Plaintiff

Head of Daegu Regional Veterans Administration

Daegu District Court Decision 2007Gudan1465 Decided May 21, 2008

March 27, 2009

1. The part against the plaintiff falling under any of the following subparagraphs among the judgment of the court of first instance shall be revoked:

On February 16, 2007, the Defendant’s revocation of the part concerning the recognition of the absence of additional measures against the Plaintiff on February 16, 2007, of the disposition of non-recognition of additional measures against the Plaintiff.

2. The plaintiff's remaining appeal is dismissed.

3. The total cost of a lawsuit shall be three minutes and two of them shall be borne by the plaintiff and the remainder by the defendant respectively.

The decision of the first instance court shall be revoked. The defendant shall revoke the disposition of non-recognition of the additional status of a major prize against the plaintiff on February 16, 2007.

1. Details of the disposition;

A. On May 8, 1999, the Plaintiff filed an application for registration of a person of distinguished services to the State on the ground that the name of the injury was “the state of a diplomatic mission in which he is infeascing, the escape of a converging, the escape of a converging kne, the escape of an artificial insemination, the artificial insemination body, the artificial insemination body damage, and the cerebral wave injury” with the following facts: (a) during a regular leave of absence, the Plaintiff was faced with an accident falling within a guest car while getting on a military train (hereinafter “accident”); and (b) the name of the injury was considered as “the state of a diplomatic mission in which he is infeasible, the escape of a converging, the escape of a converging, the febratitis, the artificial insemination body, the artificial insemination body damage, and the brain death.”

B. On September 21, 1999, the Board of Patriots and Veterans Entitlement recognized the difference in the hydro-nuclear escape certificate, but decided that the falling accident in the train is not a person of distinguished service to the State on the ground that the degree of disability does not meet the criteria for disability rating as a result of physical examination on November 1, 1999, on the ground that the difference in the above hydro-nuclear escape certificate does not meet the criteria for disability rating.

C. On July 4, 200, the Plaintiff again filed an application with the Defendant for recognition as an additional family head by alleging that he was injured at the pelvise of “the pelvise, the brain fluor, the upper part of the left-hand side, the pelvise vertebal verteb, and the conical signboard)” on the ground that “the instant accident was a private act during the leave, but does not constitute an accident during the leave and going to the destination with the permission for leave and going to the destination.” On July 18, 2001, the Defendant rejected the determination of recognition as an additional family head on the ground that the Plaintiff applied for recognition as an additional family head on July 18, 2001, on the ground that “the fact that the part applied for an additional family head was confirmed, but the instant accident was an accident due to a private act during the leave, going to the destination.”

D. On December 18, 2006, the Plaintiff filed an application with the Defendant for recognition of additional wounds on the ground that the instant difference occurred due to the Plaintiff’s private act during the leave (hereinafter “instant disposition”). On February 16, 2007, the Plaintiff filed an application with the Defendant for recognition of additional wounds (hereinafter “instant disposition”).

[Grounds for Recognition] Unsatisfy, each entry of Gap evidence 1 to 9 (including each number)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The injury of this case was caused by the accident of this case, which occurred out of the train due to the wind that the plaintiff was on a regular leave on January 14, 1966 when he was on the part of the plaintiff while serving in the military, and moved in the entrance of the Gyeongcheon-gun, Young-gun, Young-gun, the Gyeongcheon-gun, the Gyeongcheon-gun, the Gyeongcheon-gun, the Gyeongcheon-do Office of the Republic of Korea. This constitutes a difference in the performance of duties under Article 4 subparagraph 6 of the former Act on the Honorable Treatment of Persons of Distinguished Services to the State, which was enacted by Act No. 3742 of Aug. 2, 1984. Thus, the disposition of this case which did not recognize additional measures for the reason that the difference occurred due to the plaintiff's private act of this case is unlawful.

B. Review of relevant statutes

(1) Relevant statutes

Article 2(1) of the Military Protection Act (amended by Act No. 758, Nov. 1, 1961; Act No. 3742, Aug. 2, 1984) provides that “the persons subject to this Act shall be as follows;” Article 5(2) provides that “the persons who fall under any of the following subparagraphs and suffered physical disability as prescribed in the attached Table 3” shall be included in the scope of “the persons who were killed or wounded in the line of duty” under subparagraph 2 of the same Article; Article 2(1) of the Enforcement Decree of the Act provides that “the persons who were killed or wounded in the line of duty” shall be excluded from the scope of “the persons who were killed or wounded in the line of duty” under Article 16(2) of the former Act and Article 4(2) of the same Decree shall be excluded from the scope of “the persons who were killed or wounded in the line of duty” (amended by Act No. 3742, Dec. 31, 1988).

(2) The statutes applicable to the instant wounds

Since the instant accident occurred before the enforcement of the former Act on the Honorable Treatment of Persons of Distinguished Service to the State after the above amendment, Article 3(2) of the Enforcement Decree of the Act on the Honorable Treatment of Persons of Distinguished Service to the State or Article 4(6) of the Act on the Honorable Treatment of Persons of Distinguished Service to the State cannot be applied to the injury caused by the instant accident that occurred before its enforcement (see Supreme Court Decision 90Nu5474, Oct. 30, 190; Supreme Court Decision 91Nu12868, May 22, 1992, etc.); and whether the Plaintiff is a soldier or policeman on duty should be determined

The defendant, before the enforcement of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State prior to the above amendment, was enacted and operated on January 12, 1983, and the above guidelines provided that "the mentally handicapped and dead due to the person's intentional act or gross negligence during his/her return to the military unit shall be treated as non-major." The defendant argued that the difference in this case does not constitute a difference in his/her duty when based on the above guidelines. However, the above guidelines are merely internal guidelines within the so-called administrative agency and cannot be interpreted differently from the purport of Article 4 subparagraph 6 of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State prior to the above amendment. Therefore, the defendant's assertion cannot be accepted.

(c) Fact of recognition;

(1) On Apr. 9, 1964, while entering the Army and serving in the 26th Team, the Plaintiff was hospitalized on Nov. 28, 1964 in the Army, and went through brate operation upon the diagnosis of nuclear escape. After being hospitalized on Jan. 5, 1965, the Plaintiff continued entry into and discharge from the Army until December 10, 1965, and received medical treatment.

(2) On January 14, 1966, the Plaintiff was under a regular leave order, and was discharged from the military service on May 31, 1966, with the judgment that the military service was impossible on May 31, 196, after receiving the diagnosis that the Plaintiff was under the diagnosis of “on the right side side side side side side, sloping knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife.”

(3) On December 15, 2006, the Plaintiff was diagnosed by the medical hospital affiliated with the Yong-Namnam University as “brain fluorial color, fluorial vertebrate, and climatic signboard escape certificate,” and on the same day, at the Daegu Medical Center, the Plaintiff was diagnosed by the Non-Party’s Malithic Department with the Non-Party’s Malithic Department on the same day.

(4) In a state of cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral typhism (if the cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral rhem is created by preventing the blood malmosis from being affected by the cerebral rhal rhem), color color (if there is damage to the cerebral mal mic malphal rhem that caused damage to the cerebral ral mal rhem). It corresponds to this situation.

[Ground of recognition] Facts without dispute, Gap evidence 2-1, 2, 3, Gap evidence 10-2 through 7, the purport of the whole pleadings

D. Determination

(1) Of the instant injuries, the part concerning brain color, vertebrate verte inverte, the escape from climatic signboards, and uneasiness.

Among the injuries of this case, in light of the following circumstances revealed in the above recognition, such as cerebral chronism, fluore vertebrate vertecule escape, and uneasiness, the cerebral chrone's chronological typhism, e.g., cerebral typhism, heart diseases, high blood pressure, etc., and the cerebral chrone's typhrosis does not directly cause cerebral typhism, such as the accident of this case. There is no record that the plaintiff treatment mal typhe at the time of the accident without any particular external typhe, and there is no evidence that the plaintiff complained of the plaintiff's uneasiness during the time of hospitalization, and there is no special reason that the plaintiff's first application for the registration of a person of distinguished service to the State, and there is no reason to acknowledge any other evidence that there is no reason to acknowledge this part of No. 10-7 through No. 12, No.1315 of this case's.

(2) Out of the instant injuries, the part concerning the dives of the left-hand sludge and the part concerning the sives of sediment.

Article 4 subparagraph 6 of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State before the amendment constitutes a soldier's occupational act, as a matter of course or within an ordinary scope, since the soldier's act of staying home with his leave constitutes a soldier's occupational act. Thus, as long as the soldier's act of staying home with his leave does not constitute an arbitrary or private act beyond a net route and method, it constitutes a serious negligence or an accident, it constitutes a wound during his duty (see Supreme Court Decisions 91Nu8920 delivered on February 25, 192, 92, 92Nu94 delivered on November 27, 1992, etc.). Thus, even if the plaintiff's act of staying home with his military train on a regular leave cannot be deemed to go beyond a net route and method, the accident of this case constitutes an accident in the course of his duty, and therefore, it is not a dispute between the parties to the instant case and the parties to the instant accident.

Therefore, it is illegal that the defendant did not recognize this part of the injury caused by an accident in the course of performing his duties as an official wound. Therefore, this part of the plaintiff's assertion is with merit.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the whole disposition of this case shall be accepted within the scope of the above recognition, and the remaining claim shall be dismissed as there is no reason. The judgment of the court of first instance is partially different and unfair, so the plaintiff's appeal is partially accepted and it is so decided as per Disposition.

Judges Choi Choi-sik (Presiding Judge)