Whether a person who was enlisted in active duty service and was appointed as a guard or ward of a correctional institution constitutes a soldier under the proviso of Article 2(1) of the State Compensation Act (negative

A person who was enlisted in active duty service and was appointed as a guard under the former Act on the Establishment of Correctional Institution Units (amended by Act No. 4157 of Dec. 30, 1989) after being enlisted in active duty service and transferred military education. A person who was appointed as a guard under the former Act on the Establishment of Correctional Institution (amended by Act No. 4157 of Dec. 30, 1989) shall lose his status as a soldier, and the person who acquired his status as a soldier and other guard shall not be a soldier under the proviso of Article 2 (1) of the State Compensation Act. Thus, it does not constitute a soldier under Articles 9 and 10 of the same Act, Article 38 of the Enforcement Decree of the same Act, and Article 104 of the Rules on the Operation of Correctional Institution Units (amended by Ordinance of the Ministry of Justice No. 143) of the Ministry of Justice.

Article 2(1) proviso of the State Compensation Act, Article 3 of the former Act on the Establishment of Transportation Facility Guard Units (amended by Act No. 4156 of Dec. 30, 1989)

High Order and four others (Attorney Kim Jong-hwan, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 90Na33891 delivered on October 26, 1990

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

As to the ground of appeal by Defendant Litigation Performers

According to the reasoning of the judgment of the court of first instance maintained by the court below, the non-party 1 was enrolled in the Gun on March 3, 1989 at the Korean University of Law and University of Law and University of Law and completed a prescribed training on April 23 of the same year, and was transferred to the guard unit belonging to the Ministry of Justice on May 13 of the same year, 1902 at the guard unit (Seoul Detention House) No. 1902 of the same year (referred to as 5.23 of the judgment of the court of first instance because 5.23 of the judgment is clerical error, the defendant recognized that the non-party 2 was not liable for damages suffered by the non-party 1, the non-party 1 and the non-party 2, the non-party 1, the non-party 1 and the non-party 2, the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1, who died.

According to Article 3 of the former Act on the Establishment of Correctional Institution (amended by Act No. 4157 of Dec. 30, 1989), a prison guard is appointed from among those transferred pursuant to Article 42 of the Military Service Act (amended by Act No. 4156 of Dec. 30, 1989), and Article 2 (1) 7 of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 4157 of Dec. 30, 1989) provides that "the former Enforcement Decree of the Act on the Special Cases concerning Military Service (amended by Act No. 4157 of Dec. 30, 1989) shall be included in active duty service personnel's status, such as riot police personnel or correctional facility education personnel, and the former Enforcement Decree of the Act on the Special Cases concerning Military Service (amended by Presidential Decree No. 10650 of Apr. 29, 190).

In addition, the status of a person who died in relation to the performance of official duties as a prison guard shall be determined as a person of distinguished services to the State on the ground that the State constitutes a soldier or policeman who died in the line of duty under Article 4 (1) 5 of the Act on the Honorable Treatment, etc. of Persons of Distinguished Services to the State (the soldier or policeman who died in the course of education and training or in the performance of duty)

The judgment of the court of first instance affirmed by the court below in the above purport on the premise that there is no room to apply the above proviso as it does not constitute a soldier, police officer, or any other status stipulated in the proviso of Article 2 (1) of the State Compensation Act at the time of the death of the deceased deceased person. The court below recognized the plaintiffs' claim for damages without relation to whether death benefits or survivors' pension paid to the plaintiffs under related Acts are double compensation. This is just and there is no error of law in the misapprehension of legal principles, such as theory

For these reasons, the appeal is 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 Sang-won (Presiding Justice)