[1] Whether a person who has rendered distinguished services to the State falls under the scope of recognition of a person who has rendered distinguished services to the State under the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (negative)

[2] Whether it is compatible with a person who has rendered distinguished service to the State for the reason that he/she falls under the requirements for a person who has rendered distinguished service to the State or a person eligible for veteran’s compensation to claim the revocation of a non-person eligible for veteran’s compensation (negative), and whether a claim for revocation of a two disposition is in a primary and preliminary relationship with the primary claim for revocation

[1] Article 3 [Attachment 1] 2-2 and 2-8 of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State and Article 2 [Attachment 1] 2 and 11 of the Enforcement Decree of the Act on Support for Persons, etc. of Distinguished Service to the State (hereinafter “former Enforcement Decree of the Act”) shall be clearly distinguished from the simple “accident or accident that occurred directly due to education and training,” “accident or accident that occurred directly due to performance of duties or education and training,” and “the occurrence or aggravation of disease that is recognized as having considerable causal relationship with performance of duties or education and training,” and shall be clearly distinguished from the literal meaning of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (amended by Act No. 11041, Sep. 15, 2011; hereinafter “former Act on Persons, etc. of Distinguished Service to the State”) to the Act on the Honorable Treatment and Support of Persons of Distinguished Service to the State.

Therefore, even if the performance of duties or education and training has partly affected the death or wound, it cannot be deemed that it constitutes the scope of recognition of the requirements of persons who have rendered distinguished services to the State under the Acts and subordinate statutes of persons who have rendered distinguished services to the State, in cases where the performance of duties or education and training cannot be deemed as the principal cause of death or injury, such as where it is mainly caused by his/her physical talent or living habits

[2] The Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (hereinafter “Act on Persons of Distinguished Service to the State”) and the Act on Support for Persons Eligible for Veteran’s Compensation (hereinafter “the Act on Persons of Distinguished Service to the State”) classified persons who were killed or wounded in the performance of duties or education and training directly related to the protection of national defense, security, or the protection of people’s lives and property as persons of distinguished service to the State, and classified persons who were killed or wounded in the performance of duties or education and training not directly related to the protection of national defense and security, or the protection

As such, the Act on Persons of Distinguished Service to the State and the Act on Veterans’ Compensation are divided into persons who have rendered distinguished service to the State, depending on whether the performance of their duties or education and training, which mainly caused death or injury, is directly related to the national defense, security, or the protection of people’s lives and property. Therefore, a claim for revocation of a disposition rendered in favor of persons who have rendered distinguished service to the State and a disposition made in favor of persons who have rendered distinguished service to the State on the ground that they meet the requirements for persons who have rendered distinguished service to the State or the requirements for persons eligible for veteran’s compensation is incompatible

[1] Article 4 (1) 6 and (2) of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State; Article 3 [Attachment Table 1] 2-2 and 2-8 of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State; Article 2 (1) 2 of the Act on Support for Persons Eligible for Veteran’s Compensation; Article 2 [Attachment Table 1] 2 and 11 of the Enforcement Decree of the Act on Support for Persons Eligible for Veteran’s Compensation / [2] Articles 4 and 6 of the Act on the Honorable Treatment and Support of Persons,

Plaintiff (Attorney Han-soo et al., Counsel for plaintiff-appellant)

Commissioner of Jeju Special Self-Governing Province

Gwangju High Court ( Jeju) Decision 2014Nu467 decided June 24, 2015

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

1. Determination on the grounds of appeal on the part concerning the claim for revocation of a disposition that rendered distinguished service to the State

A. Unlike the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (amended by Act No. 11041, Sept. 15, 201; hereinafter “former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State”), Article 4(1)6 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (hereinafter “the Act on the Honorable Treatment and Support of Persons of Distinguished Services to the State”) provides that “military persons, police officers, and fire officers, who were directly related to national defense and security, or the protection of people’s lives and property, are discharged from military service or retired from military service after having been suffering from wounds (including illness), and thus, the degree of injury is determined as one of the soldiers or police officers who have been determined as a disability in the physical examination conducted by the Minister of Patriots and Veterans Affairs to be directly related to national defense and security, or to the protection of people’s lives and property,” the purport of the Act on the Honorable Treatment and Support of Persons.

Meanwhile, Article 4(2) of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State stipulates that “A person who has been killed or wounded due to an accident or accident that occurred directly due to practical or practical training (including examination of physical capabilities essential for the measurement of combat forces or the performance of duties) related to the performance of duties referred to in 2-1 shall be a person who has rendered distinguished service to the State.” Article 2-8(b) provides that “The Act on the Persons, etc. of Distinguished Service to the State shall be construed as a person who has been medically recognized as having been suffering from an acute disease due to the direct cause for the performance of duties or education and training until 2-7” and Article 2 of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State shall be excluded from cases where an existing disease has been caused or aggravated due to such disease” and Article 2 of the Act on the Compensation for Persons of Distinguished Service to the State, Article 2-1 of the Enforcement Decree of the Act on the Compensation for Persons of Distinguished Service to the State.

As can be seen, the Enforcement Decree of the Act on Persons of Distinguished Service to the State and the Enforcement Decree of the Act on Veterans and Compensation are simply divided into “accident or accident caused by the direct cause of education and training” and “an acute disease caused by the performance of education and training” into “an accident or accident during education and training” and “the occurrence or aggravation of disease caused by the performance of duties or education and training, which is deemed to have a substantial causal relationship with the performance of duties or education and training.” In addition, when the former Act on Persons of Distinguished Service to the State recognizes the proximate causal relationship between the performance of duties or education and training regardless of the performance of duties or education and training, it is reasonable to view that the former Act on Persons of Distinguished Service to the State was amended and the Act on Veterans and Compensation for Persons of Distinguished Service was enacted as a result of excessively expanding the scope of recognition of persons of distinguished service to the State as a result of the enhancement of their identity as prescribed in Article 3 [Attachment 1] of the Enforcement Decree of the Act on Persons of Distinguished Service to the State.

Therefore, even if the performance of duties or education and training were partly affected by death or wound, it cannot be deemed that the performance of duties or education and training was the principal cause of death or wound, such as where it was mainly caused by the physical personality, personality, or living habits of the principal, or where the existing disease was partially aggravated due to the performance of duties or education and training, it constitutes the scope of recognition of the requirements for persons who have rendered distinguished services to the State

나. 원심은 원고가 2006년 9월경 신병훈련소에서 뜀뛰기를 하다가 추간판탈출증의 상이(이하 ‘이 사건 상이’라 한다)를 입고 국가유공자 등록 신청을 한 사실, 피고는 이 사건 상이가 직무수행 또는 교육훈련과 인과관계가 인정되지 아니한다는 이유로 국가유공자 및 보훈보상대상자 비해당결정을 한 사실, 원고에 대한 신체감정 결과 원고의 경우 추간판 퇴행이 진행된 상태에서 급성으로 추간판탈출증이 발생된 것으로 판단된다는 의학적 소견이 있는 사실을 인정하였다.

In addition, the court below presumed that proximate causal relation should be acknowledged between education and training, performance of duties, and injury and disease in order to constitute a soldier or policeman on duty under Article 4 (1) 6 of the Act on Persons of Distinguished Services to the State. However, even if the cause of the occurrence of the instant wound was or was already caused before the Plaintiff’s inherent action, in light of the circumstances stated in its reasoning, it should be deemed that the instant wound was caused by military education and training or duty or aggravated by education and training or duty, and therefore, on the ground that proximate causal relation exists between the Plaintiff’s performance of duties or education and training performed by the Plaintiff and the instant wound, it held that

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

According to the reasoning of the judgment below and the records, it can be seen that the leaving of a conical signboard that had already been launched before the Plaintiff entered the school had a significant impact on the outbreak of the instant wound. Thus, even if considering all the circumstances cited by the court below, it is difficult to deem that there is room to acknowledge a proximate causal relationship between the instant wound and the performance of duties or education and training, and thus it is appropriate to determine the main cause of the instant wound as a subject of veterans under the Act on Persons of Distinguished Services to the State, by deeming the Plaintiff as the Plaintiff’s performance of duties or education and training. The instant wound does not constitute “where the instant wound was caused by an accident or a disaster caused by a direct cause of education and training” as prescribed in Article 3 [Attachment 1] 2-2 of the Enforcement Decree of the Act on Persons of Distinguished Services to the State or “where the disease was medically

Nevertheless, under different premises, the lower court determined that the Plaintiff constituted a soldier or policeman on duty under Article 4(1)6 of the Act on Persons of Distinguished Services to the State on the grounds that proximate causal relationship exists between the instant wound and the performance of duties, or education and training. In so doing, the lower court erred by misapprehending the legal doctrine on the requirements of a soldier or policeman on duty under Article 4(1)6 of the Act on Persons of Distinguished

2. Ex officio determination as to a claim for revocation of a disposition for revocation of a person eligible for veteran's compensation;

A. The lower court, on the grounds indicated in its reasoning, revoked both dispositions on the instant lawsuit claiming revocation of the disposition rendered in favor of persons who rendered distinguished services to the State and claiming revocation of the disposition rendered in favor of persons who rendered distinguished services to the State in the form of simple combination.

B. However, the Act on Persons of Distinguished Service to the State and the Act on Veterans and Veterans Compensation, based on the nature of the education and training or the performance of duty or education and training directly related to national defense or security, or to the protection of the lives and property of the people, were classified into persons of distinguished service to the State, persons killed or wounded in the performance of duty or education and training not directly related to national defense or security, or to the protection of the lives and property of the people, and their application and registration procedures were

As can be seen, the Act on Persons of Distinguished Service to the State and the Act on Veterans and Veterans Compensation separates persons who have rendered distinguished service to the State depending on whether the performance of duties or education and training, which mainly caused death or injury, is directly related to national defense, security, or the protection of people's lives and property. Thus, a claim for revocation of a non-specific disposition of persons who have rendered distinguished service to the State and a non-specific disposition of persons who have rendered distinguished service to the State on the ground that they meet the requirements for persons who have rendered distinguished service to the State falls under the requirements for persons who have rendered distinguished service to the State should be deemed as incompatible with

C. Whether the form of consolidation is a simple consolidation or a primary and preliminary consolidation is determined on the basis of the nature of the request for consolidation rather than the intention of the party (see, e.g., Supreme Court Decision 2013Da96868, May 29, 2014). Thus, even if the Plaintiff claims two claims in the primary and preliminary relationship as a simple consolidation, the lower court should have determined such claims in the order of their primary and preliminary claims.

Nevertheless, the lower court deemed the combination form of this case as simple combination and accepted both incompatible claims. In so doing, the lower court erred by misapprehending the nature of a claim for revocation of a non-specific disposition rendered by a person of distinguished service to the State and a combination of claims for revocation of a non-specific disposition rendered by a person of distinguished service to the State, thereby adversely affecting the conclusion of the judgment. As seen earlier, insofar as the allegation in the grounds of appeal as to the claim for revocation of a non-specific disposition rendered by a person of distinguished service to the State is reversed on the ground that this part of the grounds

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)