2011Nu694 Revocation of Disposition Rejecting Persons of Distinguished Service to State

A

Law Firm 00

Attorney 000

Head of Daegu Regional Veterans Administration

Litigation performers 000

Daegu District Court Decision 2011Gudan230 Decided February 18, 201

June 24, 2011

oly 22, 2011

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition revoking the registration of a person who rendered distinguished services to the State on May 25, 2010.

1. Quotation of judgment of the first instance;

1. This court's explanation concerning "the reasons for the disposition" is as stated in Paragraph 1 of the reasoning of the judgment of the court of first instance, and thus, it cited it on the basis of Paragraph 2 of Article 8 of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The defendant's disposition of this case shall be revoked on the grounds as follows.

(1) At the time, the Plaintiff had 89 elementary school students and conducted sports classes. The Plaintiff was extremely difficult to control students with sufficient care, and it was merely seven months since they failed to do so, and the Plaintiff was unable to perform the duty of safety care for the Plaintiff, as it was found that the Plaintiff was unable to perform the duty of safety care for the Plaintiff.

(2) Even if the Plaintiff was negligent in failing to perform the duty of safety care, if the legislative purpose of Article 73-2(1) of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (hereinafter referred to as the "Act of Persons, etc. of Distinguished Services to the State") which provides for compensation for public officials injured in the course of providing assistance starts from the unlimited limitation on compensation for public officials injured in the course of providing assistance, it shall be interpreted not by fault within a strict sense, but by gross negligence equivalent to 'serious negligence'. The Plaintiff's negligence in this case shall not be deemed as gross negligence.

(3) The revocation of the beneficial administrative act is an infringement of the party’s vested rights and trust, so even if there is a subordinate party, it is possible only when there is a need for a strong public interest to justify the disadvantages suffered by the party due to the revocation of the beneficial administrative act. The disposition of this case, compared to the disadvantages suffered by the Plaintiff due to the disposition of this case, the need for public interest is little or little, and thus, the discretionary authority was deviating from and abused.

(b) Relevant statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether "the plaintiff's negligence" is recognized

(A) The Defendant recognized that the Plaintiff suffered from the instant injury during the performance of official duties, but determined that the Plaintiff’s injury constituted a public official on assistance because the Plaintiff’s injury overlaps with one another and constitutes a public official on assistance. The issue of

It is whether the plaintiff himself/herself was at fault in his/her injury.

(B) In the case of this case, even if 89 elementary school students, who are able to exercise due care while conducting sports classes at the time, have considerable difficulty in controlling 89 elementary school students, as alleged by the Plaintiff, as a teacher conducting sports classes at the inquiry stand, he/she has a duty of care to voluntarily avoid the occurrence of an accident prior to the accident, such as the instant accident, by sufficiently examining the surrounding circumstances.

(C) As long as the Plaintiff failed to perform its duty of safety caution, the instant accident occurred.

It is reasonable to see that the Plaintiff’s negligence competes with each other, and the Plaintiff’s above assertion is without merit, provided that there is no negligence on the part of the Plaintiff.

(2) Whether only a case corresponding to a “serious negligence” should be applied

(A) According to the above relevant laws and regulations, the Act on the Persons of Distinguished Service to the State, as a soldier or policeman, discharged from military service or retired from military service by suffering from wounds during education and training or in the performance of duty (including diseases in official duties), shall be determined as "a person who was judged to have suffered physical disability equivalent to disability such as injury under Article 6-4, in a physical examination conducted by the Minister of Patriots and Veterans Affairs" as "a person who has rendered distinguished service to the State" (Article 4(1)6), and without good cause, he/she shall be either

The provisions of Article 11 through 62 of the Compensation System for Persons of Distinguished Service apply mutatis mutandis not only to cases where a person was injured due to his/her actual injury (Article 4(6)1), but also to cases where the provisions of Article 73-2(3) (the first sentence) (Article 4(5)) are applied mutatis mutandis, but also to cases where the provisions of Article 73-2(3) (the second sentence) are applied mutatis mutandis, but the provisions of Article 4(5) (the second sentence was amended by Act No. 9079 on March 28, 2008 and Article 4(5) was changed to the previous Article 4(6)) are applied mutatis mutandis to the compensation system for persons of distinguished service to the State.

(B) Therefore, it is reasonable to exclude ‘the negligence of the principal' from ‘the negligence of the principal' as a requirement to determine whether it constitutes ‘the public official on duty of assistance' as provided in Article 73-2 of the Act on Persons of Distinguished Services to the State. Accordingly, it is reasonable to interpret ‘the gross negligence of the principal' only to correspond to ‘the gross negligence of the principal', and there is no reason for the plaintiff's assertion that it constitutes a public official on duty who is not a public official on duty of assistance because there is no gross negligence of the plaintiff in the occurrence of the instant accident.

(3) Whether the discretionary authority is deviates or abused or not

(A) Even if there was no particular defect at the time of the disposition, and there was no separate legal ground for the withdrawal of the disposition after the disposition, a disposition agency that rendered an administrative act may revoke it by itself. However, when cancelling the beneficial administrative disposition, it may revoke it by comparing the necessity of the public interest to be revoked, such as the right to obtain benefits, the protection of trust and the infringement of the stability of legal life, etc. to be borne by the parties, and then only when it is so strong light that the public interest needs to be justified by the parties concerned (see, e.g., Supreme Court Decision 2003Du4669, May 25, 2006).

(B) In the instant case, the following circumstances revealed in the process of the instant disposition, namely, ① the instant accident was caused by the Plaintiff’s negligence and caused the Plaintiff’s negligence, and thus, the Plaintiff was determined as a public official of merit based on the erroneous deliberation and resolution of the Board of Patriots and Veterans Entitlement, notwithstanding the public official requirements for official duties. ② In light of the legislative purpose of the Act for the enforcement of reasonable honorable treatment to persons who have rendered distinguished services to the State and their bereaved family members who have made sacrifice and contributed to the State, the need for public interest to cancel the previous erroneous decision of persons who have rendered distinguished services to the State is to justify the disadvantage they would suffer, and thus,

3. Conclusion

The judgment of the court of first instance which dismissed the plaintiff's claim is justifiable, and the plaintiff's appeal is dismissed.

Kim Chang-soo (Presiding Judge)

Kim Gyeong-Gyeong

Free of Interest

/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 provided for in other Acts to receive honorable treatment, etc. provided for in this Act) shall be entitled to honorable treatment under this Act:

14. A public official who died on duty: A public official (excluding a soldier and KU police officer) prescribed in Article 2 of the State Public Officials Act and Article 2 of the Local Public Officials Act and the State; a public official prescribed by Presidential Decree who was ordinarily engaged in public study in a local government and was wounded (including a disease contracted in public duty) and retired from office in the course of study, and is judged to have suffered physical disability falling within that degree of injury under Article 6-4, in a physical examination

(2) In applying paragraph (1), detailed standards and scope for the following matters shall be prescribed by Presidential Decree:

6. Paragraph (1) 13 (b) and 14: A person who suffered from wounds (including illness contracted in the line of duty; hereafter the same shall apply in this subparagraph) due to public records, or a person who suffered from wounds, and thereafter has been medically recognized to have died from such wounds;

(6) Where a person meeting the requirements for persons who have rendered distinguished service 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 persons who have rendered distinguished service to the State, their bereaved family members or families to be registered pursuant to paragraph (1) and

1. Where the person's intention or gross negligence is caused by the principal's gross negligence without any inevitable reason. Where the occurrence of a serious violation of any relevant statute or an order of his/her superior;

2. When an accident occurs while he/she has left public books;

Article 73-2 (Compensation for Military Security, etc. Equivalent to Persons of Distinguished Services 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) as determined by the said requirements, and a person who died or wounded due to his/her negligence or his/her bereaved family member or family member registered pursuant to Articles 4 (1) and 6 without any inevitable reason, and his/her bereaved family member, bereaved family member or family member shall be excluded from the persons who have rendered distinguished services to the State, his/her bereaved family member or family member registered pursuant to Articles 4 (1) and 6, or where he/she died or was wounded due to any reason corresponding to the criteria for his/her official duty (including a death without compensation before an application for registration under Article 6 (1) was discharged or retired from active service by suffering from wounds), the Minister of Patriots and Veterans Affairs shall make compensation by applying mutatis mutandis the provisions of Articles 9, 11 through 62: Provided, That when the Minister of Patriots and Veterans Affairs makes compensation, as prescribed by Presidential Decree, his/her bereaved family member or family member or family member.

(4) Articles 4 (5), 5, 7, 10, and 78 shall apply to a person who receives compensation pursuant to paragraph (1).

Articles 79, 80 (1), and 81 shall apply mutatis mutandis.