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과실비율 20:80
red_flag_2(영문) 대전고등법원 2016. 12. 23. 선고 2016나10627 판결

[손해배상(기)][미간행]

Plaintiff and appellant

Plaintiff 1 and three others (Law Firm Dong, Attorneys Yellow-gu et al., Counsel for the plaintiff-appellant)

Defendant, Appellant

Defendant (Law Firm Loplus, Attorneys Cheong-soo et al., Counsel for the defendant-appellant)

Conclusion of Pleadings

November 1, 2016

The first instance judgment

Daejeon District Court Decision 2015Gahap2027 Decided January 13, 2016

Text

1. The part against the plaintiffs of the money that orders payment under the judgment of the court of first instance shall be revoked.

The defendant shall pay to plaintiffs 1 390,536,459 won, plaintiffs 2, and 3 each of 8,000,000 won, 4,000,000 won, and 5% per annum from July 13, 2014 to December 23, 2016, and 15% per annum from the next day to the date of full payment.

2. The plaintiffs' remaining appeals are dismissed.

3. 30% of the total litigation costs shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 1 607,691,319 won, plaintiff 2, and plaintiff 3 each 10,000,000 won, 5,000,000 won, and 5,000 won per annum from July 13, 2014 to the rendering of the judgment of the first instance, and 15% per annum from the next day to the full payment day (the plaintiffs reduced their claims at the trial, and accordingly the purport of the plaintiffs' appeal was reduced within the scope).

Reasons

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part of the judgment is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Occurrence of liability for damages;

A. Grounds for liability

A person participating in a sports event may differ from other players due to his/her conduct. As such, he/she bears the duty of safety consideration, which is the duty of good faith, to ensure the safety of life and body of other athletes, etc., while complying with the sports rules. In particular, in the case of a sports-related competition in which players divided into two teams into one another and make a public figure toward the other team and participate in the sports, he/she is obligated to take into account mutual safety between players, such as conducting a sports in such a manner as not to see the movement of the counter team at all times, and even in the case of a sports event, if such violation of the duty of care exceeds the limit permitted by social norms, the perpetrator of such duty of care shall be held liable as a

(4) In light of the following circumstances, the defendant's violation of the duty of care by taking into account the overall purport of arguments, i.e., the defendant has a duty of care to take account of the situation and movement of the plaintiff in the alley in the alley in order to catch above the bar, but the defendant's violation of the duty of care to prevent the plaintiff from spreading out of the mouth. However, the defendant's violation of the duty of care to prevent the above marbation of the defendant's body by taking into account the situation and movement of the plaintiff in the alley marb in the above marb, but it seems that the defendant's violation of the duty of care to prevent the plaintiff from spreading out of the marb, the defendant's head and the defendant's side marb. The defendant's violation of the duty of care to prevent the plaintiff from spreading out of the bar marb, and the defendant's marbrance of the above marb.

Therefore, the defendant is liable for damages suffered by the plaintiffs due to the above tort.

B. Limitation on liability

However, in light of the various circumstances shown in the pleadings of this case, such as the fact that there is a risk of injury inherent in the sports event in which physical contact is permitted and rapid in the process of disputing the ownership, and that the participant in the sports should bear the risk to a certain extent within the expected extent, as well as the participant in the sports event, and that the plaintiff also needs to promote the safety of himself while driving his own movement, despite the need to bring about the movement of the other player, it seems that the degree of shock is increased by making it unnecessary or unreasonable to carry out the other player's movement, and trying to occupy the upper part of the upper part without properly examining the other player's movement, it is reasonable to limit the defendant's liability for damages caused by the accident of this case to 20%.

3. Scope of liability for damages

The basis for calculation, expenditure, calculation, and amount of the plaintiffs' property, mental damages caused by the accident of this case are as follows (However, calculation of the period for the convenience of calculation shall be calculated on a monthly basis, but less than a month shall be included in the side where the appraised amount is less than the month, and the amount less than the last month and less than a won shall be discarded, respectively. The calculation of the present price at the time of the accident of this case shall be based on the method of simple interest deduction at the rate of 5/12 per month.)

A. Plaintiff 1’s property loss

(i) lost earnings;

(A) the facts of recognition and evaluation;

00 Date of birth and gender: Male (date of birth omitted)

○ Age at the time of July 13, 2014, the date of the instant accident: (B)

○ Operation Period and Number of Days: From July 13, 2014, which is the date of the instant accident, to August 29, 2050, each 22th day of July from July 13, 2014, which is the date of the instant accident.

○ Income Standard: Market wage (84,166 won for the first half of 2014, 86, 86, 87,805 won for the first half of 2015, 89,566 won for the second half of 2015, 94,338 won for the first half of 2016, 99,882 won for the second half of 2016, for the second half of 2016, for the first half of 2016, for the first half of 2016) of a common person engaged in urban daily labor sought by Plaintiff 1

○ Ratio of Loss of Labor Capacity: 100% ( brain, two parts, three parts, three-D)

[Ground of recognition] The non-contentious facts, Gap evidence Nos. 16 and 17, and the result of the commission of physical examination to the director of the medical hospital affiliated with the △ University of the first instance court, the purport of the whole pleadings

(b) Calculation: Total of 521,611,066

A person shall be appointed.

(ii) Written treatment costs;

37,886,590 won in total (=3,416,150 won in a street hospital + KRW 5,210,041 medical won in a tobacco school + KRW 7,292,080 in a Chungcheongnamnam University Hospital + KRW 11,894,601 in a dryyang University Hospital + KRW 10,073,718 in a green hospital)

[Ground of recognition] 1 to 5 of Gap evidence 8 and Gap evidence 15

(iii) future medical costs and assistance costs.

Plaintiff 1 is anticipated to use assistance devices for disability caused by the following costs during the life expectancy. The following costs are expected to be incurred from November 2, 2016 to February 4, 2054 (from July 11, 2015, to 38.57, which is the date of physical appraisal) from the date following the date of the closing of argument in the court of the relevant trial. The following costs for future treatment and assistance devices are calculated at the present price at the time of the accident: the aggregate of KRW 215,258,429 (=the aggregate of future treatment costs of KRW 189,192,429 + the aggregate of future treatment costs of KRW 26,06,00, and the detailed calculation of each of the costs for future assistance items, see attached Form 1) and the calculation table of future assistance items, and each of the costs for convenience shall be calculated on the same day as the date of the accident at the present time).

A) Inspection fees, etc.

(a) Medical examination fees: 68,500 won per year; and

(b) Inspection fees (inpatients, various inspection fees, and treatment fees): 3,690,000 won per year;

(c) Medications: 3,015,000 won per year;

(b) Water treatment expenses: 2,400,000 won per year;

C) Assistants;

(a) Special wheelchairss: 1, 4,000,000 won per five years;

(b) Bathrooms prevention room: One, five hundred thousand won per three years; and

(c) A special sub-chapter: one, five hundred thousand won per three years.

(d) Special bed: 1,500,000 won for a life period;

[Reasons for Recognition] The result of the commission of physical examination to the chief of the hospital affiliated with the △ University at the court of first instance, the purport of the entire pleadings

(iv) nursing expenses;

(A) the necessity and degree of the opening;

Plaintiff 1 needs another person’s assistance in all daily life during the life period in the state of complete rain and the upper end part of the life zone. Therefore, it is reasonable to view that Plaintiff 1’s opening of one adult (1.5 adult as of 8 hours a day) is necessary for 12 hours a day from September 1, 2014 (round August 13, 2014, although it was transferred from a middle patient room to a general sick person, for the convenience of calculation, calculated from September 1, 2014) to February 4, 2054, which is the end of the life zone of the above Plaintiff 1.

[Reasons for Recognition] The absence of dispute, the result of the commission of physical appraisal to the head of the △ University affiliated to the University of the first instance, the purport of the entire pleadings

(b) Calculation: Total 1,077,926,210 won

A person shall be appointed.

5) Property damages after limitation of liability

Total 370,536,459 won = (the actual income of KRW 521,61,066 + the king treatment expenses of KRW 37,886,590 + the expenses for future treatment and relief in the future + KRW 215,258,429 + the nursing expenses of KRW 1,07,926,210) x 20%)

B. The plaintiffs' consolation money

1) Reasons for consideration: Various circumstances shown in the pleadings of the instant case, such as the background and degree of the instant accident, the parts and degree of the Plaintiff 1’s disability, and the relationship between the Plaintiffs

(ii) the amount determined;

A) Plaintiff 1: 20,000,000

B) Plaintiffs 2 and 3: Each of 8,000,000 won

C) Plaintiff 4: 4,000,000 won

C. Sub-committee

Therefore, the Defendant is obligated to pay to Plaintiff 1 390,536,459 (=total property damage of KRW 370,536,459 + solatium of KRW 20,000 + solatium of KRW 20,000; solatium of KRW 4,00,000; and damages for delay calculated at each rate of KRW 15% per annum under the Civil Act from July 13, 2014, which is the date the instant accident occurred to December 23, 2016, which is the date the judgment of the first instance is rendered from July 13, 2014, until December 23, 2016, and damages for delay calculated at 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

The plaintiffs' claims shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed, without merit. Since the judgment of the court of first instance is partially unfair, the plaintiffs' appeals shall be partially accepted and the defendant shall be revoked and the defendant shall be ordered to pay each of the above amounts recognized in the trial, and the remaining appeals by the plaintiffs shall be dismissed as they are without merit. It is so decided as per Disposition.

[Attachment]

Judge Lee Jin-hun (Presiding Judge)

Note 1) On October 31, 2053, prior to the end of the life expectancy for Plaintiff 1’s claim, calculating the ex post facto medical expenses by October 31, 205, either KRW 194,528,279, or KRW 189,192,429, as sought by Plaintiff 1, as indicated in the separate sheet for calculation of medical expenses.