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(영문) 광주지법 1986. 8. 28. 선고 84가합1100 제4민사부판결 : 항소

[손해배상청구사건][하집1986(3),355]

Main Issues

Where the ability to work is lost due to competition between the injury and the victim due to an accident, the scope of compensation by the perpetrator;

Summary of Judgment

If the victim's loss of labor ability is caused by competition of injury caused by a king and accident, the perpetrator shall be liable only to the extent that the injury caused by the above injury contributed to the victim's loss of labor ability.

[Reference Provisions]

Article 763 of the Civil Act

Reference Cases

[Plaintiff, Appellant] 1, 1984Gong713, No. 7131, Jul. 26, 1983 (Non-resident I), Article 763(1)(36) of the Civil Act, No. 7631, Jul. 26, 198

Plaintiff

Plaintiff 1 and three others

Defendant

Defendant

Text

1. The defendant shall pay to the plaintiff 1 an amount equivalent to 145,94,584 won, 2,500,000 won to the plaintiff 2,50,000 won, 50,000 won per annum from March 13, 1985 to the day of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. The costs of the lawsuit are divided into three parts; two parts are assessed against the plaintiffs; the remaining one is assessed against the defendants.

4. Two-thirds of the provisions of paragraph 1 above may be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 1 an amount of 498,788,120 won, 5,000,000 won to the plaintiff 2, and 1,000,000 won to the remaining plaintiffs, and 25% per annum from the day following the delivery of the complaint of this case to the day of full payment.

The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.

Reasons

1. Occurrence of liability for damages;

In light of the above evidence No. 1 (No. 1), evidence No. 2 (Bodily Injury), evidence No. 7-4 (Written Opinion), evidence No. 11,16,19 (each protocol of investigation), 20 (Intermediate Report), evidence No. 1-7 (Written Evidence No. 4, 11,12 (Written Evidence No. 7) and evidence No. 7-7,8 (Written Evidence No. 4,16, 19, 21), and evidence No. 1 of the above statement No. 1 (the above statement No. 4) were not known to the defendant, and the defendant's testimony No. 5 (the above statement No. 1) were not known to the defendant, and the defendant's testimony No. 1, 16, 17 (the above statement No. 1, No. 17, No. 1, and the defendant's oral statement No. 1, 198 (the above statement No. 1, No. 4) were found to be known to the purport of the plaintiff No. 1,

On the other hand, according to the above facts, the above plaintiff's bath theory was the starting point of the starting cost of this case, and there was negligence that caused the plaintiff to be injured by setting up against the defendant, and considering the above plaintiff's negligence, the amount of damages to be paid by the defendant to the above plaintiff should be determined at 80/100 of total damages caused by the above injury. When the above plaintiff was injured by the injury of this case, the defendant should have immediately received treatment from a medical specialist, but it should be considered in determining the amount of damages due to the above increase of damages due to the plaintiff's symptoms caused by the negligence of the medical care, which had been delayed after the lapse of three days after the injury of this case, and thus, it should be considered in determining the amount of damages due to the increase of the time of the medical care in the face. Accordingly, according to the records of evidence No. 7-11 and evidence No. 7-15 (statement of statement), each of the above plaintiff's 3 days after the injury suffered by the above plaintiff, it cannot be accepted the plaintiff's argument that the above treatment delay was delayed.

2. Scope of liability for damages

A. The plaintiff 1's actual profit

(1) On February 25, 1983, the above plaintiff's graduation from the Joseon University and acquired a dentist's license on March 28, 198, completed 6 weeks' training for the Air Force on April 16, 1983, and worked at the treatment hospital located in Yong-gun, Young-gu, Seoul, and transferred 80,00 won to the Young-gu, Young-gu, 1984 and received 800,00 won monthly salary at the time of the above injury. The plaintiff's assertion that 10,000 won was 6,00 won per annum 10,000 won per annum 60,000 won per annum 10,000 won per annum 60,000 won per annum 19,50,000 won per annum 60,000 won per annum's average wage per annum 9,50,000 won per annum 16,000 won per annum.

(2) As a result of the Plaintiff’s 11, No. 2, and No. 1-9 (S.C.’s response to investigation request) of No. 7-1-3 and the appraisal of No. 1-9 (P.C.’s response to investigation request), Plaintiff 1, supra, was deemed to have lost the medical capacity of 1-5 percent before and after the Defendant’s above injury, based on the overall purport of the oral argument as to the head of Joseon University’s affiliated hospital; the head of the affiliated hospital of the Seoul University; and the head of the affiliated hospital of the Seoul University; and the head of the affiliated hospital of the Seoul University; and the overall purport of the oral argument as to the above physical examination of the head of the affiliated hospital of the Seoul University; however, Plaintiff 1, supra, was deemed to have lost the medical capacity of 1-3, 1984 and was unable to be seen to have been found to have lost the medical capacity of 1-4,000 p.m. at the time of 1-2, 1984.

(3) If so, the plaintiff's above injury occurred within 1984.12 to 1986. The plaintiff's remaining 7 months and 1986. The plaintiff's remaining 10,00 won per month during 19 months (the remaining 7 months or less as the plaintiff seeks)'s remaining 1.7 months, and the above plaintiff's average remaining 437 months from August 1, 1986 (47 months and less than 10 days after the above 1.5 months old 2 years old 2 years old 3 years old 4 years old 1. Thus, the plaintiff's remaining 5 months old 2 years old 2 years old 4 years old 1. The plaintiff's remaining 5 months old 2 years old 1. The plaintiff's remaining 1.5 months old 2 years old 1. The plaintiff's remaining 1.3 months old 3 months old 3 months old 20 months old 3 months old 3 months old 20 months old 3 months old 3 months old 2.

Meanwhile, prior to the injury of this case, the above plaintiff had already been suffering from the king of Mana, the injury caused by this injury was concurrent with the injury caused by this accident, so the above plaintiff shall be liable for the injury only to the extent that it is recognized that the injury caused by the injury of this case contributed to the loss of the above plaintiff's labor ability (see Supreme Court Decision 83Meu663, Jul. 26, 1983). Furthermore, as recognized above, it is recognized as a result of physical commission of the above plaintiff's team and Mana, Jeonnamnam University's hospital head before the injury of this case, as well as the result of physical diagnosis of the above plaintiff's team and the injury caused by this accident, the injury of 0.15 percent in Mana,00,000 won, and the general ability of correction in Mana, 10.15 percent in Mana,000,000 won, as the above plaintiff's injury of 10.15 percent in 19.6 percent,06 percent of the total labor ability of this case's loss of 20.30.20.30

B. Medical expenses of Plaintiff 1

In full view of the statements in Gap evidence Nos. 4 (Simplified Tax Invoice), 6-1 through 6 (Separate Tax Invoice), 10 (Medical Expenses Receipt), and Gap evidence Nos. 3 and 5 (Multiple Simplified Tax Invoice), which are acknowledged to have been genuine by the whole purport of the pleadings, the above plaintiff paid 1,902,160 won (1,00 + 15,00 won + 35,000 won + 150,000 +150,000 + 150,532,160 won + 1,532,160 won) to the hospital affiliated to the Jeonnam University and the hospital affiliated to the Daegu National University, and there is no other data to deem otherwise.

(c) Negligence offsetting, etc.;

Therefore, property damages suffered by the above plaintiff due to the injury of this case are KRW 176,243,230 ( KRW 174,341,070 +1,902,160). However, since the above plaintiff was negligent as seen above, the amount of damages that the defendant is liable to compensate to the above plaintiff is KRW 140,94,584 ( KRW 176,243,230 x 80/100).

Meanwhile, the defendant's deposit of KRW 50,00,00 with the above plaintiff's damage compensation amounting to KRW 50,000,000, the above claim for damages is asserted to have ceased to exist within the limits. Accordingly, according to the statement of KRW 58,00,00 (each deposit) in the evidence No. 1-2, which has no dispute over the establishment, the defendant's deposit of KRW 50,00,00 (2,750,000 + 47,50,000) with the above plaintiff's damage compensation amount, and there is no other data to see otherwise. However, it is apparent in the above recognition that the above deposit is only a part of the defendant's damage compensation obligation against the above plaintiff, and since there is no assertion or proof on the acceptance of the above deposit, the above deposit cannot be effective as repayment for the damage compensation obligation of this case, the above claim of the defendant cannot be accepted.

(d) Condolence money;

Since the above plaintiff suffered an injury as seen above due to the injury of this case, it is clear in light of the empirical rule that not only the above plaintiff but also his wife or the remaining plaintiffs who are his parents suffered considerable mental suffering, the defendant is obligated to do so. Furthermore, considering the health class, the plaintiffs' age, family relation, property and level of education, motive and circumstance of the injury, result, etc. as recognized by various evidences from the above, as well as various circumstances shown in the argument of this case, it is reasonable to determine that the amount is KRW 5,00,000 for the plaintiff 1, KRW 250,000 for the plaintiff 2, and KRW 500,000 for the remaining plaintiffs, respectively.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1 the sum of the above recognition 145,94,584 won (140,94,584 won +5,000 won + 5,000 won) and the remaining plaintiffs 2,50,000 won for the plaintiff 2, and 500,000 won for the remaining plaintiffs, and 50,000 won for each of the above amounts after the date when the plaintiff suffered the injury as to the above recognition, with the rate of 5% per annum from March 13, 1985 to the day of full payment, which is obvious from March 13, 1985 to the day when the complaint of this case was delivered to the defendant as requested by the plaintiff (a dispute over the existence or scope of the duty of performance of this case is reasonable). Accordingly, the plaintiffs' claim of this case is justified within the above recognition scope, and the remaining claims are dismissed, and Article 89, Article 92, and Article 93 of the Civil Procedure Act shall be applied only to the above amount of provisional execution.

Judges Gangnam-gu (Presiding Judge) and Cho Nam-nam Lee