(a) Whether the proviso of Article 2(1) of the State Compensation Act exceeds the scope of delegation under Article 29(2) of the Constitution

B. Whether the judgment authority of the Constitutional Court on the constitutionality affects other provisions of the Constitution

C. Criteria for determining whether the death of a soldier constitutes "net" under the proviso of Article 2(1) of the State Compensation Act

(d) The case holding that, if a military task force team died of an assault during the process of being affected by its superior's non-compliance with instructions, it constitutes "inward position";

E. Whether each of the compensation provisions of the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State and the Military Pension Act constitutes “the provisions of other Acts and subordinate statutes”

A. The proviso of Article 2(1) of the State Compensation Act provides that a soldier, civilian military employee, police officer, or homeland reserve force member shall be subject to the causes of death or injury in the course of combat, training, or performance of official duties, and the causes of death or injury in connection with the performance of duties, such as combat, training, or other performance of duties, within the facilities and vehicles, warships, aircraft, or other means of transport used by them for the purpose of maintaining national defense or public security. Thus, the proviso of Article 2(1) of the State Compensation Act provides that a soldier, civilian military employee, police officer, or any other person designated by the Act shall be the same as a person who was killed or injured in action or on duty in relation to the performance of duties, such as combat, training, etc. under Article 29(2) of the Constitution. However, it cannot be said that the proviso of Article 2(1) of the State Compensation Act exceeds the scope of delegation under Article 29(2) of the Constitution.

B. According to Article 111 (1) 1 of the Constitution and Article 41 (1) of the Constitutional Court Act, the judgment authority of the Constitutional Court on the constitutionality of a statute is merely the object of a formal law and cannot be deemed to affect other regulations of the Constitution, i.e., subordinate regulations recognized by the Constitution. Thus, the effect of collision between the provisions of the Constitution is not subject to judicial review.

C. Whether the death of a soldier constitutes a “net position” under the proviso of Article 2(1) of the State Compensation Act should be determined depending on whether the soldier was injured in connection with his/her performance of duties, and whether the act of salivation, etc. by a superior of the military branch, who is the perpetrator, constitutes a tort beyond the limit of the disciplinary right or discipline, has no direct relation in determining whether the soldier died

(d) The case holding that the soldier's death falls under the "net" under the proviso of Article 2 (1) of the State Compensation Act if the soldier was killed due to his/her assault in the process of receiving a decoration because the soldier did not perform his/her duty despite being ordered by his/her superior to search for the distributed articles lost from his/her superior;

E. Each compensation provision of the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State and the Military Pension Act constitutes “the provisions of other Acts and subordinate statutes” under Article 2(1) proviso

(a)(c)(d) proviso of Article 2(1) of the State Compensation Act; Article 29(2)(b) of the Constitution; Article 111(1)1(b) of the Constitutional Court Act; Article 41(1) of the Constitutional Court Act;

C.E. Supreme Court Decision 92Da33145 delivered on May 14, 1993 (Gong1993Ha, 1697). D. Supreme Court Decision 90Da16108 delivered on August 13, 1991 (Gong1991, 2327). Supreme Court Decision 88Da2813 delivered on October 11, 198 (Gong198, 1408).

Plaintiff 1 and 5 others, Counsel for the defendant-appellant

Korea

Seoul High Court Decision 92Na54656 delivered on May 26, 1993

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

On the first ground for appeal

The proviso of Article 2(1) of the State Compensation Act provides that a soldier, civilian military employee, police officer, or member of the homeland reserve forces who was killed in action, died on duty, or died on duty in relation to combat, training, or other performance of duties, and that a person who was killed in action, died on duty, died on duty, or was injured on duty in a facility, ship, warship, aircraft, or other means of transport used by him for the purpose of maintaining national defense or public security. Thus, the proviso of Article 2(1) of the State Compensation Act provides that the scope of damages in relation to combat, training, or any other performance of duties by a soldier, civilian military employee, police officer, or any other person prescribed by the Act is not the same. However, the proviso of Article 2(1) of the State Compensation Act does not exceed the scope of delegation under Article 29(2) of the Constitution. However, the State Compensation Act limits the claim for compensation only where a person died on duty or was injured on duty in the course of combat, training, or any other means of transport.

In addition, according to Article 111 (1) 1 of the Constitution and Article 41 (1) of the Constitutional Court Act, the judgment authority of the Constitutional Court on the constitutionality of statutes is merely subject to the formal meaning of statutes, and cannot be deemed to affect other regulations of the Constitution, i.e., subordinate regulations recognized by the law of the Constitution. Therefore, the effect of collision between the provisions of the Constitution does not require judicial review.

Therefore, as long as the proviso of Article 2(1) of the State Compensation Act was enacted lawfully within the scope of delegation under Article 29(2) of the Constitution, it cannot be asserted that it is null and void in violation of the provisions of Articles 29(1), 11, 37(2), and 39 of the Constitution. Therefore, there is no reason to argue that the proviso is null and void as it violates the provisions of the Constitution other than Article 29(2) of the Constitution.

On the second ground for appeal

Whether the death of a soldier constitutes a “net position” under the proviso of Article 2(1) of the State Compensation Act shall be determined depending on whether the soldier suffered damage in connection with his/her performance of duties. Whether the act, etc. committed by a superior of the military branch, who is the perpetrator, constitutes a tort beyond the limit of his/her disciplinary right or discipline, has no direct relationship in determining whether the soldier died on duty (see, e.g., Supreme Court Decisions 88Meu2813, Oct. 11, 1988; 90Da16108, Aug. 13, 1991; 92Da3145, May 14, 1993; 92Da3145, May 14, 1993; 1). Thus, even if the deceased non-party 1 was unable to perform his/her duties due to Nonparty 1’s use of his/her hair, his/her superior, etc., caused the death of the deceased non-party 1’s chest.

In addition, each compensation provision of the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State and the Military Pension Act constitutes "the provisions of other Acts and subordinate statutes" under the proviso of Article 2 (1) of the State Compensation Act (see Supreme Court Decision 92Da33145 delivered on May 14, 1993).

Therefore, the decision of the court below that rejected the plaintiffs' claim by accepting the defendant's defense that the plaintiffs cannot claim for damages of this case pursuant to the proviso of Article 2 (1) of the State Compensation Act is just and acceptable, and there is no error of law by misapprehending the legal principles as to "related to performance of duties" and "other Acts and subordinate statutes" under Article 2 (1) of the State Compensation Act, such as the theory of lawsuit.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)