[1] In a case where a soldier, a civilian military employee, a police officer, or a member of the homeland reserve forces who was injured on duty is unable to receive a separate state compensation, whether he/she claims the state compensation (affirmative)

[2] In a case where a soldier or a police officer discharged from active service or retired from office on duty but the degree of such wounds does not constitute a disability rating subject to the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State (affirmative)

[1] Even if a person listed in the proviso of Article 2 (1) of the State Compensation Act, such as a soldier or a civilian military employee, was injured on duty due to combat, training, or any other reason related to the performance of his/her duties, he/she shall be excluded from the application of the proviso of Article 2 (1) of the State Compensation Act if he/she is unable to receive separate compensation, such

[2] A soldier or policeman who was discharged from military service or retired from military service by suffering from wounds during education and training or in the performance of duty (including illness in the line of duty), but is found not to have a physical disability falling within that degree of injury as determined by the Presidential Decree, in a physical examination conducted by the Minister of Patriots and Veterans Affairs under the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, shall be excluded from the application of the same Act. Accordingly, such a person is not subject to the proviso of Article 2(1) of the State Compensation Act, and thus, he shall not be deemed to be differently

[1] The proviso of Article 2 (1) of the State Compensation Act, Article 29 (2) of the Constitution, Article 2 of the Military Pension Act, Article 4 (1) of the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State / [2] Article 2 (1) of the State Compensation Act, Articles 4 (1) and 72-3 (2)

Park Young-min (Attorney Cho Young-young, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 96Na8613 delivered on September 5, 1996

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

The proviso of Article 2 (1) of the State Compensation Act is a provision based on Article 29 (2) of the Constitution of the Republic of Korea. Even if a person, such as a soldier or a civilian military employee, suffers from an injury due to combat, training, or performance of duties, etc., the State Compensation Act or the Civil Act provides for a separate compensation system such as accident compensation, survivor's pension, wounded veterans' pension, etc. to prohibit secondary compensation, he/she may not directly exercise his/her right to claim damages against the State (see Supreme Court Decisions 91Da12738, Feb. 11, 1992; 94Da25414, Mar. 24, 1995; 94Da25414, Mar. 24, 1995). However, even if a person, such as a soldier or a civilian military employee, suffers from an injury or injury in the course of performing his/her duty, he/she shall not be deemed to have been subject to education and training or the proviso of Article 2 (1) of the Act.

According to the reasoning of the judgment of the court below, since the plaintiff Park Young-young, who was employed by the defendant Lee Jong-young as the 3rd and 11th rank assistant of the 7th group under the defendant's control, was killed and wounded due to his injury while returning to work as a leader of the above military unit on September 16, 1993, the court below acknowledged the defendant's compensation liability for damages under the State Compensation Act as the injury suffered in the course of performing his duties under the proviso of Article 2 (1) of the State Compensation Act, since the plaintiff was unable to receive compensation for the above injury under the proviso of the above Act, since the plaintiff's compensation for injury cannot be accepted by the defendant's 9th rank of the 2nd group under the Act on the Honorable Treatment of Persons of Distinguished Service at the National Armed Forces, and the above plaintiff cannot receive compensation for injury from the defendant's military hospital under the Act on the Honorable Treatment of Persons of Distinguished Service to the above Act on March 28, 1996.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)