(영문) 서울행정법원 2018.7.5. 선고 2017구합85368 판결

Disposition 1 and the Defendant’s disposition of non-existence of a person who rendered distinguished service to the State on January 6, 2017 shall be revoked.

Reasons

1. Details of the disposition;

A. On February 4, 1986, the deceased B (hereinafter referred to as the “the deceased”) entered Korea on February 4, 1986, and was on duty as the head of the Gun and the ammunition as the ammunition for the transfer to the D on April 29, 1986. On October 2, 1986, around 07:15, the deceased on the part of his base at the inorganic garage and died on the site of two parts.

C. On July 7, 2016, the Plaintiff, a mother of the deceased, filed an application for registration as bereaved family members of the State to the Defendant, but the Defendant rendered a decision on the Plaintiff’s non-conformity of persons who rendered distinguished services to the State and persons eligible for veteran’s compensation on the ground that “it is difficult to recognize that the deceased died in the course of performing duties or education and training directly related to the protection of the State, etc., or that the deceased died as a direct cause for the military duties or education and training (hereinafter “instant disposition”).

C. On March 9, 2017, the Plaintiff appealed to the Central Administrative Appeals Commission on the instant disposition, but was dismissed on September 12, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 3, 4, 6, and 7, the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the disposition is lawful;

A. The plaintiff's assertion

Since proximate causal link is recognized between the deceased’s performance of duty and the death, the instant disposition that the deceased is not a person who rendered distinguished service to the State or a person eligible for veteran’

(b) Fact of recognition;

1) On October 3, 1986, the report on the cause of the death of the deceased was recorded as “the death of the deceased who was in fluorous fluorous body, work-free ability, etc., and was recorded as “the death of the deceased,” and the classification of death was recorded as “the death.” At the time of the investigation report of the military police unit (Evidence B) of the deceased on October 2, 1986, “the deceased was recorded as “the deceased’s suicide at the time of the launch of the military police unit (Evidence B)” by means of lighting time (fluort fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor f.

2) The Plaintiff requested the Investigation Headquarters of the Ministry of National Defense to conduct a reinspection on the deceased’s death. The Civil Petitions Investigation Team of the Ministry of National Defense before the Ministry of National Defense, after investigating 15 witnesses, such as the police officers of the C company group, life guidance records, the report of the C company, the mental opinion on the deceased’s extraction, the affiliated executives and post-satis, and the inorganic and Satisfic disease at the time of the accident, and response to the Plaintiff on November 25, 2015 as follows. In other words, “the deceased” was assigned to the 86th Asia City Game Dispatch dispatch of the senior volunteer who worked as the her team at the time, and the cancellation of the defense soldier’s death, which led to the death of the 2nd police officer of the C company while carrying out his/her duties, which caused the death of the deceased by severe stress due to his/her excessive stress. At the time, the duty officer was directly responsible for investigating and supervising the deceased’s death of the deceased, who was in charge of the 2nd of his/her duty.

3) Based on the above survey data on June 17, 2016, the Central Major Death Review Committee comprehensively examined stress or overwork caused by education and training or performance of duty on the deceased, the influence of the deceased on the surrounding circumstances and death surrounding the deceased, the background leading up to the death, the bodily condition and mental condition of the deceased, and other personal factors. As a result, the deceased determined the death of Article 16-2 of the Enforcement Decree of the Military Personnel Management Act by taking into account the following factors: (a) where three persons were working as the head of the Gun and the inorganic and ammunition Ammun Control Center while working as the head of the Gun and the inorganic and ammunition Control Center for four months without being informed of the work; and (b) medical opinions prepared based on the records of the deceased at the National Armed Forces Capital Center, the deceased began on August 12, 1986 and continuously aggravated until the death; and (c) where the duty officer neglected to manage the keys at the time of death, the deceased’s death of Article 16-2(3) of the Enforcement Decree of the Military Personnel Management Act is determined as follows.

4) On July 7, 2016, the Plaintiff filed an application for registration of bereaved family members of persons who have rendered distinguished services to the Defendant on July 7, 2016, along with a written confirmation of death (Evidence No. 3) with the content that “the deceased was notified by the Army Chief of Staff to the Plaintiff on June 30, 2016,” as a result of the Central Major Death Council’s

5) On December 21, 2016, the Board of Patriots and Veterans Entitlement deliberated and decided that the deceased’s death does not constitute persons who have rendered distinguished services to the State and persons eligible for veteran’s compensation in consideration of the following: (a) according to the deceased’s cause of death, classification of death, and the military police investigation report, the deceased’s suicide is deemed planned; and (b) the deceased’s suicide falls under an accident caused by an intentional or private act unrelated to official duties; and (c) according to the foregoing review, the Defendant issued the instant disposition to the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence 2 to 4, Eul evidence 1 to 7, the purport of the whole pleadings

C. The Act on the Honorable Treatment of and Support for Persons, etc. of Distinguished Service to the State (hereinafter “Act on the Honorable Treatment of and Support for Persons, etc. of Distinguished Service to the State”) and the Act on Support for Persons Eligible for Veterans (hereinafter “Act on Veterans’ Compensation”) distinguish between persons who have rendered distinguished service to the State and persons eligible for veteran’s compensation in accordance with whether the performance of duties or education and training that caused death or injury is directly related to national defense, etc. (see Article 4(2) of the Act on Veterans’ Compensation, Etc.). The two claims for cancellation of the two dispositions must be deemed to have a primary and preliminary relationship that mainly claims for cancellation of a non-specific disposition against a person of distinguished service to the State (see, e.g., Supreme Court Decision 2015Du38313, Dec. 15, 2016). Accordingly, the claim for cancellation of a non-specific disposition against a person of distinguished service to the State among the instant dispositions shall be considered as a primary claim for revocation

D. Determination on the legitimacy of the decision-making and non-existence of persons who rendered distinguished service to the State

1) Relevant legal principles

The Act on Persons of Distinguished Services to the State was enacted with the aim of contributing to promoting the stabilization of their livelihood and the improvement of their welfare by properly treating and supporting persons of distinguished services to the State who have sacrificed or contributed to the State, their bereaved family members, or their families, and contributing to the promotion of citizens’ patriotism. The Act on Veterans and Veterans Compensation was enacted with the aim of contributing to the stabilization of their livelihood and the improvement of their welfare by providing reasonable support to persons eligible for veteran’s compensation, their bereaved family members, or their families. The purpose of division is to divide the aforementioned provisions into the Act with the aim of contributing to the promotion of their livelihood and the improvement of their welfare. Persons who are eligible for honor

Meanwhile, Article 4 (1) of the Act on Persons of Distinguished Service to the State stipulates the requirements of persons of distinguished service to which the Act on Persons of Distinguished Service to the State applies to national and social development from 1) to 18, that they are classified into soldiers and police officers killed or wounded in action (No. 3), and soldiers and police officers (No. 5). The Act on Persons of Distinguished Service to the State, who died or died on duty, shall be classified into the scope of their respective standards for rescue and security, or for the protection of lives and property of the people (hereinafter referred to as "national defense or security, etc.") which are directly related to the national defense, such as the protection of persons killed or died on duty or education and training (including persons who died on duty due to disease) and the scope of their respective standards for rescue and relief activities (including persons who died on duty due to disease) under the Act on Persons of Distinguished Service to the State, Article 4 (2) of the Act on Persons of Distinguished Service to the State or the scope of their respective standards for rescue and relief activities (including persons who died).

As such, the Act on Persons of Distinguished Service to the State stipulates that the former Act on Persons of Distinguished Service to the State (amended by Act No. 11041, Sep. 15, 201) does not expressly provide for the performance of duties, etc. related to death, the nature of the performance of duties, etc. shall be directly related to the protection of the State. In this regard, the nature of the performance of duties, etc. performed by the police officers killed in a disaster shall be distinguished from the Act on Persons of Distinguished Service to the State, which does not stipulate the above requirements.

In addition, according to the delegation of the Act on Persons of Distinguished Services to the State, the Enforcement Decree of the Act on Persons of Distinguished Services to the State that sets the specific standards and scope of the requirements of persons of distinguished services to the State, comprehensively considering the following as a whole: “Performance of duties or education and training, the degree of national defense and security, or the protection of the lives and property of the people,” and “the reason why death or injury (including illness) occurred” and “the existence and degree of negligence of the persons of distinguished services to the State” requires that a person who died as a “accident or accident that occurred directly due to the national defense, etc. prescribed in subparagraph 2-1 (a) of attached Table 2-1 of this case

In addition to the language and text of the above provision, the criteria and scope of the requirements for persons who have rendered distinguished services to the State shall be determined by the case where the criteria and scope of the requirements for persons eligible for veteran's compensation under Article 2 [Attachment Table 1] 1 and 2 of the Enforcement Decree of the Veterans' Compensation Act are dead as "an accident or accident in the course of performing their duties, etc." and it shall be distinguished from the case where the occurrence or aggravation of the relevant disease requires 'medical causal relationship with the performance of duties, etc.' under subparagraph 11, and the former Act on Persons of Distinguished Services to the State which recognized persons who have rendered distinguished services to the State based on proximate causal relationship between the performance of duties, etc. and the death or wound, and the purport of the amendment of the former Act on Persons of Distinguished Services to the State as mentioned above, which separately enacted the Act on Persons of Distinguished Services to the State as mentioned above. In light of the above, it is reasonable to interpret that "direct cause relationship necessary to be recognized as persons who have been killed in the line of duty or wound."

2) Determination

In light of the above legal principles, it can be deemed that the management of the key to the arms that the deceased performed at the time of the suicide falls under the category of "the duties directly related to the protection of the State, etc." as a kind of the duties of managing munitions as stipulated in subparagraph 1 (a) of attached Table 2-1 of this case. However, it cannot be deemed that the deceased's death was the main cause of "the duties of managing munitions directly related to the protection of the State, etc." solely on the ground that the deceased committed suicide during the custody of the weapons and key as mentioned above.

Therefore, the deceased is not a soldier or policeman who died on duty under Article 4 (1) 5 of the Act on Persons of Distinguished Service to the State, and thus a disposition corresponding to the defendant's non-person of distinguished service to the State is legitimate,

D. Determination as to the legitimacy of a decision made in favor of a person eligible for veteran’s compensation

1) Relevant legal principles

Article 2(1)1 of the Veterans’ Compensation Act provides that “A soldier, police officer, or fire-fighting officer who died in the course of performing duties or education and training not directly related to national security or the protection of the lives and property of the people” as a person eligible for veteran’s compensation. Article 2(2) of the same Act provides that the detailed criteria and scope of persons eligible for veteran’s compensation under each subparagraph of paragraph (1) of the same Article shall be determined by Presidential Decree in consideration of the degree of injury or injury related to the performance of duties, etc. of the State and the protection of the State, the circumstances leading up to the death or injury of the State, and the existence and extent of his/her negligence. According to the delegation above, Article 2(1)1 and 2 of the Enforcement Decree of the Act on Support for Persons Eligible for Veteran’s Compensation (hereinafter “Enforcement Decree of the Veterans’ Compensation Act”) provides for the criteria and scope of the requirements for veteran’s compensation. Article 2(1)1 of the same Act provides that “[Attachment 1] subparag. 1 of the Enforcement Decree of the Act provides that person who died or who died from his/her duty.

Meanwhile, Article 2(3) of the Veterans’ Compensation Act provides that persons eligible for veteran’s compensation shall be excluded from those eligible for veteran’s compensation, their bereaved family members, or their family members if they were killed or wounded on the ground of falling under “if they were killed or wounded on the ground of an intentional or gross negligence of the person himself/herself without any inevitable reason, or significantly violated the relevant statutes or orders of his/her superior (Article 1); if they were killed or wounded on the ground of an accident or disaster (Article 2(2)); or if they were killed or wounded on the ground of an accident or accident that may not be deemed as the performance of their duties, such as distress fightings (Article 2(3)). As seen earlier, the amendment of the former Act on Persons of Distinguished Services to the State, which recognized persons of distinguished Services to the State based on proximate causal relation between the death and injury, should be deemed as a person of distinguished services to the State, and thus, reasonable causal relation between the death and the person who died on the ground that the provision of Article 2(1)2(3) of the Veterans’s Compensation Act was excluded from their duty.

2) Determination

In light of the above legal principles, in full view of the following circumstances that can be seen by comprehensively taking account of the overall purport of the facts and evidence admitted as above, the Deceased’s death is recognized as having a proximate causal relation with his official duties, as it resulted in severe depression, starting from August 1986 due to stress caused by occupational negligence, resulting in self-harm in the state where free will was excluded.

Therefore, the deceased constitutes a death-related police officer under Article 2(1)1 of the Patriots and Veterans Compensation Act, and the Defendant’s non-determination of a person eligible for veteran’s compensation on a different premise is unlawful.

① The Central Major Death Review Committee examined the results of the reexamination by the Ministry of National Defense to ascertain the period of military service, details of duties, and physical and mental conditions of the deceased at the time of their death, and it appears that the National Defense Investigation Headquarters requested a mental opinion on the register of the deceased, or investigated the related persons with up to 15 persons, and collected reasonable and adequate materials that form the basis for such determination.

(2) A decision made by the Central Major Death Review Committee on the classification of death of a person eligible for veterans under the Patriots and Veterans Compensation Act may not be binding on the determination of the person eligible for veterans under the Act. However, according to the directives on the treatment of all the persons who have been or have been employed as an assistant professor or higher in a university or research institute for six years or longer as a medical specialist under the Medical Service Act (amended by the Ministry of National Defense Directive No. 1691, Aug. 28, 2014), the Central Major Death Review Committee shall have a Central Major Death Review Committee under the Ministry of National Defense (Article 4), including one chairperson, and not less than seven but not more than nine outside expert members, and the Central Major Death Review Committee shall be comprised of not less than nine outside expert members; internal expert members shall be public officials of the Ministry of National Defense who are or have been employed as an outside medical specialist or higher in a university or research institute; persons who have been employed or have been employed as a prosecutor or an attorney-at-law for six years or more as a reasonable ground for the Central Review Committee on Death Death.

③ On the other hand, even if the cause of the deceased’s death recorded in the report of the board of Patriots and Veterans Entitlement and the report of the case investigation of the military police team, the deceased’s ability to perform his/her duties lies in unfortunately and thus, it is likely that the deceased would have engaged in his/her duties. The report of the case investigation of the military police team only clearly indicate the deceased’s personal records at the time of his/her self-injury, and does not include the degree of his/her duties and the details and determination of the investigation of the deceased’s physical

④ As seen earlier, as seen in the relevant legal principles, a person eligible for veteran’s compensation should not be excluded from a person eligible for veteran’s compensation on the ground that the proximate causal relation between his/her performance of duties and his/her death is acknowledged, even if such proximate causal relation is found, or that his/her free will is considerably limited due to stress or excess in the course of performing his/her duty, and thus, it cannot be evaluated as a self-harm, inasmuch as his/her free will cannot be evaluated as having been completely excluded from the free will.

[Attachment 1] It is reasonable to deem that the deceased satisfied the requirements of "the state in which free will under subparagraph 15 is excluded." Therefore, in light of the deceased's behavior as stated in the military police investigation report of the case, it cannot be deemed that the deceased planned suicide and moved to the execution of suicide cannot be deemed that the free will is not a state of exclusion. Rather, the deceased was suffering from depression due to his duties after entering the military police station, and at the time, the deceased was living in the military forces where he was in need of obscence and organized and controlled life for the deceased, and the deceased was making an extreme decision and carried out as above while the degree of obscence was serious within the past period. In light of this, it is determined that the deceased was a direct cause for the deceased to perform his duties, and that the deceased was excluded from free will at the time.

4. Conclusion

Therefore, the plaintiff's claim for revocation of the non-existence of a person who rendered distinguished service to the State is dismissed on the grounds that it is reasonable, and the claim for revocation of non-existence of a person holding distinguished service to the State is justified