(영문) 서울고등법원 2017.7.11. 선고 2017누40862 판결

1. Of the judgment of the court of first instance, the part concerning the escape evidence of conical signboards No. 500, No. 1000 shall be changed as follows.

A. The plaintiff's primary claim against the escape certificate of a conical signboard No. 5 - No. 1 is dismissed.

B. On February 5, 2014, the Defendant’s disposition on the escape from a signboard No. 5-1 between the Plaintiff and the Plaintiff’s person eligible for veteran’s compensation is revoked.

2. The total cost of a lawsuit shall be borne individually by each party.

Purport of claim and appeal

The judgment of the first instance court is revoked. In the first instance court, the defendant around February 5, 2014, revoked the disposition corresponding to the expense of persons who have rendered distinguished services to the State regarding the escape from the conical signboards between the defendant and the plaintiff No. 4-5 on February 5, 2014 - No. 1. Preliminaryly, the defendant revoked the disposition corresponding to the expense of persons who have rendered distinguished services to the State on the escape from the conical signboards between the defendant and the plaintiff on February 5, 2014 (the plaintiff initially claimed the revocation of the disposition corresponding to the person who has rendered distinguished services to the State and the revocation of the disposition corresponding to the expense of persons who have been admitted to the State, but was changed to the surrounding and ancillary claim at the trial before remand).

Reasons

1. Scope of adjudication of this court;

The court of first instance dismissed the plaintiff's claim seeking revocation of the above disposition by asserting that the escape certificate of a memorial signboard escape certificate between the plaintiff and the person who rendered distinguished services to the State regarding the escape certificate of a memorial signboard between 4-5 and 1,000, falls under the requirements for persons eligible for veteran's compensation. The court of first instance dismissed the plaintiff's claim seeking revocation of the above disposition by asserting that the escape certificate of a memorial signboard escape certificate between 4-5, and that the above escape certificate constitutes the requirements for persons who rendered distinguished services to the State. Accordingly, the court of first instance changed the plaintiff's claim at the court before remanding. The court of first instance changed the judgment to the effect that the plaintiff's primary and conjunctive claim and the conjunctive claim are all dismissed. In the final appeal of this case, the Supreme Court reversed and remanded the part on the escape certificate of a memorial signboard escape certificate between 5 & 1,000, and dismissed the plaintiff's remaining appeal.

Therefore, among the judgment of the party before remanding, the part on the escape from a conical signboard No. 4-5 is finalized to be against the plaintiff, and the scope of the judgment of the court is limited to the part on the escape from a conical signboard No. 5 to No. 1, which is the part on the reversal and return.

2. Details of the disposition;

On March 6, 2001, the Plaintiff entered the Army and was discharged from military service on the part of the Defendant on September 13, 2001. On September 24, 2001, the Plaintiff filed an application for registration of a person who rendered distinguished services to the State on the ground that the Plaintiff, on June 22, 2001, was discharged from military service on the ground that a serious brupted certificate occurred after the genetic training, and was discharged from military service at the hospital, and that the Plaintiff was discharged from military service at the hospital, and applied for registration of a person who rendered distinguished services to the State. However, the Defendant notified the Plaintiff of the results of the above deliberation in accordance with the deliberation and resolution corresponding to the requirements of the Board of Patriots and Veterans Entitlement on December 18, 201.

On October 2013, the Plaintiff applied for re-registration of a person of distinguished service to the State on the same application basis.

On February 5, 2014, following the deliberation of the Board of Patriots and Veterans Entitlement, the defendant decided that the escape certificate of a memorial signboard between the 4-5th and the 4-5th following the application (hereinafter referred to as "the first prize") does not constitute the requirements for persons who have rendered distinguished service to the State under the Act on the Honorable Treatment of and Support for Persons, etc. of Distinguished Service to the State (hereinafter referred to as the "Act"), but it constitutes the requirements for persons eligible for veteran's compensation under the Act on Support for Persons Eligible for Veteran's Compensation (hereinafter referred to as the "Act on Persons Eligible for Veteran's Compensation"). The defendant decided that the escape certificate of a memorial signboard between 1,000 and 1 (hereinafter referred to as "the second prize") does not meet the requirements for persons who have rendered distinguished service to the State and persons eligible for veteran's compensation (hereinafter referred to as "the disposition in this case").

[Grounds for recognition] Evidence Nos. 1, 1 through 5, and the purport of the whole pleadings

3. Whether the disposition is lawful;

A. The plaintiff's assertion

The second prize is a wound that the Plaintiff received a shock training while in military service and caused military register records accumulated by accident or credit, and there is a proximate causal relation with the above shock training. Therefore, the Plaintiff constitutes the requirements for persons of distinguished service to the State under Article 3(1) [Attachment 1] 2-2 of the Enforcement Decree of the Act on Persons of Distinguished Service to the State (main prize) (Article 2(1)1 [Attachment 1] of the Enforcement Decree of the Act on Persons of Distinguished Service to the State, even if not, falls under the requirements for persons eligible

B. Relevant statutes

This Court's reasoning is the same as the corresponding part of the judgment of the court of first instance. Thus, this Court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

In full view of the evidence evidence No. 2 and No. 9, the medical record appraisal results of the New Village Symnae Hospital at the first instance school, and the purport of the entire pleadings, the Plaintiff was diagnosed on February 1998. ② The Plaintiff entered the Army Byung around March 2001, while undergoing shock training around June 2001. The Plaintiff appeared to have been discharged from the military hospital and private hospital around September 2001. ③ The Plaintiff was diagnosed on the medical record No. 200 on July 5, 2001. The presumption of the fact that the Plaintiff was presented on the medical record No. 21 on July 31, 2001, and the presumption of the fact that the Plaintiff was admitted on the medical record No. 21 on July 31, 2001.

As above, insofar as a number of medical institutions diagnosed the second prize, carried out the second prize, and recognized the fact of the outbreak of appraisal, the second prize is deemed to have caused the Plaintiff’s during his military service, and in light of the developments of the occurrence, it is recognized that there is a proximate causal relation with the exercise during his military service.

D. Judgment on the main claim

Article 4 (1) 6 of the Act on the Persons of Distinguished Service to the State provides that "military personnel, police officers, and fire-fighting officials who were wounded in the course of performing their duties or education and training (including diseases) directly related to national defense and security, or the protection of people's lives and property, and the degree of their disability shall be determined by Presidential Decree in consideration of "the scope of persons of distinguished service to the State, such as soldiers and police officers," "the scope of their duties or equivalent duties", "the degree of the performance of duties or education and training or the protection of the people's lives and property," "the degree of the national security or protection of the people's lives and property," "the reasons why the persons of distinguished service to the State were killed or wounded (including diseases)", "the extent of their duties or education and training or the degree of their own negligence", and Article 3 [Attachment Table 1] 2-2-2 of the Enforcement Decree of the Act on the Persons of Distinguished Service to the State as one of the persons of distinguished service to the State.

· Of the maintenance, distribution, transportation, and management of munitions, such as due diligence, equipment, and materials, and education and training, etc. directly related thereto, there is a medically recognized disease that has been caused by the direct cause of the disease, 'medically recognized disease that has been caused by the acute disease', 'the performance of duties or education and training such as the above', and 'the case where an existing disease has been caused or aggravated' is excluded.

Meanwhile, Article 3 [Attachment 1] 2-8 of the Enforcement Decree of the Act on Persons of Distinguished Services to the State provides that "where an existing disease has been caused or aggravated" is excluded from persons of distinguished services to the State, the purpose is to exclude cases where performance of duties or education and training related directly to the protection, etc. of the State cannot be assessed as a primary cause for the occurrence or aggravation of a disease which is an issue of national protection, etc., and therefore, if there is room to regard the existing disease as partly related to or has influenced the occurrence or aggravation of the disease, the requirements for persons of distinguished services to the State

High interpretation (see, e.g., Supreme Court Decision 2014Du46034, Aug. 30, 2016). Such interpretation is in line with the purport of delegation of the Act on Persons of Distinguished Services to the State, a parent corporation, and thus cannot be deemed null and void as it deviates from the scope of delegation of the parent law (see, e.g., Supreme Court Decision 2016Du55933, Mar. 3, 2017).

However, the following circumstances revealed by the above facts, i.e., (i) the Plaintiff had been diagnosed with the Hem disc on February 198, 198, which was prior to entering the Plaintiff, and (ii) the Hemth escape certificate is a disease that has gone beyond the country due to genetic and environmental factors, and has gone through a mechanical pressure, and has escaped from the country without any mechanical pressure, and is a symptoms that have come to escape from the country (the result of the examination of the above medical record) without showing normal epidemic stress (the result of the examination of the above medical record), and (iii) the external records that the Plaintiff came up on the part of the Plaintiff at the time of receiving the second level were merely the point of time at the time of training (the result of the examination of the medical record), etc. in light of the aforementioned provisions and legal principles, it constitutes a case where the second level of disease, such as the existing Hem disc, has not been caused, and thus becomes worse due to the natural aggravation or more due to the occurrence of a wound as well as the development of persons of distinguished services to the State.

Ultimately, the second award cannot be deemed to fall under the requirements for recognition of persons who have rendered distinguished services to the State provided for in Article 3 [Attachment 1] 2-2 or 2-8 of the Enforcement Decree of the Act on Persons of Distinguished Services to the State, and this part

E. Article 2 of the Enforcement Decree of the Act on Persons Eligible for Veteran’s Compensation for Veteran’s Compensation stipulates that “A person who suffered from a disease which is medically recognized to have a substantial causal relationship with his/her duty or education and training (referring to a sudden aggravation of nature) as one of persons eligible for veteran’s compensation” under subparagraph 11 of [Attachment 1] provides for the criteria and scope of the requirements for persons eligible for veteran’s compensation.

As seen earlier, No. 2 constitutes a case where the disease, such as an existing hard disc, was caused by aggravation of natural progress, and this constitutes a proximate causal relationship with the Plaintiff’s military service training. As such, the Plaintiff constitutes a person eligible for veteran’s compensation under Article 2(1)1 [Attachment 1] and 11 of the Enforcement Decree of the Act on Persons Eligible for Veteran’s Compensation. The Plaintiff’s assertion on this part has merit.

4. Conclusion

Therefore, the plaintiff's primary claim against the second appeal is dismissed as it is without merit, and the conjunctive claim is accepted as it is reasonable, and the judgment of the court of first instance is modified following the plaintiff's change in the plaintiff's claim in the trial before the remand.