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과실비율 0:100
(영문) 서울고법 1976. 7. 14. 선고 76나1207 제3민사부판결 : 상고

[손해배상등청구사건][고집1976민(2),420]

Main Issues

Cases of denying a victim's negligence

Summary of Judgment

If, at the time of the passage of a motor vehicle in a narrow road with a width of 3 meters, the distance from the wall is 20 cent or more, if the victim who was flick on the side of the road is flicker, the victim cannot be deemed to be negligent if the victim was flicker in the back wheels of the motor vehicle.

[Reference Provisions]

Articles 763 and 396 of the Civil Act

Plaintiff, Appellant

Plaintiff 1 and two others

Defendant, appellant and appellant

Defendant corporation

Judgment of the lower court

Seoul Central District Court (75 Gohap3885) in the first instance trial

Text

The appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

Purport of claim

The defendant shall pay to the plaintiff 1 the amount of KRW 100,00 per annum from June 28, 1974 to the plaintiff 452,976 won, and the amount of KRW 100,000 per annum from June 28, 1974 to the date of full payment. The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.

Purport of appeal

The part against the defendant in the original judgment shall be revoked. The plaintiff's claim shall be dismissed.

Litigation costs shall be assessed against the plaintiff at all of the first and second trials.

Reasons

1. Occurrence of liability for damages;

In light of Gap evidence Nos. 2 (Traffic Accident Confirmation Board), Gap evidence Nos. 3 (Written Examination), Gap evidence Nos. 5-2 ( Indictment and Facts charged), Gap evidence No. 7-1, and Gap evidence No. 7-2 (Examination Statement), and the whole purport of the pleadings in the testimony of non-party 1 of the court below, non-party 2, who is the defendant company owner (vehicle number omitted) and non-party 2, who is the truck driving number of the defendant company, around 18:00 of Jun. 28, 1974, when the non-party 3 was operating the above vehicle to the head of the bank construction site of the same 276 days prior to the operation of the above vehicle, it is difficult to find the plaintiff 1 to keep the right-hand side of the vehicle at a speed of 10 meters due to the fact that the non-party 3, who had been on the right-hand side of the above 10-meter road, even if it is difficult for the plaintiff to proceed with it.

Therefore, the defendant is liable to pay consolation money for mental suffering suffered by the plaintiff 2, 3 and the above plaintiff 2, who is the plaintiff 2's employer as the non-party 2's employer, who is deemed to be the plaintiff's parent by the statement of the evidence No. 1 that the above plaintiff suffered from the above plaintiff's negligence in the course of performing his duties, and

In this regard, the defendant's attorney defense that the accident occurred due to the gross negligence of the plaintiff Lee Jong-ok, and therefore, the plaintiffs' damages should be offset against negligence in determining the plaintiffs' damages. According to the above evidence Nos. 6 and Nos. 7-1 and 2 of the same evidence, the defendant's defense of the defendant's negligence is not valid since it is acknowledged that the distance between the wall and the truck constructed on the side side of the road is only about 21 cent or 26 cent meters in the case where the truck 1 cost is narrow, which is about 3 meters in width, and it is so narrow that the truck 21 cent or 26 cent meters in the case where it goes through, and there is no reflective evidence.

2. The amount of damages the defendant must compensate;

(1) Property damage

In full view of the statements in Gap evidence Nos. 1 (No. 1), 4 (Simplified Life Table), and 8-1, and 8-2 (No. 8-1, and testimony of the above witness, appraiser non-party 4's appraisal result, the plaintiff 1, who was a healthy female worker who was born on October 30, 1963 and left 10 years and July 10 at the time of the accident, was the average female worker 57.23 years, the above plaintiff 1, as the date of the accident, was the average female worker's daily wages at the present rural community as of June 1, 1975, which were sought by the above plaintiff 1,078, and the fact that the above plaintiff lost 5 percent of the labor ability to work in rural communities due to the walking transit of the lele part, etc., due to the accident as above, cannot be disputed between the parties until the age of 305 days.

Therefore, the above plaintiff can obtain the annual income of 323,40 won (1,078 wonx300 days) from the age of 20 to 55, who would become an adult, barring any special circumstances, if there was no accident in this case (i.e., 1,078 won and 16,170 won (323,40x5/100) for a year due to the loss of labor ability due to the accident in this case. Thus, it is clear that the above plaintiff is calculated in accordance with the Hof-type Calculation Act that deducts the interim interest at the rate of 5% per annum as of the time of the accident from the total income loss suffered by the above plaintiff according to the calculation of the Hof-type calculation method that deducts the annual interest at the rate of 5% per annum as of the time of the accident.

(20) Consolation money

Since the plaintiffs 1 and the other parents of the plaintiffs 1, who are the victims themselves, and the plaintiff 1, who are female students of the five-year national school, suffered a lot of mental suffering from the above above above above sufferings according to our rule of experience, they are naturally known in our society, the defendant is liable for perjury as money. However, if the circumstances acknowledged by the above evidence, the degree of the victim's injury, and other various circumstances revealed in the arguments, it is reasonable to pay 10 million won to the plaintiffs 1 and 50,000 won to the other plaintiffs.

3. Therefore, the defendant is obligated to pay to the plaintiff 1 the above damages of KRW 247,171 and the above damages of KRW 100,00,00 in total, and KRW 347,171 per annum from June 28, 1974 to the date of full payment, and damages for delay in civil affairs at the rate of 5% per annum from June 28, 1974 to the date of full payment. The remaining claims of the plaintiff are without merit. Since the judgment of the court of first instance recognized the plaintiff 1 as above and concluded as to the remaining plaintiffs, the defendant's appeal shall be dismissed without reason, and the costs of appeal shall be borne by the losing party and it is so decided as per Disposition.

Judges Kim Jong-woo (Presiding Judge)