(영문) 대구고등법원 2021.3.26. 선고 2020누3640 판결

The reasoning for this part of this court is as follows: Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act are the same as the reasoning of the judgment of the court of first instance.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The reasoning for this part of this court is as follows: 2-A. The plaintiff's assertion is stated in the reasoning of the judgment of the court of first instance. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Article 2(1) of the Veterans’ Compensation Act provides that “A person eligible for veteran’s compensation, his/her bereaved family members, or his/her family members (including persons who are provided for in other Acts to receive support, etc. under this Act) shall receive support under this Act” (Article 2(1) of the Veterans’ Compensation Act provides that “A soldier, police officer, or fire-fighting officer killed in the line of duty or during education and training (including a person who died of a disease) who is not directly related to national defense and security, national security, or the protection of the lives and property of the people.” Here, “a person eligible for veteran’s compensation” refers to cases where there is a proximate causal relation between his/her duty performance or education and training, and the death

In addition, Article 2(3) of the Patriots and Veterans Compensation Act provides that “If a person meeting the requirements specified in any of the subparagraphs of paragraph (1) was killed or wounded (including a disease) due to any of the following causes, a person eligible for veteran’s compensation who is registered pursuant to paragraph (1) or Article 4 shall be excluded from his/her family members, bereaved or his/her family members, etc.” under subparagraph 1 of the same Article provides that “if a person was killed or wounded by intention or gross negligence or by gross negligence of the person himself/herself without any inevitable reason, or seriously violates any relevant statute or an order of his/her superior, he/she shall be deemed to have provided that a person is excluded from a person eligible for veteran’s compensation in cases where there is no excessive relationship between education and training, performance of duty

Therefore, even in cases where a soldier, etc. died during his/her service due to suicide, whether “the death during his/her duty performance or education and training” under Article 2(1) of the Veterans’ Compensation Act exists shall be determined based on whether there exists a proximate causal relationship between his/her duty, education and training, and death. Even if there is a proximate causal relationship between his/her duty, education and training, it shall not be excluded from a veteran solely on the ground that the death was caused by suicide, or on the ground that the death was not committed under a state where free will was completely excluded. Furthermore, the proximate causal relationship between his/her duty performance and death due to suicide shall be proved by the party asserting such proximate causal relationship. However, the proximate causal relationship between his/her duty

A proximate causal relation may be acknowledged between a soldier, etc. and his/her death in the event that a soldier, etc. is presumed to have caused suicide in a situation where it is impossible to expect reasonable judgment because the disease overlaps with his/her main cause of a disease, such as depression, or overwork or stress, due to overwork or stress, which led to the outbreak of a disease, such as depression, or in the line of duty. Furthermore, in order to recognize such proximate causal relation, comprehensive consideration should be given of all the circumstances such as the content, character, and work volume and strength of the person in charge of the suicide, and the developments leading up to the occurrence of the disease such as depression, general symptoms, age of the person in charge of the suicide, physical and psychological situation, surrounding circumstances surrounding the person in charge of the suicide, and circumstances leading to the suicide (see, e.g., Supreme Court Decision 2017Du4785, Feb. 13, 2020).

2) In full view of the following circumstances acknowledged by the overall purport of the arguments and arguments by Gap’s evidence Nos. 2 through 4, 6, 8 through 10, and 16 (including various numbers), the deceased may be deemed to have suffered serious mental pain and occupational stress by committing cruel acts, such as sacity, personality insulting verbal abuse, and abusive language, during the military life of the Marine Corps, and thereby resulting in suicide under the state where normal perception or ability to choose an act, and mental suppression was considerably deteriorated, and proximate causal relation between the deceased’s performance of his/her duties and the deceased’s death may be recognized. The deceased constitutes a soldier’s veteran’s compensation liability under Article 2(1)1 of the Veterans Compensation Act, since he/she died while performing his/her duties not directly related to national defense and security or the protection of the people’s lives and property. Accordingly, the instant disposition that is not a person eligible for veteran’s compensation is unlawful.

① In addition to the deceased, the remaining soldiers, etc., who performed military life together with the deceased, stated to the effect that “at the time when the deceased was forced to ○○○’s fire from among the fire that belongs to the time when the deceased was forced to work as ○○○ was caused by a large number of severe senior soldiers living together with her, so it is too much time to her appointment soldiers her to take a trial cost.” In particular, it was difficult to see that the deceased’s selection and injury was irrehnified due to a personality-specific verbal abuse, abusive language, and cruel her from some of the serious members, and that it was difficult to protect the deceased’s her so that it was no more difficult to protect the deceased who was suffering from ○○ and her harsh acts.”

In addition, the Deceased’s selection and injury, etc. stated to the effect that “it was difficult for the deceased to adapt to the bad behavior of the fire brigade, and that it was difficult for the deceased to adapt to the remaining bad behavior of the fire brigade, such as weather, name, and equipment to the ○○ unit at the time of the first distribution of the deceased (such as suggesting the specifications of the class, name, and equipment for each class, for each class, and setting weather, by rank, by rank, and by receiving a large number of unfounded harassment from the members of the ○○ Heavy group.”

A decedent and a person who, in the same manner, engaged in club activities at the deceased’s University, games at the same time.

In penalty, the deceased classified the bottom of the Ambane with his strict sonship, and her behavior was done to pain. Since the Ambaly Ambaly, it was said that the deceased's oral sonship was hymba, and that there was a harsh conduct that the deceased was hymba when he gymba on the ambama part of the steel mother, even though he said hyma was hyma.

At that point, the military forces stated to the effect that it is a tool to punish a person in a low sense (No. 6-4).

As such, the Deceased shall be seriously from the appointed soldiers at the time of serving as a member or volunteer in the Marine Corps.

It seems that the level of dynamics and cruel acts have been committed.

② The head of ○○○, the deceased, and the head of her first-time soldier, etc., who performed military life together with the deceased, stated to the effect that “The deceased did not have much interest in the results of the shooting match conducted by himself/herself within the unit at that time, and did not separately prepare for the competition, thereby continuously reducing the performance of the shooting match of ○○○○ Team. Although the deceased with strong sense of responsibility, he/she was his/her best fluoral disease, he/she prepared the shooting match by himself/herself before the last regular leave of absence of a separate instruction from the commander, he/she had a burden of ○○○○○’s duties to the extent that he/she would have 1, etc. during the shooting match conducted before the last regular leave of absence. Two soldiers (the head of ○○) on the basis of the deceased immediately after the last regular leave of absence of a doping training that his/her body is weak.”

③ On November 28, 2007, the deceased was called on the day of suicide to the effect that “Dr. A. A. A. B. A. B. A. B. A. B. A. B. A. B. A. B. A. B. A. B. B.D. 35, the father was unable to engage in military life (hereinafter “C. B.D.”).

④ On January 30, 2019, the Central Review Committee of the Ministry of National Defense decided on January 30, 2019 as “the deceased who died of self-injury as a direct cause” under Article 60-23(1)2 [Attachment 8] of the Enforcement Decree of the Military Personnel Management Act, on the ground that he/she met the requirements of “the deceased who died of self-injury as a direct cause of the performance of duties or education and training, or occupational injury.” Accordingly, the deceased was buried in the Daejeon National Cemetery (Evidence 4 and 16). Accordingly, the medical opinion (the department of mental health of a national Gun hospital) submitted to the above Committee at the time was doubtful that the deceased’s act immediately before the death was doubtful, and there was no doubt that stress was likely to cause the death of the deceased, but it was likely that stress was caused as a cause of stress. Moreover, it was highly difficult to view that the deceased’s previous experience and stress, and that he/she was highly likely to cause stress, and that he/she was suffering from stress.”

⑤ On June 22, 2020, the Council of Finding the Truth of the Death Accidents at the Military Council rendered a truth-finding decision on the following: “The deceased’s continuous and harsh acts committed during the military service, and the neglect of military force management in the military unit, etc. are recognized to have caused the death as its main cause.” At the time, the Mental Medical Advisor’s report (the advisory report) conducted by the above committee was deemed to have promoted the potential of a potential disease by affecting the development of fluoration of fluoral stress in the military service. The environment of the deceased, such as tata and harsh acts experienced during the military service, etc., which led to excessive stress on the deceased, thereby affecting the development of the deceased’s mental illness.” (No. 9 and No. 10).

(6) As a result of a draft physical examination, the Deceased was judged to be "normal" in the departments of psychology, mental health, etc.; was enlisted in the Marine Corps in a healthy state to the extent that he was judged to be subject to comprehensive Grade II and Grade I with visual disorder; there is no evidence to prove that the Deceased was suffering from mental illness before entering the military.

The constitutional mission of a soldier is to ensure the national security and the defense of land. In a case where a soldier has failed to adapt to military life due to his or her ability limit or harmful acts from other soldiers in the course of faithfully performing his or her duty of military service, the responsibility for such failure is attributable to an individual and the State’s exemption from military service is contrary to the spirit of the Constitution and the law that stipulate that military service shall be the basic duty of the people (see, e.g., Supreme Court en banc Decision 2010Du27363, Jun. 18, 2012).

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted as reasonable. Since the judgment of the first instance is unfair with different conclusions, the plaintiff's appeal shall be accepted and the disposition of this case shall be revoked.