(영문) 춘천지방법원 2015.2.13. 선고 2014구합4649 판결

1. On May 16, 2013, the Defendant’s refusal to provide a bereaved family member with distinguished services to the State and the refusal to provide a bereaved family member with distinguished services to the State shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On March 1, 2010, the Plaintiff’s son B (hereinafter referred to as “C students”) was in the Army so-called, and served as the secondary commander from June 24, 201 to June 29, 201, from June 24, 2011, at the 5th Army Volunteer Group 36 Joint D Co., Ltd., the Plaintiff was dispatched to the Association Headquarters E from April 5, 2012 to June 29, 2012.

B. On June 18, 2012, the Deceased: (a) driven his/her own motor vehicle and went out of the military unit in order to carry out a sperperperpering death on the same day; (b) caused a traffic accident by negligence that intrudes with the central line on the way he/she returns to the military unit at around 22:20 on the same day; and (c) accordingly, died on the same day on the same day as the date when he/she suffered heavy injuries such as depression damage and scars.

C. On January 18, 2013, the Plaintiff applied for the registration of the deceased as a person of distinguished service to the Defendant. However, on May 16, 2013, the Defendant notified the Defendant of the determination on the eligibility of a person of distinguished service to the State and a person of distinguished service to the Defendant’s person of distinguished service in accordance with the deliberation of the Board of Patriots and Veterans Entitlement as of April 30, 2013, that “The deceased was returned to the Plaintiff’s private work unrelated to the performance of military duties, and due to the death of the deceased, as he was caused by a traffic accident that occurred due to strokeing the central line due to strokeing of the death, and thus constitutes death of the principal’s intentional or gross negligence without any inevitable reason” (hereinafter “the instant disposition”).

D. The Plaintiff appealed and filed an administrative appeal with the Central Administrative Appeals Commission on August 13, 2013. However, the Central Administrative Appeals Commission dismissed the Plaintiff’s claim on April 1, 2014, and the Plaintiff was served a written adjudication on April 14, 2014.

[Ground of recognition] The fact that there has been no dispute, Gap's 1, 5, 6 and Eul's 1 through 5 (including Serial number; hereinafter the same shall apply)'s entries and the purport of whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

From June 11, 2012 to June 15, 2012, the day before the instant accident occurred, the Deceased worked as two military units due to the emergency situation of the military unit. On June 17, 2012, the Deceased continued to work as two staff members on duty on the part of June 17, 2012, and continued to rest at the night around 13:0 on June 18, 2012, and was on 4:30 minutes at the night. Nevertheless, the Deceased had to return to G to prepare for a report on the following day, and it was inevitable for the Deceased to return to the military unit outside of the military unit for a short time. Since the Deceased was able to return to the instant military unit without any inevitable reason, it was unlawful for the Deceased to return to the instant military unit without any inevitable reason.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

(1) Around June 11, 2012, an emergency situation, such as the decline of a movement that could not be known in the Allied Zone near the 5th Sick Team in the Army, was called up. The Deceased, as F from June 11, 2012 to June 15, 2012, waiting to work as the two emergency. After the termination of the emergency situation, the Deceased was on duty on duty on June 17, 2012 and went back to H around June 13:0, 2012, the Deceased was going to go back to G to prepare for a report on the situation of invasion on the next day.

(2) After having been given a rest of 4 hours and 30 minutes at a lodging in the military unit, the Deceased decided to return home at the first leave that he had worked before being dispatched to the association headquartersE, and then he started with his own vehicle unit at around 20:48, at around 21:10, I and J Y from the Gecheoncheon-gun bus Terminal of Gyeonggicheon-gun, Gyeonggi-do, Seoul Special Metropolitan City at around 21:10.

(3) At around 22:00 on the same day, J had to return to the affiliated unit from 22:0 to 22:00, but it was difficult for the deceased to arrive at the affiliated unit by means of public transportation. Accordingly, the deceased was going to the affiliated unit by using his/her own motor vehicle, and the deceased was going to go to the affiliated unit, and it was difficult for the deceased to go to the affiliated unit after his/her arrival, and even if it is difficult for the I to go to the emergency duty and on duty, it should again make a report on the situation return to G, while it is difficult for the deceased to go to the affiliated unit.

(4) At around 22:20, the Deceased, who started and was operating a subordinate unit to return to an association headquarters, collisioned with the 25 tons truck, which was going on the opposite lane due to the negligence of the central line, and died around 23:25 on the same day on the same day as the date when he was suffering from heavy damage and scarcity, etc.

(5) A written statement of confirmation of death prepared by the military judicial police officer of the fifth Assistant Soldiers in the Army was derived from the emergency situation, which continued six (6) days prior to the instant accident, and the purpose of the vehicle operation was to prepare a report on the status of the next day, and there is a proximate causal relation between official duties and the death of the deceased.

(6) On February 7, 2013, the Army Chief of Staff of the Deceased stated that the cause of the deceased’s death is “general death.” On January 1, 2013, the deceased’s attached L submitted a civil petition for grievance to the Anti-Corruption and Civil Rights Commission for treating the deceased as having died on duty. From July 29, 2013 to July 30, 2013, the Anti-Corruption and Civil Rights Commission decided that the deceased’s death was a traffic accident in the course of his/her work on the route and by the method of the usual route, and thus, on September 23, 2013, the Army Chief of Staff recommended the deceased to review the classification of the deceased’s death. Accordingly, on December 13, 2013, the Army Chief of Staff recognized that the deceased’s death was “the deceased’s death according to the results of the reexamination before his/her death.”

(7) Meanwhile, since a restaurant in the unit where the Deceased worked was operated only up to 19:00, a military executive officer used a restaurant located at approximately 10 minutes at a distance from the unit, mainly in the case where the military executive officers provide meals after that time.

The facts without dispute over the basis of recognition, Gap evidence Nos. 2, 3, 4, 7, 8, 9, and Eul evidence Nos. 2 and 3, the witness I's testimony, and the purport of the whole pleadings

D. Determination

(1) The Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (hereinafter referred to as the “Act on the Honorable Treatment and Support of Persons, etc.”) and Article 2(1)1 of the Act on Support for Persons, etc. of Distinguished Services to the State (hereinafter referred to as the “Act on the Honorable Treatment and Support of Persons, etc.”) must have a proximate causal relationship between performance of their duties or education and training in order to constitute “the death during the performance of their duties or education and training.” Meanwhile, Article 4(6)1 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State and Article 2(3)1 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State shall be excluded from the persons of distinguished Services to the State

(2) The above facts and the evidence revealed as follows. ① The Deceased’s act was considerably excessive due to the emergency situation within the unit from June 11, 2012, which was immediately before the instant accident. Further, it cannot be readily concluded that the Deceased’s act of driving on the spot was due to his own gross negligence. ② The Deceased’s act of driving on the spot was impossible to use the restaurant within the military unit on the ground that the deceased’s act of driving on the spot could not be deemed to have been carried out on the part of his own because it could not have been found that the military unit’s act of driving on the spot could not have been carried out due to the Plaintiff’s gross negligence. The reason that the deceased’s act of driving on the spot could not be deemed to have been carried out on the part of his own, but it was inevitable to see that the military unit’s act of driving on the spot could not have been carried out due to his own gross negligence before the death of the deceased. ③ The reason that the military unit’s act of driving on the part of the deceased could not have been carried out by his own team.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.