2016Nu11313 Demanding revocation of the disposition of grading in a physical examination for court ruling

A

The Head of Daejeon Regional Veterans Administration

Daejeon District Court Decision 2014Gudan100797 Decided August 21, 2015

Daejeon High Court Decision 2015Nu12739 Decided January 21, 2016

Supreme Court Decision 2016Du33186 Decided October 2016, 201

October 20, 2016

November 10, 2016

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The defendant's disposition of grading the physical examination for trial rendered to the plaintiff on November 27, 2013 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

The following facts shall not be disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry of Gap's 1 to 7 and Eul's 1 and 3:

A. On July 7, 1992, the Plaintiff was discharged from military service on September 22, 1994 due to the birth in 1972, and was discharged from military service.

B. On July 31, 2006, the Plaintiff applied for the registration of a person of distinguished service to the Defendant on the basis of the "Sslives after the first half of half of the year," which was the first half of the year, and the Board of Patriots and Veterans Affairs decided to the effect that the records of the Plaintiff suffered from the injury of the wounded in the course of the stable games and the field construction in the military service on October 17, 2006 are confirmed, and that this falls under [Attachment Table 1] 2-11 of the former Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (amended by Presidential Decree No. 19780, Dec. 21, 2006).

C. On October 31, 2006, the Plaintiff received a disability rating under Class VII 807 with respect to the above wounds in a new physical examination for the registration of persons who rendered distinguished services to the State, and the Defendant registered the Plaintiff as a person who rendered distinguished services to the State on November 7, 2006.

D. On June 17, 2013, the Plaintiff filed an application for a re-determination with the Defendant on July 26, 2013, and received a judgment below the rating standard as a result of the re-determination of a trial on July 26, 2013, and the Board of Patriots and Veterans Entitlement decided to the effect that “as a result of the re-determination of a trial on the two different bodies, the Board of Patriots and Veterans Entitlement did not change the satise in the satise in the satise of persons, etc. of distinguished Services to the State” (hereinafter “Decree”), and that “The satise

E. On November 27, 2013, the Defendant rendered a disposition to determine other than the Plaintiff’s disability rating in accordance with a resolution of the said Board of Patriots and Veterans Entitlement (hereinafter “instant disposition”).

F. The Plaintiff filed an administrative appeal seeking the revocation of the instant disposition with the Central Administrative Appeals Commission on February 13, 2014, but was dismissed on August 19, 201.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Notwithstanding appropriate treatment, the Plaintiff is “a person whose change after credit due to damage to the pel ray clearly shows emulgence in the examination of X-ray shooting, etc., and it is clear that it constitutes a disability rating under [Attachment 4] of Article 8-3 of the Enforcement Rule of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State at least falls under the disability rating under [Attachment 7 8122] of the Enforcement Rule of the Act on the Honorable Treatment and Support of Persons, etc. of

(2) The instant disposition is deprived of the Plaintiff’s rights, which had been provided with various economic support from July 2006 to November 201, 2013, and is in violation of the principle of trust protection (section II).

B. Relevant statutes

This Court's reasoning is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this Court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

(1) As to Chapter 1

(A) A subordinate statute shall be interpreted to conform to the superior statute by comprehensively examining the content, legislative purport, and history of the relevant statute, except where the said provision clearly conflicts with the superior statute and becomes null and void (see, e.g., Supreme Court Decision 2010Du3527, Oct. 25, 2012).

Article 6-4 (1) of the Act on the Honorable Treatment of and Support for Persons, etc. of Distinguished Services to the State (hereinafter referred to as the "Act") provides that "A person subject to a physical examination disability rating under Article 6-3 (1) shall be classified into Grade 1, Grade 2, Grade 3, Grade 4, Grade 5, Grade 6, and Grade 7 according to the degree of his/her disability, and Article 6-3 (3) provides that "the matters necessary for the classification, determination, etc. of a disability rating under paragraph (1) shall be determined by Presidential Decree". Article 14 (2) of the Decree provides that "the matters concerning the method of determining physical disability and method of measuring physical disability shall be determined by Ordinance of the Prime Minister," and Article 6-4 (3) provides that "the classification of a disability rating according to the degree of physical disability shall be as shown in attached Table 3. Accordingly, the [Attachment 3] classification of disability ratings shall be defined as "a person who has the function of one Gyeonggi-do disability among the three sections of bridge."

On the other hand, Article 8-3 of the Enforcement Rule of the re-delegation of Article 14(2) of the Decree provides that "the determination of a disability rating for the injury of each physical part shall be in accordance with the criteria of attached Table 4 pursuant to Article 14(2) of the Decree. Accordingly, the determination of a disability rating for each physical part shall be in accordance with attached Table 4." Accordingly, Article 14(3) [Attachment Table 3] of the Decree provides that "the person whose external change after the damage to the pele-ray clearly occurs in the inspection of X-ray, notwithstanding appropriate treatment."

However, on the sole basis of the language and text of Article 8-3 [Attachment 4] of the Enforcement Rule, if the change after credit due to damage to the pel ray clearly appeared in the examination of the EX ray, regardless of whether there is any functional disorder in the EX 7th 8122 of the Decree, it is interpreted that it constitutes a disability rating under Article 14(3) [Attachment Table 3] [Attachment Table 7] of the Enforcement Rule, regardless of whether there is any disorder in the EX 7th 8122 of the disability rating. Further, Article 8-3 [Attachment Table 4] of the Enforcement Rule is interpreted to constitute a disability rating under Article 8-4(3) [Attachment Table 4] of the Enforcement Rule, among the three major sections of the 3rd joints of the bridge "under the delegation of Article 6-4(3) of the Act, those who have a serious functional disorder in the Do are divided into Grade 7th 8122 of the disability rating and comprehensive criteria for the disability rating under Article 14(2) of the Enforcement Rule.

Therefore, if the meaning of Article 8-3 [Attachment 4] of the Enforcement Rule is interpreted in an organic and systematic manner based on the legal principles on the interpretation of this subordinate statute, the contents of the above relevant provisions, and the legislative intent of the above-mentioned provisions, and the meaning of the "person who clearly shows the efficiity in the inspection, such as X-ray shooting, despite the appropriate treatment, after a change in the efficiencies due to efficiation from efficiation of efficiation," it is reasonable to interpret that the efficiencies after efficiation of efficiation is clearly efficiated from the inspection, such as X-ray, despite appropriate treatment.

(B) According to the Plaintiff’s results of this case’s physical examination on the 3rd level 7th grade 8122 of the Enforcement Rule of the University, despite the considerable interpretation of the disability of the Plaintiff’s 7th grade 4, the Plaintiff’s physical examination on the 1st grade 7th grade 2 of the University, the Plaintiff’s physical examination on the 3rd grade 1 of the 3rd grade 2 of the 3rd grade 2 of the 3rd grade 2 of the 3rd grade 20th grade 2 of the 193rd grade 1 of the 193rd grade 1 of the 193rd grade 1 of the 193rd grade 2nd grade of the 1st grade 2nd grade of the 1st grade 3rd grade of the 1st grade 2nd grade of the 1st grade 3rd grade of the 1st grade 2nd grade of the 1st grade 3rd grade of the 1st grade 2013.

(2) As to Chapter 2

(A) In order to apply the principle of trust protection to the acts of an administrative agency in administrative legal relations, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, the administrative agency should have no reason attributable to the individual when the statement of opinion is justifiable and trusted. Third, the administrative agency should have conducted any act in violation of the above statement of opinion, and third, the administrative agency should have conducted any act in violation of the above statement of opinion. Fourth, the administrative agency should have made a disposition contrary to the above statement of opinion so that the interests of the individual who trusted the statement of opinion may be infringed. If any administrative disposition satisfies these requirements, it is unlawful as against the principle of trust protection unless it is likely to seriously undermine the public interest or legitimate interests of the third party (see, e.g., Supreme Court Decision 2006Du10931, Jan. 17, 2008

(B) As seen earlier, the Defendant rendered a new physical examination on October 31, 2006 that the Plaintiff fell under the disability rating under class 7 and 807. However, the above facts alone cannot be deemed to have expressed the Plaintiff’s public opinion that the Defendant would make an identical or higher disability rating as well as the above facts, in a trial examination on the evidence No. 3, and the following circumstances, i.e., ① Article 6-3(2)4 of the Act: (1) of the new physical examination under Article 6-3(2)4 of the Act: (a) provides that a new physical examination under Article 6-3(2)4 of the Act should be determined by the Minister of Patriots and Veterans Affairs at his request or ex officio; (b) provided that a new physical examination under the proviso to paragraph (7) of the same Article provides that if the disability rating has fallen, the Plaintiff may not be deemed to have trusted in the remaining physical examination under the following classification; and (c) provided that the Plaintiff could not have trusted the results of the new physical examination under Article 6-2(7) of the new physical examination:

(3) Sub-determination

Therefore, the plaintiff's assertion is without merit, and the disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed as per Disposition.

Allowable judges of the presiding judge

Judges Kim Gin-han

Judge Park Jong-hoon