2016du4490 The revocation of the disposition of revocation of a decision equivalent to the requirements for official duty.

A

Head of Gyeonggi-Nam Veterans Branch Office

Seoul High Court Decision 2015Nu52717 Decided June 9, 2016

January 12, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. If a citizen acquires a certain benefit and right due to an administrative disposition, the administrative disposition revoking the previous administrative disposition must be the public necessity to revoke or revoke the administrative disposition to be cancelled due to a separate administrative disposition deprived of the existing benefit and right of the person already acquired. Furthermore, even if there is a defect in the administrative disposition, it may be revoked only where the public interest needs to be revoked and the public interest needs to be revoked, such as the right to obtain, the right to obtain, the right to obtain, and the infringement of the protection of trust and the stability of legal life, etc., are compared and compared with the disadvantage to be suffered by the party concerned, and where the public interest needs to be justified. The burden of proof on the existence or the necessity of revocation of defects lies in the administrative agency that has made a disposition that infringes on the existing interest and right (see, e.g., Supreme Court Decision

2. The lower court acknowledged the following facts.

A. On September 7, 2001, the Plaintiff discharged from military service on June 18, 2002 while serving in the Army, and filed an application for registration of persons who have rendered distinguished services to the State on July 4, 2002, with respect to "L3-4 (L3-4)", and the Defendant determined that it constitutes the requirements for official duties, but the Plaintiff was judged to have been judged to have been judged to have been in a physical examination. On May 12, 2005, the Plaintiff applied for additional recognition of the nuclear escape certificate (L4-5). However, the Plaintiff determined that the Defendant fell under the requirements for official duties (hereinafter referred to as "the first decision in this case by aggregating the decisions that meet the requirements for official duties"). However, the Plaintiff was determined to have failed to meet the standards for classification in a physical examination.

B. On May 1, 2012, the Plaintiff filed a second physical examination for re-verification for the determination of the “nuclear escape certificate (L3-4) and the “Nuclear escape certificate (L4-5)” (hereinafter “the instant injury”) with the Defendant. On this basis, the Defendant rendered a decision that the instant injury and the military performance of official duties would not have proximate causal relation between the instant injury and the military duty after deliberation and resolution by the Board of Patriots and Veterans Entitlement (hereinafter “instant disposition”).

Based on various circumstances, the lower court determined that the instant disposition was lawful on the grounds that there was insufficient evidence to acknowledge that there was a proximate causal relationship between the instant injury and the military service, and that there was no other evidence to acknowledge it.

3. However, we cannot agree with the judgment of the court below for the following reasons.

Article 20(1) of the Support for Discharged Soldiers Act provides that a discharged soldier who was discharged from active service due to a wound and whose degree of the wound was determined not to meet the requirements of Article 4(1)6 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (hereinafter “Act on the Honorable Treatment and Support of Persons of Distinguished Service to the State”). Article 12(1) of the former Act on the Support of Discharged Discharged Soldiers (wholly amended by Act No. 7791, Dec. 2, 2005); Article 12(1) of the former Act on the Support of Discharged Discharged Soldiers (wholly amended by Act No. 7791, Dec. 29, 2005), who was discharged from active service and whose degree of wound was determined not to meet the requirements of Article 4(1)

The Plaintiff was able to receive medical support, etc. under the above laws by obtaining the instant difference as an official wound through the initial decision of this case, and thus, the original decision of this case has the substance of the beneficial administrative disposition. Therefore, the instant disposition that did not recognize the instant difference as an official wound is inconsistent with the original decision of this case recognized as an official wound, and thus, is not compatible with the original decision of this case, and thus, is deemed a revocation disposition on the original decision of this case having the substance

According to the above legal principle, the Defendant, an administrative agency, bears the burden of proving that there is no proximate causal relation between the defect in the original decision of this case, that is, the injury of this case and the military service, and the Defendant bears the burden of proving that the need for public interest to revoke the original decision of this case was strong enough to justify disadvantage, such as the right to obtain benefits, protection of trust and infringement of legal stability, etc.

Nevertheless, the lower court determined that the instant disposition regarding the instant difference was lawful on the premise that the Plaintiff asserted the causal relationship between the Plaintiff’s military service and the instant difference bears the burden of proof. In addition, the lower court did not render any judgment as to whether there was a need for public interest to cancel the initial decision of this case and whether it was strong enough to justify the disadvantage suffered by the Plaintiff as necessary for public interest. In so determining, the lower court erred by misapprehending the legal doctrine on the burden of proof, etc

4. 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.

Justices Park Young-young

Justices Park Byung-hee

Justices Kim Jong-il

Justices Kim Jae-sik in charge