(영문) 서울고등법원 2013.8.29. 선고 2013누8150 판결

1. The Defendant’s appeal against the Plaintiff on March 19, 2010 regarding the right-free disease part among the disposition of refusal to render distinguished services to the State against the Plaintiff is dismissed.

2. 30% of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim and appeal

The part against the plaintiff falling under the order to revoke the below among the judgment of the first instance shall be revoked.

Of the disposition that the defendant rendered against the plaintiff on March 19, 2010 and the disposition that the defendant revoked the part of the injury and disease in the Disposition No. 1 (the plaintiff claimed to revoke the part of the injury and disease in addition to the above claim, the plaintiff filed a claim for the revocation of the part of the injury and disease in the case, which became final and conclusive by the Supreme Court of Korea.)

Reasons

1. Scope of the judgment of this court;

The Plaintiff filed an application for registration of the person who rendered distinguished services to the Defendant for knene-free disease, but the Defendant rendered the instant disposition on the ground that it cannot be recognized as a wound during the performance of official duties. The Plaintiff filed a lawsuit seeking revocation of the entire disposition of this case, but the court of first instance dismissed the Plaintiff’s claim. The Plaintiff appealed, and the judgment of the court of first instance determined that there is a proximate causal relation between the Plaintiff’s education and training, performance of duties, and the left-free disease during the military service of the Plaintiff, but revoked the judgment of first instance and revoked the entire disposition of this case. The Defendant’s appeal was dismissed. The Defendant’s appeal against the kne-free disease on the left-hand kne-free disease in the judgment of the first instance court prior to

Therefore, since the part on the left-hand kne-free disease in the judgment before remand is confirmed to be remanded, it is limited to the part on the right-hand kne-free disease.

2. Details of the disposition;

○ On July 14, 1989, the Plaintiff rendered a judgment of Grade IV on the ground that the Plaintiff was abnormal in appearance and part at the time of physical examination conducted by the Seoul Regional Military Manpower Office.

○ On October 12, 1990, the Plaintiff entered the Army as a short-term soldier (defense soldier).

○ On February 1, 1991, the Plaintiff received the “refluence of the structure outside the slives of the slives of the slives and the slives of the outers of the slives of the slives.”

On October 21, 2009, after the maturity of the Plaintiff on 1992, May 12, 2009, the Plaintiff was diagnosed by B Hospital on the part of B, “the next unstable side of the sleak, and the part attached to the sleaks of the sleaks of the sleaks (hereinafter referred to as “the injury or disease in this case”).

○ On December 17, 2009, the Plaintiff filed an application for registration of a person who rendered distinguished services to the State to the Defendant on the ground of the instant injury or disease.

○ On March 19, 2010, the Defendant rendered a disposition to refuse to render distinguished services to the Plaintiff (hereinafter referred to as “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, and Eul evidence 1 and 2, fact-finding with the Seoul Military Manpower Office before remand, the whole purport of the pleading, and the purport of the whole argument

3. Whether the disposition of this case is legitimate for the right-free disease part among the dispositions of this case

A. The plaintiff's assertion

On January 1, 1991, the Plaintiff underwent a surgery on February 1, 1991, when he was under the full 20 km, damaged knee part on the left-hand knee, and was under the surgery on February 1, 1991. After which he was under the centering on the right-hand knee, there was an error in this part. In particular, around August 191, 191, the Plaintiff got a chronic disease to the right-hand knee on the wind that he was unable to receive proper treatment in the military.

In light of the above circumstances, since knene-free disease in the right-hand side of this case was generated by education and training during military service or significantly deteriorated due to it, the part concerning the right-hand kne-free disease in the instant disposition is also unlawful.

B. Determination

The term "injury during education and training or in the performance of duty" under Article 4 (1) 6 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State refers to the injury or disease of military personnel or police officer during the performance of duty. Thus, in order to be different from the above provision, there should be a proximate causal relation between education and training or in the performance of duty and the injury or disease. In addition, the causal relation between the injury and the performance of duty, etc. should be proved by the party asserting it (see, e.g., Supreme Court Decision 2004Du6983, Sept. 23, 200

However, the evidence submitted by the Plaintiff alone is insufficient to recognize that knee-free diseases in this case have occurred or have deteriorated due to military service, such as education and training or performance of duty, etc., and there is no other evidence to acknowledge this.

Therefore, the part concerning the right-hand knee injury in the disposition of this case is legitimate, and the plaintiff's above assertion is without merit.

4. Conclusion

Therefore, among the judgment of the first instance court, the part on the right-free disease is legitimate, so the plaintiff's appeal is dismissed. It is so decided as per Disposition.