Whether the proviso of Article 2 (1) of the former State Compensation Act is unconstitutional or not;

The proviso of Article 2 (1) of the former State Compensation Act is a provision that violates the provisions of Article 8, 9, 43 (2) and 26 of the Constitution.

Article 2 of the State Compensation Act

On June 22, 1971, 70Da1010 decided Jun. 22, 1971 (Kakadd 9710; 19 ② 110 decided Feb. 10, 197; and Article 3(11)691 of the Registration of Real Estate Act, Article 59(1) of the Court Organization Act

Plaintiff

Korea

Seoul Central District Court (69A13586) of the first instance court

(1) Of the parts against the defendant in the original judgment, the part ordering payment in excess of the money in paragraph (2) below is revoked, and the plaintiff's claim as to the same part is dismissed.

(2) The defendant shall pay to the plaintiff the amount of 643,078 won and the amount at the rate of 5% per annum from November 30, 1966 to the full payment day.

(3) The defendant's remaining appeal portion is dismissed.

(4) All the costs of lawsuit shall be divided into three parts of the first and second trials, one of which shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

The plaintiff's legal representative is seeking a declaration of provisional execution against the plaintiff's 1,551,502 won (the part of the claim for consolation money in the trial) and the defendant's payment of the amount at the rate of five percent per annum from November 30, 1966 to the full payment day.

The defendant litigation performer shall revoke the part against the defendant among the original judgment.

The plaintiff's claim is dismissed.

All the costs of lawsuit are assessed against the plaintiff in the first and second instances.

1. In the absence of dispute over the establishment of Gap evidence Nos. 6 (Evidence of Disease), 8-1, 2-1, and 8-2, each content of the court below's testimony of non-party 1, the appraiser non-party 2 (except for the part not being taken next) and the appraisal result of non-party 3 in the court below's appraisal, the non-party 4 and the non-party 1 were to hand the gun of the same officer under the control of the same company Nos. 26 on November 29, 196 and the non-party 4 and the non-party 1 were to hand the gun of the same company No. 5 on the counter-company No. 1, the non-party 4 were to check the gun Nos. 8-2 and to verify whether the gun Nos. 5 were destroyed by the fire-fighting gun No. 1, and the part which caused the non-party 4's non-party 1's non-party 4's negligence in treatment of the fire-fighting gun No.

Thus, the defendant is obligated to compensate for the damages suffered by the plaintiff due to the above accident caused by the negligence of the non-party 4 who is a public official.

The provisions of the proviso of Article 2 (1) of the State Compensation Act are unconstitutional provisions that violate the provisions of Articles 8, 9, 43 (2) and 26 of the Constitution, and they shall not be applied.

2. In full view of the statements in Gap evidence Nos. 1 (No. 1), 2 (Simplified Life Card), 3-1, 2-1, and 6-1, 3-2 of the above evidence (the No. 3 of the No. 3) and the testimony of non-party 5 of the court below, the plaintiff, who was born on October 1, 194 at the time of the above accident, was average male at the same age of 22 years and 10 months and 38.86 years. The plaintiff was admitted to the military on April 28, 1965 and received medical treatment at a military hospital for this accident on April 25, 1969. The plaintiff was engaged in agriculture, 300 days annually, and the non-party 5 was able to be operated until the age of 555,000 if he was engaged in agricultural labor, and the fact that the labor wages of the non-party 1, 1966.

If so, the plaintiff did not receive an injury due to the accident of this case, he completed the military service for three years, and completed the service at the latest from April 28, 1968 to September 30, 199, at least 275 won per day (at least above above amount shall be in accordance with our rule of experience) of the plaintiff's above rural wage of at least 1,75 won per year (at least after April 28, 1968, it shall be 82,500 won (275 won x 300): 45 percent of the labor force during the above period, and 37,125 won per annum during the above period from April 28, 1968, it is clear that the amount of 45 percent of the above revenue was reduced to less than 37,125 won per annum 37,125 won per year, and it shall be calculated to be less than 364% per annum 16438,570% per annum per year pursuant to the rate of 196.36.4% per annum.

However, after the occurrence of the above accident, the defendant paid 529,440 won to the plaintiff as accident compensation, and the plaintiff claimed that the amount of consolation money should be deducted from the above damages since the plaintiff received a wounded veterans' pension of 1,850 won per month. Thus, in light of the parties' arguments, the defendant (central light group) paid 529,440 won to the plaintiff on February 6, 1967 as accident compensation under the Military Pension Act. Further, it can be recognized that the plaintiff was paid a wounded veterans' pension of 1,800 won per month under the Military Pension Act, but the accident compensation under the Military Pension Act is not a realization of social security ideology to improve the livelihood and welfare of the military personnel or their bereaved family members, and the reasons for deducting consolation money should not be considered from the above amount of consolation money received (see Supreme Court Decision 2008Da298689, Jun. 29, 200).

3. At least 643,078 won and the part of the plaintiff's claim against the plaintiff for damages from the above import loss amounting to 643,078 won and the part of the plaintiff's claim from November 30, 1966, which is the next day from the date of the tort to the date of full payment, the plaintiff's claim against the plaintiff's principal claim shall be accepted only within the same scope, and the remainder of the claim shall be dismissed without merit. Since the original judgment ordering payment in excess of the above amount is unfair and the defendant's appeal is justified, the above part of the judgment against the defendant is revoked, and the plaintiff's claim as to the same part is dismissed. The remaining part of the appeal against the defendant is without merit, and the defendant's remaining part of the appeal shall be subject to Articles 89, 92, and 96 of the Civil Procedure Act shall be applied to the cost of lawsuit and provisional execution shall not be permitted under the Civil Execution Act, and it is so decided as per Disposition.

Judges Sick-man (Presiding Judge) At a cost