(영문) 수원지방법원 2017.3.29. 선고 2016구단7358 판결

A. On September 29, 1968, the Plaintiff’s husband B (hereinafter referred to as “the deceased”) entered the Vietnam War from June 1, 1970 to June 1, 1971, and entered the Vietnam War. On July 23, 2015, the Plaintiff’s husband entered the application for registration of patients suffering from defoliants under Article 4 of the Act on the Support for Patients, etc. of Highly Discharged Oil and Establishment of Related Associations (hereinafter referred to as “GEM”) as the applicant’s disease.

B. On August 19, 2015, the Deceased was recognized as having been suffering from defoliants through a medical examination by the Central Veterans Hospital, and then determined as disability grade-high degree as to the 'malutic disease (liveral disease)' that constitutes actual aftereffects of defoliants, and as to the 'brutal heart disease (definial disease)' that constitutes actual aftereffects of defoliants on September 14, 2015, the deceased died on September 14, 2015, and was judged as disability grade 7-5111 by the Veterans Examination Committee following a written physical examination by the Veterans Examination Committee.

C. Accordingly, on February 11, 2016, the Defendant: (a) recognized the deceased’s “her bereaved family member,” as an actual aftereffects of defoliants disease; and (b) determined that the deceased’s “her family member,” was determined as class 7 as a result of the physical examination (hereinafter “instant disposition”).

[Ground of recognition] No dispute, Gap 1, 2, 4, Eul 1 to 3, the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

With respect to the instant case on the premise that the deceased’s disability rating falls under class 6 (2) 5108, the Defendant asserts that the instant lawsuit is unlawful on the ground that the Plaintiff, who is only his spouse, has no legal interest in seeking the cancellation of the instant disposition, and is not qualified as a party.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) A third party, who is not the other party to an administrative disposition, shall be recognized as standing to sue in cases where there is a legal interest in seeking the revocation of the administrative disposition. However, the legal interest here refers to cases where there is a direct and specific interest protected by the law based on the relevant disposition, and it does not include cases where there is an indirect or factual or economic interest (see, e.g., Supreme Court Decision 93Nu24247, Apr. 12, 1994).

Meanwhile, the right to be registered as a person of distinguished service to the State and his/her bereaved family members under the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (hereinafter referred to as the "Act") and to receive various kinds of benefits, such as educational benefits, are the right recognized by the Minister of Patriots and Veterans Affairs as a person who meets the requirements prescribed by the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State and whose registration is determined by the decision of the Minister of Patriots and Veterans Affairs after deliberation and resolution by the Committee. However, the right to be registered shall be deemed as a person of distinguished service to the State who has rendered distinguished service to the State and his/her bereaved family members, and shall not be transferred or seized to any other person, and shall not be provided as security, and shall not be separately provided for the scope and precedence of bereaved family members or his/her family members to receive compensation, etc. in order to promote their livelihood stability and improvement in the welfare of the persons of distinguished service to the State (see, e.g., Supreme Court Decision 2010Du1262).

2) Examining the instant case in accordance with the foregoing legal doctrine, it cannot be deemed that the Plaintiff, the deceased’s spouse, has a direct and specific interest protected by the defoliant Act and the Act on Persons of Distinguished Services to the State, applicable mutatis mutandis to the instant disposition for the following reasons.

The instant disposition is a disposition issued as an answer to an application for registration of a patient suffering from defoliants that the deceased applied for before the death, and the other party to the disposition can be seen as the deceased (However, it is limited to the Plaintiff who is the bereaved family of the deceased only after the death of the deceased). In such a case, the Plaintiff, as a bereaved family member of the deceased, as a third party, has a direct and specific interest protected by the defoliant Act and the Act on Persons of Distinguished Services to the State applied mutatis mutandis pursuant to the above Act and the Act on Persons of Distinguished

As seen earlier, it is reasonable to view that the right to receive compensation under the defoliant Act and the Act on Persons of Distinguished Services to the State is naturally inherited to the deceased, and thus, the right to receive compensation based on the disability grade of the deceased is also extinguished upon the death of the deceased. As such, if the right to receive compensation, etc. is extinguished due to the death of the deceased and is not inherited to or succeeded to the Plaintiff who is a bereaved family member, the right to dispute the disability grade judgment of the deceased, which serves as the premise, shall not be inherited to or succeeded to the Plaintiff.

In the case of the deceased, the disability rating was determined by documentary examination in accordance with the latter part of Article 6-3(1) of the Act on Persons of Distinguished Services to the State and Article 13 of the Enforcement Decree of the same Act. In such a case, there is no separate method or procedure for bereaved family members to contest the disability rating that they have been granted after the death of the deceased in the Act on Persons of Distinguished Services to the State or the Act on Persons of Distinguished Services to the State. As long as the deceased had been granted an opportunity to file a claim for registration of patients suffering from defoliants and an opportunity to receive a disability rating, his/her bereaved family members may not be deemed to have exceeded the discretion of legislative formation, such as being contrary to the constitutional spirit of the Act on the Honorable Treatment of Persons of Distinguished Services to the State (see Supreme Court Decision 2016Du35755, Jul.

Pursuant to Articles 4-2 and 8(2) and (3) of the defoliant Act, and Article 6(1) and (3) of the Act on Persons of Distinguished Services to the State, if the Defendant is subject to a determination or refusal of the bereaved family registration of a patient suffering from actual aftereffects of defoliants by reporting his/her death to the Defendant, or by applying for the bereaved family registration of a patient suffering from actual aftereffects of defoliants, the Plaintiff may contest against the determination of the deceased’s disability rating.

3) Therefore, the plaintiff is not entitled to seek revocation of the disposition of this case against the deceased, and the defendant's prior defense on the merits is justified.

3. Whether the instant disposition is lawful (preliminary determination)

Even if it is recognized that the Plaintiff had a legal interest in dispute over the instant disposition, the above disposition can be viewed as a substantive and legitimate for the following reasons, and ultimately, it cannot accept the Plaintiff’s assertion.

A. The plaintiff's assertion

In accordance with the provisions of Article 8-3 of the Enforcement Rule of the Act on Persons of Distinguished Services to the State and attached Table 4 related thereto, the deceased's judgment of class 6-2 (2) and 5108 (a person who needs to undergo internal arbitration due to her in-depth heart disease, or a person who has undergone or is under drug treatment due to her in-depth cardiopulmonary fluorction) should have been judged. The judgment of class 7-511 (a person who continuously needs to be treated due to cardiopulmonary fluorction in the heart, heart MRI or nuclear medicine heart examination, or a person who needs to continuously undergo treatment due to her in-depth fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluorals) should be revoked by the defendant's disposition.

B. Determination

The key issue in this case is whether the deceased's injury rating is "a person who needs pharmacologic treatment after being subject to internal and external arbitration due to herthic heart disease" or "a person who has been conducted or is under pharmacologic treatment with acute cardiopulmonary fluence" as a premise for determining the deceased's injury rating.

However, according to the results of the deceased's medical record appraisal entrusted by this court to the head of the Han-dong Hospital, ① there is a fluoral showing symptoms of 5 minutes by the deceased on June 14, 2015, ② an increase in the fluoral test value of the deceased before and after the above date, ③ a decrease in the fluoral test value in comparison with the results of the fluoral test before and after the above date, there is a possibility that acute fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoralsium, but on the contrary, the fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluor's fluoral fluoral fluoral fluoral fluor's fluor's fluoral.

In addition to the above medical opinion, the deceased did not undergo autopsy at the time of his death; according to the opinion of the medical record appraisal, the deceased was unable to undergo internal arbitration or blood exclusively taking into account the explicit requirements of class 6 (2) 5108 due to health conditions; in determining disability ratings under Article 19 of the Enforcement Decree of the Act on the Persons of Distinguished Services to the State, the degree of disability is not determined only by the doctor in charge of physical examination but by the doctor's opinion in charge of physical examination, and it is stipulated that the deceased should be determined through deliberation and resolution by the Board of Patriots and Veterans based on the result of physical examination of the doctor in charge of veterans, etc., it is difficult to deem that the defendant committed any error in the disposition of determining disability ratings of the deceased of this case

Ultimately, the Defendant’s disposition of this case is also lawful in substance.

4. Conclusion

It is decided as per Disposition by the assent of all participating Justices to dismiss the instant lawsuit.