Whether it is legitimate to determine that the disposition is justifiable on the ground that the administrative agency's negligence competes with each other on the ground that there is no causation between the performance of official duties and the absence of causation (negative)

In full view of the following facts: (a) the applicant for registration of a person who has rendered distinguished service to the State was liable to prove that the degree of physical disability is above the grade prescribed by statutes; (b) however, the fact that the injury constitutes “the person’s negligence or his/her own negligence without any inevitable reason,” i.e., the fact that the person eligible for support constitutes the requirement for registration of a person who has rendered distinguished service to the State should bear the burden of proof; (c) whether the person’s negligence or negligence was inflicted on the person himself/herself without any inevitable reason; and (d) whether the injury was inflicted on the person who has rendered distinguished service to the State is different from the other person’s perspective; and (e) how to exercise his/her right to defense; and (e) how to exercise his/her right to defense against the person who has rendered distinguished service to the State is different from that of the person who has rendered distinguished service to the State; and (e) the fact that the person falls under the person eligible for support because there is no causal relationship between the person who has rendered distinguished service to the State.

Articles 6 and 73-2 of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (Amended by Act No. 10471, Mar. 29, 201); Articles 8 and 94-2 (current Deletion) of the former Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (Amended by Presidential Decree No. 23003, Jun. 30, 201); Article 26 of the Administrative Litigation Act

Plaintiff

Head of Jeonju Veterans Affairs Office

Gwangju High Court ( Jeonju) Decision 2011Nu490 decided October 10, 201

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Article 26 of the Administrative Litigation Act provides that "the court may, if deemed necessary, conduct an ex officio examination of evidence, and determine facts not asserted by the parties." Since the Administrative Litigation Act provides that ex officio examination principle shall apply to matters presented on the records, a court may conduct ex officio examination of evidence and determine them based on such principle. However, in administrative litigation, the basic framework of party principle or pleading principle shall still be maintained in the administrative litigation. Thus, the determination of legitimacy of administrative disposition by recognizing a new reason shall be limited to the extent that it is identical to the grounds for the original disposition and basic facts (see, e.g., Supreme Court Decision 2008Du6394, May 28, 2009).

Meanwhile, Article 4(1) of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (amended by Act No. 10471, Mar. 29, 201; hereinafter “the Act”) provides that “persons of distinguished service to the State, who suffered from wounds during education and training or in the performance of their duties, and discharged from military service by suffering from wounds during education and training or in the performance of their duties, and the degree of their disability is recognized as soldiers or soldiers on duty: Provided, That even if they meet the requirements for persons of distinguished service to the State, such as soldiers or soldiers on duty, “persons who died or were wounded due to concurrent causes with their own negligence or negligence without any inevitable reason” shall be excluded from persons of distinguished service to the State and their bereaved family members, but the term “persons of distinguished service to the State” used in Article 8 of the Enforcement Decree of the Act (hereinafter “Enforcement Decree”), etc. of the same Act shall be referred to as “persons of distinguished service to the State”).

As can be seen, the Act separates persons who have rendered distinguished services to the State and persons eligible for support, and further stipulates that the Minister of Patriots and Veterans Affairs shall decide to recognize the status of persons who have rendered distinguished services to the State, such as persons who have rendered distinguished services to the State or persons eligible for support when he/she receives an application for registration (Article 6(2) of the Act). Accordingly, the agency should not dismiss the entire application for registration on the ground that it does not constitute “persons who have rendered distinguished services to the State,” and make registration as “persons eligible for support” by accepting the application partially. Nevertheless, if an administrative agency rendered a simple disposition of refusal to dismiss all applications for registration, such disposition is unlawful and its disposition is entirely revoked (see Supreme Court Decision 2013Du2402, Jul.

On the other hand, the applicant for registration of a person who has rendered distinguished service to the State is liable to prove that the degree of physical disability is above the grade prescribed by statutes, i.e., the fact that the person who has rendered distinguished service to the State was injured in performing official duties, or that the person who has rendered distinguished service to the State was unable to meet the requirements for support, should bear the burden of proving that the disposition to register himself/herself as a person who has rendered distinguished service to the State was a person eligible for support. In addition, whether the person was injured in performing official duties and whether the person’s negligence or negligence was concurrent without any inevitable reason is different from the other person’s perspective, and how to exercise his/her right to defense is different from that of the person who has rendered distinguished service to the State. In full view of the above determination, even if the determination constitutes non-person who has rendered distinguished service to the State, it should be deemed that there is no causal relationship between the person who has rendered distinguished service to the State and the person who has rendered distinguished service to the State, and thus, constitutes a person eligible for support. Therefore, the basic factual relationship should not be identical.

2. According to the records, since the instant disposition cannot be deemed as having proximate causal relation with the Plaintiff’s instant wound, the Plaintiff does not constitute a soldier or policeman on duty as provided by Article 4(1)6 of the Act, and the lower court acknowledged that the instant wound occurred due to the performance of official duty, based on the circumstances indicated in its reasoning, acknowledged the ground for a new disposition that the Plaintiff’s negligence or negligence occurred due to the Plaintiff’s negligence without any inevitable reason, and based on this, determined to the effect that the instant disposition is justifiable, on the ground that the Plaintiff cannot be deemed as a soldier or policeman on duty as provided by Article 4(1)6 of the Act, regardless of the Plaintiff’s scope of the person eligible for support as provided by Article 73-2(1)

However, in light of the legal principles as seen earlier, it cannot be said that the grounds for the disposition ex officio recognized by the court below are identical to the original grounds for the disposition in this case and the basic factual relations. Therefore, even if the court below recognized the grounds for the disposition in this case as erroneous, it erred by misapprehending the legal principles as to the scope of ex officio review under Article 26 of the Administrative Litigation Act, which affected the conclusion of the judgment, by recognizing the aforementioned new grounds ex officio.

In addition, even if the difference between the plaintiff's negligence and the plaintiff's negligence occurred without any inevitable reason, if there is a proximate causal relation with the performance of official duties, the defendant should have accepted part of the application and decided to register the plaintiff as a person eligible for support, instead of taking a simple measure of refusal against the plaintiff's application for registration of persons who have rendered distinguished services to the State. Nevertheless, the defendant issued the instant disposition that rejected the plaintiff's application in whole. In this regard, the disposition of this case should

Nevertheless, the lower court determined otherwise by misapprehending the legal doctrine on the interpretation and application of Article 6 of the Act and the grounds for revocation of administrative dispositions, thereby adversely affecting the conclusion of the judgment, on the grounds that the Plaintiff did not constitute a soldier or policeman wounded on duty under Article 4(1)6 of the Act.

3. Therefore, without examining the grounds of appeal as to the existence of negligence by the Plaintiff, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)