[손해배상][공1981.7.15.(660),13983]
The meaning of "where an inheritor of property pursuant to the proviso of Paragraph 1 of Article 1009 of the Civil Code succeeds to family at the same time"
In the case where the head of the family, the head of the family, Eul who died and the head of Eul succeeds to Eul's property, Eul does not have the family at the time of the death, and Byung did not have the family at the time of the death, and therefore, Byung did not have the family at the time of the death, and it was in violation of Article 1009 (1) of the Civil Code that 50 percent of the inherent inheritance portion
Article 1009 of the Civil Act
(1) Since the Cho Chang-sung plaintiff (1), (4), and (5) is a minor, the legal guardian's assistance shall be replaced by his/her legal guardian.
[Defendant-Appellant] Dok Cargo Counsel for defendant-appellant
Daegu High Court Decision 80Na920 delivered on November 14, 1980
Of the original judgment, the part concerning the remainder of the claim except for the consolation money claim of Plaintiff Cho Chang-tae is reversed, and that part of the case is remanded to the Daegu High Court.
All appeals against the defendant's remaining appeals against the plaintiff Cho Chang-jo and landscaping such as the plaintiff Cho Young-ju, the same Cho Young-jo, the same conciliation house, and the same conciliation hall are dismissed, and the costs of appeal against this part shall be borne by the defendant.
1. The defendant's attorney's grounds of appeal Nos. 1 through 5 are examined together.
According to the reasoning of the judgment of the court below, the court below recognized the death due to the non-party 1's driving negligence, which is the driver of the truck of the defendant company, and judged that there was no negligence on the part of the above deceased, and judged that there was no negligence on the part of the above deceased, the court below set off 1/10 of the above deceased's losses in calculating the amount of the damages of the above network. In light of the records of the evidence preparation conducted in the above fact-finding process, the court below did not err in the rules of evidence, and there was no error of law by misunderstanding the legal principles as to comparative negligence on the measures set forth in the above ratio of negligence, and there was no error of law by misunderstanding the legal principles as to comparative negligence.
In addition, in calculating the amount of damages caused by the death of the above deceased, the court below is just in examining the facts that 400,000 won per month was spent for the employment of a person who has the ability to guide and train the above deceased and the living expenses of the above deceased, 50,000 won per month, and 30,000 won per month for the living expenses of the above deceased and the living expenses of the above deceased deceased deceased, and the process of evidence cooking that the plaintiff Cho Jae-hwan required 953,000 won as funeral expenses of the above deceased, in light of the records, and there is no error of misconception of facts against the rules of evidence, such as theory of lawsuit, and there is no violation of the Family Rite Act. Accordingly, all arguments are groundless.
2. However, in the original judgment, the part concerning the remaining claim except for the consolation money for plaintiff Cho Chang-soo among the original judgment was examined ex officio. In the original judgment, the court below, on the grounds that the plaintiff Cho Jong-hee's heir, among the heirs of the deceased Cho Jong-hee's heir, considered the plaintiff Cho Jong-hee's heir as his heir, and calculated by 3/11,00 which added the 50 percent of the unique share of inheritance, and calculated by 15,923,690 won and 2,00,000 won and 3/11 of the consolation-hee's property damages, which are the mother's heir's property damages and 5,94,916 won in total, among the amount of compensation for the non-party Cho Chang-sik's property damages and the consolation-sik's share of inheritance for plaintiff Cho Chang-sung's deceased Lee's heir, the court below held that the above plaintiff was liable to pay 328,318 won in compensation liability for the defendant, and the above plaintiff 53755.
However, examining the records on the evidence No. 1 employed by the court below, it is clear that the above deceased was not the head of the household at the time of the death as a family member of the plaintiff Cho Young-hwan, who is the head of the household, and therefore, the plaintiff Cho Chang-chul cannot be the heir of the above deceased. In conclusion, the judgment of the court below is erroneous in applying the provision on the share of inheritance of the family heir to the person who is not the head of the family heir, and this affected the conclusion of the judgment (the calculation of the share of inheritance to the above deceased, who is the co-inheritors of the above deceased Cho Jong-hee, the other co-inheritors, the landscape arts, steering, and the conciliation assistant, and this part is erroneous, or there
3. Therefore, among the original judgment, the part concerning the remainder of the claim except the consolation money claim of plaintiff Cho Chang-tae among the original judgment is reversed, and this part of the case is remanded to the Daegu High Court for further proceedings consistent with this Opinion. Since the original judgment on the claim of consolation money for plaintiff Cho Chang-tae and the remaining plaintiffs' claims are justifiable, the appeal on this part is dismissed. The costs of appeal on this part are assessed against the losing party and are so decided as per Disposition
Justices Lee Lee Sung-soo (Presiding Justice)