Whether Article 2(2) of the Addenda to the Enforcement Decree of the Act on Assistance to Patients suffering from Actual or Potential Disease, Etc. and Establishment of Related Associations (amended by November 24, 2014) applies to cases of a physical disability examination by a patient suffering from potential aftereffects of defoliants, as well as in cases of a physical disability examination by a patient suffering from potential aftereffects of defoliants at his/her discretion upon request (affirmative)

In full view of the language, structure, etc. of Article 2(1) and (2) of the Addenda of the Enforcement Decree of the Act on Assistance to Patients suffering from Actual or Potential Diseases, Etc. and Establishment of Related Associations (amended by Presidential Decree No. 2010, Nov. 24, 2014), Article 2(1) of the Addenda provides that disability ratings shall be determined according to the revised criteria if physical examinations are conducted after the implementation of the revised criteria. Article 2(2) of the Addenda provides that disability ratings shall be determined in accordance with the revised guidelines if physical examinations are conducted after the implementation of the revised guidelines. Article 2(2) of the Addenda provides that it is harsh to give disability ratings to patients suffering from potential aftereffects of defoliants who suffered from a disability whose disability grade has been determined according to the pre-amended standards, even if the state of disability does not lower than the disability grade

On the other hand, there is no special distinction as to whether the physical examination for the re-determination of the law is applied on the basis of ex officio or not, and there is no reasonable ground to treat differently whether the person whose disability grade was determined on the basis of the pre-revision criteria, depending on the opportunity for the physical examination for the re-determination. Thus, the above exceptional provisions should be deemed to be applied in both cases, whether the physical examination for the re-determination is

Articles 5(2)15, 6-2, and 7(7) of the former Act on Assistance to Patients suffering from Actual or Potential Diseases, Etc. and Establishment of Related Associations (Amended by Act No. 13605, Dec. 22, 2015); Article 9(1) of the former Enforcement Decree of the Act on Assistance to Patients suffering from Actual or Potential Disease, Etc. and Establishment of Related Associations (Amended by Presidential Decree No. 27253, Jun. 21, 2016); Article 2 of the Addenda to the Enforcement Decree of the Act on Assistance to Patients suffering from Actual or Potential Disease, Etc. and Establishment of Related Associations (Amended by Presidential Decree No. 27253, Nov. 24,

Plaintiff (Attorney Park Jong-chul, Counsel for the plaintiff-appellant)

The Head of the Seoul Northern Branch Office

Seoul High Court Decision 2016Nu66805 decided April 11, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to Articles 5(2)15, 6-2, and 7(7) of the former Act on Assistance to Patients suffering from Actual or Potential Diseases, Etc. and Establishment of Related Associations (amended by Act No. 13605, Dec. 22, 2015; hereinafter “Special Act on the Honorable Treatment of and Support for Persons, etc. of Distinguished Services to the State”), Article 6-3 of the Act on the Honorable Treatment of and Support for Persons, etc. of Distinguished Services to the State (hereinafter “Act on the Honorable Services to the State”) shall apply mutatis mutandis to the types of physical examinations necessary to determine disability ratings for patients suffering from potential aftereffects of defoliants, a type of potential aftereffects of defoliants, and the method of determining disability ratings

Article 7(7) of the Enforcement Decree of the Act on Assistance to Patients from Actual or Potential Diseases, Etc. and Establishment of Related Associations (amended by Presidential Decree No. 27253, Jun. 21, 2016; hereinafter “Enforcement Decree of the Act on the Promotion of Specific and Potential Diseases”) stipulates the disability ratings for potential aftereffects of defoliants in the table of disability ratings and the amount of allowances paid by patients suffering from potential aftereffects of defoliants under attached Table 1.

However, Article 2 of the Addenda to the Enforcement Decree of the defoliant Act (Presidential Decree No. 2578, Nov. 24, 2014) provides that “The disability grade of a person who applied for a physical examination under Article 7 at the time this Decree enters into force or a person who is to conduct a physical examination ex officio by the Minister of Patriots and Veterans Affairs shall be determined in accordance with the amended provisions of attached Table 1,” and Paragraph (2) of the same Article provides that “Where a person who was determined by the previous provision at the time this Decree enters into force does not change the degree of disability, the previous provision shall apply to a person whose disability grade is lower in accordance with the amended provisions of attached Table 1, although he/she did not change the degree of disability” (hereinafter referred to as “paragraph (1) of the Addenda of this case” and “paragraph (2) of the Addenda of

In full view of the language, structure, etc. of the foregoing supplementary provision, Article 1 of the Addenda of this case provides that disability ratings shall be determined according to the revised standard if the physical examination was conducted after the enforcement of the revised standard, and Article 2 of the Addenda of this case provides that disability ratings shall be determined based on the pre-amended standard, and where a physical examination is conducted for the patient suffering from potential aftereffects of defoliants whose disability grade was determined in accordance with the pre-amended standard, it is harsh to force disability ratings solely on the ground that the statutory provision was amended, even if the physical examination did not have a physical disability to the extent that the disability grade was lower in accordance with the pre-amended standard.

On the other hand, there is no special distinction as to whether the physical examination for the re-determination of the law is applied on the basis of ex officio or not, and there is no reasonable ground to treat differently whether the person whose disability grade was determined on the basis of the pre-revision criteria, depending on the opportunity for the physical examination for the re-determination. Thus, the above exceptional provisions should be deemed to be applied in both cases, whether the physical examination for the re-determination is

2. The reasoning of the lower judgment reveals the following facts.

A. On August 9, 2005, the Plaintiff: (a) was registered and determined as a patient suffering from actual aftereffects of defoliants; and (b) was rated as a patient suffering from actual aftereffects of defoliants with respect to high blood pressure; and (c) on October 12, 2005, the Plaintiff received the grading of high blood pressure with respect to high blood pressure; (d) subsequently, on July 21, 201, the Plaintiff applied for a re-examination for high blood pressure; and (e) as a result of the urology examination, the urology was measured with “1+++” and was determined as having the same disability grade as the previous one on December 5, 201.

B. According to the Enforcement Decree of the defoliant Act, the criteria for determining “a certain degree of disability” based on “the detection of a proteinary organ” with respect to high blood pressure among potential aftereffectss of defoliants are stipulated as “a person who was detected at least twice due to high blood pressure”. On November 24, 2014, the said criteria were amended by Presidential Decree No. 25778 on November 24, 2014, and the said criteria were strengthened as “a person who was detected from a proteinary test at least twice due to high blood pressure”.

C. On March 2, 2015, after the enforcement of the amendment criteria, the Plaintiff applied for a re-examination of high blood pressure again, and as a result of a general urology test, the concentration of protein was measured as “Trace”.

D. On June 16, 2015, the Defendant rendered the instant disposition to the effect that the Plaintiff’s high blood pressure was not detected by protecinosis (1+not less than 1 +) according to the revised standard, and that it falls short of the disability grade standard.

E. In the case of detection of protecin in a general urology, it is divided into “Trace, 1+2 + 3 + 4 +” depending on its concentration.

3. Examining these facts in light of the legal principles as seen earlier, the Plaintiff’s disability grade should be determined prior to the amendment pursuant to Article 2(2) of the Addenda of the instant case, on the ground that: (a) a person whose disability grade was determined after detection of a part-to-beurology in accordance with the pre-revision standard is still detected as “Trace; and (b) a person with a part-to-beurology is still found as a result of a physical examination before the amendment; and (c) a person with a disability that does not have any degree of disability to lower the degree of disability when he/she followed the amendment standard; and (d) a person with a part-to-beurology is merely a case where his/her disability grade was lower due to the amendment of the Act on the

Nevertheless, the lower court determined otherwise that Article 2 of the Addenda to the instant case does not apply to the physical examination conducted by patients suffering from potential aftereffects of defoliants, and determined that the instant disposition, which applied the revised standard on the ground that the Plaintiff does not fall under “where there is no change in the level of disability,” was lawful. In addition, the lower court erred by misapprehending the legal doctrine on the scope of application of the provisions of the Addenda

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)