different from the compensation for nursing expenses.

[1] Articles 33(1) and 51(1) of the Public Officials Pension Act, Article 2 of the State Compensation Act, Article 2 of the former Enforcement Decree of the Public Officials Pension Act (amended by Presidential Decree No. 14858 of Dec. 29, 1995) / [2] Articles 1 and 7 of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State (amended by Act No. 5291 of Jan. 13, 1997), Article 2 of the State Compensation Act

[1] Supreme Court en banc Decision 97Da36873 delivered on November 19, 1998 (Gong1998Ha, 2865) / [2] Supreme Court Decision 95Da6991 delivered on July 22, 1997 (Gong1997Ha, 2602) Supreme Court Decision 97Da45914 delivered on February 10, 1998 (Gong198Sang, 689)

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

Gyeongnam-do (Attorney Seo-chul et al., Counsel for the defendant-appellant)

Busan High Court Decision 98Na4293 delivered on April 9, 1999

The part of the judgment of the court below against the plaintiff as to affirmative damages is reversed, and that part of the case is remanded to Busan High Court. The remaining appeal is dismissed. The costs of appeal against the dismissed appeal are assessed against the plaintiff.

1. The court below acknowledged the facts as stated in its holding and judged that the defendant is liable for all damages suffered by the plaintiff due to the accident in this case, and judged that not only eight years of work experience as firemen, but also the plaintiff who has been dispatched to the fire site that needs to extinguish the fire above 50 times a year, and was engaged in extinguishing the fire without taking all safety measures to prevent the fall on the roof, and that the accident in this case was caused by the accident, and that the rate of offsetting the negligence is reasonable to set at 60%. The court below's measures are proper, and there is no error in the misapprehension of legal principles as to offsetting the negligence, contrary to the assertion in the grounds of appeal. Therefore, the ground of appeal pointing this out is not acceptable.

2. The amount of compensation for disability under Article 51 (1) of the Public Officials Pension Act is a benefit aimed at compensating for a public official retired from office due to a disease or injury caused by official duty, and is in the same nature as a passive compensation for damages arising from a tort in that it is paid for compensating for losses caused by a disease or injury caused by official duty.

Meanwhile, Article 33(1) of the Public Officials Pension Act provides that "any person who receives the same kind of benefits as the benefits under this Act at the expense of the State or a local government under other Acts and subordinate statutes shall be paid by deducting the amount equivalent to the benefits under this Act from the benefits under this Act," and Article 27(1)2 of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 14858, Dec. 29, 1995) provides that "one of the benefits to be deducted under the above provisions," and "the amount to be borne by the State or a local government under the State Compensation Act, the Act on the Honorable Treatment, etc. of Persons of Distinguished Services to the State, for the same reasons as the expenses for public duties, recuperation, lump-sum disability pension, disability

Therefore, if a public official is injured due to a tort committed by another public official while performing his duties, if the injured public official was compensated for passive damages by the State or a local government under the State Compensation Act, the Public Officials Pension Corporation, etc. shall pay the same kind of benefit less the amount of disability compensation. If the injured public official was paid by the Public Officials Pension Corporation, etc., the State or the local government shall be deemed to have paid only the balance calculated by deducting the amount of disability compensation he received from his passive amount of disability compensation (see Supreme Court Decision 97Da36873, Nov. 19, 198).

In the same purport, the court below is just in taking measures against the plaintiff's lost income amount payable to the plaintiff, and there is no error in the misapprehension of legal principles as to disability compensation, as otherwise alleged in the ground of appeal. Therefore, this ground of appeal is not accepted.

3. The former Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State (amended by Act No. 5291 of Jan. 13, 1997, the title of which was changed from July 13, 1997 to the "Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State" (hereinafter referred to as the "Act on the Honorable Service to the State") provides that persons of distinguished service to the State who have contributed to or made a sacrifice to the State and their bereaved family members shall be given honorable treatment by promoting their livelihood stability and welfare and contributing to the encouragement of patriotism (Article 1). The State shall pay compensation in consideration of their degree of living according to the degree of contribution and sacrifice to the persons, etc. of distinguished service to the State (Article 7), and the State shall suspend or exclude compensation in cases where persons of distinguished service to the State, etc. who have committed an act impairing their dignity or have been sentenced to final judgment by sentence (Articles 78 and 79). In light of the purpose of the compensation system under the Act on persons of distinguished service to the State.

Therefore, even if the Plaintiff received nursing allowances from the State under the Act on Persons of Distinguished Services to the State each month, and even if it was continued to receive nursing allowances in the future, it should not be deducted from the amount of damages that the Defendant’s State should compensate for, and the damage is not different from the amount of damages for nursing expenses (see, e.g., Supreme Court Decisions 95Da6991, Jul. 22, 1997; 97Da45914, Feb. 10, 198).

Nevertheless, the court below rejected Plaintiff’s claim for payment of nursing expenses on the ground that the nursing allowances under the Act on Persons of Distinguished Services to the State, which the Plaintiff had already received or will be paid, exceed the amount of damages for nursing expenses that the Plaintiff requested against the Defendant. The court below erred by misapprehending the legal principles on nursing allowances under the Act on Persons of Distinguished Services to the State, thereby affecting the conclusion of the judgment. Therefore,

4. Therefore, the part of the judgment of the court below against the plaintiff as to affirmative damages shall be reversed, and that part of the case shall be remanded to the court below, and the remaining appeal shall be dismissed, and this decision shall be delivered with the assent of all Justices who reviewed

Justices Shin Sung-sung (Presiding Justice)