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(영문) 대구고법 1987. 10. 13. 선고 86나1098 제1민사부판결 : 상고

[손해배상청구사건][하집1987(4),1]

Main Issues

(a) The extent of offsetting the lessee with his/her duty of care, and negligence;

B. The maximum working age on the safe occupation point

Summary of Judgment

(a) If the lessee has been unable to avoid smoke, sufficient ventilation prior to locking and opening a window in the room to prevent the occurrence of the accident, and if the lessee neglects to do so even though he/she had a duty of care to prevent the occurrence of the accident, the negligence should be considered to the extent of 70 percent;

B. It is reasonable to set the maximum working age by up to 60 years to the maximum working age.

[Reference Provisions]

Articles 396, 750, and 763 of the Civil Act

Plaintiff and appellant

Plaintiff 1 and three others

Defendant, Appellant

Defendant

Judgment of the lower court

Busan District Court (85 Gohap2249)

Text

1. Revocation of the part against the Plaintiffs ordering payment under the original judgment shall be revoked.

2. The defendant shall pay to the plaintiff 1 the amount of KRW 3,697,434, and the amount of KRW 200,000 per annum from March 18, 1985 to the day of full payment.

3. The plaintiffs' remaining appeals are dismissed.

4. The costs of the lawsuit are five minutes for both the first and second instances, and four minutes for them are assessed against the plaintiffs, and the remainder is assessed against the defendants.

5. The above paragraph 2 can be provisionally executed.

Effect of Request and Appeal

The original judgment shall be revoked.

The defendant shall pay to the plaintiff 1 19,116,173 won, 2, 3, and 4 each amount of 50,000 won and the interest rate of 5% per annum from March 18, 1985 to the day of full payment.

The costs of lawsuit shall be borne by the defendant in both the first and second trials and a declaration of provisional execution.

Reasons

1. Occurrence of liability for damages;

According to Gap evidence Nos. 1 (No. 2), Gap evidence No. 4, 5 (written opinion), 3, 9 (written statement) of the same heading, Gap evidence No. 9 which can be established by the testimony of a witness at the trial, and the above witness and the party member's testimony, the plaintiff 1 did not have an obligation to repair the above part of the plaintiff's 1, which is the defendant's own, because it was hard for the plaintiff 4 to use the above evidence No. 1, and it was hard for the plaintiff 1 to find that the above part of the evidence No. 1, which was located in the above 7th anniversary of the above fact that the plaintiff's 1, the plaintiff 1, and the above 1, the plaintiff 4, which was located in the above 1, 300,000 won of the house No. 1, and thus, it was hard for the plaintiff 1 to find that the above part of the evidence No. 1, which was located within the boundary of the 15th of the above house.

2. Scope of liability for damages

(a) Property damage;

(1) Profit-making (negative loss)

In full view of the facts stated in subparagraph 1 and subparagraph 6-1 of the above 6-1, 2 (Simplified Life Marks and Details) 】 10, 100 witnesses of the original judgment, testimony of the same garden, and the whole purport of the parties' arguments in Busan University's hospitals as a result of physical appraisal, Plaintiff 1 was a woman who was physically disabled for about 15 years and 11 months old at the time of the accident, and the average remaining life of 21 years old is 30,000,000 won for 30,000 won for 10,70,000 won for 30,000 won for 30,000 won for 10,000 won for 30,000 won for 10,000 won for 30,000 won for 10,000 won for 7,000 won for 30,000 won for 6,000 won for 9,000 won for 6,00 won for each month.

(2) Medical expenses

In full view of the facts stated in Gap evidence Nos. 3 (Notice of Payment of Medical Expenses) and Gap evidence Nos. 5 (Receipt of Medical Expenses), and the purport of the parties' pleadings as a result of the testimony of the acceptance of the witness at the trial and the physical examination from the front, the plaintiff 1 shall be deemed to have incurred KRW 2,70,000 for admission fees to Busan Metropolitan City Medical Center due to the accident in this case, and KRW 2,707,086 for treatment fees, and KRW 300,00 for admission fees to the hospital affiliated with the Busan Metropolitan City Medical Center, which was a local government-invested public corporation, and even if not for the future, for one year medical treatment expenses are expected to have to have to have to have to have been spent KRW 2,560,00 for medical expenses, and since there is no counter-proof otherwise, the above plaintiff's damage to the above plaintiff shall be the sum of KRW 5,567,086 for treatment expenses (2,707,000,00).

(3) The part of the claim for nursing expenses

Plaintiff 1 asserted that not only the period of hospitalization at each of the above hospitals, but also the period of hospitalization after discharge until December 27, 1986, when the injury of this case occurred during the period of 21 months in total, the Plaintiff 1 suffered damages equivalent to the opening expenses, but also the result of physical entrustment from the front and front of the fact-finding witness's testimony and the result of physical examination that seems corresponding thereto is insufficient to recognize it, and there is no other evidence to recognize other points, the part of the claim for damages for the opening expenses is groundless.

(4) Fruits offsetting

Considering the degree of negligence of the plaintiff 1 in the accident of this case as seen above, the defendant is obligated to compensate the above plaintiff 1,527,309 won (5,091,030 won x 0.3) with the amount of damages for actual profit, and 1,670,125 won (5,567,086 won x 0.3) with medical expenses.

(b) consolation money;

Since it is clear in light of the empirical rule that the remaining plaintiffs who are children of the above plaintiffs and their children suffered severe mental pain due to the accident of this case, the defendant is obligated to accept it. Considering various circumstances such as the plaintiffs' age, degree of injury of the plaintiffs 1, the plaintiffs' respective property relationship between the plaintiffs and the defendant, the circumstance and result of the accident of this case, it is reasonable to pay 50 million won to the plaintiff 1 as consolation money, and 200,000 won to the plaintiff 2, 3, and 4 respectively.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1 the above sum of KRW 3,697,434 (won 1,527,309 + KRW 1,670,125 + KRW 500,00) and damages for delay at an annual rate of KRW 200,00 per annum from March 18, 1985 to the full payment of the above sum, as requested by the plaintiff, as to the plaintiff 2,3, and 4, each of the above sum of KRW 3,697,434 ($ 1,527,30,300 + KRW 1,670,125 + KRW 500,00). Thus, the plaintiff's claim of this case is justified within the above recognition scope, and the remaining claims are dismissed. Since the court below's conclusion is unfair, the court below revoked the part against the plaintiffs falling under the part ordering payment of the above part among the original judgment and dismissed this part of the plaintiffs' remaining appeals are without merit. Article 96 and Article 892 of the provisional sentence.

Judge Lee Il-young (Presiding Judge)