(영문) 서울행정법원 2014.4.11.선고 2012구단30151 판결

1. On September 28, 2012, the Defendant’s disposition of non-approval of medical care for official duties rendered to the deceased Lee-○ on September 28, 2012 is revoked.

2. The costs of lawsuit are assessed against the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

A. On July 1, 1976, ○○○○ (hereinafter referred to as “the Deceased”) was appointed as a civilian military employee at the Army on the part of July 1, 197, and only performed the maintenance of trams, including electric vehicles, on December 31, 2010.

B. On June 13, 201, the Deceased was diagnosed as 4 waste cancer at the Seoul Asan Hospital, and the Gun as above, was exposed to harmful substances, such as asbestos, and caused the lung cancer. On July 9, 2011, the deceased claimed medical care benefits for official duties against the victim. However, on October 9, 2011, the Defendant issued a non-approval disposition to the effect that it is difficult to recognize an excessive relation with the deceased’s waste cancer for official duties, since it was not medically identified as the cause of the outbreak, and it was not objectively confirmed that the cause of the outbreak was not medically identified, and whether the deceased’s waste cancer was continuously exposed to the cause of the outbreak, such as asbestos, etc., and there was a history of force smoking for 30 years.

C. The Deceased filed an application with the Korea Environment Corporation on January 18, 2012 pursuant to the Asbestos Injury Relief Act aimed at remedying asbestos by ordinary people, who are not subject to the Industrial Accident Compensation Insurance Act and the Public Officials Pension Act, etc., and the Korea Environment Corporation recognized that the Deceased’s waste cancer was exposed to asbestos on March 15, 2012 and became the recipient of remedial benefits under the Asbestos Injury Relief Act.

D. As above, the Korea Environment Corporation recognized that the deceased’s lung cancer was asbestos-related disease. On August 15, 2012, the deceased again filed a claim with the Defendant for medical care benefits for his own lung cancer for official duties, and the Defendant, on September 28, 2012, rendered non-approval disposition on the same ground as before (hereinafter “instant wife”).

E. On December 22, 2012, the Deceased brought the instant lawsuit, and died from pulmonary cancer on January 21, 2013, and the Plaintiff, his spouse, took over the lawsuit.

[Ground of recognition] Class A 1 through 4, 6, 9, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) In the military for about 35 years, the Deceased carried out the maintenance work of tramway vehicles, such as electric trains. Since 2000, many parts of asbestos used as raw materials were exposed to asbestos in electric trains, etc., until the national regulatory system was established. In the process of breaking, attaching or using such parts with saws, etc., asbestos was exposed to exhaust gas of diesel engines in the course of trial operation after repairing electric trains. After repair, the Deceased was exposed to black dust during color operations. However, prior to 200 years, there was a lack of awareness of environmental safety in the military, and there was no need for repair companies to directly leak and inhale hazardous materials, such as asbestos, gas, exhaust gas, powder, etc., in the maintenance work in the military, and thus, it was caused by exposure to harmful substances in official duties.

(2) In particular, the Korea Environment Corporation recognized that the deceased’s waste cancer was a disease caused by asbestos exposure. Since the deceased did not have been exposed to asbestos other than the maintenance work in the Gun, the deceased’s waste cancer is deemed to be a disease caused by asbestos exposure during the maintenance work in the Gun.

(b) Relevant Acts and subordinate statutes: as shown in the Appendix;

(1) Asbestos (Co.) is a general name of naturally occurring fiber minerals in the form of fiber, which is widely used in the construction industry, the seal interior capacity, fluority, fluority, fluority, durability, internal structure, studity, studio, and the studio value is high, and then widely used in the electric and mechanical industry, masting materials, heat, thermal heat, and waste materials and raw materials. In the event of inhaleing asbestos dust through breath, the international cancer research institutes affiliated with the World Health Organization have designated asbestos as class 1 rock quality by means of 40 lockeds from 20 to 40 years.

(2) Prior to January 1, 2007, the military used asbestos parts widely for the purpose of saving or cutting asbestos due to lack of awareness of the risk of asbestos in the military. However, “The detailed list of asbestos materials used in the military before 2006 and its content are not kept in the military.” From January 1, 2007 to 01.0% of the asbestos content of the previous asbestos materials used in the military were entirely replaced with non-asbestos material in the military after it was prohibited from manufacturing and using the asbestos content at least 01.0% from January 1, 2007 by announcement of the Ministry of Employment and Labor’s announcement of the manufacture, import, transfer, provision, or prohibition of use of asbestos products (No. 2007 - 25 of the Ministry of Employment and Labor’s announcement of Sep. 13, 2006). The head of the Gun did not collect the asbestos content of the parts supplied in the military prior to 2006 to 388.3 p.m., 4873 p.

(3) During the period of service, the Deceased was exposed to asbestos in the course of cutting and processing parts, such as engine dogs, smoke pipe, and short heat mortars of asbestos materials during the course of performing maintenance of 1-2 track vehicles each month during the period of service, and was exposed to asbestos during the process of testing the engine output of the maintenance track, and 2-3 times every time during the process of testing the engine output of the maintenance track vehicles, and was exposed to the exhaust gas of diesel engines during the course of making 30-1 hours through 1-2 hours each time.

(4) Prior to the enforcement of the foregoing public announcement, no education was conducted on the method of handling products containing asbestos hazards or asbestos to the military track mechanic, etc., and prior to 2003, there was no exhaustor scke for preventing the inhalement of hazardous substances in the engine engine exhaust test or the painting work. Since 2004, the exhaustor scke was paid after 2004, but safety facilities such as ventilation facilities have not been installed in the maintenance factory.

(5) In order to identify the correlation between the exposure of the exhaust gas of diesel engines and the death rate of pulmonary cancer, a research institute of the United States of America and the Institute of Vocational Safety and Health announced the results of the study that the exhaust gas of the diesel engine would act as the cause of the pulmonary cancer (repact) of the carbon compound containing the exhaust gas of the diesel engine on March 2012. Accordingly, around June 2012, the International Cancer Research Institute of the World Health Organization designated the exhaust gas of the diesel engine as Class 1 cancer by raising the exhaust gas of the diesel engine from Grade 2A to Grade 1 cancer.

(6) The Deceased was able to smoke tobacco for about 30 to 40 years per day by August 2007.

(7) The Committee for Determination of Asbestos Injuries in the Environmental Safety Agency determines the asbestosis type in the initial form by reading the deceased’s waste computer photography (TT) photographs. This is to integrate the organizational pathology report submitted by the deceased, and determined that the deceased’s waste cancer was an original lung cancer caused by the melting asbestos. Based on the result of this determination, the Environmental Safety Agency was recognized as an asbestos victim on March 15, 2012.

(8) Medical opinions

(A) In the case of (a) the master

On June 13, 2011, the Deceased was diagnosed to be four poppy cancer on June 13, 201, and hoppy was fright cancer and left leaves. While the Deceased was able to smoke, different kinds of pulmonary cancer was generated, and in particular, in light of the deceased’s vocational ability, the disease caused by asbestos exposure was high.

(b)the Korean Medical Association;

According to the fact-finding survey in 197, the share of the pulmonary cancer generated by a smoker was 55%, 6%, 21.6%, 1%, 1.9%, 1.9%, and 20% of the pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary tion, and 25.7% of the pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary c.

[Grounds for Recognition] Gap evidence 3, 8, 10, 11, Eul evidence 4, 6, 7, and head of this court

As a result of each fact-finding on the Support Headquarters, the Korea Environment Corporation, and the Korea Medical Association;

The purpose of the whole theory

D. Determination

(1) In order to recognize "a disease caused by official duty" as stipulated in Article 35 of the Public Officials Pension Act, there must be causation between official duty and disease, which must be proved by direct evidence, but the method and degree of proof must not necessarily be proved by direct evidence, but it is sufficient if it is proved to the extent that the proximate causal relation between official duty and re-injury can be inferred due to indirect facts such as the health condition at the time of employment, the existence of existing diseases, the nature of the work, and the working environment (Supreme Court Decision 2006Du1374 Delivered on May 31, 2007).

(2) In full view of the above facts, even if the deceased smoked because it was known as an important cause of the pulmonary cancer, (1) the deceased was exposed to harmful material quality, such as asbestos, diesel engine exhaust gas, paint dust, etc. while performing maintenance work for over 30 years as a civilian military employee, and where the deceased did not have any ventilation facilities for most of the periods, and the deceased was exposed to harmful material quality, such as asbestos, diesel engine exhaust gas, paint dust, etc. while working in the asbestos mine or the asbestos treatment plant except maintenance work, and resided in its neighboring area, and (2) the deceased had no material to deem that the asbestos was continuously exposed to the deceased, and (3) the committee for the determination of asbestos damage by the Environmental Safety Agency set the shape of the deceased’s asbestos disease rapidly for 10 years, and (4) the deceased’s asbestos disease was caused mainly by exposure to the deceased’s natural exposure to 20th or more of the 7th of the 9th of the 9th of the 2nd of the 2nd of the mar.6th of the death.

(3) Therefore, since the deceased’s lung cancer is a disease due to official duties, the instant disposition is unlawful. 3. Conclusion

The plaintiff's claim is justified, and the costs of lawsuit are fully borne by the defendant who is the losing party. It is so decided as per Disposition.

Judges

Judges' superior ethics

Site of separate sheet

Relevant statutes

Public Officials Pension Act

Article 3 (Definitions) (1) The definitions of terms used in this Act shall be as follows:

1. The term "public official" means any of the following persons who serve full-time in a public service job:

(a) A public official under the State Public Officials Act, the Local Public Officials Act, or other Acts: Provided, That military personnel and election shall be held;

Any public official who assumes office shall be excluded.

(b) Other employees of the State or local governments prescribed by Presidential Decree.

Article 25 (Benefits) Short-term benefits under Article 34 shall be granted for any disease, injury or accident caused by the official duty of a public official.

Long-term benefits under Article 42 shall be paid for the retirement, disability, and death of public officials.

Article 35 (Expenses of Medical Care in the line of duty) (1) A public official shall receive the following medical care due to a disease or injury caused by official duty:

U.S. shall pay expenses incurred in performing medical care in the line of duty.

(3) The standards for diseases or injuries under paragraph (1) shall be determined by Presidential Decree.

【Enforcement Decree of the Public Officials Pension Act

Article 29 (Expenses of Medical Care in the line of duty) (1) Criteria for recognition of diseases or injuries sustained in the line of duty under Article 35 (3) of the Act

Each subparagraph shall be as listed in the following subparagraphs [ [..]

4. Pneumoconiosis caused by severe dust in the places where public duties are performed, and pulmonary tuberculosis [1] caused thereby;

6. The detailed criteria for the addiction caused by harmful gases or toxic substances in the performance of official duties, and the following mergers and subsequent legacy [....]. (2) The detailed criteria for the injury or disease caused by the performance of official duties under each subparagraph of paragraph (1) shall be determined by

of this section.

【Enforcement Rule of the Public Officials Pension Act

Article 11 (Aggravated Disease) (1) A public official shall be newly replaced due to any of the following causes:

Where a disease occurs or an existing disease significantly worsens, the disease shall be deemed a disease due to official duties.

1. A disease caused by mination of pneumoconiosis, heavy metals addiction, images, copper, etc. in the performance of official duties;

2. A long-term street on hazardous light, radioactive gas, light, heat, noise, vibration, abnormal voltage, etc., among public duties;

A disease that has occurred due to departure [...]

(2) A disease on official duty requires a substantial causal relationship between the occurrence and aggravation of the disease.

(c)

(3) In the course of treating a disease due to official duties, the disease as its main cause has caused a merger certificate, or performing public duties.

for a considerable period of time, the certificate of merger is created because the mental or physical state continues to decrease the physical resistance;

Where this is caused, the certificate of merger shall be deemed to be a disease due to official duties: Provided, That the basic disease or physical constitution shall be deemed to be a disease.

The same shall not apply to cases where the natural causes have been caused or deteriorated by such causes.

(4) In making a decision on a disease caused by an official duty, the characteristics and gender of a person who is or was a public official;

It is necessary to consider age, physical constitution, health status of ordinarys, existing diseases, sick leave, leave of absence, retirement, etc.

Asbestos Injury Relief Act

Article 1 (Purpose) The purpose of this Act is to give lectures to take measures to pay benefits to asbestos-in disease sufferers and their bereaved family members.

The purpose of the Gu is to promptly and fairly relieve health injuries caused by asbestos.

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1 . " 석면 " ( 石綿 ) 이란 자연적으로 생성되며 섬유상 형태를 갖는 규산염 ( 큰酸鹽 ) 광물류로서

The term "materials prescribed by Ordinance of the Ministry of Environment" means materials.

2. The term "infection-related disease" means primary malignant music, closion, and original closion, which are caused by the inhaleing of asbestos;

Sexual lung cancer, asbestosis, and other diseases specified by Presidential Decree.

Article 3 (Scope of Application) This Act shall provide benefits, etc. under the Industrial Accident Compensation Insurance Act and other Acts and subordinate statutes prescribed by Presidential Decree.

shall not apply to any person entitled to receive such benefit.

Article 5 (Types of Remedial Benefits) Benefits paid for the relief of health injuries caused by exposure to asbestos (hereinafter referred to as " remedial benefits").

Types of remedial benefits (referring to remedial benefits) are as follows:

1. Medical care benefits;

2. Allowances for medical treatment and living;

3. Funeral expenses.

4. Special consolation for bereaved family members and special funeral expenses;

5. Remedial benefit adjustment.

Article 6 (Application, etc. for Recognition of an Asbestos Recognition) (1) A person who intends to receive remedial benefits under subparagraphs 1 and 2 of Article 5 shall be the State.

Recognition that asbestos is infected with an asbestos-related disease due to exposure to asbestos (hereinafter referred to as "recognition as an asbestos victim";

D) To receive the approval from the Korea Environment Corporation under the Korea Environment Corporation Act (hereinafter referred to as the "Corporation")

of this section.

(2) A person who intends to be recognized as an asbestos victim shall be determined by medical opinions on asbestos-related diseases, and by Ordinance of the Ministry

the head of the Si/Gun/Gu (Gu office of an autonomous Gu) having jurisdiction over his/her domicile, along with documents stating the following matters;

An application shall be made to the head of the Gu; hereinafter the same shall apply).

(3) Upon receipt of an application under paragraph (2), the head of a Si/Gun/Gu shall, without delay, determine as an asbestos victim.

(1) The Special Metropolitan City Mayor, a Metropolitan City Mayor, a Do Governor, or a Special Self-Governing Province Governor (this shall apply).

(n) The Mayor/Do Governor shall notify the Do Governor of the fact of the request.

Where the Corporation receives a request under paragraph (3), it shall Article 8 in accordance with the standards for recognition prescribed by Presidential Decree.

Determination Committee on Asbestos Injuries shall deliberate and decide on whether to recognize the applicant as an asbestos victim and his/her grade of injury within 60 days.

shall be determined: Provided, That there are justifiable reasons, such as where it is difficult to make a determination due to medical reasons, etc.

When it is difficult to decide within 60 days whether to recognize an asbestos victim, a person who does not exceed 30 days;

The period for decision mentioned above may be extended.

(5) If the Service extends the period for decision as to whether to recognize an asbestos victim under the proviso to paragraph (4), it shall extend the period.

Before the expiration of the period, the relevant Si/Do Governor, the head of the Si/Gun/Gu, and the head of the Gu, specifying the grounds therefor, and the application therefor.

such person shall be notified to that person.

(6) If KECO recognizes an asbestos victim, it shall issue an asbestos victim's medical pocketbook to a person recognized as an asbestos victim.

registration and management, as prescribed by Ordinance of the Ministry of Environment, and a person who has received an asbestos victim's medical pocketbook;

No person shall transfer or lend the relevant pocket book to any third person.

(7) Other necessary matters concerning the procedure and method for recognition of an asbestos victim, the form and form of the asbestos victim's medical pocketbook, etc.

Paragraphs shall be prescribed by Ordinance of the Ministry of Environment.

(8) A person recognized as an asbestos victim and a person prescribed by Presidential Decree shall be recognized as an asbestos victim.

All or part of related expenses, such as inspections, inspections, etc. may be subsidized.

(9) Conditions, amounts and procedures for support under paragraph (8) shall be prescribed by Ordinance of the Ministry of Environment.

Article 20 (Relationship with Other Compensation or Damages) A person entitled to receive remedial benefits under this Act shall be entitled to such benefits.

money or goods equivalent to the remedial benefits of this Act for any reason described in the Civil Act or any other Act or subordinate statute;

this Act to the extent of the amount converted by a method prescribed by Presidential Decree.

No remedial benefit shall be paid.

Enforcement Decree of the Asbestos Injury Relief Act

"Acts and subordinate statutes prescribed by Presidential Decree" in Article 3 of the Act means the following Acts and subordinate statutes:

1. The Industrial Accident Compensation Insurance Act;

2. The Public Officials Pension Act;

3. The Military Pension Act;

4. The Seafarers Act;

5. The Act on Accident Compensation Insurance for Fishing Vessels and Fishing Vessels.

6. The Pension for Private School Teachers and Staff Act;

Article 4 (Criteria for Recognition as an Asbestos Recognition) Standards for recognition as an asbestos victim under the main sentence of Article 6 (4) of the Act shall be as specified in attached Table 1.

[Attachment 1]

Criteria for recognition of an asbestos victim (related to Article 4)

1. Criteria for recognition as an asbestos victim of primary malicious species;

Recognition shall be made only in any of the following cases:

(a) Where it is deemed to be a primary malicious stimula through an organizational pathology test;

applicable only where it is not possible to do so)

2. Criteria for recognition of an asbestos victim of primary lung cancer;

다음 각 목의 요건을 모두 충족하는 경우로서 석면 노출로부터 발병까지의 잠복기간 , 노출력 ( 露出

Considering the medical history, etc., it shall be recognized only where causal relationship between exposure to asbestos and the outbreak of asbestos is recognized.

(a) is diagnosed as primary lung cancer through any of the following (i) and (ii);

(i) organizational pathology tests;

2) Clinical and cinematographic judgments (limited to cases where organizational pathology tests cannot be conducted)

(b) Where medical judgments, etc. fall under any of the following (i) through (iii).

1) Cick type in accordance with the criteria for the Determination of asbestosis referred to in subparagraph 3 (b) (hereinafter referred to as “disease type”).

In the case of a proceeding or early penalty:

2) Where asbestos has been caused and chests have been found;

3) In any of the following cases:

(A) Where there are not less than 5,00 asbestosis per 1g of dried waste weight;

(B) asbestos fibres with a length of not less than 1cm per 1g of dried-in weight 5,000,000 01 square meters

(d)where there are at least five asbestos pathogens per 1 lmnife of the machinery branch;

3. Criteria for recognition as an asbestos victim of asbestosis;

(a) Grade of asbestosis, etc.;

The amount of damage, etc. to asbestosis shall be determined by the Gu under Grades I, II, and III in accordance with the type of asbestosis and the phase of waste function impairment.

Sector. In this section,

(b) Determination of the type of asbestosis;

1) The type of asbestosis C shall be determined by dividing it into suspected type, initial type, and progress type by reading the photograph of a computer screen picture.

A person shall be appointed.

1) A pulmonary function impairment shall be determined with the result after all the following tests:

(A) Efforts discontinued (FVC)

B) 1 initial quantity (FEV1)

C) Waste proliferation capacity (DLco)

2) The phase of the pulmonary function disability shall be divided into normal, light and height disabilities.

3) 1) The criteria for determining the waste function phase by method of inspection under paragraph (1) are as follows, and the result of determination by method of inspection is as follows:

In other cases, the degree of disability shall be the most severe result.

(d) Criteria for recognition as an asbestos victim for asbestosis (Grade I);

In any of the following subparagraphs (i) and (ii), the diving period from exposure to the outbreak of asbestos, and the exposure;

Considering the degree of causation between exposure to asbestos and the outbreak of asbestos, it is recognized only.

1) In the case of an asbestosis type C or early and where the asbestosis type C is an advanced disability in the waste function phase;

2) In the case of an asbestosis type C in progress and where the waste functional disability stage is light disability:

(e) Criteria for recognition as an asbestos victim for asbestosis (Grade II);

In any of the following subparagraphs (i) and (ii), the diving period from exposure to the outbreak of asbestos, and the exposure;

Considering the degree of causation between exposure to asbestos and the outbreak of asbestos, it is recognized only.

1) Where asbestosis sick is in progress and the waste functional disability stage is normal;

2) In the case of an early type of asbestosis disease and a pulmonary function disorder phase is light disability.

(f) Criteria for recognition as an asbestos victim for asbestosis (Grade III);

Where an asbestosis type is early, and the waste function disorder level is normal, and the disease occurs from exposure to asbestos;

It shall be recognized only where the causal relationship between exposure and the outbreak of asbestos is recognized in consideration of the locking period, exposure history, etc.

(c)

4. Criteria for recognition as an asbestos victim for a period less than 60 chest thicks;

When meeting all of the following requirements, the locking period, exposure history, etc. from exposure to exposure to asbestos:

Considering that the causal link between exposure and the outbreak of asbestos is recognized only.

(a) at least 5§¯ in length of the chest part in the upper part of the computer short-rise photograph in succession, and upper lower (catiaicaual);

Where the length of the direction is at least 8cm, and is diagnosed with a chest pleening with a thickness of less than 3 meters;

(b) Where the phase of waste functional disability is a high-level disability;

nan