2011Du18335 Revocation of Disposition Rejecting Persons of Distinguished Service to State

A person shall be appointed.

Ansan-si -

Head of △ Veterans Branch Office

Omission of Litigation Performers

Seoul High Court Decision 2010Du39559 Decided June 23, 2011

September 27, 2012

The appeal is dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined.

1. In a case where a soldier was wounded due to self-injury in the military service, whether it constitutes "injury during education and training or performance of duty" under Article 4 (1) 6 of the former Act on Persons of Distinguished Services to the State shall be determined based on whether there is a proximate causal relation between the injury and education or performance of duty. Although there is a proximate causal relation between the injury and education or performance of duty, it shall not be excluded from a person of distinguished service to the State solely on the ground that the injury was caused by self-injury or because the free will was not entirely excluded (Supreme Court Decision 2006Da6

18. Supreme Court en banc Decision 2010Du27363 Decided 18.

2. The court below acknowledged the facts and circumstances as stated in its reasoning after comprehensively taking account of the adopted evidence, and found that the plaintiff's mental divided disease was mentally vulnerable due to the nature of the mental disease, but the plaintiff who did not show symptoms of the previous mental disease was unable to adapt to the new environment of the military life after entering the military, resulting in aggravation of the mental disease's person with mental illness, resulting in aggravation of his lives and injury, and resulting from the plaintiff's military service. Therefore, proximate causal relation between the mental disease of this case and the plaintiff's military service is acknowledged. Meanwhile, it is reasonable to deem that the injury of this case was caused by the plaintiff, alone, by the outbreak of a mental divided disease that occurred in the course of performing his duties, from the second floor of about 5m and about 5m in height, but it did not constitute "self-injury" under Article 4 (5) 4 of the Act on Persons of Distinguished Service to the State.

The judgment of the court below is just in holding that even if proximate causal relation is recognized between the injury caused by the soldier's education and training or duty and self-injury during the above determination, if it is based on free will, it constitutes "self-injury" under Article 4 (5) 4 of the former Act on Persons of Distinguished Service to the State. However, it is not appropriate in the part of the court below that the plaintiff suffered from mental illness due to stress and cruel act caused by duty performed while in military service, and due to the plaintiff's act of violence and cruel act, etc. on the second floor, since proximate causal relation between the plaintiff's military service and the injury in this case is recognized, and that the difference between the plaintiff's mental disease and the injury in this case does not constitute "self-injury" under the above provision. Accordingly, contrary to what is alleged in the grounds of appeal, the court below erred by misapprehending the legal principles on "self-injury act, which is excluded from the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on "self-injury act."

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae

Justices Yang Chang-soo

Justices Go Young-young

Justices Kim Chang-suk