[1] Whether Article 23(1) of the former Military Pension Act applies to cases where the condition of disability becomes final and conclusive after retirement due to a disease or injury caused by an official duty before retirement (negative), and the meaning of “the condition of disability caused by a disease or injury” and “the recovery”

[2] Whether the extinctive prescription of the right to receive benefits under Article 8(1) of the former Military Pension Act does not proceed from the time when the right can be exercised pursuant to Article 166(1) of the Civil Act and while the right can not be exercised (affirmative), and the meaning of “the right shall not be exercised”

[1] Article 23 (1) of the former Military Pension Act (amended by Act No. 4705 of Jan. 5, 1994) / [2] Article 8 (1) of the former Military Pension Act (amended by Act No. 4705 of Jan. 5, 1994), Article 166 (1) of the Civil Act

[1] Supreme Court Decision 2003Du3048 Decided June 13, 2003 / [2] Supreme Court Decision 2009Da92784 Decided July 28, 2011

Plaintiff

The Minister of National Defense

Seoul High Court Decision 2011Nu6303 decided September 21, 201

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

Article 23(1) of the former Military Pension Act (amended by Act No. 4705 of Jan. 5, 1994) provides that “where a soldier retires from office due to a disease or injury caused by official duty, a wounded veterans’ pension shall be paid from that time until he/she dies.” In light of the language and text of the provision, and thereafter, the provision is amended to add “where a soldier retires from office due to a disease or injury after his/her retirement” to “where the disability becomes disabled due to a disease or injury after his/her retirement” under the Act No. 10649 of May 19, 2011, it is interpreted that the provision is not applicable in cases where the disability becomes final and conclusive during the military service and the disability becomes final and conclusive after his/her retirement due to a disease or injury caused by official duty before his/her retirement.” In such cases, “the disability caused by a disease or injury” refers to a state in which a person suffers from a permanent mental or physical disability even after the disease or injury is cured, or where the symptoms becomes fixed.

Meanwhile, Article 8(1) of the same Act provides, “The right to receive benefits shall expire upon the date on which the cause for the payment of benefits arises unless it is exercised for five years from the date on which the cause for the payment of benefits occurred.” Such extinctive prescription does not proceed from the time when the right can be exercised pursuant to Article 166(1) of the Civil Act and while it is impossible to exercise the right.” Here, “it is impossible to exercise the right” refers to the cases where there is a disability in the exercise of the right, for instance, the non-existence of the period or the non-performance of the terms and conditions, etc. In fact, if the right is not known of the existence of the right or the possibility of exercising the right, such cause does not constitute a legal disability (see, e.g., Supreme Court Decision 2009Da92784, Jul. 28, 20

The court below held on July 16, 1971 that the plaintiff was discharged from military service on May 1, 1987, when he was so-called the Army, or on May 1, 1987, after he was discharged from military service from military service on May 15, 1987. The court below rejected the plaintiff's claim that the extinctive prescription of the plaintiff's right to receive a wounded veterans' pension should not apply to the case on March 31, 1988. However, since the plaintiff was discharged from military service on February 3, 200, without the time when he was discharged from military service, since the plaintiff was discharged from military service on May 1, 1987, it was not recognized that the extinctive prescription of the deceased's right to receive a wounded veterans' pension was not applicable to the case on the date on which he was discharged from military service on the date on which he was discharged from military service, and that the plaintiff's claim that the extinctive prescription of the deceased's right to receive a wounded veterans's pension was not applicable.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, since the provisions related to the Military Pension Act, which the plaintiff was in force at the time of retirement, are Article 23(1) and Article 8(1) of the former Military Pension Act (amended by Act No. 4705, Jan. 5, 1994), it is inappropriate for the court below to consider the provisions applicable to the disposition in this case as Article 23(1) and Article 8(1) of the former Military Pension Act (amended by Act No. 10649, May 19, 201), but it is not appropriate for the court below to consider them as Article 23(1) and Article 23(1) of the former Military Pension Act (amended by Act No. 4705, Jan. 5, 1994). Thus, the judgment of the court below is justified in its conclusion, and there is no error in the misapprehension of legal principles as to the fact-finding or the limitation of extinctive prescription.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ko Young-han (Presiding Justice)