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(영문) 서울고법 1973. 3. 22. 선고 71나2272 제5민사부판결 : 확정

[손해배상청구사건][고집1973민(1),203]

Main Issues

Compensation for damages and attorney fees

Summary of Judgment

If it seems that the plaintiffs are not capable of directly conducting the lawsuit due to the complexity of the lawsuit or the complexity of the case, the defendant is obligated to compensate the plaintiffs for the fees to be paid to the lawyers as damages.

[Reference Provisions]

Article 750 of the Civil Act

Reference Cases

Supreme Court Decision 72Da265 delivered on April 20, 1972 (Supreme Court Decision 10068 delivered on April 20, 197, Supreme Court Decision 200Da211 delivered on April 20, 2000)

Plaintiff, Appellant

Plaintiff 1 and 7 others

Defendant, appellant and appellant

Seoul UwS Cooperatives

Judgment of the lower court

Seoul Central District Court (70 Ghana16593) in the first instance trial

Text

(1) Of the part against the defendant against the plaintiff 1, 2, 3, 4, and 5 in the original judgment, the defendant shall revoke the plaintiff 1 with respect to 587,215 won and 486,643 won among them, from December 1, 1970 to 83,086 won, from September 23, 1971 to 17, 1971 for 17,486 won, from January 1, 1971 to 29,715 won for 436,643 won, from December 1, 1970 to 75, 1971 to 36, and from 197, from 197 to 36,643 won, the defendant shall dismiss the plaintiffs 1 with respect to 193,000 won, from 17,486 won to 486 won, respectively, and from 193, 1971 to 197 won and 297.1 respectively.

(2) The defendant's remaining appeal against the above plaintiffs and the appeal against plaintiffs 6, 7, and 8 are dismissed.

(3) Of the costs of appeal, the costs of appeal between plaintiffs 1, 2, 3, 4, 5 and the defendant are divided into two parts of the costs of appeal and the costs of appeal between the plaintiff 1, 2, 3, 4, 5 and the defendant. The costs of appeal between the plaintiff 6, 7, and 8 are assessed against the defendant.

(4) The part of the plaintiffs' favorable judgment that was not revoked by this judgment that was not sentenced to provisional execution can be provisionally executed.

Purport of claim

The plaintiffs jointly and severally with the non-party 1,039,338 won, 909,338 won, 4, and 5 respectively, shall be paid to the plaintiffs 1, 1,688,676 won, 130,000 won, and 130,000 won per annum from December 1, 1970 to the full payment system.

The court costs are assessed against the defendants and a declaration of provisional execution.

Purport of appeal

The defendant shall revoke the part against the defendant in the original judgment.

The plaintiff's claim is dismissed.

All the costs of lawsuit are assessed against the plaintiff, etc.

Reasons

(1) Illegal acts

The death of the deceased non-party 1 is due to the joint tort committed by the non-party 2, the driver of the defendant company, and the non-party 3, the driver of the non-party 3 (the defendant of the court of first instance), who is the driver of the non-party 2, and the non-party 1, who is the driver of the non-party 3, who is the non-party 1, and the defendant is responsible for compensating for the damage caused by the above accident, and the fact that there is no negligence with the deceased non-party 1 in relation to the above accident, among the reasoning of the judgment in the original judgment, the "Defendant Samsan Tourist Co., Ltd." is corrected to the "non-party 1" (the defendant of the court of first instance) and it is identical to the original part of the "the occurrence of the damage compensation liability in the original city" after adding the "

(2) Property losses

(1) According to the above evidence Nos. 1 (No. 5) and evidence No. 5 (Simplified Life Table) that had no dispute over the establishment of the deceased, the deceased non-party 1 may be recognized as having an average life of 25.73 years as of May 5, 1930, and the average life of the deceased non-party 2 was 25.73 years at the time of the above death. The non-party 2's evidence No. 6-1 (the certificate of license), No. 7-2 (the same contents), No. 10-2 (the certificate of license), No. 10-2) of the deceased non-party 10, No. 10-2 (the defendant 2's evidence No. 10-5), and the non-party 1-2 (the same contents)'s evidence No. 10-3 (the same)'s evidence No. 5-10-3 of the deceased non-party 2's testimony and the fact that the non-party 1-2's testimony were non-party 3.

(2) In addition, if the deceased non-party 1 did not die due to the above accident, he may obtain an adult male wage for at least 25 days per month after he retired from the defendant's association to 5 years of age, and his wage for 651 won per day (the monthly wage for agricultural cooperatives) and there is no dispute between the parties as to facts that the cost of living of the deceased is 5,00 won per month (the testimony of non-party 5 of the original judgment, which conflict with this, shall not be trust), for 60 months from 50 to 55 years of age, 16,275 won per month, but after 30 years of age from 50,000 won per month from 50,000 won per month, 16,265 won per month from 30,000 won per month, and 5,000 won per month from 1,265 won per month from 30,000 won per month from 50,000 won per month from the plaintiffs's claim.

(c) According to the results of the fact-finding conducted by the members of the Defendant Union, the Defendant Union paid regular bonuses to its employees pursuant to the employee's salary regulations of the Union, and the net bonus amounting to KRW 24,200 was paid once in 1971 to the third class employees of the deceased non-party 1 who were in a position at the time of death and KRW 24,200 was paid once in 1972, and the bonus amount was paid four times in 1972 ( February, June, September, September, September, and December). The fact that each of the testimony portion of the court below and non-party 5 and the witness non-party 4 of the trial court, which conflict with the above recognition, could be paid if the deceased non-party 1 did not die due to the accident, barring special circumstances.

In addition, if the wage and salary income of Class A carried out at the time of the above bonus amount, the bonus of 1971 in 1971 is 23,014 won (gold 24,200 won-Income tax 1,186 won) and the bonus of 1972 is 9,384 won (gold 25,600-Income tax 754 won) x 4 x 122,398 won (gold 9,384 won + 23,014 won). Thus, the bonus of the above two-year period that the deceased received shall be 122,398 won in total.

The plaintiff et al. asserted that the deceased non-party 1 is a bonus of KRW 102,40 per annum while working as the head of the defendant's association's department, and paid KRW 102,40 per annum. Thus, the plaintiff et al. asserted that the non-party 1 claims KRW 526,941 out of the bonus for the nine-year period after the retirement of 50 years until the age of 50,000. Thus, according to Article 15 of the Gap evidence 12 (Personnel Benefit) which is recognized as true by the non-party 5's testimony of the party witness non-party 5, the regular bonus is within the approved budget, and it is hard to conclude that the regular bonus is paid within the scope of 4 months after the date of payment of the above monthly bonus as of the end of March, 6, and 9, since it is hard to conclude that the annual bonus is paid within the scope of the plaintiff's new bonus and the non-party 6's new bonus will be paid within the scope of the above.

However, according to the evidence No. 1 of the above, since plaintiffs 1 and 2, 3, 4, and 5 are the deceased's wife and they are their children, the plaintiffs 1, 2, and 3 jointly inherited the above amount. If they are divided according to their legal shares in inheritance, the plaintiffs 1, 2, and 3 inherited the amount of 404,129 won (386,643 won as the deceased's employee and daily worker + 17,486 won as the lost amount of wages), the plaintiffs 4, and 5 respectively, 808,256 won as the deceased's employee and daily worker (73,286 won as the lost amount of wages + 34,970 won as the lost amount).

(d) Delegation expenses.

In light of the contents of evidence No. 4-1 (Rules of the Attorney Association), evidence No. 2 (the same contents), and evidence No. 11 (a contract), evidence No. 3 (a contract) acknowledged as the authenticity of the authenticity, and evidence No. 3 (a contract) acknowledged as the authenticity by the testimony of Non-Party 5, and the whole purport of the pleading in the testimony of the witness, the plaintiffs filed a lawsuit for damages claim by entrusting the case to Non-Party 7, and agreed to pay the amount equivalent to 30% of the winning amount for each instance without the start of the contract with the above attorney-at-law, and pay the amount equivalent to 30% of the winning amount for each instance without the start of the contract with the above attorney-at-law, without the start of the fee agreement on December 14, 1972, there is no evidence to acknowledge otherwise.

However, since the difficulty of the lawsuit in this case or the complexity of the case seems to be incapable of directly conducting the lawsuit against the plaintiffs, the defendant is obligated to compensate the above attorney's fees as damages. Accordingly, according to the statement No. 4-1 and No. 2 of the evidence No. 4 and the appraisal of remuneration of the non-party 8 of the original trial, it can be recognized that the attorney's fees are 15% of the quoted amount without commencement of the lawsuit as above, and since there is no counter-proof, it is obvious that the amount is 83,086 won for each 15% of the quoted amount of the first instance court (the sum of property damages and consolation money) of the plaintiffs' damages claim case (the sum of 53,912 won x 15/100), 75,586 won 】 】 50% for each of the plaintiff 1's damages claim amount 】 0,000 won (the gold x 503,105/104,571) 5,714,7

(3) Consolation money

Since the deceased non-party 1 died due to the accident in this case, it can be easily identified in our empirical rule that the plaintiff 1 and his children, who were the wife of the deceased non-party 1, and the plaintiff 2, 3, 4, 5, and the plaintiff 7, and 8, who were born with the plaintiff 6, who were his children, should receive mental distress or go through it. Thus, the defendant is obligated to pay consolation money. Thus, the defendant is obligated to pay consolation money to the plaintiff 1. The above personal relations with the plaintiff 1 and the plaintiff 1, who was born by the non-party 5's testimony. Considering the various circumstances revealed in this case's arguments such as the plaintiffs' living standard, etc., which can be known by the testimony of the non-party 5, the defendant should pay consolation money to the plaintiff 1.

(4) If so, the defendant's above amount of KRW 587,215 (property damages amounted to KRW 404,129 + KRW 100,00) to the plaintiff 1; KRW 529,715 (cost 404,129 + KRW 75,586 + KRW 500 + KRW 50,00) to the plaintiff 4 and 5; KRW 1,001,929 (property damages amount + KRW 808,256 + KRW 143,673 + KRW 50,000) to the plaintiff 6; the defendant's claim for damages from KRW 97,50 for damages from KRW 19,00,00 for each of the above judgment below against the plaintiff 1; KRW 57,000 for damages from KRW 97,50 for damages from property; KRW 97,500 for damages from KRW 70,000 for each of the above judgment below to the plaintiff 6.

Judges Kim Jong-hee (Presiding Justice) and Noh Jeong-hee