(영문) 제주지방법원 2017.5.10. 선고 2016구합5383 판결

A. The deceased C (hereinafter referred to as "the deceased") entered on December 4, 1969 and participated in the Vietnam War from September 19, 1970 to September 29, 1971. The plaintiff A is his father and mother of the deceased, and the plaintiff B is his mother.

B. On November 21, 200, the Deceased applied for the registration of a patient suffering from actual aftereffects of defoliants to the Defendant on the grounds of 'Machopathitis', 'Maurology, and 'Maurine infection'. However, on January 19, 2001, the Defendant rendered a non-specific decision on the occurrence of actual aftereffects of defoliants with respect to urine disease (However, on the ground that the urology merger was not observed, the judgment below the disability standard was rendered on the ground that the urology merger was not observed) and mepathitis, etc. (the former Act on the Support, etc. for Patients from the urology classified as potential aftereffects of defoliants was amended by Act No. 6647, Jan. 26, 2002, and the above disease was also included in actual aftereffects of defoliants, and the person who had already been registered as a patient suffering from actual aftereffects of defoliants as well as the deceased was also registered as a patient suffering from actual aftereffects of defoliants pursuant to Article 3 of the Addenda to the same Act).

C. On March 26, 2001, the Deceased filed an application for reexamination of the above disability grade with respect to the Defendant, and on April 16, 2001, the Deceased filed an application for reexamination of actual aftereffects of defoliants with respect to 'Machopathitis' and 'brupt infection'. However, on April 19, 2001, the Defendant rendered an identical determination as to the degree of disability with respect to urine disease, and on August 9, 2009, rendered a non-specific determination as to whether the case constitutes defoliants, such as Mapathitis, according to the result of re-examination by the Korea Veterans Hospital.

D. Meanwhile, the Deceased died on June 10, 2001, and “the dead person” column of “the body condition irrelevant to the dead person” is written as “the condition after the surgery with urine and urine infection” in “the body condition irrelevant to the dead person” column.

E. On August 21, 2015, Plaintiff A claimed that “the deceased died of the Maternal Disease, an actual aftereffects of defoliants,” and applied for the registration of bereaved family members pursuant to Article 4 of the former Act on Assistance to Patients, etc. from Actual aftereffects of defoliants and Establishment of Related Associations (wholly amended by Act No. 13605, Dec. 22, 2015; hereinafter “former Act”). However, on November 24, 2015, the Board of Patriots and Veterans made a decision that “the deceased’s death was not related with the Matern branch” did not fall under the bereaved family of Article 8(1) of the Act on the Medical Examination of the Busan Veterans Hospital, and the Defendant made a decision on December 2, 2015 as to whether the deceased’s bereaved family members constituted actual aftereffects of defoliants (hereinafter “instant disposition”).

F. Plaintiff A filed an administrative appeal on the revocation of the instant disposition. However, on March 25, 2016, the Jeju Special Self-Governing Province Administrative Appeals Commission rendered a decision to dismiss the said claim on the ground that there was no confirmation of medical data that the deceased died of Machopa, etc.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, 11 to 13, Eul evidence 1 to 10, the purport of the whole pleadings

2. Whether the plaintiff B’s lawsuit is legitimate

The instant disposition was made to the effect that the Plaintiff A rejected the Plaintiff’s application that was recognized as the bereaved family members of the patients suffering from actual aftereffects of defoliants. In this regard, first, the Plaintiff B, other than the other party to the instant disposition, was examined ex officio as to the legitimacy of the lawsuit against the Defendant

Even if a third party is not the direct counter-party to an administrative disposition, if the legal interest protected by the administrative disposition is infringed, the party shall be entitled to obtain a decision of the propriety thereof by filing an administrative litigation seeking the revocation of the disposition or the confirmation of invalidity. Here, the legal interest refers to a case where there are individual, direct, and specific interests protected by the relevant administrative disposition and relevant laws and regulations (see Supreme Court Decision 2004Du6716, Jul. 28, 2006).

However, the mother of the deceased, who is separate from the plaintiff A, can file an application for the registration of bereaved family members of patients suffering from actual aftereffects of defoliants with the defendant, and the defendant's disposition against the plaintiff B [However, according to Article 8 (1) of the former defoliant Act and Articles 5 (1), 12 (1), and 13 (1) of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (hereinafter "the Act"), etc. of the State, the plaintiff A's child seems to have been given priority in the payment of compensation]. Since it is difficult to view that the plaintiff A was directly infringed on any legal interest due to the disposition of this case against the plaintiff A, the lawsuit of this case filed by the plaintiff

3. Determination as to Plaintiff A’s claim (whether the instant disposition is legitimate)

A. The plaintiff A's assertion

Around January 2001, the Deceased died due to the urology of urology, such as urology, even after the Defendant received the determination of actual aftereffects of defoliants against urology from the Defendant. Thus, the instant disposition should be revoked on the ground that the Plaintiff A, a child of the Deceased, did not constitute a bereaved family member under Article 8(1)1 of the former defoliant Act.

B. Relevant statutes

It is as shown in the attached Form.

Article 8 (1) 1 of the former Act on defoliants provides that bereaved families of persons who are recognized to have died of actual aftereffects of defoliants under any subparagraph of Article 5 (1) prior to the registration under Article 4 (1) shall be deemed bereaved families of soldiers and policemen killed of actual aftereffects of defoliants under Article 4 (1) 3 of the Act on Persons of Distinguished Service to the State. In full view of the language and text of the above provision, amended history, the support system of the former Act on defoliants, and the compensation system for persons of distinguished service to the State, “a person recognized to have died of actual aftereffects of defoliants before the registration under Article 4” shall be construed as a person who died of actual aftereffects of defoliants before the determination and registration of a patient suffering from actual aftereffects of defoliants under Article 4 of the former Act. Accordingly, the bereaved families of persons who were registered as a patient suffering from actual aftereffects of defoliants and determined to have failed to meet the grading standard shall be excluded from those eligible for the above provision (see Supreme Court Decision 2016Du35755, Jul. 7, 2016).

Therefore, the plaintiff A, a bereaved family member of the deceased who was registered as a patient suffering from actual aftereffects of defoliants in 2001, but failed to meet the grading standards, does not constitute the bereaved family member of the deceased under Article 8 (1) 1 of the former Act.

(d) Malipathitis

According to the statements written evidence Nos. 4 and 9, it is recognized that the deceased was diagnosed by the doctor in charge on April 2001 and on June 1, 2001. However, in light of the following: (a) the reason why the deceased had been subject to a non-applicable decision on actual aftereffects of defoliants by repeating the psychotropic infection; (b) the private person, etc. recorded in the death diagnosis document against the deceased; and (c) the process of the Plaintiff’s application for the registration of bereaved family members after the instant disposition and the administrative appeal ruling, etc., it is difficult to readily conclude that the Malaysia infection, etc. suffered by the deceased constitutes actual aftereffects of defoliants as prescribed by the former defoliant Act; or (d) there is no other evidence to prove otherwise.

4. Conclusion

Therefore, the plaintiff B's lawsuit is dismissed as unlawful, and the plaintiff A's claim is dismissed as it is without merit. It is so decided as per Disposition.