Revocation of a decision to dismiss part of the request for review of pension which was 209Nu3762

Ratification00 (00000 - 000000)

Incheon

Law Firm U.S. (N.) APP et al.

[Defendant-Appellant]

Ministry of National Defense

Before the Litigation Performers:

Seoul Administrative Court Decision 2009Guhap15616 decided October 30, 2009

June 1, 2010

July 1, 2010

1. Revocation of a judgment of the first instance;

2. On October 27, 2008, the Defendant’s decision to reduce the amount of pension applied by gross negligence to the Plaintiff is revoked.

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

The order is as set forth in the text.

1. Details of the disposition;

A. Circumstances of the Plaintiff’s injury

After entering the Army on January 2, 2006, the Plaintiff was discharged from military service on August 31, 2008, the Plaintiff was discharged from military service on April 2008, 2008, when he was discharged from military service by the △△△△△△△△△△△ Hospital, on April 20, 2008, after being discharged from military service as a oil pressure maintenance supervisor at the △△ Port Complex of the Army. At around 30, 2008, the Plaintiff was discharged from military service on April 31, 2008, when he was discharged from military service in accordance with the direction of the BO Q management officer.

B. On October 27, 2008, the Plaintiff filed a claim for a pension for wounds against the Defendant on the ground of the above injury on September 10, 2008. Accordingly, the Defendant rejected the payment on the ground that cleaning using weekends does not constitute an injury sustained in the course of performing official duties as a personal business.

C. On March 11, 2009, the Military Pension Benefits Review Committee decided that the plaintiff's decision to pay a reduced pension due to gross negligence applied on March 11, 2009 was defective, and on March 11, 2009, the Military Pension Benefits Review Committee decided that the plaintiff should pay a reduced amount equivalent to 50/10 of the wounded pension in accordance with Article 34(3) of the Military Pension Act and Article 73 of the Enforcement Decree of the same Act due to gross negligence on the part of the plaintiff (hereinafter "the disposition of this case by the defendant who was decided to pay a reduced amount").

The facts without dispute as to the basis of recognition, Gap evidence 1-2, Gap evidence 2-1, Gap evidence 3, Gap evidence 4-1, 2, and Gap evidence 5 through 12, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In order to leave the ender in Vietnam, the Plaintiff was pushing the ender in the way to the ward, and left hand by pushing the ender in the way to the ward. However, the Plaintiff was found to have suffered the above injury by getting separated from the window, and the center was lost, and the body was cut off beyond the window to the outside of the window, and the Plaintiff did not think at all at the time of the window. Therefore, there was no gross negligence on the part of the Plaintiff. Accordingly, it was unlawful to reduce the amount of the wounded pension on the ground that the Plaintiff was gross negligence.

B. Relevant statutes

Military Pension Act

Article 23 (Pension for wounds)

(1) Where a soldier retires from office under the condition of disability caused by a disease or injury incurred in performing his/her duties, the pension for wounds shall be paid from that time until he/she dies:

3. For the third-grade, an amount equivalent to 70 percent of his monthly remuneration;

Article 34 (Restriction on Benefit Due to Intention or Gross Negligence, etc.)

(3) In case a person who is entitled to receive the benefit as prescribed by this Act makes himself/herself suffer a disease, an injury or a disability, or dies, improves the disease or the disability, or interferes with its recovery by failing to comply with the medical instructions by conducting serious mistakes or without any justifiable reason, the payment of all or part of his/her benefit may be omitted pursuant to the Presidential Decree.

Where a person who is or was a soldier or a veteran falls under the provisions of Article 34 (3) of the Act, the amount equivalent to 50/100 of the benefits of the wounded veterans' pension or the bereaved family's pension from the month following the month in which the person falls under the provisions of Article 73 (3) of the Enforcement Decree of the Military Pension Act shall be paid after subtracting the amount corresponding to

C. Determination

Articles 23(1) and 34(3) of the Military Pension Act and Article 73 of the Enforcement Decree of the Military Pension Act provide that a soldier shall receive a wounded veterans' pension when a soldier retires from office due to an injury incurred in the course of his/her official duties, but where a soldier has sustained an injury due to gross negligence, the amount equivalent to 50/100 of the amount of the wounded pension benefits shall be reduced and paid. Here, gross negligence refers to a case where a soldier could not recognize the occurrence of an accident or could not prevent it because he/she could have been aware of the occurrence of the accident even though he/she could have been aware of the occurrence of the accident in advance if he/she had paid a little attention, and in light of the purport and purpose of the Military Pension Act and Article 34(3) of the Enforcement Decree of the Military Pension Act, "the gross negligence" should be strictly interpreted (see Supreme Court Decision 96Nu716, Apr. 12, 1996).

In full view of the purport of Gap evidence 17-1 through 10, Gap evidence 19, 20, Gap evidence 21-1 through 6 of Gap evidence 21, witness testimony of △△△△△ in the first instance trial, and the whole pleadings in the first instance of the plaintiff, the windows with the window set forth in the window 408 of the above BO Q 408 are divided into the following and above, while the window set up below the window was installed with a height of 80cm above the window in height of adult luxle, and the window 80cm above the window was installed outside the above window in the direction of the above window, ② the width of the above window was 1m high, and the plaintiff was able to secure the above space with a height of 80cm away from the window, and the plaintiff was able to secure the above space with a height of 184m high.

According to the above facts of recognition, the lower part of the above bend is that the Plaintiff was at fault in the above fall, in light of the fact that the Plaintiff was at fault in the above fall, in light of the fact that the above bend, at a level below the above bend, a window and a steel rail are installed, and the Plaintiff did not keep the center of body properly and fell in excess of the above rail, etc. while pushing the

However, barring any circumstance where it was clearly revealed that the windows above beer are insufficient, the Plaintiff’s left hand on the window in order to secure the beeras cleaning space is cut to be cut off. In this case, it is not an exceptional behavior for the Plaintiff to do so. In such a case, it is not easy for the Plaintiff to anticipate that the above window and the external shock network are far away, and in addition, if the windows, etc. on which the Plaintiff was paying damages are far away, it is difficult to find the Plaintiff as a general person with a significant focus on the level of the Plaintiff and the possibility of falling beyond the steel rail above the permissible height. Considering the fact that there is no possibility that the Plaintiff might not have been able to recognize the occurrence of the fall accident even though he could have been aware of the occurrence of the fall accident in advance, and even if he could not have been able to prevent it, there is no serious evidence that there was any other gross negligence or negligence of the Plaintiff as above.

Therefore, it is unlawful that the Review Committee on Pension Benefits decided to reduce pension for wounds on the ground that the plaintiff was grossly negligent, and the plaintiff's assertion pointing this out is with merit.

3. Conclusion

The plaintiff's claim should be accepted on the ground of its reason. The judgment of the court of first instance differs from this conclusion, so it is unfair, and the plaintiff's appeal is justified, and it is so decided as per Disposition.

Judges Yoon Jae-apon by the presiding judge

Judges Kim Sung-chul

Judges Kim Yong-han