[1] The degree of proof of "a causal relationship between the performance of war and other official duties equivalent thereto and the injury or disease," which is a requirement for non-taxation of inheritance tax under Article 11(1) of the former Inheritance Tax and Gift Tax Act

[2] Whether there is a proximate causal relation with the performance of duties, such as battles, solely on the ground that the disease was registered as a person of distinguished service to the State pursuant to Articles 4 and 5(1) of the former Act on Assistance, etc. to Patients suffering from Actual or Potential Diseases

[3] In a case where: (a) Party A et al., as his predecessor, died of defoliants after having died; (b) the tax authorities denied the report of inheritance tax exemption under Article 11(1) of the former Inheritance Tax and Gift Tax Act; and (c) imposed inheritance tax on Party A et al. on Party A et al., the case holding that it is difficult to view that there is a proximate causal relation between Party B’s dives and the performance of war, etc.

[1] In light of the language and purport, etc. of Article 11(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010), in order to be exempt from inheritance tax pursuant to the said provision, there should be “a causal relationship between the performance of war or other equivalent official duties (hereinafter “war, etc.”) and the injury or disease.” Such causal relationship should be proved to the extent that there is a proximate causal relationship between the performance of war, etc. and the injury or disease when considering all the circumstances, even if it is not clearly proven in medical and natural science.

[2] The former Act on Assistance, etc. to Patients suffering from Actual or Potential Diseases (amended by Act No. 7875 of Mar. 3, 2006; hereinafter “the former Act”) provides that where the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (amended by Act No. 9079 of Mar. 28, 2008; hereinafter “the Act on the Honorable Treatment and Support of Persons, etc.”) provides special procedures for patients suffering from defoliants for whom it is difficult to prove the requirements of a person of distinguished service to the State, the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State, if it is found that they were discharged from active service in the area where defoliants was sprayed, it cannot be inferred that there is a proximate causal relation with the performance of their duties, such as combat, etc. on the sole basis of the fact that they were registered as persons of distinguished service to the State pursuant to Articles 4 and

[3] In a case where Party A et al., who participated in Vietnam as his predecessor, died of defoliants after having died, and thus, the tax authority denied inheritance tax exemption and imposed inheritance tax on Party A et al. on the inherited property under Article 11(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916 of Jan. 1, 2010), the case holding that the judgment below erred by misapprehending the legal principles, etc., on the grounds that the epidemiological investigation on damage from defoliants such as the report of the United States National Institute of National Research and the annual Medical Institute of the United States and the annual Medical Institute of the United States, cannot be deemed to have proven a reasonable probability to acknowledge the causal link between the hazardous substances of defoliants and the dives of defoliants, and thus, it is difficult to view that there is a proximate causal link between the performance of the dives and war, etc. of defoliant affected by Party A and others

[1] Article 11(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 916, Jan. 1, 2010) / [2] Article 4 (see current Article 4), Article 5(1) (see current Article 5(1)), Article 6(3) (see current Article 5(4)), Article 6(1) (see current Article 6(1)) of the Act on the Assistance to Patients from Actual or Potential aftereffects of defoliants, Etc. (amended by Act No. 9916, Mar. 28, 2008); Article 4(1)4, and Article 6-1 of the former Act on the Honorable Treatment and Support of Persons of Distinguished Services to the State (amended by Act No. 9079, Mar. 1, 2008); Article 5(1) of the former Act on the Assistance to Patients from Actual or Potential aftereffects of defoliants, Etc. (amended by Act No. 1065, Mar. 16, 2019>

Plaintiff 1 and two others (Law Firm continental Aju, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Head of Suwon Tax Office (Law Firm, Attorneys Lee Jae-sin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Nu1671 decided June 20, 2012

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 11(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “Inheritance Tax Act”) provides that “In cases where inheritance commences due to death of a war or other similar injury or disease incurred in the course of performing official duties, inheritance tax shall not be levied where inheritance commences due to death of a war or other similar injury or disease.”

In light of the language and purport of the above provision, in order to be exempted from inheritance tax pursuant to the above provision, there should be a causal relationship between the performance of war or other equivalent official duties (hereinafter “war, etc.”) and the injury or disease, and such causal relationship should be proved to the extent that there is a proximate causal relationship between the performance of war, etc. and the injury or disease when considering all the circumstances, even if it is not clearly proven in medical and natural science.

2. citing the reasoning of the judgment of the court of first instance, the court below determined that the non-party, a Vietnam War veteran of June 24, 2003, registered as a patient suffering from defoliants pursuant to Articles 4 and 5(1) of the former Act on Support, etc. for Patients suffering from Actual aftereffects of defoliants (amended by Act No. 7875, Mar. 3, 2006; hereinafter "the former Act"), and was designated and registered as a person of distinguished service to the State (Grade 3), and that according to the results of various epidemiological investigations, such as the report of the National National Institute of National Research, etc. of the United States, there was an epidemiological causal relationship between the exposure of harmful substances contained in defoliants and the dives species, etc., and (3) the non-party, a lineal relative of the non-party, who was suffering from dives from the dives of defoliants, was unlawful on the ground that the non-party, who was found to suffer from the dives of this case due to the death of the plaintiff.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) Article 5(1) of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (amended by Act No. 9079 of Mar. 28, 2008; hereinafter “the Act on the Persons, etc.”) lists various diseases that are deemed to be defoliants under each subparagraph of Article 5(1), and determines and register as patients suffering from defoliants under each subparagraph of Article 5(1), including Vietnam War veterans within a certain period of time (Article 4). The Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (amended by Act No. 9079 of Mar. 28, 2008; hereinafter “the Act on the Persons, etc.”) provides that persons determined as suffering from disability under Article 6-4(1)4 of the Act on the Persons, etc. of Distinguished Services to the State, shall be deemed as persons wounded from defoliants (Article 6(1)), but Article 5(3) of the Act on the Persons, etc. of Distinguished Services to the State.

As can be seen, where the Act on the Persons of Distinguished Services to the State provides a special procedure to provide for patients suffering from defoliants, for whom proof of the requirements for a person of distinguished services to the State is difficult, and that they were discharged from actual service in the spraying area, the Act on the Persons of Distinguished Services to the State does not depend on the causal relationship between the performance of combat duties and the disease, and on the other hand, stipulates that the person shall be deemed as “persons killed and wounded in action” under Article 4(1)4 of the Act on the Persons of Distinguished Services to the State. Thus, it cannot

(2) In addition, epidemiology analysis of the occurrence, distribution, extinction, etc. of a disease as a group phenomenon and its impact is to clarify the correlation with various natural and social factors in a statistical manner, to find ways to prevent and reduce the occurrence of a disease as a group phenomenon, and to investigate the cause of a disease as a group phenomenon and to find out the cause of a disease as a result, and is not to find out the cause of a disease as a group. Therefore, even if it is recognized that there is an epidemiological correlation between a risk factor and a certain disease, it is not proven that the cause of a disease as a group is the cause of a disease as a group. However, if the occurrence rate of a group exposed to a risk factor is higher than that of another group not exposed to the risk factor, it can be inferred how the disease as a group might have occurred as a result of the risk factor depending on the degree of higher ratio.

On the other hand, unlike “specific disease” that occurs by a specific sick person and clearly corresponding to the cause and result, so-called “non-specific disease” means a disease that occurs in combination with congenital factors, such as genetics and physical properties, drinking, smoking, age, eating habits, occupational and environmental factors. In the case of non-specific diseases, as long as it is acknowledged that there is an epidemiological correlation between a specific risk factor and the non-specific disease, insofar as there is a possibility that the individual or group exposed to the risk is also exposed to other risk factors, the epidemiological correlation merely means that the exposure to the risk factor is likely to cause the disease or increase if it is exposed to that risk factor, and it does not lead to the conclusion that the cause of the disease is the risk factor.

Therefore, even if the epidemiological correlation between a specific risk factor and a non-specific disease is acknowledged, it cannot be deemed that there was a probable probability of finding the causal relationship between an individual and the non-specific disease solely based on the fact that the individual was exposed to the risk factor and the fact that the non-specific disease was infected by the non-specific disease. In such a case, as a result of an epidemiological investigation conducted by comparing the exposed group with other general groups not exposed, it shall be proved that the ratio of non-specific disease in the exposed group exceeds considerably the ratio of the non-specific disease in the exposed group not exposed to the risk factor, and it shall be proved that the ratio of the non-specific disease in the exposed group exceeds considerably the ratio of the non-specific disease in the exposed group, such as the time and degree of exposure, timing of the outbreak, health conditions before the exposure to the risk factor, lifestyle, changes in the conditions of the disease, family history, etc. (see Supreme Court Decision 201Da7536, Jul. 12, 2013).

(3) However, according to the evidence duly admitted by the lower court, the following circumstances are revealed.

① Dive species affected by the Nonparty are non-specific diseases not only arising from exposure to defoliant (2,3,7,8-T CDs (2,3,7,8-traddzo-p-dixin, hereinafter referred to as “harmful substances”) but also diseases that may arise from various congenital and acquired factors.

② The report of the U.S. National Institute of defoliants was made to submit data related to the U.S. Congress and the veterans of the U.S., enacted to provide the basis for compensation and support for a variety of diseases caused by exposure to defoliants to the Vietnam War for the purpose of veterans policy. This report is not only a statistical link between exposure to defoliants and the increase of risk of non-specific diseases caused by exposure to defoliants, but also a statistical link between exposure to defoliant and non-specific diseases caused by the exposure to the Vietnam War. Furthermore, it is clear that the statistical link in this context merely indicates that there is a high probability of exposure to the Vietnam War rather than a specific link between exposure to the population and the results of exposure to defoliants and that there is no possibility of exposure to the Vietnam War. Furthermore, it can be said that there is no possibility that exposure to the disease directly caused by the exposure to the Vietnam War.

③ Epidemiological investigations into injury from exposure to defoliants jointly conducted by the Korean Medical Service and the Ministry of Patriots and Veterans Affairs (amended by Presidential Decree No. 12064, Dec. 31, 2003) include the rate of the outbreak of various kinds of defoliants between the total male population of the same age group as the Vietnam War veterans, the rate of their death, and the rate of the outbreak of diverse species of defoliants between the discharged population of the Vietnam War veterans, among the soldiers in the Vietnam War, as well as the rate of their exposure to defoliants. The above reports indicate that the rate of the outbreak of multiple species of defoliants and the rate of their death, compared to the total male population of the Vietnam War veterans. However, it is difficult to view that the above reports were based on an epidemiological investigation into the total male population of the Vietnam War veterans, and that there was no special difference between the Vietnam War veterans’ exposure to defoliants and the total male population of the Vietnam War veterans’ exposure to defoliant group (the foregoing report should be deemed to have been based on an epidemiological investigation into a large amount of exposure to defoliants group.)

Examining these circumstances in light of the aforementioned legal principles, it cannot be deemed that there was considerable probability to acknowledge the causal relationship between the hazardous substances of defoliants and the dystrophism, solely on the basis of the “epidemic injury investigation” prepared by the U.S. National Institute of Medical Sciences and the annual medical center.

(4) Therefore, it is difficult to view that there is a proximate causal relationship between the Non-Party’s dives and the conduct of war, etc. solely based on the circumstances cited by the lower court.

4. Nevertheless, on a different premise, the lower court determined that the instant disposition by the Defendant, which did not apply Article 11(1) of the Inheritance and Gift Tax Act to the instant inheritance commenced upon the death of the Nonparty, was unlawful. In so determining, the lower court erred by misapprehending the legal doctrine on “the death caused by injury or disease sustained in the course of the performance of war, etc.” under Article 11(1) of the Inheritance and Gift Tax Act, and exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment

5. 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 In-bok (Presiding Justice)