[1] The standard for determining whether a soldier’s death during military service constitutes “the death during education, training, or performance of duty” under Article 4(1)5(a) of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State

[2] The case holding that in a case where the father of Gap who committed suicide in the Army while serving as a person of distinguished service in the Army, applied for registration as a bereaved family member, but the competent authority rejected Gap's refusal, the death does not constitute "self-injury" under Article 4 (6) 4 of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State as a ground for exclusion

[1] Article 4(1)5(a) and (6)4 of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (Amended by Act No. 10471, Mar. 29, 201) / [2] Article 4(1)5(a) and (6)4 of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (Amended by Act No. 10471, Mar. 29, 201)

[1] Supreme Court en banc Decision 2010Du27363 Decided June 18, 2012 (Gong2012Ha, 1300)

Plaintiff

Head of the Pool Military Branch Office

Gwangju High Court Decision 2011Nu1541 decided January 12, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Article 4(1)5(a) of the former Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (amended by Act No. 10471, Mar. 29, 201; hereinafter “former Act on Persons of Distinguished Service to the State”) provides that “A soldier or police officer who died during education and training or in the performance of duty (including a person who died of a disease in the line of duty), his/her bereaved family members, etc. shall be entitled to honorable treatment under this Act” (Article 4(1)5(a)), and Article 4(6) provides that “If a person who meets the requirements for a person of distinguished service to the State dies or is wounded due to any of the following causes, he/she shall be excluded from a person who has rendered distinguished service to the State, his/her bereaved family

The purpose of the former Act on the Persons of Distinguished Services to the State is to provide reasonable honorable treatment to persons who have made sacrifice or contribution to the State and their bereaved family members (Article 1). In light of Article 2, the basic principle of honorable treatment is to ensure that the honorable lives of persons who have rendered distinguished services to the State and their bereaved family members are maintained and guaranteed in accordance with the degree of their sacrifice and contribution (Article 2), “Death during education, training or performance of duty” refers to cases where there is a proximate causal relation between education, training or performance of duty and their death. The same applies to cases where a soldier’s death is self-injury.

However, Article 4(6)4 of the former Act on Persons of Distinguished Services to the State provides that “self-injury” as one of the grounds for exclusion of persons of distinguished services to the State as above. However, Article 4(6)1 through 3 provides that “in cases of self-injury by intention or gross negligence of the person of distinguished services to the State without any inevitable reason, or by considerably violating relevant statutes or orders of his superior, without any inevitable reason (Article 1).” (Article 4(1)1 through 3 provides that “in cases of an accident or disaster due to leaving his/her official duties (Article 2), or private act not deemed as a performance of duties, such as distress or fighting, constitutes grounds for exclusion of persons of distinguished services to the State (Article 3).” Since it can be seen that all of them are examples of cases where it is difficult to find a proximate causal relation between education and training, performance of duties, and death, “self-injury” cited in subparagraph 4 should be deemed as a provision that excludes self-injury from a person of distinguished services to the State.

Therefore, whether a soldier’s death during military service constitutes “the death during education, training, or performance of duty” under Article 4(1)5(a) of the former Act on Persons of Distinguished Service should be determined depending on whether there exists a proximate causal relationship between education, training, or performance of duty and the death. Even if there is a proximate causal relationship between education, training, or performance of duty and the death, the soldier should not be excluded from the person of distinguished service to the State solely on the ground that the death was caused by suicide or on the ground that his/her free will was not completely excluded (see Supreme Court en banc Decision 2010Du27363, Jun. 18, 20

2. The court below acknowledged the facts as stated in its reasoning based on the evidence adopted. After being placed in the unit to which the deceased was employed, the deceased was constantly under severe mental stress by assault and cruel acts, and there was no mental disorder before being placed in the unit to which he was employed. However, at the time of suicide, the deceased was suffering from mental illness such as “incompetence accompanied by an incompetuous disorder” or “major depression” at the time of suicide. In light of the fact that the deceased purchased 10 days prior to suicide and left the office book on the office book, it seems that the military register had already been in serious condition. In particular, on the day of suicide, the court below held that the office’s door on the day of suicide did not constitute a reason for self-injury of the deceased under the Act on Persons of Distinguished Services to the State, on the ground that the deceased did not participate in a gathering of internal affairs from an incompetuous disease, and determined that the act of self-injury of the deceased did not constitute a reason for death of the deceased under the Act on Persons of Distinguished Service.

The part of the judgment of the court below on the premise that even if proximate causal relation is recognized between the soldier's education and training or performance of duty and the death caused by suicide, if the suicide is based on free will, it is not appropriate to constitute "self-injury" as prescribed in Article 4 (6) 4 of the former Act on Persons of Distinguished Services to the State. However, the judgment of the court below that the act of the deceased's mental illness caused by violence and cruel act during military service does not constitute "self-injury" as prescribed in the above provision is justified. Accordingly, contrary to what is alleged in the grounds of appeal, it did not err by misapprehending the legal principles on the grounds for exclusion from persons of distinguished service to the State, or by exceeding the bounds of the principle of free evaluation of evidence

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 Min Il-young (Presiding Justice)