[1] In order to be recognized as a “person who died on duty” under Article 4(1)5 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State, whether the death of a soldier, etc. should be the main reason directly related to the national defense and security or the protection of the lives and property of the people (affirmative)

[2] The case holding that in case where Gap, who had been on duty as a officer in charge of operations of the Army, was on duty on the five-day emergency duty and went out of the military unit for food service and died of a traffic accident due to stroke driving while returning to the military unit, on the ground that it is difficult to see that the emergency duty that has already been completed before the framework was the direct cause of death due to traffic accident, the case holding that Gap does not constitute a person who died of an accident or a disaster and who died of an accident or a disaster directly related to the national defense, etc. under Article 3 [Attachment 1] 2-1 of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State, and died of an accident or a disaster due to the direct cause of the national defense, etc.

[3] Whether the revocation of a disposition that was rendered in favor of a person who rendered distinguished service to the State and the revocation of a disposition that was made in favor of a person eligible for veteran’s compensation are incompatible with each other (affirmative), and whether the revocation of the two dispositions is in a primary and preliminary relationship with the primary claim for revocation of the disposition that was made in favor of a person who rendered distinguished service to the State (affirmative)

[1] Article 4 (1) 5 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State / [2] Article 4 (1) 5 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State, Article 3 [Attachment I] 2-1 of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State / [3] Articles 4 and 6 of the Act on the Honorable

[1] Supreme Court Decision 2015Du46994 Decided July 27, 2016 (Gong2016Ha, 1263) / [3] Supreme Court Decision 86Nu2 Decided September 9, 1986 (Gong1986, 1318), Supreme Court Decision 2015Du38313 Decided December 15, 2016

Plaintiff (Law Firm Jin, Attorneys Choi Jae-Gyeong et al., Counsel for the plaintiff-appellant)

The head of Gangwon-do Veterans Branch Office (before the change: the head of Chuncheon Veterans Branch Office)

Seoul High Court Decision 2015Nu252 decided October 19, 2015

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

The grounds of appeal are examined.

1. On the part on the claim to revoke the determination that constitutes a person of distinguished service to the State

A. In order to recognize the death of a soldier or policeman who died on duty as “the persons who died on duty” under Article 4(1)5 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (hereinafter “the Act”), there is only a proximate causal relation between the performance of duties or education and training and the death of soldiers, etc., and the death should be the main reason directly related to the performance of duties or education and training directly related to national defense and security or the protection of the lives and property of the people (see Supreme Court Decision 2015Du4694, Jul. 27, 201

B. Based on evidence, the lower court acknowledged that: ① the Plaintiff’s son was on duty on duty on April 5, 2012 to June 29, 2012 during his/her service, and was on duty as an officer in charge of the operations of the Army Group of the Army from April 5, 2012 to June 29, 2012; ② the emergency situation occurred in the communist Zone near the Army Group of the ○○ Volunteer Team of the Army; ② the Deceased was called on emergency duty on two (2) days from June 11, 2012 to June 15, 2012; ③ the Deceased was on duty on duty on duty on duty on duty on the part of the deceased; ④ the Deceased was on duty on duty on duty on duty on the part of his/her own after he/she finished his/her operation on the day after he/she was on duty on the 20th day after he/she was on duty on the 20th day after he/she was on duty on the 2nd day.

On the premise of these facts, the court below determined that the defendant's non-competent disposition of a person of distinguished services to the State was unlawful on the ground that the deceased died of an accident caused by the main cause of the duty related to national defense and security, on the ground that: (a) the time when the deceased was able to take a night duty is 20:0 and that the restaurant was inevitably going out of the military unit to take a meal service; (b) the accident of this case was forced to use the motor vehicle for going to an outside restaurant in the position of the association headquarters; and (c) although the accident of this case was caused by a driving, the cause of the driving of the accident of this case can be deemed to have been accumulated due to the continuous performance of duty, which led to the continuous performance of duty, which is directly related to national defense and security, caused the death of the deceased due to an accident that occurred.

C. However, in light of the above legal principles, it is difficult to accept the judgment of the court below for the following reasons.

1) At the time of the emergency situation of the DMZ, the emergency duty performed by the deceased constitutes “performance of duties directly related to national defense and security” as prescribed by Article 4(1)5 of the Act on Persons of Distinguished Services to the State, and further, it is recognized that the situation with extreme accumulated to the deceased due to continuous file of duty during that process is recognized.

2) However, the Deceased had already terminated the emergency duty before the instant accident occurred and had been performing a general duty again before the instant accident occurred, and the instant accident occurred at the time when he was suppered and returned to the military unit.

3) As such, there may be a proximate causal relationship between the instant accident caused by close driving and the deceased’s death in the state of extreme accumulation of emergency work, etc. However, it is difficult to deem that the emergency work completed before and after this framework has a direct cause of death due to traffic accidents.

4) Therefore, it cannot be deemed that the deceased’s death of an accident or disaster caused by the direct cause of performing his/her duties related to the national defense, etc. under Article 3 [Attachment 1] 2-1 of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State, and constitutes a soldier or policeman who died on duty under Article 4(1)5 of the Act

D. Nevertheless, the lower court determined otherwise that the deceased satisfied the requirements of distinguished service to the State as a soldier or policeman who died on duty. In so determining, the lower court erred by misapprehending the legal doctrine on the requirements of persons who died on duty as prescribed in Article 4(1)5 of the Act on Persons of Distinguished Service

2. As to a claim for revocation of a decision made by a person eligible for veteran's compensation

ex officio, the Act on the Persons of Distinguished Service to the State and the Act on the Support for Persons Eligible for Veteran’s Compensation is divided into persons who have rendered distinguished service to the State and persons eligible for veteran’s compensation depending on whether the performance of duties or education and training that caused the death or injury is directly related to the national defense, etc. Therefore, the revocation of the disposition on non-existence of a person who has rendered distinguished service to the State and the revocation of the disposition on non-existence of a person eligible for veteran’s compensation is not possible at the same time. A claim for revocation of the two dispositions is in a primary and reserve relationship, which is the primary claim for revocation of the disposition on non-existence of a person who has rendered distinguished service to the State (see Supreme Court Decision 2015Du38313, Dec. 15, 2016). In such primary and reserve relationship, the primary claim should be examined and determined first, and then the preliminary claim should be rejected as it is without good cause (see

The lower court, on the instant lawsuit claiming revocation of the disposition that rendered distinguished service to the person of distinguished service to the State and the claim for revocation of the disposition that rendered distinguished service to the State in the form of simple and preliminary consolidation, deemed that the aforementioned two claims were in a primary and preliminary consolidation relationship, and subsequently, accepted the claim in full by examining and determining the part of the claim for revocation of the disposition that rendered distinguished service to the person of distinguished service to the State, and dismissed the claim by examining and determining the part of the

In light of the aforementioned legal principles, the lower court erred by exceeding the scope of adjudication on the conjunctive claim.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)