(영문) 대법원 2016.8.25.선고 2014두46577 판결

1. Determination on the grounds of appeal on the part concerning the claim for revocation of a disposition that rendered distinguished service to the State

A. 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 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 Persons, etc.”) provides that “military personnel, police officers, or fire-fighting officials discharged from military service, or retired from military service by suffering from wounds in the performance of their duties or education and training directly related to national defense and security, or the protection of the lives and property of the people, and thus, persons determined a disability rating as persons who were determined by the Minister of Patriots and Veterans Affairs fall under the requirements for the recognition of persons of distinguished service to the State who were directly related to national defense and security, or to the protection of the lives and property of the people,” and the purport of Article 4(1)6 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the Act appears to exist.

Meanwhile, Article 4(2) of the Act on the Persons of Distinguished Service to the State has been delegated to the Presidential Decree on the basis of the delegation. Article 3 [Attachment 1] 2-1 of the Enforcement Decree of the Act on the Honorable Treatment and Support of Persons of Distinguished Service to the State (hereinafter "Enforcement Decree of the Act on the Honorable Treatment and Support of Persons of Distinguished Service to the State") provides that "A person who has died or has been wounded due to an accident or a disaster that directly caused the performance of duties falling under any of the following items shall be defined as a person of distinguished service to the State," while Article 2-8 (b) provides that "a person who suffered from an existing disease or a person who died from such disease shall be defined as one of persons who have been medically recognized as persons of distinguished service to the State due to an accident or an accident caused by which the performance of duties under any of the following items was directly caused, and Article 2-1 (b) of the Enforcement Decree of the Act on the Support of Persons of Distinguished Service to the State shall be defined as "a person who died or has deteriorated from an existing disease."

This is because the Enforcement Decree of the Act on the Persons of Distinguished Service to the State and the Enforcement Decree of the Act on the Compensation for Veterans, etc. are clearly distinguishable from that of "accident or accident that occurred directly due to the performance of duty", "an accident or accident that occurred directly due to the performance of duty or education and training," and "the occurrence or aggravation of disease that is deemed to have a considerable causal relationship with the performance of duty or education and training," and if the former Act on the Persons of Distinguished Service to the State recognizes that there is a proximate causal relationship between such performance of duty, education and training regardless of the performance of duty or education and training, it is reasonable to view that the former Act on the Persons of Distinguished Service to the State was amended from the reflective consideration of the degree of recognition as a person of distinguished service to the State and enacted the Act on the Compensation for Veterans, etc. of Persons of Distinguished Service to the State, as stated in Article 3 [Attachment 1] of the Enforcement Decree of the Act on the Persons of Distinguished Service to the State, as well as the Act on the Persons of Distinguished Service to the State. 2.

Therefore, even if the performance of duties or education and training were partly affected by death or wound, it cannot be deemed that the performance of duties or education and training was the principal cause of death or wound, such as where it was mainly caused by the physical personality, personality, or living habits of the principal, or where an existing disease was partially aggravated due to the performance of duties or education and training, it constitutes the scope of recognition of the requirements for persons who have rendered distinguished services to the State.

B. The lower court determined as follows: (a) the Plaintiff was diagnosed of adaptation disorder while entering the Gun on January 10, 200 and was under medical treatment at the Armed Forces Mine Hospital from April 26, 2001 to June 7, 2001; and (b) the Plaintiff was under medical treatment at the Armed Forces Mine Hospital from January 17, 2002.

The facts that the Plaintiff was discharged from military service due to lack of nutritional value, an empty surgery, etc., ② the Plaintiff was judged as a normal judgment before entering the military, ② the Plaintiff was suffering from mental illness or was treated before entering the military, ③ there was no person with family capacity within the Plaintiff’s house. ③ The Plaintiff was discharged from military service due to a chronic and passive nature, such as that he was unable to provide breathous treatment for an appointed soldier who was unable to adapt to military life, and that he was unable to receive a breathic treatment due to a serious mental disorder such as mental disorder, and that he was unable to receive a breathic treatment after being discharged from military service, ⑤ the Plaintiff was diagnosed as having been discharged from military service due to a breathic disorder, and the Plaintiff was unable to undergo a breathic treatment after being discharged from military service due to a 2ndic disorder after being discharged from military service, or the Plaintiff was unable to undergo a breathic treatment after being discharged from military service.

11.7 On March 8, 2013, the Defendant filed an application for registration with a person who has rendered distinguished services to the State by alleging that the instant injury occurred due to the violence, verbal abuse, bullying, excessive work, etc. of appointed soldiers while in military service, and that the Defendant rendered a disposition of equivalent to a person who has rendered distinguished services to the State or a person eligible for veteran’s compensation on the ground that the instant injury is not recognized as a causal relationship with the performance of official duties. 7 On the other hand, the Defendant acknowledged the following facts: (a) The Defendant rendered a disposition of equivalent to a person who has rendered distinguished services to the State or a person eligible for veteran’s compensation on the ground that the instant injury was not recognized as a causal relationship with the performance of official duties; (b) The instant injury has a composite impact on the complex of genetic, biological, environmental, environmental, social, and other causes; and (c) the fact that it is known that the instant injury might be an origin

In addition, the court below presumed that proximate causal relation should be established between the performance of duties directly related to the national defense and security or the protection of the lives and property of the people in order to be a soldier or policeman wounded on duty under Article 4 (1) 6 of the Act on Persons of Distinguished Services to the State. The court below held that the defendant's non-applicable disposition of persons of distinguished services to the State and the non-applicable disposition of persons of distinguished services to the State are unlawful on the grounds that there is proximate causal relation between the defendant's non-applicable disposition of persons of distinguished services to the State and the non-applicable disposition of persons of distinguished services to the State on the ground that, in light of the circumstances stated in its reasoning, the physically vulnerable plaintiff suffering from stress that the plaintiff suffered in the course of adapting to the new environment of military life in the course of performing his duties

C. However, in light of the above legal principles, it is difficult to accept such judgment of the court below.

According to the reasoning of the judgment below and the records, in addition to the Plaintiff’s duty as a communications situation soldier, daily stress in the military service and the Plaintiff’s mental vulnerability had a significant impact on the occurrence of the instant wound. Thus, even if considering all the circumstances cited by the court below, there is room to acknowledge a proximate causal relationship between the instant wound and the performance of duty or education and training, it is difficult to deem that the instant wound occurred as the principal cause of the Plaintiff’s communications situation soldier, and thus, it is appropriate to determine it as eligible for veterans under the Act on Persons of Distinguished Services to the State. The instant wound does not constitute “in the event of an accident or disaster caused by a direct cause for the performance of duty” as prescribed in Article 3 [Attachment 1] 2-1 of the Enforcement Decree of the Act on Persons of Distinguished Services to the State. The instant wound cannot be deemed as falling under “in the event of an accident or accident caused by an accident or accident” as prescribed in Article 2-8.

Nevertheless, under different premises, the lower court determined that the Plaintiff constituted a soldier or policeman on duty under Article 4(1)6 of the Act on Persons of Distinguished Services to the State on the grounds that proximate causal relationship exists between the instant wound and the performance of duties, or education and training. In so determining, the lower court erred by misapprehending the legal doctrine on the requirements of soldier or policeman on duty under Article 4(1)6 of the Act on Persons of Distinguish

2. Ex officio determination as to a claim for revocation of a disposition for revocation of a person eligible for veteran's compensation;

A. The lower court, on the grounds stated in its reasoning, revoked both dispositions on the instant lawsuit, claiming revocation of the disposition rendered in favor of persons who rendered distinguished services to the State and revocation of the disposition rendered in favor of persons who rendered distinguished services to the State in the form of simple combination.

B. However, the Act on Persons of Distinguished Service to the State and the Act on Veterans and Veterans Compensation, based on the nature of their education and training or duties, killed or wounded in the performance of duties or education and training directly related to the national defense and security, or the protection of the lives and property of the people, were classified into persons of distinguished service to the State, persons killed or wounded in the performance of duties or education and training not directly related to the protection of the lives and property of the State, or persons killed or wounded in the performance of duties or education and training

As can be seen, the Act on Persons of Distinguished Service to the State and the Act on Veterans and Compensation for Veterans separate from persons who have rendered distinguished service to the State, depending on whether the performance of duties or education and training, which mainly caused death or injury, is directly related to the protection of national defense, security, or the lives and property of the people. Thus, a claim for revocation of a non-specific decision made by a person who has rendered distinguished service to the State and a non-specific decision made by a person who has rendered distinguished service to the State on the ground that the requirements for a person who has rendered distinguished service to the State meet the requirements for a person who has rendered distinguished service to the State should be deemed as in

C. Whether the form of consolidation is a simple consolidation or the primary and conjunctive consolidation is determined on the basis of the nature of the request for consolidation rather than the intent of the parties (see, e.g., Supreme Court Decision 2013Da196868, May 5, 2014). Thus, even if the Plaintiff claims two claims in the primary and conjunctive relationship in a simple form, the lower court shall be determined on the basis of the primary and conjunctive claim in the order thereof.

must have been held.

Nevertheless, the lower court deemed the combination form of this case as simple combination and accepted both incompatible claims. In so doing, the lower court erred by misapprehending the nature of a claim for revocation of a non-competent disposition rendered by a person of distinguished service to the State and a combination of claims for revocation of a non-competent disposition rendered by a person of distinguished service to the State, thereby adversely affecting the conclusion of the judgment. As seen earlier, the allegation in the grounds of appeal as to the claim for revocation of non-competent disposition rendered by a person

The part of a claim for revocation of a decision made by a person eligible for veteran's compensation must also be reversed.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.