2019Guhap70216 Revocation of Disposition rejecting to pay a wounded veterans' pension

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March 18, 2021

April 15, 2021

1. The defendant's disposition rejecting the payment of a pension for wounds made against the plaintiff on August 22, 2018 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. Determination of disability ratings under the Plaintiff’s injury and persons of distinguished service

1) On July 25, 1984, the Plaintiff entered a lower-ranking hospital candidate and worked as lower-ranking hospital from January 1, 1985 to work as lower-ranking hospital. On May 22, 1985, the Plaintiff continued to participate in a training without undergoing proper treatment and cutting down the left part of the shoulder at the stable competition that was set at the ○○○ Hospital on May 22, 1985, and the injury was aggravated. On October 15, 1985, the Plaintiff was diagnosed as lower-ranking sloping slopings of the left part of the ebrod, (e.g., the flat sect between the end of the bed and the bed), and was discharged from the hospital on January 18, 1985, and was discharged from the hospital on January 13, 198, and was discharged from the hospital on January 24, 198, and was discharged from the hospital on March 18, 1985.

2) On April 14, 1992, the Plaintiff received deliberation and resolution from the Board of Patriots and Veterans that the instant injury constituted "the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State" under Article 4 (1) 6 of the former Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State (amended by Act No. 5291 of Jan. 13, 1997) and applied for registration to the head of the Daegu Regional Veterans Office on May 2, 1992. However, the Plaintiff was not registered as a person of distinguished service to the State after being judged otherwise in a new physical examination conducted by the △△ Hospital on May 192. 192.

3) 원고는 국가유공자법상 상이등급 7급이 신설된 후인 2000. 1. 27. 다시 국가유공자등록신청을 하였으나, 경주보훈지청장은 '이 사건 부상으로 인한 객관적인 운동제한이 미약하다’는 ◆◆◆◆병원의 재확인 신체검사 결과에 따라, 2000. 5. 23. 등급기준 미달 판정을 함으로써 원고의 신청을 거부하였다(이하 '종전 등급기준미달판정'이라 한다).

4) Accordingly, on December 28, 200, the plaintiff filed a lawsuit against the head of ○○ District Court No. 2000Gu10312 to seek revocation of the previous grade-based decision, and on December 23, 2002, the above court rendered a judgment that "the plaintiff's disability rating caused by the injury in this case falls under the category of grade 7 under Article 14 (3) [Attachment 3] of the Enforcement Decree of the Act on the Persons of Distinguished Services to the State and the person who is in the aftermath of the new category (No. 401 of the classification No. 801) and the person (No. 801 of the classification No. 801)" (the head of ○○ District Court No. 2000Gu10312, Dec. 23, 2002) that "the plaintiff's disability rating caused by the injury in this case was revoked on the ground that the degree of body of the plaintiff's body falls short of the grade-based."

5) 원고는 2003. 2. ◆◆◆◆병원에서 실시한 상이등급 구분 재확인 신체검사에서 상이등급 7급 판정을 받았고, 이에 따라 경주보훈지청장은 2003. 3. 6. 원고를 국가유공자법 제4조 제1항 제6호 소정의 국가유공자(공상군경)로 결정하였다.

6) 원고는 2007. 6. 11. ◆◆◆◆병원에서 실시한 상이등급 재분류 신체검사 결과, 상이처의 악화로 아래와 같이 신체검사 판정 결과에 따라 상이등급 6급 2항(52호)의 종합 판정을 받고, 2007. 6. 19. 경주보훈지청장으로부터 그와 같은 내용의 상이등급 승급 통지를 받았다.

A person shall be appointed.

6. Matters concerning determination of a disability rating as a result of the physical examination;

7) 그 후 원고는 다시 상이등급 재판정 신청을 하였으나, 2012. 8. 29. ◆◆◆◆병원에서 실시한 상이등급 재판정 신체검사 결과, 아래와 같이 상이등급(무변동) 판정을 받음에 따라 2012. 9. 17. 경주보훈지청장으로부터 그와 같은 내용의 통지를 받았다.

A person shall be appointed.

. Details of the determination of a disability rating as a result of the physical examination;

B. Constitutional Court's decision of inconsistency with the Constitution and amendment of Article 23(1) of the Military Pension Act

1) On June 24, 2010, the Constitutional Court rendered a ruling of inconsistency with the Constitution to the effect that Article 23(1) of the former Military Pension Act (amended by Act No. 11042, May 19, 2011) (hereinafter “former Military Pension Act”) does not provide for the payment of pension for wounds to soldiers whose disability became final and conclusive after retirement due to illness or injury in the line of official duty, and that Article 23(1) of the former Military Pension Act (amended by Act No. 11042, May 19, 201) shall continue to apply the provisions of the former Act until the legislators revised the Act (hereinafter “decision of inconsistency with the previous Constitution”). (The Constitutional Court Decision 2008Hun-Ba128, June 24, 2010).

2) Article 23(1) of the former Military Pension Act (amended by Act No. 10649, May 19, 201; Article 23(1) of the same Act (amended by Act No. 11632, Mar. 22, 2013); and Article 23(1) of the same Act (amended by Act No. 11632, Mar. 22, 2013) was amended to the effect that a soldier paid wounded pensions from the time of his/her death to the time of his/her death, as well as from the time of his/her death, “if he/she becomes disabled due to the disease or injury caused by his/her official disease or injury” (amended by Act No. 11632, Nov. 28, 2013; Article 23(1) of the former Military Pension Act (amended by Act No. 115050, Nov. 23, 2017; hereinafter referred to as “former Military Pension Act”).

C. Grounds for rejecting the payment of the first and the second different pension and previous litigation

1) The rejection of payment of the first pension for wounds

가) 원고는 2011. 12. 29. 신법 조항에 따른 상이 연금의 지급을 신청하였고(이하 '1차 상이연금 신청’이라 한다), 피고의 의뢰에 따라 ◇◇◇◇병원에서 신체검사를 실시하였다. ◇◇◇◇병원 정형외과 의사 ■■■은 2012. 6. 19. 원고에 대하여 ‘상완 신경총 마비’에 따른 ‘견관절 중등도 기능 장애’로 제6급 6호(한 팔의 3대 관절 중 2개 관절이 제대로 못쓰게 된 사람)의 장애 상태에 해당된다고 진단하였다.

B) However, on September 17, 2012, the Defendant notified the Plaintiff of the decision that he does not constitute a pension for wounds on the ground that the Military Pension Benefits Council rendered a decision on September 6, 2012 pursuant to Article 10 of the Military Pension Act and Article 22 of the Enforcement Decree of the same Act (hereinafter “the first rejection disposition”).

- Whether or not a wounded pension is eligible for a pension (which is not a pension recipient for wounds)* Grounds: The Military Pension Act amended on May 19, 201, which was amended before Article 23 of the Military Pension Act enters into force, is not eligible for a pension for wounds under the amended Military Pension Act.

Grounds for the disposition of rejection of the first rejection.

C) Accordingly, the Plaintiff filed a request for review with the Military Pension Benefits Review Committee, but the said Committee rendered a decision to dismiss the Plaintiff’s request on November 30, 2012.

2) The progress of a lawsuit seeking revocation of the first rejection disposition and the confirmation of the decision subject to a retrial

A) On March 4, 2013, the Plaintiff filed a lawsuit against the Defendant seeking revocation of the first rejection disposition with the Seoul Administrative Court 2013Guhap*****, but the above court rendered a judgment of dismissal on June 14, 2013 on the ground that “the Plaintiff was disabled prior to the enforcement of the new law and was not subject to the new law provisions, but subject to the previous decision of inconsistency with the Constitution.”

B) On June 20, 2013, the Plaintiff filed an appeal with Seoul High Court Decision 2013Nu45340 on June 20, 2013, and (i) the Plaintiff continuously aggravated the disease, and the Plaintiff was disabled on June 19, 2012, and thus becomes subject to the application of the new law provisions, and (ii) even if not, the new law provisions should be applied retroactively. However, the appellate court affirmed the first instance judgment and rendered a judgment dismissing the appeal on December 18, 2013 (hereinafter “the judgment dismissing the appeal”), and the summary of the judgment as to the above (i) out of the grounds for the judgment is as follows.

'A disease or injury' means a case where the plaintiff's physical condition or physical damage remains. In this case, it is hard to view that the plaintiff's 2nd 6th 6th 2nd 6th 6th 6th 7th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 2012.

C) Accordingly, on December 26, 2013, the Plaintiff filed an appeal with Supreme Court Decision 2014Du35447 Decided December 26, 2013. Meanwhile, during the period of the final appeal, the Plaintiff filed an application for adjudication on the unconstitutionality of statutes with the head of 2014A25 on the provisions of the new law and the supplementary provisions of the former Act during the period of the final appeal. The Supreme Court rendered a ruling dismissing the application for adjudication on the unconstitutionality of statutes on May 19, 2015, and rendered a ruling dismissing the appeal on May 29, 2015, deeming that the judgment subject to

3) Plaintiff’s constitutional complaint and inconsistency with Constitution

A) Upon dismissal of an application filed by the Constitutional Court for adjudication on the constitutionality of a law, the Plaintiff filed a petition for adjudication on constitutional complaint with the Constitutional Court on June 16, 2015 under 2015Hun-Ba208 (which was combined with 2016Hun-Ba145).

B) On December 29, 2016, the Constitutional Court rendered a decision of inconsistency with the Constitution on the ground that the provision on the supplementary provision of the former Act, etc. of this case does not stipulate any transitional provision on the retroactive application of the new Act, etc. is different from the payment of different pension benefits on the basis of a contingency-type situation of "the time when the new Act becomes final and conclusive". Since there is no substantial difference between "military persons whose disability status became final and conclusive after the enforcement date of the new Act after the retirement," and "general public officials whose disability status becomes final and conclusive after the enforcement date of the new Act," and those who are against the principle of equality under the Constitution, the Constitutional Court rendered a decision of inconsistency with the Constitution (hereinafter referred to as "decision of inconsistency with the Constitution of this case") until the legislation on the improvement is made (hereinafter referred to as "decision of inconsistency with the Constitution of this case").

C) Meanwhile, in accordance with the purport of the amendment to the Constitution of the Republic of Korea, the Addenda provisions of the former Military Pension Act were amended. The amended Military Pension Act (amended by Act No. 15050, Nov. 28, 2017) newly established Article 2 of the Addenda of the former Military Pension Act (amended by Act No. 10649, May 19, 201). Article 23(1) of the amended provisions apply to those who have become disabled after retirement and before the enforcement date of this Act. However, notwithstanding Article 17, the amended provisions of Article 23(1) stipulate that a pension for wounds under the amended provisions of Article 23(1) shall be paid from the first benefit accrued after the enforcement date of this Act (hereinafter referred to as the “amended Addenda provisions”).

4) Plaintiff’s request for retrial and confirmation of new judgment

On February 13, 2018, the Plaintiff filed a lawsuit against the Defendant for the revocation of the Seoul High Court Decision 2018Nu***** the revocation of the judgment subject to a retrial and the judgment of the first instance court, and the revocation of the first refusal disposition (hereinafter referred to as “previous new trial lawsuit”). On June 28, 2018, the said new trial court accepted all the Plaintiff’s claims on the following grounds, and rendered a ruling revoking the judgment and the judgment of the first instance court (hereinafter referred to as “instant new trial”) to revoke the Defendant’s first refusal disposition, and the said judgment became final and conclusive on July 18, 2018.

(1) As to the legality of the first refusal disposition, the instant case constitutes the pertinent case where the decision of inconsistency with the Constitution was the opportunity to make a decision of inconsistency with the Constitution, and as a matter of course, the retroactive effect of the decision of inconsistency with the Constitution is to be applied retroactively to the amended provisions of this case, which are the amended provisions of the Act, where the case subject to review is unconstitutional (see, e.g., Supreme Court Decisions 2012Du329, Mar. 26, 2015; 2008Du1885, Sept. 29, 201). Accordingly, the Plaintiff’s supplementary provisions, which are retroactively applied, fall under the case where the disease or injury becomes disabled after retirement pursuant to the new provisions of the Act, and thus, the first refusal disposition constitutes an unlawful disposition where the Plaintiff’s right to claim payment of pension for wounds under the Plaintiff’s new provisions of the Act, which is no longer effective until the time when the new provisions of the Act became final and conclusive.

(d) Grounds for the rejection of payment of the second pension for wounds and the third disposition;

1) The second refusal to pay pension for wounds

On March 2018, the Plaintiff applied for the payment of a pension for wounds under the new law (hereinafter referred to as "application for the second wounded pension"), but the Defendant notified the Plaintiff of the decision that the pension is not eligible for a pension for wounds on March 7, 2018 on the following grounds after deliberation by the Military Pension and Benefits Council (hereinafter referred to as "the second rejection disposition").

(a) Whether he/she is entitled to a pension for wounds: Not applicable;

1) At the time of the disability falling under Category 1 through 7 of the Military Pension Act, we shall pay a wounded veterans' pension under the Military Pension Act, and the criteria for the disability rating for the sale department are as follows.2) He shall be determined as follows. He shall be determined as Class 6(2) of the disability rating of the Ministry of Patriots and Veterans Affairs (one of the three parts of one arms) in the physical examination conducted at the veterans' hospital on August 2012, he shall be determined as follows: He shall be deemed as having the remaining disability in the first part (one part of the third parts of one arms and one part of one arms), and he shall not fall under Grade 6(1) of the arms's disability rating as he did not fall under Grade 7(1 to 3) or 4 of the injury rating after he did not fall under the remaining disability in the first part (one part of the third part of his arms) in the first part of the body's disability rating as he did not fall under any of Grade 6(1 to 3) or 4 of the injury rating.

Grounds for the second rejection disposition

2) Circumstances of the third disposition

A) After the second rejection disposition, the Plaintiff became final and conclusive after the new trial of this case where the first rejection disposition is revoked, the Plaintiff expressed his/her intention to withdraw the second different pension application to the Defendant. However, on August 29, 2018, the Defendant notified the Plaintiff of the decision that the Plaintiff does not constitute a different pension recipient (the third disposition; hereinafter referred to as the “instant disposition”) on the following grounds after deliberation by the Military Pension and Benefits Council.

(C)The decision : (a) The decision : (b) the Military Pension Act Article 23(1) provides that a wounded veterans' pension shall be paid in the event of a disability falling under Class I through VII due to a disease or injury caused by official duty while in service; (c) the criteria for disability ratings for each department are as follows; (d) the revision of the Act is confirmed; (e) the details of the physical examination of the Ministry of Patriots and Veterans; (g) the details of the physical examination of the military hospital; and (g) the details of the physical examination of the military hospital are confirmed; and (g) the status of the subordinate disability was confirmed to be of a disability higher than Grade VII and higher than that of Grade VII, and (iv) the status of the subordinate disability was shown to be of a disability falling under Class 8 to be of Grade VII due to a post-an after-an after-an after-an in the field of check; and (v) the degree of disability for each department disability was determined to be excluded from Grade 6, and (v) the person who was not of Grade 6 or higher than Grade III was of a disability.

3. Grounds for the disposition (the disposition in this case)

B) Accordingly, the Plaintiff filed for an examination with the Military Pension Benefits Review Committee, but the said Committee rendered a decision to dismiss the Plaintiff’s claim on April 15, 2019.

[Reasons for Recognition] Facts without dispute, significant facts in this court, Gap evidence Nos. 1, 2, 3, 7, 9 (including each number), Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

The plaintiff asserts that the disposition of this case is in conflict with the binding force of a final and conclusive judgment or the principle of protection of trust and trust as follows, and even if not, there is no ground for disposition, so it should be revoked as it is unlawful.

A) As long as the first refusal disposition is revoked by a new judgment, the defendant has a duty to act to accept the plaintiff's application at the binding force of the new judgment of this case.

B) The Defendant stated in the preparatory brief that “the Plaintiff became disabled under the Military Pension Act after his retirement” and expressed a public opinion, and that the amendment law is not applicable to the Plaintiff with trust. Nevertheless, the Defendant’s subsequent disposition that deemed the Plaintiff’s disability as “in the lower grade” is contrary to the principle of trust protection and res judicata, thereby violating the principle of res judicata.

C) According to the records of medical examination on the Plaintiff’s disability rating at the time of around 2012, according to the records of medical examination on the Plaintiff’s disability rating, the Plaintiff constitutes class 6 (out of time) or class 7-4 (out of time) of the disability rating subject to the payment of the wounded pension.

2) The defendant's assertion

The instant disposition is legitimate as a new disposition that is not recognized as identical to the basic facts with the first rejection disposition as follows.

A) The Plaintiff’s condition of disability becomes final and conclusive at the latest around June 2007, and the beneficiary of the wounded pension under the Military Pension Act and the Enforcement Decree of the Military Pension Act (class VII or higher), which was in force at the time, should fall under the case of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the body, or the remaining person of the part of the physical exercise function of the part of the part of the part of the part of the part of the part of the part of the body of the body of the remaining. However, the Plaintiff merely

B) On the other hand, while the first refusal disposition is the ground for "the time when the condition of disability (the state of disability) of the Plaintiff becomes final and conclusive, the disposition in this case is the ground for "the degree of disability (the state of disability) of the Plaintiff". As such, the defendant's new disposition for reasons different from the previous disposition does not conflict with the binding force of the final and conclusive judgment, and the basic facts cannot be the same, and thus, the res judicata effect of the final and conclusive judgment does not extend.

C) ① The Defendant’s litigation performer’s statement in the preparatory document cannot be deemed as a public opinion statement of the administrative agency in charge of the decision on the payment of a pension for wounds, and ② the position that the Plaintiff’s disability status was already determined around 2007 is currently maintained in the same manner without being modified, and ③ the Plaintiff’s trust that the previous disposition is lawful and the subsequent act does not constitute a violation of the principle of trust protection.

D) The decision on the payment of different pensions is made at the Military Pension Benefit Council, taking into account all the circumstances, including the opinion of the physical examination (Article 10 of the Military Pension Act). Thus, it is not unlawful even if the decision was made differently from the results of the physical examination conducted by △△ Hospital.

B. Determination

1) Relevant legal principles

A) The binding force of a final and conclusive judgment recognized under Article 30(1) of the Administrative Litigation Act is recognized as a “written judgment for which a request for cancellation is accepted.” In other words, the binding force of a final and conclusive judgment for cancellation extends not only to the text of the judgment but also to the “specific illegal cause” of the final and conclusive judgment when it becomes final and conclusive that a certain administrative disposition is unlawful, and thus, the administrative agency is obligated to take measures again or to remove other illegal results (see, e.g., Article 30 of the Administrative Litigation Act; Article 2013Du27517, Oct. 29, 2015; Article 2018Du104, Oct. 17, 2019).

B) The contents of the obligation to take a new disposition under Article 30(2) of the Administrative Litigation Act vary depending on the grounds for revocation of the pertinent disposition. If the rejection disposition is revoked on the grounds of "the defect in authority or form, defect in procedure, defect in procedure, etc.," the administrative agency should take a legitimate form and take a measure against the husband and wife based on the application. As such, the administrative agency may review the substantive requirements and make a new disposition based on the substantive reasons, and make a new disposition of rejection for the substantive reasons. On the other hand, the administrative agency that issued the relevant rejection disposition should, in principle, accept the application, and make a new disposition of rejection on the grounds of the reasons prior to the closing of argument at a fact-finding court, is not allowed on the grounds of the final and conclusive judgment (see, e.g., Supreme Court Decision 9Du5238, Mar. 23, 201)

C) The legality of an administrative disposition is determined on the basis of the relevant law and fact at the time when the administrative disposition was taken. As such, the administrative agency that is the party to the final and conclusive judgment may again render the disposition of refusal on the ground of new reasons (see, e.g., Supreme Court Order 97Du22, Jan. 7, 1998; Supreme Court Order 2003Du14161, Mar. 11, 2004; etc.). Here, whether a new ground exists should be determined on the basis of whether the grounds determined in the previous disposition are unlawful and the factual identity of the basic facts is recognized (see, e.g., Supreme Court Decision 2003Du7705, Dec. 9, 2005). The existence of the basic fact relevance is not identical to that of the previous disposition, and it is not identical to the previous one of the parties to the administrative disposition, which is the basic social basis, at the time when the new disposition was declared (see, e.g., Supreme Court Decision 20010Du1694,201.

2) Specific determination

A) In light of the above legal principles, the instant disposition can be deemed a new disposition based on the facts recognized earlier. Thus, as a matter of principle, the binding force of the said new judgment has to be determined based on the statutes and facts at the time of the first new disposition (On the other hand, there is no limitation on the Defendant’s new disposition on the Plaintiff’s application after the first new rejection disposition on the ground of a change in disability rating based on the disability rating prior to the revocation of the first new disposition).

B) In light of whether the instant disposition conflicts with the binding force of the final and conclusive judgment, and various circumstances acknowledged by the facts and evidence as seen earlier, the instant disposition grounds may be deemed a new ground different from the first refusal disposition, and do not conflict with the binding force or res judicata of the instant judgment. The specific grounds are as follows.

(1) The ground for the first refusal disposition is that the ground for the payment of benefits (i.e., disability status) occurred before the enforcement of Article 23 of the Military Pension Act amended on May 19, 201 (i.e., Article 23 of the Military Pension Act amended on June 2007) (i.e., disability status), and thus, the ground for the first refusal disposition was revoked by the new judgment of this case (see Article 1-1 of the former Military Pension Act). Meanwhile, the social basic rights such as the right to receive a pension for wounds under the former Military Pension Act fall under the abstract right that does not generate any claim unless it is specified by individual laws. Therefore, the ground for the first refusal disposition can be seen as a formal ground that "the Plaintiff did not have specific claim (application right)" to the Plaintiff.

(2) The decision of the retrial of this case ruled that the first rejection disposition of this case is unlawful. In other words, since the retroactive effect of the decision of the "the decision of the inconsistency with the Constitution of this case is naturally limited to the case at which the decision of the inconsistency with the Constitution of this case was made," the amendment supplementary provision of this case is retroactively applied, and the first rejection disposition of this case becomes disabled due to the disease or injury after retirement (the latter part of Article 23 (1) of the Act), and the first rejection disposition of this case is no longer applicable." The decision of the retrial of this case does not determine whether the plaintiff's disability satisfies the substantive requirements of the different grades of the new law provisions of this case, without determining whether the plaintiff's disability satisfies the substantive requirements of the new law provisions of this case, the first rejection disposition of this case is revoked as the formal ground of the new law provisions of this case's rejection disposition of this case's rejection disposition which is not subject to the previous law of this case's rejection disposition of this case. Since the binding effect of this case is only applicable to the above formal reason, the defendant can not be subject to the plaintiff's claim.

(3) The grounds for the instant disposition are as follows: “The results verified on the basis of data such as medical records at the time of the first rejection disposition.”

Although it is confirmed that the plaintiff is subject to the amended Act (Article 1 of the New Act), the plaintiff's condition of disability (the state of disability) was not higher than Grade VII (the state of disability) that meets the criteria for the payment of pension for different degrees of disability (the state of disability) equivalent to class 6 of class 8. This is a result of the retroactive application of the new Act in accordance with the purport of the new judgment of this case (the premise that specific application right has occurred) and the ground for the first rejection disposition differs from that of the first rejection disposition, and thus, it cannot be deemed unlawful as it goes against the binding force of the new judgment of this case merely because the plaintiff again rejected the plaintiff's application.

(4) Meanwhile, as alleged in the Plaintiff’s assertion, the Plaintiff trusted that the above disability rating was determined at the time of the Defendant’s first refusal disposition due to the physical examination and the results of the examination (Class 6) conducted at Daegu Gun Hospital on June 19, 2012 upon the application for the first different pensions. If the first refusal disposition is revoked, it would naturally be considered that the above disability rating would be determined according to the validity of the judgment. However, the issue of the Plaintiff’s disability rating that was asserted by the Defendant, which was deliberated upon by the Military Pension Benefits Deliberation Committee under the Ministry of National Defense under Article 10, Article 24(1) of the former Military Pension Act, and Articles 22 and 48 of the Enforcement Decree of the same Act, is clearly distinguishable from the “the diagnosis of disability by the head of the military hospital”, and the “specific grounds for the disposition” is, in principle, done by the administrative agency that notified the relevant disposition, and there is no room for the Plaintiff to believe that the Defendant’s disability rating was not protected at the time of res judicata.

C) Furthermore, in light of the following circumstances acknowledged in light of the aforementioned facts and the evidence, it is reasonable to view the Plaintiff’s disability as at the time of the first refusal as “the Plaintiff’s disability” under Article 47 and [Attachment Table 2] of the Enforcement Decree of the former Military Pension Act, which is “the disability in the middle class of the shoulder-out due to the fluence of the fluence of the fluence,” and the Plaintiff’s disability rating does not constitute a disability rating under Article 6 subparag. 6 of the former Enforcement Decree of the Military Pension Act, and thus, the instant disposition based on the grounds that

(1) "Disability of disability caused by a disease or injury" under Article 23 (1) of the former Military Pension Act refers to cases where the disease or injury was cured but remains permanent mental or physical damage. Here, healing column means that it becomes impossible to expect the effect of treatment of the disease or injury or that its symptoms become fixed (see Supreme Court Decisions 87Nu121, May 24, 198; 2015Du46505, Dec. 10, 201). Article 2 of the former Enforcement Decree of the Military Pension Act (amended by Presidential Decree No. 2016, Nov. 28, 2017; 2015Du165, Dec. 3, 2007; 3) provides that the Plaintiff’s first degree of disability under the Military Pension Act should be defined as “in disability status before the retirement and its symptoms are fixed,” and Article 2 (1) of the Addenda of the former Military Pension Act (amended by Presidential Decree No. 2101, Mar. 1, 20197).

In addition, in order to constitute “in cases where the degree of disability is improved or aggravated” as the requirement for the revision of the disability rating under Article 24(1) of the former Military Pension Act, the degree of disease or injury is insufficient, compared to the time when the disability rating was determined, temporarily improved or aggravated. It is reasonable to interpret that the situation where the disease or injury was improved or aggravated is not expected to have the effect of treating the disease or injury, or where the symptoms are fixed so that it is impossible to maintain the existing disability rating as it is (see Supreme Court Decision 2015Du46505, Dec. 10, 2015).

(2) Regarding the Plaintiff’s condition of disability, as seen earlier, the following decisions are either pronounced or finalized, and there is no dispute between the parties.

① On December 23, 2002, the ○○ District Court sentenced the Plaintiff to revoke the disposition of the head of the racing veterans branch on the premise that the Plaintiff falls under the category No. 14(3) [Attachment 3] of Article 14(3) [Attachment 3] of the Enforcement Decree of the Act on Persons of Distinguished Services to the State, and the “person who has a flagal disorder on the national part of the national part of the region” (Classification No. 401) and “a person who has a remaining flag on the reform aggregate (Classification No. 801).”

② After that, on June 2007, the Plaintiff appeared to have been promoted from Grade 7 to Grade 6 (2) 52 under the Act on the Persons of Distinguished Service to the State on the ground that the Plaintiff’s disability rating referred to as “Class 6(2)52” refers to a person whose physical area is limited to 1/2 or more of the physical area of Section 6(2). This constitutes the degree of “a person whose physical area is limited to 1/2 or more” in the disability rating referred to in Article 47 and [Attachment 2] of the Enforcement Decree of the former Military Pension Act. In the disability rating referred to in Article 47 and [Attachment 2] of the former Enforcement Decree of the Military Pension Act, two parts of the three parts of the three parts of the "Class 6(s)" are not properly used, “a person whose physical function remains obvious”, and “Class 7(9).

③ 원고는 구 군인연금법상 상이 연금 신청을 위하여 이루어진 신체검사 결과, 2012. 6. 19. ◇◇◇◇병원장으로부터 ‘좌 견관절 견쇄 탈구 후유증으로 상완 신경총 마비 견관절 중등도 기능 장애’를 보이고, ‘군인연금법 시행령 제47조 [별표 2]에 의거하여 상이등급 제6급 6호에 해당한다’는 내용의 장애진단서를 받았다. ◇◇◇◇병원의 정형외과 의사 ■■■은 원고에 대한 상이연금소견서에 원고의 장애 정도가 ‘최초 상이등급 제8급’에서 ‘상이등급 제6급 6호’로 악화되었고, 그 악화 경위에 관하여 ‘좌 견관절 견쇄 관절 탈구'로 인한 상완 신경총 마비'라고 기재하고 있다. 한편 원고는 2012. 8. 29. 국가유공자법상 상이등급 재판정 신청에 따라 이루어진 신체검사 결과, 경주보훈지청장으로부터 2007. 6.경의 상이등급(6급 2항)에서 '변동이 없다'는 판정을 받았다. 그 고정된 폐질의 증상이 상호 일치하므로, 위와 같은 약 5년의 기간 동안 구 군인연금법상의 상이등급도 특별한 변동은 없었을 것으로 봄이 타당하다.

④ 위 장애진단서의 기재 및 신체검사 결과 등을 앞서 본 국가유공자법상의 상이등급 승급 경위 등과 종합하여 보면, 다음과 같은 결론이 공통적인 내용으로 도출되고, 이는 타당성이 있다. ㉠ 원고의 부상은 ‘좌 견관절 견봉 쇄골간 관절 탈구’에서 그 후 유증으로 ‘양완 또는 상완 부위의 신경총 마비’ 증세가 더해져 악화되었다. ㉡ 2007. 6.경 및 2012. 6. 19.을 기준으로 위 악화된 증상이 일시적인 것이 아니라 고정된 것으로 평가되어 ‘폐질상태’에 이르렀다. ㉢ 그 폐질(장애)의 정도는 위 악화된 증상으로 말미암은 팔 관절 기능의 상실 정도가 '중등도 기능장애'로 평가되어 당초의 상이등급 제8급 정도에서 제6급 6호로 상승함에 따라 상이연금 지급 대상에 해당하게 되었다. ㉣ 이러한 원고의 폐질상태는 2007. 6.경부터 2012. 6.경까지 유지되었다.

⑤ The Seoul Administrative Court Decision 2013Guhap**** on June 14, 2013 determined that the above judgment was recognized in the above ○○ District Court's judgment and that the Plaintiff's 'Mymal Gymosis certificate' was finally present since June 2007 based on the results of physical examination of injury ratings under the Act on Persons of Distinguished Service to the State on the Protection of Persons of Distinguished Service to the State. The Seoul High Court, which was the appellate court, determined that the Plaintiff had no error in its determination on December 18, 2013 in finding that the above judgment was 20.6 of the Enforcement Decree of the Military Pension Act [Attachment 2] 6 [Attachment 2] and 20.6 [Attachment 2] of the judgment on June 19, 2013, and that the Plaintiff had no error in finding that the above judgment was 60.27 of the judgment on June 19, 2012.

(6) In the instant review decision, the Seoul High Court held that since the provision of the amended supplementary provision was applied retroactively to the retroactive effect of the decision on non-conforming to the Constitution that was rendered by the Plaintiff prior to the enforcement of the new provision on June 28, 2018, the lower court determined that the first rejection disposition was unlawful by applying the new provision. In other words, unlike the previous decisions, the lower court determined that the first rejection disposition was unlawful by conclusion, but determined that the degree of the Plaintiff’s disability was fixed from June 2007, and that the same facts as the previous decisions are premised on the recognition of the same (the first rejection disposition is lawful).

⑦ 구 군인연금법 시행령이 2014. 12. 22. 대통령령 제25863호로 개정되면서 신설된 제47조 제3항은 상이등급 결정을 위한 세부기준을 국방부령으로 정하도록 위임하였으며, 그 위임을 받은 구 군인연금법 시행규칙(2014. 12. 31. 국방부령으로 제845호로 개정된 것) 제4조의7 제3항 본문은 "상이등급은 장애가 고정된 상태에서 판정한다."고 규정하고, 같은 조 제6항은 "상이등급의 판정은 장애 관련 급여의 청구 시 제출된 군인 연금장애진단서 또는 군인연금급여심의회에서 요구하여 실시한 진단에 따라 발급된 군인연금장애진단서를 기준으로 한다."고 정하고 있다. 위 개정 시행규칙은 이 사건 처분시에 적용되는 법령이므로, 피고가 1차 거부처분 당시 원고의 폐질상태에 대한 상이등급을 결정함에 있어서도 세부기준으로 적용될 수 있다. 앞서 본 ◇◇◇◇병원장의 2012. 6. 19.자 장애진단서 및 의사 ■■■의 상이 연금소견서는 피고의 의뢰에 따라 군병원에서 실시된 원고에 대한 신체검사 결과 '원고의 상이등급이 군인연금법 시행령

The content of the 6th class 6 of the attached Table 2 is that the data such as the disability diagnosis report of the military hospital had already been submitted since the time of the first refusal disposition.

(8) Article 24 (1) of the former Military Pension Act provides that "in cases where the degree of disability of a beneficiary of a pension for wounds has improved or aggravated, a disability rating may be re-determined if requested by the Minister of National Defense, or if recognized by the Minister of National Defense." According to Article 48 of the former Enforcement Decree of the Military Pension Act, a person entitled to receive a disability pension who wishes to receive a revision of a disability rating under Article 24 (1) of the Act shall submit an application for a revision of a disability rating to the Minister of National Defense along with a medical certificate issued by the head of a medical care institution or the head of a military hospital (Article 24 (1)), and the Minister of National Defense in receipt of such application shall conduct a physical examination at a military hospital to verify the condition of disability of the beneficiary of a pension for wounds (main sentence of paragraph (2)): Provided, That this shall not apply to a person who has submitted a written diagnosis of disability issued by the head of a military hospital (the proviso to paragraph (2)), and the Minister of National Defense may, if necessary, conduct the physical examination of the beneficiary ex officio,

① Therefore, it is reasonable to view that the Plaintiff’s disability condition from June 2007 to June 2012 falls under the disability rating under class 6 depending on the Plaintiff’s disability diagnosis report, etc. The result of the Plaintiff’s entrustment of the examination of the medical records with respect to Seoul Medical Center is just a result of the court’s entrustment of the examination of the medical records, and it is insufficient to view that the Plaintiff’s disability condition falls under class 6 (one of the three parts of the arms) or below the degree of disability as alleged by the Defendant (the above disability diagnosis was a military hospital’s disability examination, which directly conducted the Plaintiff’s physical examination at the Defendant’s request, stating the result of the judgment on disability rating related to the “the function of the parts of the arms parts” of the Plaintiff’s physical examination, while the above examination result was merely a result of the medical records and diagnosis conducted in the area outside the shape and the external area of the arm’s length. Meanwhile, it is difficult to determine the degree of interference with the Plaintiff’s examination of the medical records as above.

3) Sub-committee

Therefore, the disposition of this case should be revoked on the ground of illegality of the reason for the disposition, so the plaintiff's assertion ultimately is with merit.

3. Conclusion

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