(영문) 대법원 2013.2.14. 선고 2012두21086 판결

The part of the judgment of the court below pertaining to the disposition of refusal of persons of distinguished service to the State against the right-hand wound is reversed, and the case is remanded to Seoul High Court.

The defendant's remaining appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. As to the ground of appeal against knee-free disease in this case

A. Where several differences occur in the process of confirming facts related to the requirements for persons who have rendered distinguished services to the State by claiming several differences at the time of application for registration of persons who have rendered distinguished services to the State, including the content, form and purport of legislation, Article 4(1)6 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State, it shall be examined as to whether the applicant falls under the requirements for persons who have rendered distinguished services to the State. Accordingly, the physical examination for the determination of disability rating is not conducted for persons who are not injured or who are not recognized as eligible for the Act. Furthermore, it is reasonable to view that the applicant’s intent to apply for registration by asserting several differences is not only to register as a person who has rendered distinguished services to the State but also to seek registration as a person of distinguished services to the State corresponding to the degree of education, training or performance of duty and the degree of disability corresponding to that of the persons who have rendered distinguished services to the State. In full view of the fact that in a single administrative disposition, only some of the requirements can be revoked and partly revoked are effective.

B. As to the instant lawsuit, the Plaintiff sought revocation of the disposition of refusal of meriting to the right-hand side of the instant case as well as knene-free disease, and the lower court determined that “A proximate causal relation is acknowledged between the Plaintiff’s defense service during education, training or performance of duty and the left-hand side-free disease of this case” and revoked the Defendant’s disposition of refusal of meriting to the State

However, in such a case, according to the above legal principles, the court below can only revoke only the part on the left-hand kne-free disease of this case among the defendant's disposition of refusal to render distinguished services to the State. Thus, the court below erred by misapprehending the legal principles on the recognition of the requirements for persons of distinguished services to the State, thereby failing to exhaust all necessary deliberations or neglecting judgment, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the ground of appeal against the left-hand knee-free disease of this case

Examining the record in light of the relevant legal principles, the lower court’s determination that there is a proximate causal relation between the left-hand kne branch of this case and the Plaintiff’s defense-based service of the Defendant’s defense-based soldier on the grounds as indicated in its reasoning is acceptable to revoke the part on the left-hand kne-free disease of this case among the Defendant’s refusal to render distinguished services to the Defendant. In so doing, contrary to what is alleged in

3. Conclusion

Therefore, among the judgment of the court below, the part on the disposition to deny the registration of persons who rendered distinguished services to the State against the right-hand disease of this case is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's remaining appeal is dismissed. It is so decided as per Disposition