[손해배상청구사건][고집1966민,81]
The case recognizing consolation money for the excavation of a grave
It is so-called a kind of public morals, such as the enhancement of ancestor worship, the installation of a grave, and the sprinking of the deceased, etc., as well as the subject of legal protection, which can not be invaded without permission by anyone, and so-called so-called, such as the deprivation of a grave and the benefiting from the remains, shall be a large number of the descendants, and the lineal descendants shall be obliged to suffer mental impairment.
Article 750 of the Civil Act, Article 160 of the Criminal Act
Plaintiff 1 and one other
Defendant
Gwangju District Court of the first instance (65 Ghana531)
The judgment below is modified as follows.
The defendant shall pay 60,000 won to the plaintiff, etc.
The plaintiff's remaining claims are dismissed.
All the costs of lawsuit shall be divided into three parts, one of them shall be borne by the plaintiff, etc., and the remainder shall be borne by the defendant.
The defendant shall pay 120,000 won to the plaintiff, etc.
The judgment that the lawsuit costs shall be borne by the defendant and the provisional execution under the above Paragraph (1) is declared.
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
The court costs are assessed against all the plaintiff in the first and second instances.
In light of the testimony of Non-Party 1 and 2 as well as the purport of the parties' arguments in Gap's evidence Nos. 1, 2, and 3-1,2 and 3, which are not disputed in the establishment of the court below, the new village Ri (number No. 1 omitted) was owned by Non-Party 3 and four other persons on the registry, but actually, the plaintiff et al., who was a clan of the defendant et al., was aware that the above mountain was the Dong Ri (number No. 2 omitted) and was the owner of the above (number No. 2 omitted) on March 13, 1936 with the consent of Non-Party 4, who was the owner of the above (number No. 1 omitted) and the above (number No. 1 omitted) 7 and 10 were the mother of the above defendant 1 and the deceased non-party 2 was found to be the deceased non-party 5's remains to be buried in the court below's non-party 1 and the defendant was not subject to a new prosecution.
If so, the so-called "rewing a grave" is a kind of public morals and no one can without permission be invaded by any person, as well as the subject of legal protection, such as where the plaintiff et al. wears a grave without permission, and where the plaintiff et al. al. without permission, such as where the plaintiff et al. al. wears the grave and dins the remains, such as where the plaintiff et al. al. without permission. Therefore, the defendant, at least a lineal descendant, has a duty to protect the plaintiff et al. from the above mental harm. Thus, the defendant et al.'s legal representative against the defendant et al. is liable to compensate for the above mental harm. Thus, even if the plaintiff et al. acquired a real right similar to superficies after the lapse of 39 years from the commencement of the tomb, as alleged by the plaintiff et al., the plaintiff et al. had acquired the right to the superficies, etc., even if it was acquired as a result of the prescription acquisition, the plaintiff et al.'s act should be considered as a gross negligence.
If the victim was negligent in the occurrence of damages or the expansion of the amount of damages in tort under the Civil Act, it shall be taken into account in determining the existence of liability for damages and the amount thereof. As seen above, according to the contents of evidence No. 4 (the plaintiff et al. formed by coercion but there is no evidence to recognize it), according to the plaintiff No. 1's statement of evidence No. 4 (the plaintiff et al. formed by coercion) around the defendant's grave in the vicinity where the defendant's grave was located without the consent of the defendant et al., as recognized above, it can be recognized that the plaintiff et al. did not implement the pledge to excavate this grave in April 13, 1963, and eventually, it would stimulate the defendant from doing so, and therefore, it should be taken into consideration in calculating the amount of damages even if the defendant cannot be held liable for the tort.
Therefore, according to the above circumstances, the reasons for considering the damages amount, and the contents of Gap evidence No. 1, the defendant can be found to have been detained and sentenced to conviction as the case. Thus, in light of the above circumstances and the contents of Gap evidence No. 3-1,2, and 3 (the contents of Eul evidence No. 2, which conflict with this, are hard to be trusted) without dispute over the establishment, the consolation money shall be recognized as 60,000 won, considering the academic background and property of the plaintiff, defendant, etc. recognized by the testimony of non-party No. 1 by non-party No. 1 by the witness of the court below.
Therefore, the plaintiff et al.'s claim of the principal lawsuit shall be accepted within the scope of the above acceptance and the remainder shall be dismissed. The judgment of the court below which differs from this result is unfair, and since the defendant's appeal has some grounds, it is modified by Article 386 of the Civil Procedure Act and it is so decided as per Disposition by applying Articles 96, 89, and 92 of the Civil Procedure Act as to the total costs of the lawsuit.
Judges Kim Yong-dae (Presiding Judge)