2014Nu7857 Revocation of Disposition to revoke a disability rating

A

National Pension Service

Seoul Administrative Court Decision 2011Guhap7960 decided September 2, 2011

Seoul High Court Decision 2011Nu34049 Decided April 27, 2012

Supreme Court Decision 2012Du15135 Decided October 15, 2014

March 10, 2015

March 31, 2015

1. Revocation of a judgment of the first instance;

2. On August 16, 2010, the Defendant’s decision-making disposition of class 4 against the Plaintiff under the National Pension Act shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(b) Related statutes;

This court's explanation on each of the above parts is the same as the corresponding part of the judgment of the court of first instance. Thus, this court's explanation is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

C. Determination

1) In light of the provisions and purport of Articles 49 subparag. 2, 54(1), and 67(1) and (5) of the former National Pension Act (amended by Act No. 11143, Dec. 31, 201; hereinafter the same), Article 46 and [Attachment 2] of the former Enforcement Decree of the National Pension Act (amended by Presidential Decree No. 23359, Dec. 8, 201; hereinafter the same shall apply), a disability pension under the National Pension Act is paid to a person with a physical or mental disability who has been completely cured after receiving a national pension payment due to a disease or injury incurred in the course of receiving the national pension, and a subscriber acquires a right to claim the payment of a disability pension. Therefore, the disability pension should be determined based on the Act and subordinate statutes at the time of receiving the right to claim the payment of a disability pension, i.e., the date the disability pension was determined as at the time of receiving the right to claim the payment of the disability pension.

2) According to Article 67(1) and (2) of the former National Pension Act and Article 46(4) of the former Enforcement Decree of the National Pension Act, the National Pension Disability Examination Regulations (established by the Ministry of Health and Welfare No. 2006-47, Jun. 14, 2006; hereinafter referred to as "existing Public Notice") stipulating the standard for determining the degree of disability pursuant to delegation of delegation of the above Article 67(1) and (2) of the former Enforcement Decree of the National Pension Act provide that if a person who is not entitled to a disability pension becomes a beneficiary of a disability pension before he/she turns 60 years of age due to aggravation of disease or injury, the degree of disability shall be determined at his/her request (hereinafter referred to as "the above, 2.06-47, which was enacted on June 14, 2006; hereinafter referred to as "existing Public Notice"), if he/she does not completely recover after one year and six months after the first date of early medical treatment, the Ministry of Health, Welfare and Welfare and Family Affairs announced No. 2010-10 new performance skills.

3) Examining the facts recognized earlier and the background leading up to the amendment of the National Pension Service Regulations, in light of the aforementioned legal principles, disability grade determination for the payment of disability pension amount should be based on the laws and regulations at the time of occurrence of the ground for disability, namely, “the complete date, etc., which is the base date for determination of the degree of disability.” Since the 'the complete date, etc., of a person who received a transplant of kidne is stipulated in the public notice on the date when six months elapse from the date of kidne surgery, the Plaintiff’s medical treatment date should be deemed February 11, 2010. Accordingly, the previous public notice, which was enforced on February 11, 2010, should be applied to the Plaintiff’s disability grade determination determination. Accordingly, the instant

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the ground of its reasoning, and the judgment of the court of first instance is unfair on the ground of its conclusion, so the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and it is so decided as per Disposition.

Judges Lee Gyeong-chul

Judge Kang Young-hun

Judges Park Chang-chul