Articles 11(1), 34, 75, and 95 of the Constitution of the Republic of Korea; Articles 2 and 32 of the Welfare of Disabled Persons Act; Article 2(1) [Attached Table 1] of the Enforcement Decree of the Welfare of Disabled Persons Act

Plaintiff (Law Firm Notary, Attorney Shin Tae-ro, Counsel for the plaintiff-appellant)

Yangyang-gun (Law Firm One, Attorneys Kim Tae-tae, Counsel for defendant-appellant)

June 17, 2016

Suwon District Court Decision 2015Guhap60120 decided December 8, 2015

The judgment of the first instance shall be revoked.

The defendant's rejection disposition of the application for registration of a disabled person against the plaintiff on July 28, 2015 (disposition of rejection of registration of a disabled person) shall be revoked.

All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. The summary of the case and the facts premised on the case

A. Case summary

This case is a case seeking revocation of the disposition on the ground that the defendant's disposition rejecting the application for registration of disabled persons based on Article 32 of the Welfare Act of the plaintiff was actually refused to apply for registration of disabled persons on the ground that the defendant's disposition, which rejected the application for registration of disabled persons based on Article 32 of the Act on Welfare of Persons with Disabilities, was contrary to the principle of equality set forth in the Constitution or was due to the non-payment of administrative legislation beyond the limit of delegated legislation, which is an administrative legislation delegated by the Act on Welfare of Persons with Disabilities (hereinafter referred to as the "Enforcement Decree"), although the plaintiff, who was subject to considerable restrictions in daily life due to a magnetic disorder, falls under the disabled persons prescribed in Article 2 of the Act on Welfare of Persons with Disabilities.

The first instance judgment dismissed the plaintiff's claim on the ground that it is difficult to view that the state with limited financial resources should preferentially protect the disabled persons falling under certain types and standards as the subject of the Act on Welfare of Persons with Disabilities, taking into account the necessity of stability of the disabled persons' lives and the permissible limit of their finances, and that there is no circumstance to see the content itself of Article 2 (1) [Attachment 1] of the Enforcement Decree as lack of rationality and feasibility, and the plaintiff filed an appeal

[Related Acts and subordinate statutes] Attached Form

B. Presumed factual basis

[Evidence A] 1-1, 2, 11-1, 2, 13, 1, 3 and the purport of the whole pleadings

(i)the occurrence of any magnetic disorder of the plaintiff;

(A) On January 14, 1992, the plaintiff (the plaintiff) was diagnosed on October 2003, when the symptoms of the voice were first shown in the elementary school year, and then the symptoms were aggravated, and the voice magnetic and shotics were put together with the voice magnetics. On April 21, 2005, the plaintiff (the plaintiff), at Samsung Seoul Hospital, was diagnosed with the plos Dominos Dis where the voice and shotics were together displayed in the middle school year.

(B) The Plaintiff was subject to pharmacologic treatment at a private hospital since October 2003, but symptoms are not improved, and received hospitalized treatment at Samsung Seoul Hospital since May 2004. Seoul National University Hospital, the National University National University Hospital, and the Institute’s Synch Hospital Symnae Hospital, and had been subject to such pharmacologic treatment. Despite continuous treatment, the Plaintiff suffered a serious difficulty in performing his/her study and inhuman relations with his/her academic performance.

(2) Plaintiff’s application for registration of disabled person and rejection of Defendant’s application

(A) On October 14, 2014, when applying for registration of persons with disabilities, the Plaintiff was unable to issue a disability diagnosis report because it did not have any provision as to magnetic disorder while setting the type and standards of persons with disabilities under Article 2(1) [Attachment 1] of the Enforcement Decree of the Act on Welfare of Persons with Disabilities, which was enacted by administrative agencies upon delegation of the Act on Welfare of Persons with Disabilities. Accordingly, the Plaintiff filed a civil petition for registration of persons with disabilities with the head of the Rocheon-do Office, and the head of the Rocheon-do Office did not attach a disability diagnosis report on October 14, 2014.

(B) On June 3, 2015, pursuant to Article 3(2) of the former Enforcement Rule of the Act on Welfare of Persons with Disabilities (amended by Ordinance of the Ministry of Health and Welfare No. 343, Aug. 3, 2015), the Defendant: (a) requested an examination of the degree of disability of the Plaintiff to the members of the Yangpy Health Doctors; and (b) provided that the Plaintiff’s disability from Nonparty 1 constitutes a kind of plastic disability, which is a kind of mental disorder; (c) however, the Plaintiff’s magnetic disability did not constitute a subject or type of disabled registration under Article 2 of the Enforcement Decree, and thus, was unable to issue a written diagnosis necessary for examining whether he/she is a person subject to

(C) On July 22, 2015, the Plaintiff applied for registration of disabled persons on the ground that it was impossible to issue a certificate of disability to the Defendant for the foregoing reason and did not attach the certificate of disability. However, the Plaintiff actually applied for registration of disabled persons based on Article 32 of the Act on Welfare of Persons with Disabilities on the ground that the Plaintiff is subject to a long time limitation due to a magnetic disorder and is subject to registration of disabled persons.

(D) However, as of July 28, 2015, the Defendant rejected the Plaintiff’s application for registration of disabled persons on the ground that the Plaintiff did not submit a certificate of disability related to magnetic disorder in applying for registration of disabled persons.

2. The issues of the instant case and the parties’ assertion

(a) An act of returning an application for registration of persons with disabilities and an administrative disposition;

B. Whether an administrative agency’s omission of administrative legislation, which does not stipulate a person subject to registration as a disabled person subject to registration under the Enforcement Decree of the Act on Welfare of Persons with Disabilities for a long time due to a magnetic disorder, violates the principle of equality prescribed by the Constitution and thus is unlawful, under the provision of the subject and scope of the welfare of persons with disabilities in the specific determination

【Plaintiff’s Claim】

The plaintiff asserts to the purport that, although the symptoms of sports and voice-based symptoms are very serious and are actually under serious restrictions in social life and daily life, administrative agencies have defined persons subject to registration of persons with disabilities as administrative legislation based on the authorized laws of the Act on Welfare of Persons with Disabilities, and in the case of persons with magnetic disorders such as the plaintiff, the plaintiff cannot be registered as persons with disabilities under the Act on Welfare of Persons with Disabilities due to omission of administrative legislation that does not stipulate persons with disabilities as persons with disabilities regardless of the degree of social life or restriction in daily life, and thus, they are not protected in compliance with the request of the Constitution. Therefore, in the case of magnetic disorder, the content of the Enforcement Decree without asking about the degree and without explicitly stipulating whether persons with disabilities are subject to registration of persons with disabilities violates the principle

[Dissenting of the Defendant]

The defendant asserts to the effect that the provisions on the disabled, subject to the Act on Welfare of Persons with Disabilities, fall under the scope of freedom of legislative formation, which is determined according to the nation's financial burden ability and overall level of social security, and basically depends on the nation's policy, and thus, even if there was no provision on magnetic disorder in Article 2 (1) of the Enforcement Decree, it cannot be viewed as unconstitutional.

3. The judgment of this Court

(a) An act of returning an application for registration of persons with disabilities and an administrative disposition;

According to the aforementioned premise, with respect to the Plaintiff’s application for registration of disabled persons based on Article 32 of the Act on Welfare of Persons with Disabilities, the Defendant rejected the Plaintiff’s application for registration of disabled persons on the ground that the written application for registration of disabled persons submitted by the Plaintiff does not carry necessary documents. However, registration of disabled persons is a formative administrative act with the nature of right to initiate protection under the Act on Welfare of Persons with Disabilities for persons with disabilities, and constitutes the act of directly forming rights and duties of the citizens or establishing the scope thereof through such act among the acts conducted by the State or public organization, which is the public authority, constitutes an administrative disposition or exercising public authority, which is the subject of legal appeal. Therefore, it is reasonable to consider that the Plaintiff’s application for registration of disabled persons based on Article 32 of the Act on Welfare of Persons with Disabilities does not have a duty to accept the application for registration of disabled persons on the ground that the administrative agency did not unilaterally respond to the requirements of registration of disabled persons under the Act on the Protection of Persons with Disabilities for reasons that they did not have a duty to accept the application for registration of disabled persons with disabilities.

B. Whether an administrative agency’s omission of administrative legislation, which does not stipulate a person subject to registration as a disabled person subject to registration under the Enforcement Decree of the Act on Welfare of Persons with Disabilities for a long time due to a magnetic disorder, violates the principle of equality prescribed by the Constitution and thus is unlawful, under the provision of the subject and scope of the welfare of persons with disabilities in the specific determination

(1) The following facts can be acknowledged in light of the overall purport of the arguments in evidence (A-2, A-7, A-9-1, 2, A-10, and Nonparty 2).

(A) The plaintiff's environment

① As the head of Nonparty 2 and Nonparty 3’s 1 South and North Korea, the Plaintiff was actively friendly with her natives up to the six-year period prior to the elementary school diagnosed as a plastic disorder.

② The Plaintiff’s intelligence index is an average level and has a disorder of memory, but the ability to form a verbal concept, the ability to concentrate attention, the ability to constitute a space, and the ability to organize a space level above the average level, and the control function of the meaningful stimulation and the ability to pay attention to hearing materials is an average or good level. Furthermore, the Plaintiff may seek information on surrounding situations at a level similar to that of ordinary people, while the accident activity volume is relatively decline.

(B) Treatment progress with respect to the plaintiff's magnetic disorder

(1) General theory on Dolet ex post facto armed forces

Patma group, without special reasons, shows two voiceic symptoms that rapidly and repeatedly move out of parts of their body, such as face, thire, body body, etc., without any justifiable reason, and that the entire symptoms exceed one year. They appear in 5-15%, and chronic plastic disorder where symptoms continue for not less than one year, 10%, and 4-5 out of 100, where they are administered, they will not be able to receive 10,000 pharmacologic treatment, and most of them will not be able to prove that they have any disorder in the process of cerebric treatment, 10,000 if they are administered with 10,00 symptoms, 30,00,000, and 10,000,000, 10,000,000, 10,000,000, and00, 3,000,00,00,00,00,00.

② Plaintiff’s progress of treatment

The plaintiff was suffering from symptoms of the voice 1st century around the second year of elementary school, and was treated with regular treatment and medication in Samsung Seoul Hospital from February 2004 to April 2005, and was hospitalized for about 40 days since the symptoms became more severe, and the plaintiff was unable to live in school due to malves symptoms at Samsung Hospital. The plaintiff continued to suffer from serious 0 years of treatment of the plaintiff's 1st day after being treated with 4th day of the second generation, and the plaintiff continued to suffer from serious stress in daily life due to 0th day of the year after being treated with 4th day of the year of 205. The plaintiff was diagnosed with 1st day of the year of 1st day of 1st day of 1st day of 1st day of 1st day of 1st day of 1st day of 3th day of 1st day of 1st day of 1st day of 205. The plaintiff was diagnosed with the symptoms of 2nd day of 2nd day of 1st day of 20th day of 20.

(C) The plaintiff's school life and exemption decision

① Even after entering △△ Middle School, the Plaintiff did not receive lessons at regular class hours and lived mainly in the nursing room. The Plaintiff entered the special team in Gyeonggi-do ○○ High School located in Yangyang-gun in Gyeonggi-do and left the school after the lapse of one to two:00 a.m., and the Plaintiff was trying to put her desire to go to her, and not to have a school due to magnetic symptoms. In addition, the Plaintiff refused to attend the school while having the symptoms, without having the school.

② On September 20, 201, the Plaintiff was enlisted for the second citizen service upon the determination of the psychological development disorder and the second citizen service disability of the infant and the second citizen service.

(D) Degree of the Plaintiff’s daily life, etc.

① The Plaintiff’s parents, etc., without being able to do so at low and night, sought the floor of the Plaintiff with a large sound, and continued to use television or monitor objects, etc., thereby generating noise and vibration by generating noise and vibration, etc., which makes it difficult for neighboring residents to live in apartment houses such as apartment houses as it is inevitable to file a civil petition against neighboring residents, thereby moving into nearby Gyeonggi-do.

② The Plaintiff’s parents, etc. did not open doors or windows while the Plaintiff is shouldered due to noise from the personality of the Plaintiff. The Plaintiff’s parents, etc. did not have any door or windows while the Plaintiff was shouldered. The Plaintiff’s body is a large number of heat generated by continuing sound or installing goods, and the Plaintiff’s operation of air conditioners should be operated even in winter iron.

③ The Plaintiff, while dialogueing in the middle, is difficult to communicate with other people by means of a voice magnetic disorder, such as referring to the word “syptive or not wanting” in the middle, and is under circumstances that make it difficult to live in a state completely cut off from the surrounding area due to the sixth year after an elementary school as he or she is unable to sypt off and maintain a syke relationship or social life intermittently.

④ Since the Plaintiff is unable to use public transportation, such as buses, due to the symptoms showing one minute of plastic symptoms, the Plaintiff is bound to move along and move to a vehicle driven by his parents, etc., and when entering a narrow space such as private use, the symptoms are more serious and it is difficult to move long distance even if he uses private use.

⑤ Although the Plaintiff gradually increased the volume of medicine while taking medicine for not less than 10 years, the symptoms caused by the Plaintiff’s magnetic disorder are not even little.

(2) Article 34(1) of the Constitution provides that all citizens shall have the right to a life worthy of human dignity, thereby declaring the State’s duty to operate state affairs so that all citizens can lead a life worthy of human dignity beyond the physical minimum standard of living. In addition, Article 34(2) of the Constitution provides that the State has the duty to endeavor to promote social security and social welfare, thereby declaring that the State has the duty to endeavor to create and expand social legislation and social facilities based on the ideology of a welfare state. In particular, Article 34 of the Constitution explicitly provides for the protection of the socially weak, such as women (Article 34), older persons, juveniles (Article 4(4)), and physically handicapped persons (Article 5). As such, in the case of socially weak persons such as the disabled, it is difficult for them to satisfy the substantial conditions of exercising their freedom, it emphasizes that the State has the responsibility to form and maintain conditions under which individuals can exercise their freedom specially.

However, Article 34(1) of the Constitution does not stipulate that the State bears the same duty as a specific and practical way to each individual citizen, and it should be interpreted that the right to a specific and realistic life worthy of human beings is established and faithful by the creation and expansion of social legislation and social facilities that are the responsibility of the State pursuant to Article 34(2). As can be seen, the provision of Article 34 of the Constitution has the character that sets a certain purpose with respect to the action of the State power and carries out active activities to realize the purpose thereof. The term “human life” refers to a healthy and cultural life corresponding to human dignity. However, as a very abstract and modern concept, the specific contents should be determined and decided in correlation with the degree of development of culture at the time, economic and social conditions, and the living conditions of the general public at the same time. At the same time, the State’s financial situation cannot be disregarded in materializing the provisions in legislation at the same time, and there is no need for a court to review and determine the scope of the legislative discretion in light of the legislative intent of Article 34 of the Constitution.

However, in general, professional and technical matters are not always subject to the deliberation of the National Assembly, but need to ensure flexibility in response to changes in times and circumstances, and therefore, it is not appropriate to set forth in the law in detail, and therefore, an order of delegation is recognized to allow administrative agencies to establish the regulations on such matters based on delegation of the law. Administrative legislation delegated administrative agencies have the discretion in administrative legislation within the scope of delegation of the law with respect to whether to specify certain matters, but it is not allowed to set administrative legislation in violation of the purpose of delegation of the law or beyond the scope of delegation. It is not allowed to set administrative legislation. With respect to the specific contents of delegation by the law, not only the language and text of delegation of the delegation of the subordinate law, but also the delegation of delegation of the law, the purport and purpose of the delegation of the law,

Meanwhile, Article 11(1) of the Constitution provides equality before the law. This means that the right of administration and judicial authority to enforce and enforce the law shall not discriminate against the people, as well as equality of the application of the law (which means that the legislative authority to establish the law shall be bound by the equality principle, and the content itself shall be treated equally by the people). “Act” in front of the law stipulated in Article 11(1) of the Constitution includes not only the law, but also the sexual Acts and subordinate statutes, such as the order or rule, but also the civil law or judicial law, and also requests the equality treatment of all state action conducted by the administration or judicial authority. This provision should be interpreted to the effect that if the legislative authority or judicial authority fails to provide for a reasonable scope of delegation of the law without reasonable grounds, it should be interpreted that the legislative authority or legislative omission is unreasonable to the extent that such distinction is not reasonable, but also based on the nature of the right. Accordingly, it should be interpreted to the effect that the legislative authority or judicial authority’s request for legislative omission is unreasonable.

In addition, the issue of whether the omission of the administrative legislation by the administrative agency, which was delegated with the administrative legislation, violates the legal obligation of the administrative agency in the course of the legislation, against the individual citizen, and whether the act of the administrative agency in the course of the legislation violates the legal obligation of the individual citizen, should be distinguished from the issue of unconstitutionality of the relevant legislative omission. Even if the relevant legislative omission is in violation of the provisions of the Constitution, it does not immediately mean that the omission of the administrative agency’s legislative omission is an illegal evaluation. However, it is unnecessary to make it clear that the omission of the administrative legislation, which did not act by the administrative agency, infringes on the rights guaranteed in the Constitution, or to take the legislative measures prescribed in order to secure the citizen’s opportunity to exercise the right guaranteed in the Constitution, even though it is apparent and clear, if it is acknowledged that the act of the administrative agency in the course of the administrative legislation violates the legal obligation of the official duty, and exceptionally, such omission of the administrative legislation can be deemed unlawful in the interpretation and application of Article 2(1) of the

In addition, in examining whether the court violated the principle of equality surrounding social security benefits, the right to receive welfare benefits mainly guaranteed to the disabled or the minority can be seen as the right to live a decent life directly related to human dignity and dignity. Therefore, even if the discretion of administrative legislation is recognized, it is necessary to review strict rationality that there should be rational relations between the existence of reasonable grounds for the legislative purpose and the means to achieve the legislative purpose and the legislative purpose (the difference in specific treatment).

(3) Under the aforementioned premise, the aforementioned facts, and relevant Acts and subordinate statutes, the Act on Welfare of Persons with Disabilities enacted as the Framework Act on the Human Rights and Welfare of Persons with Disabilities by meeting the provisions for the protection of persons with disabilities prescribed under Article 34(5) of the Constitution provides that persons with physical or mental disabilities who are under considerable restrictions in their daily lives and social life for a long time shall be deemed disabled persons, and persons with physical or mental disabilities shall be delegated to the Presidential Decree with regard to the specific types of and standards for disabilities subject to the Act on Welfare of Persons with Disabilities. As such, the Enforcement Decree, upon delegation of administrative legislation, established by administrative agencies, shall be prescribed by Presidential Decree as to the types of and standards for persons with disabilities, such as physically or mentally disabled persons, persons with disabilities, speech or speech disabilities, persons with disabilities, mentally disabled persons, mentally disabled persons, mentally disabled persons, mentally disabled persons, mentally disabled persons, physically disabled persons, breathy disabilities, blue disabilities, and cerebric disorderss, etc., by classifying them according to the degree of educational expenses for persons with disabilities under Article 2(1).

However, only a part of those who are subject to considerable restrictions in daily life for a long time due to physical or mental disability is subject to Article 2(2) of the Act on Welfare of Persons with Disabilities. The Enforcement Decree only sets the specific scope of the persons subject to the application of the Act on Welfare of Persons with Disabilities. Even though the Enforcement Decree only sets the specific scope of the persons with disabilities, those who are subject to registration of persons with disabilities whose walking seems not to be relatively serious in daily life restrictions compared to the Plaintiff and who are subject to restrictions in walking or daily activities of the disabled, or whose limited daily activities are considerably limited, may be registered as class 5, and even those who need other people's assistance due to continuous treatment due to considerable restrictions in daily life or social life due to the disorder of liver cells cells due to liver cells, which are likely to not only more than once a month, but also those who are unable to get more cooperative relationship with the disabled due to such problems may be registered as class 4 of the Act on Welfare of Persons with Disabilities with severe physical disability than other persons with disabilities due to such restriction in daily life or mental disorder.

However, even if the application of Article 2 of the Enforcement Decree of the Act on Welfare of Persons with Disabilities, which was enacted upon delegation under Article 2 of the Act on Welfare of Persons with Disabilities, violates the principle of equality under Article 11 of the Constitution, it is not immediately determined that Article 2 of the Enforcement Decree of the Act on Welfare of Persons with Disabilities is in violation of the Constitution, and if Article 2 of the Act on Welfare of Persons with Disabilities is interpreted to allow the establishment of the Enforcement Decree that causes such violation of the Constitution, Article 2 of the Act on Welfare of Persons with Disabilities is also a violation of the Constitution. Article 2 of the Act on Welfare of Persons with Disabilities and Article 2 of the Enforcement Decree of the Act on Welfare of Persons with Disabilities, which are the Act on Welfare of Persons with Disabilities, are both the Act on Welfare of Persons with Disabilities and the Act on Administrative Legislation, and Article 2 of the Enforcement Decree of the Act on Welfare of Persons with Disabilities delegate the administrative legislation to an administrative agency to determine at discretion the specific scope and target of the

In light of such circumstances, giving benefits to the disabled persons prescribed in Article 2 of the Enforcement Decree of the Administrative Legislation, which falls under the category of the Administrative Legislation, is reasonable as belonging to the discretion of the Administrative Legislation taking into account limited financial resources. However, in cases of the Plaintiff, regardless of the seriousness of the degree of mental disability, it is not prescribed as disabled persons subject to registration regardless of whether they are subject to registration, and as a result, the purpose and purport of the Enforcement Decree which lists disabled persons who are excluded from persons subject to registration or scope of persons subject to registration of persons with disabilities, and the provisions that give benefits to the Plaintiff because they do not balance with disabled persons who are subject to registration of persons with disabilities at all, did not set up regulations that give benefits to the Plaintiff as they did not sufficiently secure by the Administrative Legislation without reasonable grounds. Such Administrative Legislation does not inquire the degree of seriousness in the case of plastic disability such as the Plaintiff in order to achieve the legislative purpose and legislative purpose of the Act on Welfare of Persons with Disabilities, and it cannot be deemed that there is a substantial relative relation between the Plaintiff and other disabled persons subject to registration in accordance with Article 1(1) of the Constitution.

Therefore, since Article 2 [Attachment 1] of the Enforcement Decree of the Act on Welfare of Persons with Disabilities, which is an administrative legislation delegated by Article 2 of the Act on Welfare of Persons with Disabilities, interpreted and applied Article 2 of the Act on Welfare of Persons with Disabilities as a result of the omission of administrative legislation that does not have any provision on the Plaintiff on any magnetic disability, the Plaintiff, who is unable to be registered as a disabled person pursuant to the Act on Welfare of Persons with Disabilities, is recognized as being subject to unreasonable discrimination as a disabled

4. Conclusion

If so, the defendant's rejection of the application for registration against the plaintiff on July 28, 2015 is illegal and reasonable. The judgment of the first instance that dismissed the plaintiff's claim on the contrary of this conclusion is unfair, and thus, the rejection of the application for registration against the plaintiff on July 28, 2015 is revoked, and the defendant's rejection of the application for registration against the plaintiff on July 28, 2015 is revoked, and the costs of the lawsuit are borne by the losing defendant.

[Attachment] Relevant Statutes: omitted

For the purpose of judge Lee e-mail (Presiding Judge)