(영문) 서울고등법원 2018.5.15. 선고 2017누68204 판결

2. On May 31, 2013, upon the Plaintiff’s ancillary claim that was changed in exchange at the trial after remand, the Defendant’s disposition that was not a person eligible for veteran’s compensation was revoked.

3. The total cost of a lawsuit shall be borne individually by each party.

Purport of claim and appeal

1. The purport of the claim (the plaintiff changed the lawsuit in exchange in the trial after remand)

In the first place, the decision that the Defendant rendered distinguished service to the Plaintiff on May 31, 2013 is revoked. In the first place, the decision is identical to the decision in Paragraph 2.

2. Purport of appeal

In the first instance judgment, the decision that the Defendant rendered distinguished service to the Plaintiff on September 11, 2013 shall be revoked. In the first instance judgment, the decision that the Defendant rendered distinguished service to the State shall be revoked. In the first instance, the decision that the Defendant rendered distinguished service to the Plaintiff on September 11, 2013 shall be revoked.

Reasons

1. Details of the disposition;

A. On April 26, 2011, the Plaintiff entered the Army and was discharged from military service as the sergeant on February 9, 2013.

B. On May 18, 201, while serving in the military at night, the Plaintiff was diagnosed on the right pelle part of the night training, and received an operation on September 23, 201 on September 23, 201, on the diagnosis of 'the voice string in the National Armed Forces Chuncheon Hospital' on Nov. 21, 201, and on July 3, 201, on the diagnosis of 'the anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking anti-speaking.'

C. On March 11, 2013, the Plaintiff applied for the registration of a person of distinguished service to the Defendant on the ground that there is no proximate causal relation between the instant wounds and the military performance of official duties. However, on May 31, 2013, the Defendant rendered a decision on whether a person of distinguished service to the State was eligible for veteran’s compensation (hereinafter “instant disposition”). Accordingly, the Plaintiff filed an application for reexamination with the Defendant on September 11, 2013, and the Defendant rendered a decision that the requirements for persons of distinguished service to the State and persons of distinguished service to the Defendant to the same effect as the instant disposition (hereinafter “decision on retrial”).

D. On December 9, 2013, the Plaintiff filed the instant lawsuit seeking revocation of the decision on the reexamination of the instant case, but subsequently changed the lawsuit to exchange for the purpose of seeking revocation of the instant disposition after remanding.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On May 201, the Plaintiff suffered from the instant wound while undergoing night training at the New Disease Education Team. However, since the injury aggravated due to a serious training after being placed as a search unit without proper treatment, even though there was a proximate causal relation with the injury in the instant case and the performance of military duties, the Defendant’s disposition that reported otherwise is unlawful.

B. Determination on the legitimacy of a disposition that is not a person of distinguished service to the State ( prime claim)

1) Unlike the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (amended by Act No. 11041, Sep. 15, 201; hereinafter “former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State”), 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”) provides as one of the requirements to recognize persons of distinguished service to the State, such as soldiers or police officers wounded in the performance of their duties or during education and training directly related to national defense, safety, or the protection of lives and property of the people (hereinafter “national defense, etc.”) as one of the requirements to recognize persons of distinguished service to the State. Unlike this, those wounded in the performance of duties or during education and training, who are not directly related to national defense, etc., fall under persons of distinguished service to the State. The purport of Article 2(1)2) of the former Act on the Persons of distinguished Service to the Act is construed.

Article 3 [Attachment 1] 2 of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (hereinafter referred to as the "Enforcement Decree of the Act on the Persons, etc.") provides that "an accident or accident that occurred directly due to the performance of duties or the performance of duties, practical training, or education and training," and "medically recognized disease that occurred rapidly due to the direct cause of the performance of duties or education and training" as the criteria for persons of distinguished service to the State. On the other hand, Article 2 of the Act on Veterans and Compensation, Article 2 of the Enforcement Decree of the Act on the Support for Persons, etc. of Distinguished Service to the State, Article 2 [Attachment 1] 2 of the Enforcement Decree of the Act on the Support for Persons, etc. of Distinguished Service to the State (hereinafter referred to as the "Enforcement Decree of the Act on Persons, etc. of Distinguished Service to the State"), and Article 11 provides that "a person who has died or suffered from an accident or accident other than education and training, which is clearly recognized as a person."

In full view of the contents and legislative developments of the above provisions of the Acts and subordinate statutes as well as the literal differences in the text and text of the provisions on the Act on Persons of Distinguished Services to the State and the Act on the Compensation for Veterans and Veterans, it is reasonable to view that “the direct cause relationship” required to be recognized as a soldier or policeman on duty under the Act on Persons of Distinguished Services to the State is insufficient to simply have a proximate causal relationship between the performance of duties, education, training, death, or wounds, and that the death

Therefore, where a person’s negligence or private circumstance, even though his/her performance of duties or education and training had partly affected the death or wound, is highly competing to the cause of the death or wound, it cannot be deemed that his/her performance of duties or education and training has become a “the cause of death or wound”, such as where his/her own physical talent or living habits, or where his/her existing disease has been partially deteriorated due to his/her performance of duties or education and training, it is difficult to deem that it falls under the scope of recognition of persons who have rendered distinguished services to the State (see, e.g., Supreme Court Decisions 2015Du4694, Jul. 27, 2016; 2014Du46034, Aug. 30, 2016).

2) According to the evidence mentioned above and the statements in Gap evidence Nos. 2, 3, and 4, the plaintiff did not have any specific pain or therapy on the right upper half of the military before entering the military. However, during military service, after being diagnosed by the National Armed Forces Chuncheon Hospital, etc. at the National Armed Forces Hospital, etc., a private hospital in Ansan-si, An Ansan-si Hospital, Hanam-si, and Seoul Masan-si, which had been diagnosed by "Seong-si, Haak-si, Haak-gu, Haak-gu, Haak-gu, and Masung-si," performed an operation on the right upper part of the military, on three occasions, and the head of the 7th Assistant Gyeong-si 79 Joint Hospital issued by the plaintiff around February 18, 2013, the plaintiff did not have a pain on the right upper part of the military training unit, and did not have any duty to undergo rehabilitation surgery at the National Armed Forces hospital and the military hospital’s waiting."

However, in full view of the aforementioned facts and circumstances, comprehensively taking into account the following facts and circumstances: (a) evidence Nos. 3, 4, 11, 12, and 13; and (b) the results of the request for appraisal of medical records, the results of fact-finding, and the purport of the entire pleadings with respect to the head of the medical hospital affiliated with the medical college of Korea University and the head of the first instance court and the head of the medical department affiliated with the university of Korea University; and (c) the difference between the Plaintiff and the instant case is merely a partial aggravation of the disease caused by a person’s personal person’s disease due to the form or abnormal transformation or malfunction in the course of performing his/her duties or education and training; and (d)

○ Basically, high-speed collision cliffic group refers to a pathmatic phenomenon that entails symptoms, such as high-speed pain and restriction on the scope of movement, due to the occurrence of a natural or submeric disease, etc., in the course of growth, which causes a repeated collision between the breath and the breath, or between the breath, and the breath, in the event of a high-speed movement, causing a repeated collision between the breath and the breath, thereby causing damage to the breath of the breath and the surrounding breath. These symptoms are often caused by active young adults or middle-year adults, which have been actively engaged in physical activities or light breath, etc., and the symptoms are worse by a continuous physical activity, such as continuous walking, etc.

According to the opinion of the medical record appraisal, in the MRI prosecutor of MRI prior to the operation against the plaintiff, the opinion of the ejaculation of the ejaculation (if the ejaculation has been laid down or inside the ejaculation) caused by repeated collisions between the plaintiff and the plaintiff is being observed (if the ejaculation has been laid down or the ejaculation has become more serious), and the ejaculation has become more serious than the ejaculation, and the ejaculation has been observed in the right ejaculation at the right ejaculation, and the ejaculation has been observed at the right ejaculation. The above opinion of the medical record appraisal shows that the plaintiff himself/herself conflicts with the ejaculation and the ejaculation for a considerable period of time in which the plaintiff was not aware of his/her symptoms, and that the plaintiff himself/herself has also become worse due to the lack of symptoms prior to his/her entry into the military.

○ Furthermore, the medical record appraisal showed that even though the pain after entering the military in the case of the Plaintiff, even though the pain of the Plaintiff aggravated, the fundamental cause occurred due to the form and error of the Plaintiff’s senior colon, and determined that the contribution rate of the king was about 70% on the symptoms of the Plaintiff’s senior coloned collision.

(c) Determination as to the legitimacy of the disposition of determining whether a person eligible for veteran's compensation is a person eligible for veteran's compensation;

1) Article 2 of the Veterans Compensationer Act and Article 2 [Attachment Table 1] 11 of the Enforcement Decree of the Veterans Compensation Act provides that “a person who has died or has been injured due to a disease medically recognized to have a substantial causal relationship with the performance of his/her duties or education and training (referring to a rapid aggravation of the natural progress)” as a person eligible for veteran’s compensation. The existence of proximate causal relationship should be proven on the part of his/her assertion. However, it is not necessarily a medical or natural scientific basis, but it is presumed that a proximate causal relationship exists between education and training, the performance of his/her duties, and the injury or disease when considering various circumstances, and it is also included in cases where a basic disease or an existing disease that can normally perform his/her duties is caused by training or over-the-spot of his/her duties and that rapidly aggravated at a speed above the natural progress (see, e.g., Supreme Court Decisions 2006Du6772, Sept. 6, 2007; 2013Du393833, Sep. 13, 2013

2) The first instance court and the first instance court's finding of the medical records entrusted to the head of a university or college affiliated to the university or college of this court, and the following circumstances that can be recognized by comprehensively considering the results of the examination of the medical records and the purport of the entire arguments, namely, (1) the examination of medical records reveals that patients with high level of collision with high level of medical records started with the occurrence of pains due to no symptoms in daily activities or physical activities because they did not appear, and gradually aggravated symptoms such as pains due to the increase of physical activities after entering the military; (2) it is reasonable to consider the criteria for determining the degree of involvement in the examination as 70% of the Plaintiff's high level of contribution to the promotion of the symptoms of the military life, but it is difficult to view that there is no possibility that the Plaintiff would have been involved in the above examination at the right-hand side of the military life by taking account of the following circumstances: (3) the Plaintiff's involvement in the examination of the first instance court's medical records is acknowledged as being in a situation where there is a conflict with the Plaintiff's life symptoms or other reasons for treatment.

Nevertheless, the Defendant’s disposition that did not have proximate causal relation with the performance of his/her duties is unlawful. The Plaintiff’s conjunctive assertion is with merit.

3. Conclusion

Therefore, the plaintiff's claim for revocation of the decision corresponding to the person who rendered distinguished services to the State (the plaintiff's claim for revocation of the decision corresponding to the person who rendered distinguished services to the State) that has been changed in exchange at the trial after remand is dismissed as without merit, and the claim for revocation of the decision corresponding to the person entitled to veteran's compensation (the claim for revocation of the decision of this case was withdrawn from the exchange change of the lawsuit at the trial, and the judgment