[위자료청구사건][고집1967특,262]
Examination of an appeal case against the adjudication by collegiate division of a family court at the time other than the matters adjudicated by the family court
The case where the plaintiff claims consolation money against the defendant for mental distress caused by the infringement of father's right on the ground that the defendant's wife was in common with the plaintiff's wife shall be deliberated and decided in accordance with the general civil procedure, as long as there is no presumption that the case is subject to the conciliation and trial of the family court under Article 2 (2) of the Family Trial Act, which provides the scope of application of the Family Court's jurisdiction under the Family Trial Act, among the Family Trial Act, as provided by Article 32-5.
Article 2 of the Family Trial Act, Article 32-5 of the Court Organization Act
Supreme Court Decision 65Meu44 delivered on December 21, 1965 (Seoul High Court Decision 4322 delivered on December 14, 1965; Supreme Court Decision 13Du285 delivered on December 285; Decision 72Meu7 delivered on November 14, 1972 (Supreme Court Decision 102No. 10283 delivered on November 14, 1972; Decision 20NoNo. 123 delivered on June 23, 200; Decision 2(2)1216 delivered on November 216, 196)
Plaintiff
Defendant
Daegu District Court (66d3 Judgment) resident support (66d3 Judgment)
The judgment of the court below shall be revoked.
The defendant shall pay 50,000 won to the plaintiff.
The plaintiff's remaining claims are dismissed.
All the costs of lawsuit shall be divided into three parts of the first and second instances, and such two parts shall be borne by the plaintiff and the remainder shall be borne by the defendant.
This judgment may be provisionally executed only under paragraph (2) of the text.
The judgment of the court below is revoked.
The defendant shall pay 300,000 won to the plaintiff.
The judgment that the costs of lawsuit shall be borne by the defendant and the declaration of provisional execution are sought.
According to the records, this case is clear that the plaintiff claims consolation money against the defendant for mental distress caused by infringement of father's right on the ground that the defendant has passed between the plaintiff's wife and the non-party 1, and Article 2 of the Court Organization which has determined the judgment authority of the family court in Article 32-5 of the Court Organization Act and the scope of application of the family court's judgment authority in Article 32-5 of the same Act is subject to mediation and trial of the family court. Thus, this case is a general civil litigation case, and it shall be tried in accordance with the general civil procedure. According to the records, the court below's decision cannot be said to have been in violation of the law since it is obvious that this case was closed to the public in accordance with the family litigation procedure, and the procedure of the trial is not in violation of the law. Accordingly, the party member is revoked by Article 38
According to Gap evidence Nos. 6 (No. 6) without dispute over the establishment, the plaintiff may be recognized as having been married to non-party 1 on April 5, 1940 and the marriage relation is still in progress until the present. If there is no dispute over the establishment of Gap evidence Nos. 2, 5 (Examination of Evidence No. 2), and 4 (Examination of Evidence No. 1) and the testimony of non-party 1 for about two months from March 1965 to about two months, the defendant was living with the plaintiff's wife No. 1, and the defendant was negligent because the non-party 1 knew that he was the husband, or did not know that he was the husband, and the part of evidence No. 2 of the above evidence No. 2 is contrary to the above recognition, and the defendant's testimony and evidence No. 3 (the above evidence No. 4 and evidence No. 5) cannot be determined by the judgment below.
Therefore, the defendant intentionally or by negligence infringed the plaintiff's father's father's right, and it is reasonable in light of the empirical rule that the plaintiff suffered a considerable mental pain. Thus, the defendant sought a solatium of 300,000 won, so the defendant is able to pay consolation money. Thus, considering all the circumstances such as the defendant and the non-party 1's age recognized by each of the above evidence, the defendant's family matters, and the defendant's motive living together with the non-party 1, the consolation money amount for the above mental pain is reasonable as 50,000 won.
Therefore, the defendant is obligated to pay 50,000 won as consolation money for the above mental suffering to the plaintiff. Thus, the plaintiff's claim is justified only within the scope of the above recognition, and the remainder is actually dismissed, and it is dismissed, and it is so decided as per Disposition by applying Articles 96 and 92 of the Civil Procedure Act to the burden of litigation costs and Article 199 (1) 2 of the provisional execution declaration.
Judges Lee Jae-ho (Presiding Judge)