[손해배상청구사건][고집1970민(2),4]
The case holding that the waiver of the right to claim damages is null and void pursuant to Article 104 of the Civil Act because the agreement is remarkably unfair.
It is reasonable to view that the agreement to waive the right to claim compensation for damages, which was made by receiving KRW 34,424 as experience and scambly, from the time of loss of the Plaintiff’s labor force, the amount paid by the Plaintiff, and the amount paid by the Plaintiff due to the tort, is an invalid agreement pursuant to Article 104 of the Civil Act, as it is remarkably unfair in comparison with the Plaintiff’s loss of labor force, the amount paid by the Plaintiff, and the amount paid by the Plaintiff.
Article 104 of the Civil Act
Plaintiff 1 and one other
Defendant
Seoul Central District Court (68Ga10992) in the first instance trial
(1) The original judgment with respect to Plaintiff 1 is revoked.
The defendant shall pay to the plaintiff 1 the amount of KRW 250,00 and the amount at the rate of five percent per annum from December 12, 1966 to the date of full payment.
The plaintiff's remaining claims are dismissed.
(2) Plaintiff 2’s appeal is dismissed.
(3) Of the costs of lawsuit, the costs of the first and second instances incurred between the plaintiff 1 and the defendant are five minutes. The costs of the first and second instances are assessed against the defendant, the remainder is assessed against the plaintiff 1, and the costs of the appeal by the plaintiff 2 are assessed against the same plaintiff.
(4) The main text of the judgment in question (1) and the main text of the judgment in question (1) can be provisionally executed.
The original judgment shall be revoked.
The defendant shall pay to the plaintiff 1 the amount of 1,294,666 won and 40,000 won to the plaintiff 2 and the amount of 5% per annum from December 10, 1966 to the date of full payment.
(1) In full view of the contents of evidence Nos. 1 and 2-1, 3 of evidence Nos. 2 (No dispute over the establishment of the court below's witness 1, 2, and 3, the expert witness of the court below's testimony, the appraisal contents of the non-party 4, and the whole purport of the parties' arguments, the plaintiff 1, who was working as a mining part of the Pungdong-gun, Gangwon-do dong-gun, was not only the owner of the above mining establishment around 20:0, which was not the owner of the above mining establishment, but also the owner of the above mining right after being informed of the fact that the non-party 2 was not the owner of the above mining establishment's non-party 3's non-party 1's non-party 1's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 3's non-party 2's non-party 3's non-party 3's non-party 3's non-party 2's labor.
Therefore, it is clear that the damage of the above recognition suffered by the plaintiff 1 is a tort committed by the defendant's employee while performing his/her duties. Therefore, the defendant is responsible for compensating for such damage.
The defendant's legal representative agreed not to claim any damages from the defendant on March 20, 1967 when he retired from office with 34,424 won or more, and therefore, the plaintiff's claim for damages in this case is unjust. Thus, considering the result of the plaintiff's examination conducted in the court below and the contents stated in Eul No. 1, and the whole purport of the party's argument, the agreement as stated in Eul No. 1, which the defendant transferred to the defendant's mining center as evidence of the above facts, is prepared even if he retired from the defendant's mining center as of March 20, 1967, with the defendant's retirement allowance and compensation, it is acknowledged that the plaintiff was paid with 34,424 won and affixed 34,424 won on the defendant's ground that it is reasonable to recognize the plaintiff's payment of retirement allowance and compensation as a result of the plaintiff's refusal to claim for damages from the defendant, and thus, it is not reasonable to recognize the plaintiff's remaining amount of damages and compensation as a tort.
However, according to the testimony of Non-Party 2 and Non-Party 3, such as the testimony of Non-Party 1, the victim, although the plaintiff 1 was aware that at the time of the accident in this case, the other side of the plaintiff 1, as the victim, had been pushed down in the same direction as the other side at the time when the accident in this case occurred, the plaintiff 1, the victim, was aware that the other side of the plaintiff 1, as the victim, was pushed down in the same direction as the other side. However, it is recognized that the plaintiff 1, as the victim, was negligent since the plaintiff 1, as the victim, was pushed down the plaintiff 1 at the time of the accident in this case without being sealed by the other side, and it was found that the plaintiff 1, as the victim, was injured when the two
(2) Therefore, we first examine Plaintiff 1’s passive damages.
In light of Gap evidence Nos. 1 and 2 (Simplified Life Table), which do not dispute the establishment of the court below's testimony by non-party Nos. 1 and 2 (Simplified Life Table), the plaintiff was a healthy male born on February 2, 1942 and the age at the time of injury was 41 years old. The average remaining life expectancy at the time of injury was 41 years old, and the average remaining life expectancy was 41 years old. If the plaintiff did not suffer from the accident at the time of the accident in this case before he reached the age of 55 (361 months), even if he did not suffer from the accident in this case, at the minimum monthly limit, the plaintiff sustained more than the age of 30 years until he reached the age of 55 (361 months). Thus, it can be recognized that the defendant's testimony at the time of the plaintiff's injury was 25 days old per day after deducting the defendant's average remaining wage at the time of the accident in this case's age of 25 days old, and the plaintiff's average wage loss was 25 days old.
256 won ¡¿ 256 won ¡¿ 25 (40/100) = 2,560 won = 2,560 won ¡¿ 220.09 = 40176 = 563,224 won.
However, as stated earlier, considering the degree of negligence of the Plaintiff, the victim, as well as the degree of negligence, the passive amount of damages that the Defendant is liable to compensate for should be determined as KRW 234,424. However, according to the evidence No. 1, the Plaintiff’s 34,424 won can be recognized as having already been paid from the Defendant, so the deduction of the amount would lead to the remainder of KRW 200,000,000.
(3) Finally, it is reasonable to examine consolation money, that Plaintiff 1 suffered emotional distress due to the injury of this case, and Plaintiff 2 (personal identity can be recognized by evidence No. 1) who is his mother, also caused the injury of this case and caused the suffering of 40% of the suffering from the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering of the suffering.
(4) Therefore, the defendant is obligated to pay the plaintiff 1 with 250,000 won and 30,000 won and 30,000 won and 5% interest rate per annum from December 12, 1966 where the tort was committed. Thus, the plaintiffs' claim is justified within this limit and the remainder is dismissed. Since the part of the original judgment with respect to the plaintiff 1 is concluded differently, the plaintiff 1's remaining claims are without merit, the plaintiff 2 shall be dismissed, and the above amount of the above acceptance limit shall be accepted. The plaintiff 1's remaining claims are dismissed, and the original judgment with respect to the plaintiff 2 is concluded with the exception of damages for delay, and the defendant is not dissatisfied with this, the plaintiff 2's appeal is dismissed.
For the same reason, it is so decided as per Disposition by applying Articles 89, 92, 95, 96, and 199 of the Civil Procedure Act to the imposition of litigation costs and the declaration of provisional execution.
Judges Noh Jeong-ho (Presiding Judge)
Judges Song Ho-chul et al. al.