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(영문) 대구고법 1979. 2. 28. 선고 78나426 제1민사부판결 : 확정

[손해배상청구사건][고집1979민,81]

Main Issues

Interpretation of an agreement between a patient and his/her guardian that the patient's surgery process and the patient's/her guardian prevent the patient from being able to do so;

Summary of Judgment

In the treatment of Nonparty’s son’s dysium, it is reasonable to view that the agreement was concluded between the head of a hospital permanently stationed under the Defendant and the Nonparty’s dysium, which had been the principal of the hospital and the principal of the hospitalization, to the effect that it would prevent the process of the operation and the dysium from being able to do so, and that it would not be held liable if the above agreement was accepted by the patient at the same time and there was no intention or negligence on the part of the doctor at the same time. It cannot be said that it included the purport that the doctor would not be held liable even in the case where

[Reference Provisions]

Article 750 of the Civil Act

Plaintiff, appellant and appellee

Kangsan et al.

Defendant, appellant and appellee

Republic of Korea Red Cross and one other

Judgment of the lower court

Daegu District Court of the first instance (77Gahap690 Judgment)

Text

1. From the original judgment, the part against the defendant Korean Red Cross in excess of the part that "the defendant Korean Red Cross shall pay to the plaintiff et al. the amount of 1,700,000 won and the amount of 5 percent per annum from January 1, 1977 to the full payment day" shall be revoked and the plaintiff et al.'s claim corresponding to the above revoked part shall be dismissed.

2. All of the appeals by the plaintiff et al. and the remaining appeals by the defendant Korean Red Cross are dismissed.

3. Of the costs of lawsuit, the part arising between the plaintiff and the defendant Korean Red Cross shall be divided into two parts; one shall be the plaintiff, etc.; the remaining part shall be the defendant, and the part arising from the appeal of the plaintiff, etc. shall be the cost of the plaintiff, etc.

Purport of claim

The defendant et al. shall jointly and severally pay the amount of KRW 3,634,922 in the amount of money, KRW 3,184,922 in the amount of money, KRW 3,184,92 in the amount of money, and KRW 5% in the amount of money from January 1, 197 to the date of full payment. Litigation costs shall be borne by the defendant et al., and a provisional execution declaration (Correction of the claim that is claimed by the defendant et al.)

The purport of appeal by the plaintiff

The part against the plaintiff among the original judgment shall be revoked.

The defendant et al. shall jointly and severally pay to the plaintiff Kangsan 1,164,264 won in the amount of 714,264 won in the amount of 714,264 won in the amount of money and 5 percent in the amount of money per annum from December 1, 1975 to the full payment date. The costs of the lawsuit shall be borne by the defendant et al. and a provisional execution declaration.

피고대한적십자사의항소취지

The part of the original judgment against the defendant Korean Red Cross shall be revoked.

The claims against the plaintiff et al. against the defendant Korean Red Cross shall be dismissed.

All the costs of lawsuit shall be borne by the plaintiff, etc.

Reasons

1. In a case where: (a) the non-party 1 to 14 was found to have no dispute on the establishment of the deceased’s evidence; (b) the non-party 1’s testimony at the time of the above-mentioned search and inspection; (c) the non-party 1’s testimony at the time of the above-mentioned search and inspection; (d) the non-party 2’s testimony at the time of the death of the deceased; and (e) the non-party 1’s testimony at the time of the above-mentioned search and inspection; and (e) the non-party 1’s testimony at the time of the above-mentioned search and inspection; and (e) the non-party 2’s testimony at the time of the above-mentioned search and removal; (e) the non-party 1’s testimony at the time of the death of the deceased; and (e) the non-party 1’s testimony at the time of the above-mentioned search and removal; and (e) the defendant 1’s testimony and behavior were found to have been changed to the left by the defendant 1’s body.

According to the above facts of recognition, the death of the deceased was caused by the intentional murder by the defendant Kim Jong-chul and the negligence in the operation and treatment of the deceased's gambling net. As such, the defendant Korean Red Cross and the defendant Kim Jong-gu, the user of the defendant Kim Jong-young, are jointly and severally liable for the damages suffered by the deceased and the plaintiff, etc. due to the joint tort of the defendant Kim Jong-sik and the deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's death. Meanwhile, according to the above facts acknowledged as above, some of the tort committed by the defendant Kim Jong-k's deceased's deceased's deceased's deceased's deceased's deceased's deceased's death was caused by the accident of this case. Thus, in this case, in determining the amount of damages to be compensated by the defendant et al.

Defendant Korean Red Cross (hereinafter “Defendant Red Cross”) made an agreement with Nonparty 1, who was the head of a resident hospital affiliated with the same Defendant, on the part of Nonparty 2’s care for the treatment of Nonparty 1 and on the part of his care for the treatment of Nonparty 2, on the ground that, even if the result of the instant case is not good, the Plaintiff et al.’s claim against the above Defendant was without merit. Thus, according to the record of No. 4, the Plaintiff et al.’s claim against the above Defendant was asserted to be without merit. In the process of the operation of Nonparty 2’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s her son’s son’s son’s son’s son’s son’s son’s son’s her son’s son’s her son’s her surgery and her her her son’s her.

2. (A) If the deceased's physical health had no dispute over the establishment of Gap evidence Nos. 2 and 15-15-2, and he collected all the arguments, the non-party 2 is a male who was 19 years old and 7 months old as of April 1, 1956, and the plaintiff et al. sought 2,099 daily wages for the male male community as of January 1, 197 after the accident, and there is no proof that 30 days old and 40 days old and 50 days old and 30 days old and 4 years old and 40 years old and 50 days old and 4 years old and 30 years old and 50 days old and 50 days old and 50 days old and 50 days old and 30 days old and 50 days old and 30 days old and 50 days old and 50 days old and 50 days old and 30 days old and 50 days old and 50 days old and calculated the plaintiff's old and 200 days old and 3 years old.

(B) It is clear in light of the empirical rule that the death of the non-party deceased due to the accident of this case was caused by the non-party, as well as the plaintiff et al., who is his leader, was suffering from severe mental pain. Furthermore, in light of the health care team, the accident circumstance of this case recognized as above, the background of the accident, the age of the non-party deceased, the status relationship of the plaintiff et al., and all other circumstances such as the family environment of the non-party deceased appearing in the pleading of this case, it is reasonable to determine the consolation money as the amount of the non-party case at KRW 450,000, and KRW 500,000, respectively, to the plaintiff et al., according to the legal share of inheritance.

3. Accordingly, the defendant et al. is jointly and severally liable to pay to the plaintiff et al. the damages for delay at the rate of five percent per annum under the Civil Act from January 1, 1977 to the full payment date. Since the part against the defendant Korean Red Cross in the original judgment against the defendant Korean Red Cross in excess of the above scope of recognition is unfair, it shall be revoked according to the above defendant's appeal and dismissed the plaintiff et al.'s claim as to this part. The part against the defendant Kim Jong in the original judgment against the above scope of recognition in the original judgment shall also be unfair. However, in this case where the plaintiff et al. did not appeal against the original judgment against the above recognition, and only the plaintiff et al. appealed appealed appealed appealed appealed against the plaintiff et al., it cannot change the original judgment against the plaintiff et al., and therefore, Article 96 and Article 95 of the Civil Procedure Act and Article 95 of the Civil Procedure Act shall be applied to the remainder of the appeal against the plaintiff et al. and the defendant Korean Red Cross shall be dismissed without any reason.

Judges Lee Jong-woo (Presiding Judge)

심급 사건
-대구지방법원 77가합690
본문참조조문