(영문) 대법원 2015.12.23.선고 2014두12963 판결

1. According to the reasoning of the judgment below, the court below determined that the plaintiff's disease constitutes a disease after defoliants, considering the following facts: (a) although multi-sexual disorders only known as a disease caused by defoliants, and the connection or causal relationship with defoliant has not been medically identified until now; (b) it is currently established in academic circles; (c) although the plaintiff was diagnosed under the name of disease called 'the primary diagnosis', 'the first diagnosis', 'the second diagnosis', but there was no diagnosis by the higher medical institution; (d) although the plaintiff complained of the symptoms of the multi-sexual organs, the plaintiff subjectively complained of the symptoms of the multi-sexual organs, but it has been revealed that the disease falls under the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the ''the 'the 'the ''the 'the ''''the 'the 'the '4'the ''the 'the ''the 'the 'the 'the 'the 'the 'the 'the '.'.'the '.'.

2. However, we cannot accept the above judgment of the court below as it is.

가. 고엽제법 제2조 제2호 가목은 '1964년 7월 18일부터 1973년 3월 23일 사이에 월남전에 참전하여 고엽제 살포지역에서 병역법, 군인사법 또는 군무원인사법에 따른 군인이나 군무원으로서 복무하고 전역 · 퇴직한 자와 정부의 승인을 받아 전투나 군의 작전에 종군한 기자(이하 "월남전에 참전하고 전역한 자등"이라고 한다)로서 제5조 제1항 각 호의 어느 하나에 해당하는 질병을 얻은 자'를 고엽제후유증 환자로 규정하고 있고, 제5조 제1항 제4호는 말초신경병을 고엽제후유증의 하나로 열거하고 있다. 한편 고엽제법 제5조 제5항은 '월남전에 참전하고 전역한 자등 또는 남방한계선 인접지역에서 복무하고 전역한 자등으로서 제1항 각 호의 어느 하나에 해당하는 질병을 얻은 자는 제4항에 해당하는 것이 입증되지 아니하는 한 그 질병이 고엽제로 인하여 발생한 것으로 본다'고 규정하고 있고, 제5조 제4항 본문은 '제1항부터 제3항까지의 규정에도 불구하고 다음 각 호의 어느 하나에 해당하는 질병임이 확인된 경우에는 고엽제후유 증· 고엽제후유의증 및 고엽제후유증 2세환자의 질병으로 보지 아니한다'고 규정하면서, 제3호로 '외상(外傷)에 의하여 발생한 질병', 제4호로 '그 밖에 임상(臨床) 과정에서 발생의 원인이 고엽제와 관련이 없다고 의학적으로 확실하게 밝혀진 질병'을 각 규정하고 있다.

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) According to the inquiry reply by the first instance court to the chief of the Central Veterans Hospital, the Plaintiff’s disease shows abnormal opinions on both sides of the neutism in terms of the neutism test, and thus, falls under the neutism, but the Plaintiff’s disease does not fall under the neutism and neutism.

(2) According to the results of the first instance court’s physical examination commission to the chief of the Central University Hospital and the fact-finding inquiry reply, the possibility of relevance can not be ruled out in full since it is difficult to conclude that the first instance court caused 10% of the first instance court since the result of the first instance court’s physical examination shows that the first instance court’s physical examination results in the second instance court’s physical examination and the second instance court’s fact-finding procedure is confirmed on both sides of the Plaintiff’s second instance of the second instance court, and the second instance court’s second instance court’s ne

(3) The 'epidemic damage investigation' in the joint preparation of the Sysitic Medical Center and the Ministry of Patriots and Veterans Affairs (the 2006.12) is a change due to the damage to new theory or the neutronic. The clinical characteristics of the Maliological disorder are basically the same, and it is difficult to determine whether the Maliological disorder occurred due to exposure to toxicity. While it can have a mari that can be determined as being exposed to toxicity in terms of the characteristics of the Malimatic disorder, it is difficult to identify the sick person of the Maliologic disorder. It is 30% or special disease, and there is no discovery that the sick person has been exposed to regardless of the thorough clinical assessment.

(4) The '4th epidemiological investigation into defoliants injury jointly drafted by the Government-dong University and the Ministry of Patriots and Veterans (hereinafter 2012.12)' mainly focuses on the exposure to toxic substances from the tensions on the human side (e.g., e., g., g., g., g. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c. c

(5) According to the inquiry reply to the President of the Korean Medical Association of Medical Doctors, the lower court divided the Macro, mulcal, symmec, and symtric, focusing on the scope of crime. The major causes of a single falphism, one of the focusal diseases, are known as trauma or pressure, and ii) one of the falphical diseases is not the same meaning as 'Malithal disease', but rather the c) one of the falphismism and falphalism diseases, but the falphism function of the falphism was affected, but the falphism function of the falphalphism was not found, but the falphalphism and falphalphism were not known to be able to be distinguished from the falphalphism, but the falphism and falphalphism were not known to be able to be distinguished from the falphism.

C. Examining the above circumstances in light of the legislative intent and contents of the defoliant Act, it is difficult to view that both parties, a disease of the Plaintiff, constitutes "a disease caused by her own neutism" or "a disease which is medically verified to have no connection with defoliants," and thus, the Plaintiff's disease should be deemed to have occurred due to defoliants pursuant to Article 5 (5) of the defoliant Act. Nevertheless, the lower court determined otherwise by determining that the Plaintiff's disease constituted "a disease which is caused by her own neutism in the clinical process, e.g., Article 5 (4) 4 of the defoliant Act as a single neutism, and is medically verified to have no connection with defoliants." In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence and experience, exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on the criteria for recognition of actual aftereffects

3. 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.