[1] Where a soldier, etc. falls under the requirements for a person eligible for veteran's compensation under the Act on Support for Persons Eligible for Veteran's Compensation for reasons of his/her injury in the course of performing his/her duties, whether the State may claim State compensation against the State (negative)

[2] Whether payment may be refused on the ground that a soldier who was injured on duty received compensation under the State Compensation Act, first of all, pursuant to the State Compensation Act, and then claimed for the payment of veteran's benefits, such as compensation under the Act on Support for Persons Eligible for Veteran's Compensation, etc. (negative)

[1] The proviso to Article 2(1) of the State Compensation Act is based on Article 29(2) of the Constitution, and the provision on compensation under the Act on Support for Persons Eligible for Veteran’s Compensation (hereinafter “ Patriots and Veterans Compensation Act”) constitutes “other statutes” under the proviso to Article 2(1) of the State Compensation Act, and thus, the case where a person eligible for veteran’s compensation, such as compensation, falls under the requirements for a person eligible for veteran’s compensation under the Patriots and Veterans Compensation Act constitutes “when a person is eligible for veteran’s compensation” under the Patriots and Veterans Compensation Act. Therefore, when a soldier, military employee, police officer, or local reserve member falls under the requirements for a veteran’s compensation under the Act on Persons Eligible for Veteran’s Compensation for Veterans’ Compensation, on the ground that he/she was injured in the course of performing his/her duties, such as combat and training, etc., the State’s compensation cannot

[2] Where a soldier, a civilian military employee, a police officer, or a local reserve member who was injured in the course of performing his/her duties, such as combat and training, first received a compensation under the State Compensation Act, and then claimed a payment of a veteran's benefits, such as a compensation under the Act on Support for Persons Eligible for Veteran's Compensation (hereinafter "the Patriots and Veterans Compensation Act"), unlike the explicitly stated proviso of Article 2 (1) of the State Compensation Act, the State Compensation Act does not stipulate that the Veterans' Compensation Act does not exclude a person who was paid a compensation under the State Compensation Act from receiving a veteran's benefits, such as a compensation. Considering the legislative purport of the proviso of Article 2 (1) of the State Compensation Act, the legislative purpose of the proviso of Article 2 (1) of the State Compensation Act, and the difference between the purpose of calculation method of the veteran's compensation under the State Compensation Act and the State Compensation Act, the Minister of Patriots and Veterans Affairs cannot reject the payment of a veteran's benefits, such as a compensation under the State Compensation Act.

[1] Article 29(2) of the Constitution of the Republic of Korea; Article 2(1) of the State Compensation Act; Articles 2(1), 10(1), and 11 of the Act on Support for Persons Eligible for Veteran’s Compensation / [2] Article 29(2) of the Constitution of the Republic of Korea; Article 2(1) of the State Compensation Act; Articles 2(1), 10(1), 11, and 68(1)3 of the Act on Support for Persons Eligible for Veteran’s Compensation

[1] [2] Supreme Court Decision 2000Da39735 decided May 10, 2002 (Gong2002Ha, 1332) / [1] Supreme Court Decision 93Da29969 decided December 13, 1994 (Gong195Sang, 465)

Plaintiff (Attorney Song Young-chul et al., Counsel for the plaintiff-appellant)

The head of the Gangseo-dong Veterans Association (Law Firm Governing, Attorney Kim Jong-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2015Nu337 decided November 23, 2015

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

The grounds of appeal are examined.

1. Article 2(1) of the Act on Support for Persons Eligible for Veteran’s Compensation (hereinafter “Act on Persons Eligible for Veteran’s Compensation”) provides that persons eligible for veteran’s compensation who fall under the category of persons killed in a disaster (Article 11), persons killed in a disaster (Article 1), public officials killed in a disaster (Article 2(2)2), public officials killed in a disaster (Article 3(3) and public officials wounded in a disaster (Article 4) and their bereaved families or families shall receive support pursuant to the Act on Persons Eligible for Veteran’s Compensation; Article 10(1) provides that the types of veteran’s benefits paid to persons eligible for veteran’s compensation shall be classified into compensation, allowances, and lump-sum death benefits; Article 11 provides that “Provided, That this shall not apply to persons excluded from the amount of compensation pursuant to this Act or other Acts; Article 2(1)); Article 3(3) of the Act on Persons Eligible for Veteran’s Compensation shall be classified into persons eligible for veteran’s compensation; Chapter 3(4) of the Act on Persons Eligible for Veteran’s Compensation (Article 4).

Meanwhile, Article 29(2) of the Constitution of the Republic of Korea provides that “No person who is a soldier, civilian military employee, police officer, or any other person prescribed by the Act shall file a claim for damages caused by a tort in the course of performing his/her duties with the State or a public organization, other than compensation prescribed by the Act, in connection with the performance of his/her duties, such as combat and training.” Article 2(1) of the State Compensation Act provides that “The State or a local government shall compensate for damages caused to others by intentional or negligent violation of the statutes in the course of performing his/her duties by a public official or a private person entrusted with public duties, or shall compensate for damages caused by an accident under the Guarantee of Automobile Accident Compensation Act: Provided, That where a soldier, a civilian military employee, a police officer, or a local reserve member was killed or injured in the course of performing his/her duties in relation to combat and training, etc.,

2. The proviso of Article 2 (1) of the State Compensation Act is based on Article 29 (2) of the Constitution. The provision on compensation under the Act on Veterans’ Compensation falls under the “other Acts and subordinate statutes” under the proviso of Article 2 (1) of the State Compensation Act, and thus, the case where a person is eligible to veteran’s benefits, such as compensation, falls under the requirements for veteran’s compensation under the Act on Veterans’ Compensation, constitutes “when a person is eligible to receive veteran’s benefits” under the Act on Veterans’ Compensation (see Supreme Court Decisions 93Da2969, Dec. 13, 1994; 200Da39735, May 10, 200). Accordingly, if a soldier, civilian employee, police officer, or local member of the National Reserve Forces (hereinafter “military personnel, etc.”) falls under the requirements for veteran’s compensation benefits, such as compensation benefits, due to his/her injury in connection with combat, training, etc., he/she cannot claim the State compensation Act against the State.

3. In a case where a soldier, etc. who was injured in the course of performing his/her duties, such as combat and training, was first paid the compensation pursuant to the State Compensation Act, and then claimed the payment of the veteran’s benefits, such as the compensation under the Patriots and Veterans Compensation Act, the Defendant shall not be deemed to have refused the payment of the veteran’s benefits, such as the compensation, based on the following circumstances.

(1) Unlike that the proviso of Article 2(1) of the State Compensation Act explicitly provides that “where a person is eligible to receive compensation pursuant to other Acts and subordinate statutes, he/she shall not claim compensation under the State Compensation Act, etc., he/she shall not be entitled to claim compensation.” However, the Veterans Compensation Act does not provide that a person who has received compensation under the State Compensation Act shall be excluded from

(2) The purport of Article 29(2) of the Constitution and the proviso of Article 2(1) of the State Compensation Act is to ensure that the State or a public organization operates a system for compensating for damages to soldiers, etc. who perform dangerous duties, and that the injured soldiers, etc. may receive a reliable and uniform compensation with no risk of insolvency, regardless of their fault or degree, according to the simple compensation procedure, regardless of their degree of fault, etc., by allowing the injured soldiers, etc. to not file a claim against the State, etc. for damages due to a tort committed by a public official in the course of performing their duties, thereby preventing excessive financial expenditure and imbalance between the injured soldiers, etc. (see Supreme Court Decision 200Da39735, May 10, 200).

However, the amount of compensation for a soldier, police officer, etc., as stipulated in Article 11 of the Patriots and Veterans Compensation Act is determined according to the degree of sacrifice of a person eligible for veteran's compensation, regardless of the negligence of the relevant soldier, etc., and the amount of compensation is determined according to the degree of sacrifice of a person eligible for veteran's compensation, taking into account the household survey statistics. While compensation is paid up until each month is dead, even if there is a disability after the completion of medical treatment under the State Compensation Act, compensation can only be paid with the amount of monthly salary, actual monthly income, or average wage at the time of injury, multiplied by the future workable period. If there is a negligence of the relevant soldier, etc., the liability is limited according to the degree of negligence. Thus, in most cases, the amount of compensation benefits, such as compensation under the Patriots and Veterans Compensation Act, etc., is considered to be equal to the amount of compensation under the State Compensation Act.

Considering the legislative purport of the proviso of Article 2(1) of the State Compensation Act, the difference between the purpose of compensation under the State Compensation Act and the calculation method under the State Compensation Act, it is difficult to interpret the proviso of Article 2(1) of the State Compensation Act as prohibiting the payment of veteran's benefits, such as compensation under the State Compensation Act, in the event that a person is eligible to receive compensation under the State Compensation Act, etc.

(3) Even if some areas overlap between the amount of compensation under the Patriots and Veterans Compensation Act and the amount of compensation under the State Compensation Act exist in the future, the amount of compensation under the Patriots and Veterans Compensation Act has to be determined in accordance with the Act and subordinate statutes. Thus, in order to limit the amount of compensation payment for the area that overlaps with the amount of compensation under the State Compensation Act, there is a provision that deducts the amount of compensation already paid and sets the amount of compensation. However, Article 68(1)3 of the Patriots and Veterans Compensation Act does not include any provision that excludes the amount of compensation paid in advance from the calculation of the future amount of compensation.

4. The evidence duly admitted by the first instance court as cited by the lower court reveals the following facts.

(1) On April 9, 2007, the deceased Nonparty (hereinafter “the deceased”) committed suicide on his own in the neighboring park of the military unit on the new wall of April 9, 2007, by imposing excessive duties on the deceased while on duty the deceased’s superior, who was on duty in the naval station.

(2) On April 6, 2010, the surviving families of the deceased, including the Plaintiff, who are the father of the deceased, filed a lawsuit against the Republic of Korea as Seoul Central District Court 2010Kahap34109, and the above court rendered a judgment in favor of the Plaintiff on October 13, 2010 and became final and conclusive around that time, and accordingly, the surviving families of the deceased received total KRW 111,015,460 from the Republic of Korea.

(3) On July 2, 2012, the Plaintiff filed an application for registration of bereaved family members with distinguished service to the Defendant. On August 20, 2013, the Defendant determined the Plaintiff as a bereaved family member of the person who died in a disaster under Article 2(1)1 of the Veterans’ Compensation Act and paid veterans’ benefits to the Plaintiff on the ground that “the deceased does not meet the requirements for persons who have rendered distinguished service to the State, but meets the requirements for persons eligible for veteran’s compensation.”

(4) However, on August 4, 2014, the Defendant rendered a decision suspending the payment of veterans' benefits to the Plaintiff (hereinafter “instant disposition”) on the ground that “The Defendant, under Article 2(1) of the State Compensation Act, paid the amount of damages under the State Compensation Act and the veterans’ benefits paid in the Ministry of Patriots and Veterans Affairs cannot be received in duplicate, but paid in duplicate to the Plaintiff.”

5. Examining the aforementioned factual basis in light of the legal principles as seen earlier, the Plaintiff constitutes a person entitled to veterans’ benefits, such as compensation, as bereaved family members of the soldiers killed in a disaster under Article 2(1)1 of the Patriots and Veterans Compensation Act. Even if the Plaintiff was paid damages under the State Compensation Act, the Plaintiff is entitled to veterans’ benefits by falling under the requirements prescribed by the Patriots and Veterans Compensation Act. Accordingly, the instant disposition for which the payment of veterans’ benefits was suspended solely on the ground that the amount of damages was paid under the State Compensation Act is unlawful.

Nevertheless, the lower court determined otherwise on the erroneous premise that the instant disposition suspending the payment of veterans’ benefits to the Plaintiff is lawful, on the grounds that, in cases where the damages were first paid under the State Compensation Act, the amount of the veterans’ benefits may be recovered pursuant to Article 68(1)3 of the Veterans’ Compensation Act or may be refused to pay the amount equivalent to the amount of the veterans’ benefits instead of the recovery. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of the Act on Veterans’ Compensation and the proviso of Article 2(

6. 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 Lee Sang-hoon (Presiding Justice)