(영문) 서울행정법원 2020.7.22. 선고 2019구단66302 판결

A. On January 6, 2003, the Plaintiff was a person working at the Busan Regional Police Agency B department, and was on the same apartment house with his/her own body and received meals from his/her own body, and was transferred to a hospital and received treatment under the diagnosis of cerebrovascular (hereinafter “the instant injury”). On January 30, 2012, the injury was confirmed on the instant injury.

B. (1) After the Plaintiff voluntarily retires on April 30, 2012, the Plaintiff filed a claim for disability pension with the Defendant on July 7, 2014, and the Defendant rendered a disposition on July 17, 2014 to the effect that the Plaintiff’s disability grade falls under class 7 subparag. 5 (hereinafter “transfer disposition”).

2) On August 27, 2014, the Plaintiff filed a request for an examination with the Public Official Pension Benefit Review Committee against a disposition prior to the said disposition, but the request for review was dismissed on September 25, 2014.

3) The Plaintiff filed a lawsuit against the Defendant seeking the revocation of the previous disposition (Seoul Administrative Court 2014Gudan58337) but was sentenced to dismissal on January 22, 2016, and filed an appeal (Seoul High Court 2016Nu34822) and rendered a judgment of the first instance court on April 19, 2017, and revoked the previous disposition and revoked the previous disposition. The above judgment became final and conclusive around that time (hereinafter referred to as “previous lawsuit”).

C. 1) On June 29, 2017, after the judgment of the above appellate court became final and conclusive, the Defendant rendered a decision on June 29, 2017 on the Plaintiff’s disability No. 3 of the fifth degree of disability (hereinafter “instant disposition”).

2) On August 21, 2017, the Plaintiff filed an administrative appeal seeking the revocation of the instant disposition with the Central Administrative Appeals Commission, and written “only in the column of “the date the Plaintiff becomes aware of the disposition in the form of a written request for administrative appeal under attached Form 30 of the Enforcement Rule of the Administrative Appeals Act,” and “the date the Plaintiff becomes aware of the disposition.”

3) On March 26, 2018, the Central Administrative Appeals Commission notified the Plaintiff of the administrative appeal request to the Public Official Pension Benefit Review Committee, and sent relevant data, such as the written request for administrative appeal submitted by the Plaintiff, to the Ministry of Personnel Management in which the Public Official Pension Benefit Review Committee is established.

4) On March 28, 2018, the Minister of Personnel Management sent to the Defendant related data, including the Plaintiff’s written request for administrative appeal, which was received from the Central Administrative Appeals Commission, and the Defendant received it on March 30, 2018.

5) On April 4, 2018, the Plaintiff submitted a written request for examination to the Defendant. On April 13, 2018, the Defendant sent the relevant materials, including the Plaintiff’s written request for examination, to the Public Official Pension Benefit Review Committee.

6) On June 21, 2018, the Public Official Pension Benefit Review Committee rendered a decision to dismiss the Plaintiff’s request for review on the ground that “the request for review was filed on April 4, 2018 after 180 days from the date of the instant disposition.”

【Ground of recognition】 The fact that there is no dispute, Gap's 1, 2, 6 evidence, Eul's 1 through 7, the purport of the whole pleadings

2. Relevant statutes;

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

3. Judgment on the defendant's main defense of safety

A. Summary of the main defense

The instant lawsuit is unlawful as it was filed on July 3, 2018, 90 days from the date the Plaintiff became aware of the instant disposition.

B. Determination

1) Relevant legal principles and relevant statutes

A) Unless otherwise expressly provided, an administrative disposition that is the other party has an effect to be notified to the other party in accordance with the general law regarding expression of intent (see, e.g., Supreme Court Decision 2015Du38856, Oct. 25, 2018). If an administrative disposition that is the other party is not notified to the other party, even if the other party becomes aware of the content of the administrative disposition through another channel, it cannot be deemed that the administrative disposition becomes effective (see, e.g., Supreme Court Decision 2003Du13908, Apr. 9, 2004).

The "date when the person becomes aware of the existence of a disposition, etc. as provided by Article 20 (1) of the Administrative Litigation Act" means the date when the person becomes aware of the existence of a valid administrative disposition, and the "date when a disposition, etc. as provided by Article 20 (2) of the same Act takes place" means the date when the administrative disposition takes effect. Such a legal principle also applies to the period of request for administrative appeal (see Supreme Court Decisions 77Nu195, Nov. 22, 197; 98Du5118, Jun. 12, 1998).

B) According to Article 80 of the former Public Officials Pension Act, a person who has an objection to a decision on benefits, etc. may file a request for an examination with the Public Official Pension Benefit Review Committee within 180 days from the date on which the decision on benefits was made, and within 90 days from the date on which he/she becomes aware of such fact (Article 1 and 2), and may not file an administrative appeal under the Administrative Appeals Act (Article 4)

In full view of the legislative intent and period of a request for review by the Public Officials Pension Benefit Review Committee, the application of a general administrative appeal under the Administrative Appeals Act, and the matters concerning the organization, operation and review procedure of the Public Officials Pension Benefit Review Committee under Articles 84 through 95-2 of the former Enforcement Decree of the Public Officials Pension Act pursuant to the delegation of Article 80(3) of the former Public Officials Pension Act, the request for review by the Public Officials Pension Benefit Review Committee under the former Public Officials Pension Act can be deemed to constitute a special administrative appeal procedure (Article 4(1) of the Administrative Appeals Act) in lieu of a general administrative appeal under the Administrative Appeals Act, as it is particularly necessary to consider the expertise and specificity of

C) According to Article 14 of the Administrative Procedures Act as a general law regarding administrative procedures, service shall be made by means of mail, delivery, information and communications network use, etc., and it shall be made to the address, residence, place of business, office, or e-mail address (hereinafter referred to as “location, etc.”) of the person receiving the service (including his/her representative or agent; hereinafter the same shall apply) (Paragraph 1). In such cases, service via information and communications network shall be made only when the person receiving the service consents. In such cases, the recipient of the service shall designate the e-mail address, etc. (Paragraph 3), where the address, etc. of the person receiving the service cannot be confirmed by ordinary means, or where the service is impossible, it shall be made public notice in the Official Gazette, official gazette, bulletin, daily

2) Determination

A) In light of the aforementioned relevant legal principles and statutes, the instant disposition constitutes an administrative disposition with which the other party exists, and the method of notifying the decision on benefits under the former Public Officials Pension Act was not separately prescribed. Therefore, the instant disposition becomes effective only when the Plaintiff, who is the other party, is notified by means of delivery, etc., as prescribed in Article 14 of the Administrative Procedures Act.

As seen earlier, the Plaintiff became aware of the details of the disposition that the Defendant posted on the Defendant’s website on July 10, 2017, and entered that date as “the date on which the Defendant became aware of the disposition,” and the Defendant’s notice of the decision on the instant disposition on the website cannot be deemed to have been served as prescribed in Article 14 of the Administrative Procedures Act, and the same holds true even in cases where the Plaintiff became aware of the details of the decision by accessing the website and verifying the details of the decision. Moreover, there is no assertion or proof as to the fact that the Defendant served the instant disposition as the address, residence, place of business, office, or office of the Plaintiff or his/her agent pursuant to Article 14(1) of the Administrative Procedures Act or served the information and communications network or via the Official Gazette, official bulletin, bulletin board, daily newspaper, or one or more public notice on the Internet.

B) As such, the instant disposition cannot be deemed to have become effective upon the notification to the Plaintiff, who is the other party. Accordingly, it cannot be deemed that the period of request for review under Article 80(2) of the former Public Officials Pension Act or the period of filing a lawsuit seeking revocation under Article 20(1) and (2) of the Administrative Litigation Act is to run. Accordingly, the Defendant’

4. Judgment on the merits

A. The plaintiff's assertion

The plaintiff should have a chronic renal failure 5 life-long 3-time blood tin, 100% of kidne, 100% of kidne, labor ability loss rate, and 100% of it, and must take a lifelong injection and oral medication due to merger and side effects, which fall under class 4 of class 2 of the disability grade under the Public Officials Pension Act (persons who need to be protected from time to time due to considerable impediment to the chest long-term function of the chest long-term system), but unlike this, the defendant's disposition of this case determined as class 3 of class 5 of class 5 of the disability grade (persons who have a significant obstacle to the chest long-term function of the chest long-term system and who do not specially engage in any work other

B. Determination

1) Facts of recognition

A) The Plaintiff’s note (C Hospital C, No. 4, May 17, 2016)

○ Disease Disease: chronic renal failure, blood rupture, and blood rupture: A 3-time blood rupture, current rupture disability 2, and absence of labor ability, which require a lifelong rupture treatment without a kidney disorder.

B) Results of commissioning the examination of medical records to the head of the Seoul Metropolitan Hospital on November 10, 2015 at the court of the first instance of the previous lawsuit (Evidence No. 9)

○ The Plaintiff must be accompanied by a medical personnel’s protection every 3-time medical personnel’s care at administered to a patient with low blood pressure, low blood transfusion, etc. for a period of 4 hours per week. As such, there is a possibility of being accompanied by a complication related to the administration of blood pressure, low blood transfusion, etc. during the administration during each hour, monitoring of the signs of physical vitality caused by medical personnel, such as blood pressure measurement every 2 hours, etc. In the event of a problem, it is essential to take immediate measures by medical personnel, i.e., immediate measures by medical personnel, and when considering the disease, age, etc. accompanied by the Plaintiff, the Plaintiff is expected to be able to perform labor force exceeding 50% of normal persons except for the administration hours, and the Plaintiff falls under class 7 subparag. 5 of the disability grade (a person who has a significant disorder in the function of chest long-term with a chest long-term system remaining, and in the case of an administered patient, the Plaintiff needs to keep his daily life without physical adaptation at the Dem.

C) Results of entrustment of the examination of medical records to the head of E Hospital on January 13, 2017 by the court of the second instance of the previous lawsuit (Evidence No. 3, Evidence No. 10)

○ 3 times a week, the Plaintiff’s 4 hours a week, and continuous blood pressure and patient’s condition need to be confirmed. As such, 00 medical professionals’ protection is essential for the protection of chronic beer’s disease, 4 times a severe form of increase in ○ beer’s labor capability assessment table, the disability rate is 10% or more, and 71% of the recommended disability rate is 0% or more, and the medical evaluation standard (2014, 3, 19.) for the assessment of the ability to work of the national basic livelihood security beneficiaries is not appropriate for the treatment of the patients with 4 hours a week and 4 hours a week a week, and it is not appropriate for the treatment of the patients with 15 meters or less, so it is not appropriate for the Plaintiff to have the ability to manage the 4 hours a week at the same time as that of 4 hours a week a chronic beer’s disease during which the 10% rate of surgery is applied to the patients with 15 meters or less. Therefore, it is not appropriate for the treatment rate of blood 10% per annum.

D) Results of this Court’s commission of physical examination to the Head of the Gyeongbuk University Hospital

According to the current Enforcement Decree of the Public Officials Pension Act, the Plaintiff cannot maintain life without being administered or kidneed by 0%, so it can be seen as 10% of kidne’s disease. If fladne labor capability evaluation table applies non-reproductive-kidney infection, labor capacity loss rate may be considered as 100%. On the beginning of fladne’s work, social constraints may occur in maintaining life, but it is difficult to see that fladne’s work ability is completely lost. However, in the case of chronic bedne’s disease, there is a serious difference between 15% and 5% of 5% of the fladne’s new function at 10% of the fladne’s disease. According to the Enforcement Rule of the Public Officials Pension Act, the Plaintiff is still in need of constant operation of fladne’s new function at 15m or less of the fladne’s disease, and there is a variety of pulmonary infections and symptomss.

E) The result of this Court’s request for complementary appraisal to the Head of the Gyeongbuk University Hospital, and the result of inquiry inquiry reply

○ Although this appraisal was judged objectively as No. 5 of the disability grade 7, it shall be corrected and supplemented under No. 3, No. 4 in consideration of the second instance judgment of the previous lawsuit.

[Ground of recognition] without any dispute, Gap's 2, 3, 4, Eul's 9, 10, the result of the physical commission to the president of the Gyeongbuk University Hospital in this Court, the result of the supplementary appraisal commission, and the result of the inquiry inquiry inquiry inquiry.

2) Determination

가) 구 공무원연금법 시행령 [별표 3]에서 '흉복부장기의 기능에 뚜렷한 장애가 남아 항상 보호를 받아야 하는 사람'을 장애등급 제1급 제4호로, '흉복부장기의 기능에 뚜렷한 장애가 남아 수시로 보호를 받아야 하는 사람'을 제2급 제4호로, '흉복부장기의 기능에 뚜렷한 장애가 남아 일생 동안 노무에 종사하지 못하는 사람'을 장애등급 제3급 제4호로, '흉복부장기의 기능에 뚜렷한 장애가 남아 특별히 손쉬운 노무 외에는 종사하지 못하는 사람'을 장애등급 제5급 제3호로, '흉복부장기의 기능에 뚜렷한 장애가 남아 손쉬운 노무 외에는 종사하지 못하는 사람'을 장애등급 제7급 제5호로 구분하고 있고, 구 공무원연금법 시행규칙 [별표 1]에서 이를 더 구체적으로 '노동능력이 모두 없어진 사람으로 매우 심한 정도의 흉복부장기의 장애로 인하여 생명 유지에 필요한 일상생활의 처리동작에 대하여 항상 다른 사람의 보호(개호)를 받아야 하는 사람, 즉 일상생활의 범위가 항상 병상(病牀)에 한정되어 있는 상태에 있는 사람'은 장애등급 제1급 제4호를, 노동능력이 모두 없어진 사람으로 심한 정도의 흉복부장기의 장애로 인하여 생명 유지에 필요한 일상생활의 처리 동작에 대하여 수시로 다른 사람의 보호(개호)를 받아야 하는 사람, 즉 생명 유지에 필요한 일상생활의 범위가 주로 병상에 한정되나 식사, 용변, 자택 내 보행 등을 위하여 단시간 병상을 떠나는 것이 가능한 사람은 장애등급 제2급 제4호를, 노동능력이 모두 없어진 사람으로 흉복부장기의 장애로 인하여 생명 유지에 필요한 일상생활의 처리 동작은 가능하나 거의 대부분을 병상에 있어 일생동안 노무에 종사하지 못하는 사람은 장애등급 제3급 제4호를, 흉복부장기의 장애로 인하여 노동능력이 일반평균인의 4분의 1 정도만 남은 사람이나 중도(重度)의 간경변증, 중도(重度)의 심부전증 또는 중도(重度)의 심근경색증 상태에 있는 사람은 장애 등급 제5급 제3호를, 흉복부장기의 장애로 인하여 노동능력이 일반평균인의 2분의 1정도만 남은 사람 또는 만성신부전증 상태, 중등도(中等度)의 간경변증·심근경색증 또는 심근경색증 후 협심증 상태에 있는 사람은 장애등급 제7급 제5호를 각 적용한다고 규정하고 있다.

B) Considering the following facts and circumstances that are acknowledged in light of the above contents of the Act and the above facts, the Plaintiff’s disability grade Nos. 7, 31, 33, and 34 as a whole in light of the aforementioned facts and circumstances, it is insufficient to view that the Plaintiff’s remaining evidence submitted by the Plaintiff should be raised above the disability grade Nos. 2 subparag. 4 of the Public Officials Pension Act or the disability grade No. 5 of the instant disposition, as otherwise alleged by the Plaintiff, and there is no other evidence to acknowledge this otherwise. Therefore, the Plaintiff’s above assertion is without merit, and the instant disposition is lawful

(1) Under the Public Officials Pension Act, the general principle that determines the degree of disability, such as chest clothes and organs, shall be determined by comprehensively taking into account the contents and state of the relevant head and the rate of loss of labor force therefrom. Each disability grade of the former Enforcement Decree of the Public Officials Pension Act under attached Table 1 of the former Enforcement Rule of the Public Officials Pension Act provides for the degree of ability to work and the necessity and degree of protection (title) of others in the daily life disposal action due to a plepy long-term disability, and the scope of the daily life.

(2) Under the former Enforcement Rule of the Public Officials Pension Act [Attachment 1], Article 7 subparag. 5 of the disability grade applies to "persons in the state of chronic renal failure." However, in the case of chronic renal failure, the degree of disability cannot be determined as class 7 5 solely on the fact that the diagnostic failure is chronic renal failure, and the degree of loss of labor ability can vary depending on the degree of serious renal failure, etc., and the degree of loss of labor ability should be determined by comprehensively taking into account various factors as seen in the above Paragraph (1).

(3) Examining the necessity and degree of the protection of others in the Plaintiff’s daily activities, and the scope of daily life, the Plaintiff needs chronic renal failure 5 years, or needs life-sustaining devices for daily life, and the scope of daily life does not mainly appear to be limited to beds (medical record appraisal by the court of first instance in the previous lawsuit), and the Plaintiff is currently walking at her home in a state in which her own walking is possible, and is moving from the vehicle operated by her family to her seat (this court’s physical appraisal).

(4) Even in the case of a patient with tin in the Docian conference, it is recommended that the patient can resume excluding physical or hard work after adaptation. A variety of marculatorys may arise due to the implementation of blood tin. However, the patient’s symptoms and a merger certificate actually occurred, and the need or degree of nursing vary depending on the degree of post-treatment, and the protection of his/her guardian, etc. cannot be deemed always necessary solely on the basis of blood marculing itself.

(5) The Plaintiff directly performs the instant lawsuit on its own, and the scope of daily life is not limited to the beds or only within one’s own house. The chronic renal failure is possible to generate various mergers, such as serious fluorial color, stroke, etc., but in light of the medicine and the merger certificate that the Plaintiff takes, even in light of the medicine and the merger certificate that the Plaintiff takes, (it can be confirmed that the Plaintiff was diagnosed by high blood pressure, reverse strokeitis, erodrosis, erodrosis, etc., and that the Plaintiff was diagnosed by a non-quality excessive water surface)], and it is difficult to view that the Plaintiff is always or occasionally needed to protect another person with respect to daily life treatment action due to the merger certificate, etc. of the injury and disease of this case.

(6) The medical record appraisal of the previous court of the second instance applied the fourth degree of kidne in accordance with the "Mabrodal disability assessment method". The labor ability loss rate is at least 100%, and the recommended disability rate is at least 71%, and according to the medical appraisal standard for assessing the ability to work of the National Basic Living Security Recipients, the rate of 10%, and the labor ability loss rate is 100%. However, as seen earlier, in light of the above, there is no indication on the labor ability loss rate corresponding to the chronic renal in the Cloved labor ability loss assessment table, and it is difficult to apply the above labor ability loss rate to the Plaintiff in view of the fact that the labor ability loss rate is at 10% in the case of the extreme disorder among one, one and the other, the extension and the other, or the other, and even if the labor ability loss rate is determined as the labor ability evaluation standard for the national Basic Living Security Beneficiaries, it is inappropriate to apply the above labor ability loss rate to the Plaintiff in light of the above evaluation standard for the labor ability.

(7) In addition, the appraisal by the court of the second instance of the previous lawsuit conducted an appraisal of the medical record for 24 hours from the time when the patient's ability to engage in a normal activity is different according to the administration method. However, in the case of a ducing stone, it cannot be deemed that the daily life or workplace life is impossible during the course of the ducing stone by inserting the pipe leading to a cigarette and exchanging the administration amount. In addition, it is not necessary to consider only the above administration time in determining the rate of the loss of the worker's ability to engage in a chronic renal failure that needs to be administered. Therefore, the above opinion cannot be applied as it is in this case.

(8) Rather, the appraisal of medical records by the court of first instance in the previous lawsuit and the physical appraisal of the instant case are evaluated as to the degree of the Plaintiff’s labor ability, the necessity and degree of protection of another person in the daily life disposal action, and the scope of the Plaintiff’s daily life, as prescribed by the former Enforcement Decree and Enforcement Rule of the Public Officials Pension Act.

(9) Furthermore, the purpose and nature of the registration of the disabled under the Registration of the Disabled Persons Act and the payment of the disability pension under the Public Officials Pension Act are different, and the criteria for disability ratings and the method of disability judgment are different. Thus, it cannot be deemed that the Plaintiff is registered as a person with disabilities with the second degree disability under the Act on Welfare of Persons with Disabilities, and thus, the disability grade in the Public Officials Pension Act should be naturally a

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.