Plaintiff (Law Firm Roon, Attorneys Park Jong-pon et al., Counsel for plaintiff-appellant)

National Pension Service (Law Firm 000,000,000)

July 20, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's decision on August 16, 2010 on the disability grade 4 under the National Pension Act against the plaintiff shall be revoked.

1. Details of the disposition;

A. On August 8, 2002, the Plaintiff, who is qualified as a national pension subscriber, was diagnosed by chronic renal failure, and applied for a disability pension with chronic renal failure as a cause of disability to the Defendant on November 18, 2002.

B. After examining the Plaintiff’s disability, the Defendant decided on December 30, 2002 that the Plaintiff constitutes disability grade 2 (as of November 14, 2002, the complete date) and continued to maintain the determination of disability grade 2 by deciding that the Plaintiff’s disability remains the same through ex officio reexamination until June 5, 2008.

C. On August 10, 2009, the Plaintiff received a kidne surgery from the Defendant on May 14, 2010, and received a request for submission of materials for ex officio reexamination. Accordingly, on June 28, 2010, the written diagnosis issued by the Modne Hospital was indicated as “the Plaintiff was currently under the Immune Act after undergoing a kidne surgery on August 10, 2009, with the Madneology, while currently being under the Immune surgery, and currently being under the Immuneine concentration at 1.5mg/dl and B.2.9m/dl.”

D. On August 4, 2010, the Defendant conducted ex officio reexamination on the Plaintiff’s disability grade, and on August 16, 2010, rendered a decision to change the disability grade from Grade II to Grade IV on the ground that the Plaintiff’s kidney surgery conducted by the Plaintiff does not reach Grade III (hereinafter “instant disposition”).

E. On November 8, 2010, the Plaintiff appealed and filed a request for examination with the Defendant on November 8, 2010, but the Defendant dismissed the Plaintiff’s request on December 13, 2010 after deliberation by the National Pension Review Committee.

[Reasons for Recognition] Gap evidence 2, 3, Eul evidence 4-1, 2, Eul evidence 1 and 2-1 to 3, Eul evidence 3, Eul evidence 5-1 to 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) On February 11, 2010, when six months have passed since the date of the surgery, the Plaintiff was completely cured. Thus, it is unreasonable for the Defendant to make a decision on disability grade 4 to the Plaintiff by applying the National Pension Disability Review Regulations (amended by Ministry of Health and Welfare No. 2006-47, Jun. 14, 2006; hereinafter “existing Public Notice”) enforced from February 19, 2010, when it was decided on disability grade 3 pursuant to the National Pension Disability Review Regulations (amended by Ministry of Health and Welfare No. 2009-204, Nov. 19, 2009; hereinafter “Revised Public Notice”).

2) Even based on the revised public notice, the Plaintiff, who was completely cured with a kidne surgery pursuant to Article 2 of the Addenda, should have determined the disability grade 3 according to the previous public notice, on the ground that it falls under “where the disability grade falls without any change in the condition of disability.”

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether the previous notice applies to the plaintiff's ex officio reexamination

According to Article 67(1) through (3) of the National Pension Act, Article 5 [Attachment Table 1] Section 8(a)(3) of the amended Public Notice (which also contains the same contents as the existing Public Notice), where a national pension holder has a physical or mental disability even after completely recovers from a disease or injury incurred while he/she was enrolled in the National Pension Plan, a disability pension is paid according to the degree of disability for the continued period of disability, and where the national pension has not been completely cured after one year and six months from the date of completion, the first medical treatment, or one year and six months from the first medical treatment, if a person who was not entitled to a disability pension becomes entitled to a disability pension before he/she reaches 60 years of age due to aggravation of such disease or injury, the disability pension shall be determined on the basis of the person's request (hereinafter referred to as "refluence, etc."), and if the beneficiary's completely recovers from the disability pension is determined differently from the disability pension, the amount of the disability pension shall be determined differently from the disability pension.

In addition, the existing notice of the degree of disability was enacted and implemented by the Ministry of Health and Welfare No. 47 on June 14, 2006 according to the delegation of the National Pension Act and the Enforcement Decree thereof, and was changed to the revised notice on November 19, 2009. The revised notice was enforced from February 19, 2010, but the person whose degree of disability was determined according to the existing notice at the time of the enforcement is determined as the degree of disability according to the revised notice, and the existing notice was stipulated to the effect that the existing notice should be applied in case of a decline in disability even though there was no change in the state of disability at the time of reexamination.

Considering the relevant provisions of the National Pension Act and the supplementary provisions of the National Pension Act, a disability grade change can only be made by examining the defendant's ex officio review or applying for change of a disability grade on the ground that the beneficiary's disability worsens, and the date of completion of treatment is merely a certain standard for examining and determining the degree of disability. Thus, even if the date of completion of treatment, etc. is prior to the implementation of the revised public notice, if the date of completion of treatment is within the period of implementation of the previous public notice, if the date of completion of treatment is within the period of implementation of the previous public notice, the previous public notice shall apply. In such a case, it is reasonable to deem that the degree of disability should be determined by the revised public notice, unless there

Therefore, even if the plaintiff's disability grade 3 is determined on the basis of the previous notice of medical treatment (in the case of a kidne operation performed at the time of application of the previous notice, regardless of the result of a new function test, there is no dispute between the parties that the 3rd degree of disability should be determined on the basis of the previous notice of medical treatment), as long as the disability grade has not been changed upon the plaintiff's application or ex officio reexamination, the decision of the degree of disability of the plaintiff at the time of ex officio reexamination shall be applied.

2) Whether the Plaintiff’s disability grade falls under a case where the Plaintiff did not change the degree of disability

As seen earlier, the Plaintiff maintained the second degree of disability through an ex officio reexamination after receiving the second degree of disability in 2002 and on June 5, 2008. However, according to the previous public notice after undergoing a kidying surgery on August 10, 2009, the Plaintiff’s assertion premised on the fact that the disability falls under a case where the disability grade 3 and 4 changes in the disability grade. Thus, the Plaintiff’s assertion on the premise that the disability grade falls under a case where the disability grade falls without a change in the disability grade despite the absence of a change in the disability condition is also without merit.

3) Accordingly, the Defendant’s instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment Form 7]

Judge Oi- (Presiding Judge) and Lee Jae-in