2017dan5181217 (Counterclaim) Undue profit

Law Firm Taesan, Counsel for the defendant-appellant

Attorney Shin Young-young, Prosecutor Park Jae-young, Prosecutor Park So-young

[Plaintiff-Appellant] Plaintiff 1 et al.

[Defendant-Appellee] Plaintiff 1 and 5 others

2. The Plaintiff (Counterclaim Defendant)’s remaining principal claim and the Defendant (Counterclaim Plaintiff)’s counterclaim are dismissed, respectively.

3. Of the costs of lawsuit, 9/10 of the cost of lawsuit is assessed against the Plaintiff (Counterclaim Defendant) and the remainder is assessed against the Defendant (Counterclaim Plaintiff). The cost of the counterclaim is assessed against the Defendant (Counterclaim Plaintiff).

4. Paragraph 1 can be provisionally executed.

Counterclaim: The plaintiff shall pay to the defendant 176,490,100 won with 5% interest per annum from October 25, 2017 to the service date of a written application for the purport of the counterclaim and the cause of the counterclaim, and 15% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. At around 19:10 on September 26, 2014, C driven a D car (hereinafter referred to as “Defendant vehicle”) and driven the Plaintiff on the front line of the Defendant’s vehicle (hereinafter referred to as “the instant accident”) without discovering the Plaintiff without permission crossinging from the left side of the Defendant’s driving direction, while driving the two-lanes in the direction of the correction tunnel, from among the roads (exclusive motorways) getting down a two-lane and extending the two-lanes into a two-lane and a three-lane one, in the direction of the correction tunnel, according to the official door located in the Busan-do, Busan-do (hereinafter referred to as “instant accident”).

B. In the instant accident, the Plaintiff suffered injury, such as the blood transfusion, the left-hand balone, etc. due to the instant accident.

C. The defendant is an insurer who has concluded a comprehensive insurance contract regarding the defendant vehicle.

D. Meanwhile, on September 4, 2015, the Defendant filed a lawsuit against the Plaintiff for the return of KRW 152,886,010 (the amount actually paid to the Plaintiff) and the provisional payment of KRW 152,886,010 (the amount actually paid to the Plaintiff was KRW 151,98,870) with the Busan District Court Decision 2015Kadan232619, Dec. 3, 2015, the Defendant (the Plaintiff of this case) filed a lawsuit for the return of unjust enrichment with the Plaintiff (the Plaintiff of this case) on December 3, 2015, and the said judgment became final and conclusive on September 5, 2015 to October 5, 2015, that the Defendant paid the Plaintiff KRW 152,88,610 and the amount calculated at the rate of KRW 15% per annum from the next day to the date of full payment (hereinafter referred to as “prior judgment”). The judgment became final and conclusive on February 212, 2015.

[Ground of recognition] Facts without dispute, Gap 1, 2, 4 evidence, each entry or video of Eul 1 through 3 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on the main claim

(a) Occurrence of liability for damages;

According to the above facts of recognition, the defendant is liable for the damages suffered by the plaintiff due to the accident of this case as the insurer of the defendant vehicle.

B. Limitation on liability

The following circumstances that can be recognized by the evidence mentioned above, ① the place of occurrence of the accident in this case is divided into a fleet and a drails, and there is a central separation cost, ② the Plaintiff appears to have entered the motorway in this case by using the difference between the fleet and the drails, ③ the speed at the time of the accident of the Defendant’s vehicle is presumed to have exceeded the speed of 70 km per hour, and ③ the speed at the time of the accident is presumed to have exceeded the speed of 72-82 km per hour, ④ the motorway in this case is presumed to be parallel with the drails and the drails in general, and it is difficult to see that there is no possibility of unauthorized crossing due to the housing complex and commercial building adjacent to the general Do, and the Plaintiff’s fault shall be deemed to be 75% per cent and the Defendant’s responsibility is limited to 25

C. Scope of liability for damages

In addition to the following separate statements, each item of the following calculation table of damages shall be as follows, and in principle, the period for the convenience of calculation shall be calculated on a monthly basis, but less than the last month and less than the last won shall be discarded. The current value calculation at the time of the accident shall be in accordance with the fractional interest rate which deducts the interim interest at the rate of 5/12 per month. And it shall be rejected that the parties' arguments have not separately explained.

[Ground of recognition] The facts without dispute, Gap evidence, Gap evidence, Gap-5 to 14, Eul-4 to 10 evidence, each of the physical appraisal commissioned to the director of Busan University Hospital and the director of the E Hospital in this court, the fact inquiry results, significant facts, experience, and the purport of the whole argument

(1) Actual income

(A) Personal information

The term lease name is 25% of the normal person, and the end date of life expectancy shall be deemed to be June 21, 202.

(b) Income and operating time limit;

At the time of the instant accident, the Plaintiff had earned income equivalent to the monthly average of KRW 6,822,343 [the average annual bonus of KRW 34,891,178 ( KRW 35,732,388 - KRW 841,210) and the annual average of KRW 44,045,416 from 2010 to 2013 / [the monthly average of KRW 81,868,112/12] from the said company’s retirement age is 60 years, since the said company’s retirement age was 60 years, the Plaintiff could have earned income by February 6, 2024.

(c)Talopsis;

In the case of under-fluoral damage due to under-fluoral dysia damage, minimum food condition: 100% permanent loss of labor capacity (in the case of Mabrid disability assessment table, brain, 1X-B-4, application of Mabrid disability assessment table, 100-B-4, and appraisal and assessment, Ⅲ-D shall be applied; however, the nemeral and appraisal cannot be observed because the nemeral and appraisal do not apply to the category to which the appraisal and appraisal and assessment are applied).

mal personal biode: 15% permanent loss of labor ability (damage to clobrid urine reproductive machines and damage to disease II-A-2)

(d) Cost of living: 1/3 of income from the day following the termination of life to the end of operation;

(e) Calculation: as stated in the separate sheet of damages calculation in the column of "actual income".

(2) Expenses for treatment;

96,814,286 won

(3) The cost of future treatment

000,000 won is required for anti-scam corrective devices and shall be deemed to have been carried out on the following day after the closing of argument, and shall be calculated at the present price at the time of the accident.

In order to test, physical therapy (such as diaper, electric wheel chairs, be recognized as the expense of assistance equipment to be seen behind) by the end of life, 6,390,368 won (4,732,576 won/7) shall be required each year, and the expense shall be calculated as the current price at the time of the accident, considering that it is being disbursed every year from the day following the end of argument.

○ urology: By the end of life expectancy, 2,923,620 won per year shall be required to undergo tests, pharmacologic treatment, and cleanliness at the expense of urology, and shall be deemed to have been disbursed every year from the day following the closing of argument and shall be calculated at the present price at the time of

00 calculation: The cost of antiscopic plastic surgery is as follows, such as the future treatment cost column of the attached table for calculating the amount of compensation for damage, and the future treatment cost of the urology and the area of the urology shall be as follows:

A person shall be appointed.

(4) Assistants

Until the end of life expectancys, electric wheelchairss (special chairss are deemed to be the same, and therefore no separate recognition is required. 2 million won/passers are deemed to be the same. 5 million won/passer), beds (5 million won/passer 900,000 won), t lease (250,000 won/ender), and tamper (912,500 won/ender), etc. are necessary, and they are deemed to have been disbursed from the day following the closing of argument to the present price at the time of the accident, and

A person shall be appointed.

A person shall be appointed.

(5) Nursing expenses

In light of the fact that the plaintiff was hospitalized in the G Hospital's middle-patient's room in a minimum food condition (the execution of an incomplete order, the unexploded, the unexploded, the condition, and all of the non-explosion symptoms), the plaintiff's opening of one adult 10 hours per day from October 26, 2014 to the end of life, excluding the degree of one month from the date of the accident at which the plaintiff was hospitalized in the G Hospital's hospital, it is deemed that the opening of one adult 10 hours per day from October 26, 2014 to the date of the termination of life,

A person shall be appointed.

(6) Limitation of liability: Defendant’s liability 25% (see Section 2(b))

(7) Set-off

On September 5, 2015, the repayment period of the defendant's right to claim restitution of unjust enrichment against the plaintiff by the preceding judgment, and the defendant's intention of offset reached the plaintiff on September 20, 2017.

Therefore, on the set-off day, the Plaintiff’s claim for damages in this case against the Defendant was extinguished within the scope of KRW 152,886,010, and the remaining amount of property damages is KRW 110,046,225 (262,932,235 - 152,86,010).

(8) Mutual aid

m. Amount of KRW 176,490,100 paid by the defendant in addition to the amount recognized in the preceding judgment, the amount of KRW 132,367,575

In addition, the amount remaining after deduction from consolation money shall be appropriated first from consolation money.

(9) Consolation money

(A) Grounds: The occurrence of the instant accident and its result, the Plaintiff’s age, occupation and degree of negligence, degree of injury and the degree of injury and the subsequent disability, and all the circumstances shown in the instant argument.

(b) the amount of recognition;

35 million won

(10) Sub-decisions

Therefore, the defendant is obligated to pay to the plaintiff 12,678,650 won as damages and damages for delay calculated at the rate of 5% per annum under the Civil Act from September 26, 2014, which is the date of the accident in this case, to November 30, 2017, which is the date of this decision, and 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

3. Judgment on a counterclaim

The defendant asserts that since the occurrence of the accident of this case occurred by the plaintiff's total negligence, 176,490,100 won for medical expenses paid after the preceding judgment is unjust enrichment of the plaintiff, and the plaintiff is obligated to pay the above amount and damages for delay to the defendant. However, as seen above, the accident of this case occurred by negligence between the defendant and the plaintiff, and since the above medical expenses paid were deducted from the plaintiff's damages or offset in whole, the above argument of the defendant is without merit.

4. Conclusion

If so, the plaintiff's claim of the principal lawsuit is reasonable within the scope of each above recognition, and the remainder of the principal lawsuit and the defendant's counterclaim are dismissed as they are without merit.