2017dan5221368 (Counterclaim) Claims

2. B

Since it is a minor, the legal representative mother A

3. C

Since it is a minor, the legal representative mother A

Plaintiff (Counterclaim Defendant) (Attorney Shin Dong-dong, Counsel for the plaintiff-Counterclaim Defendant)

Attorney Kim Ho-jin, Counsel for the defendant-appellant

2. The plaintiff (Counterclaim defendant)'s remaining main claim and the defendant (Counterclaim plaintiff)'s counterclaim are all dismissed.

3. The costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) for a total of 85% of the costs of the lawsuit and counterclaims, and the remainder are assessed against the Defendant (Counterclaim Plaintiff).

4. Paragraph 1 can be provisionally executed.

Counterclaim: The defendant, the plaintiff A, the plaintiff B, and the plaintiff C shall pay 2,168,600 won each and 15% interest per annum from July 25, 2017 to the date of complete payment.

1. Occurrence of liability for damages;

A. Facts of recognition

1) On June 22, 2017, E driving a FF taxi (hereinafter referred to as “Defendant vehicle”) around 23:47, and driving the G Apartment-gu Seoul Yongsan-gu Seoul Metropolitan Government (hereinafter referred to as “Defendant vehicle”) along the two lanes, one of the four-lanes in the direction of Gulri in the direction of Gulri, and the H walking the two-lanes in the front part of the Defendant vehicle (hereinafter referred to as “instant accident”).

2) Due to the instant accident, H died around June 23, 2017 and around 00:30 (hereinafter “H”).

3) The Plaintiff is the deceased’s spouse, Plaintiff B, and C’s children, who are the deceased’s inheritors, and the Defendant is the mutual aid business entity that entered into a mutual aid agreement with respect to the Defendant’s vehicle.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 7, 8 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1 and the purport of the whole pleadings

B. Determination as to the recognition of liability

1) According to the above facts, as the deceased died due to the operation of the Defendant’s vehicle, the Defendant is liable to compensate the deceased and the plaintiffs for the damages caused by the instant accident as a mutual aid business operator of the Defendant’s vehicle, barring special circumstances.

2) As to this, the Defendant asserts that the instant accident occurred due to the total mistake of the deceased who driven the motorway without permission by drinking the motorway, and that the Defendant’s driver as the driver of the Defendant’s vehicle was unable to discover the deceased in a normal situation where other automobiles are operating normally at the time of the accident, and that the driver of the Defendant’s vehicle should be exempted from liability on the ground that there was no negligence in connection with the instant accident.

According to the above evidence and evidence and evidence Nos. 1 and 3, the location of the accident in this case lies in ① a road bended by the Han River 150 meters from the Han River. However, the location where the accident in this case occurred in the Han River 150 meters, but there was a relatively visible view due to the left light at the time, etc., and the deceased was wearing a string, and there was no obstacle to the view that the deceased could not be found. ② The location where the accident occurred is 80 km from the time to the speed of 90 to 100 km, the defendant vehicle passed through a bend at the speed of the speed of the speed of 90 to 91 km, and even before the accident, it was running at the speed of about the speed of 90 to 91 km, and there was no other evidence to prove the collision between the deceased and the driver at the time of the accident in this case and the driver at the time of the accident.

C. Limitation on liability

However, the main cause of the instant accident is due to the mistake of the deceased who was committed without permission for the use of a motor vehicle vehicle due to frequent traffic at night. As such, in calculating the amount of damages that the defendant is liable for, it is reasonable to deem that the rate of negligence of the deceased is 90% in light of the aforementioned circumstances. Accordingly, the Defendant’s responsibility is limited to 10%.

2. Determination as to claims on the principal lawsuit - Scope of liability for damages

In addition to the following separate statements, each item of the attached table for calculating the amount of damages shall be the same as the corresponding item of the attached table for calculating the amount of damages, and the period for calculating the amount for the convenience of calculation shall be calculated on a monthly basis in principle, but less than the last month and less than the amount shall be discarded. The current value calculation at the time of the accident shall be in accordance with the simple interest rate which deducts the interim interest at the rate of 5/12 per month. It

(a) Actual income:

1) Personal information: as stated in the separate sheet of calculation of damages in attached Form.

2) Income and maximum working age

At the time of the instant accident, the deceased was the income of KRW 3,216,666 per month while working in I, and thus, barring any special circumstance, he/she shall be deemed to have worked in the above company until he/she reaches the age of 60 (see Article 19 of the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion). Thus, the deceased may have the income equivalent to the daily wage of ordinary workers in urban areas until he/she reaches the age of 65 from the date following his/her retirement from the above company.

(c) Cost of living: 1/3 mutual aid;

4) Calculation: as stated in the column of “actual income” in the separate sheet of calculation of damages.

(b) Funeral expenses: 5,00,000 won (Plaintiff A expenditure).

C. Limitation of liability: 10% Defendant’s responsibility

(d) Mutual aid or offsetting;

Of the medical expenses, etc. paid by the Defendant to the passengers of the Defendant, KRW 6,831,090 equivalent to the deceased’s percentage of fault shall be offset (the Defendant’s counterclaim claim shall be construed as including the preliminary offset claim).

(e) consolation money;

1) Grounds: Circumstances revealed in the arguments in this case, such as the developments in this case, the deceased's age and degree of negligence, the personal relationship with the plaintiffs, etc.

2) The amount recognized

A) Deceased: 21,000,000 won

B) Plaintiff A: 5,000,000 won

C) Plaintiff B, C: each of 1,000,000 won

(f) Inheritance relationship: It shall be as shown in the attached table for calculation of damages and in the column of "compact data";

1) Amount subject to inheritance: 60,918,015 won (=property damage 39,918,015 won + 21,000,000 won)

2) Inheritor: Plaintiffs

(iii) calculation;

A) Plaintiff A: 26,107,720 won (=60,918,015 won x inheritance shares 3/7)

B) Plaintiff B, C: KRW 17,405,147 (=60,918,015 X Inheritance Shares 2/7)

G. Sub-committee

The Defendant is obligated to pay the Plaintiff KRW 31,607,720 (i.e., inheritance amount of KRW 26,107,720 + funeral expenses of KRW 500,00 + solatium of KRW 5,00,00), KRW 18,405,147 ( = inheritance amount of KRW 17,405,147 + solatium of KRW 17,405,147 + solatium of KRW 1,000), and damages for delay calculated at each rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from June 22, 2017, which is the date of the instant accident until September 20, 2018, which is the date of the instant judgment, to the date of the instant judgment, to the day of the full payment, each of the following amounts is paid to the Plaintiff and C, respectively.

[Ground of recognition] Unsatisfy, Gap evidence 6, 9, Eul evidence 2, 3, significant facts, rule of experience, and purport of whole pleadings

3. Judgment on a counterclaim

A. Under the premise that the Defendant was exempted from liability due to the Defendant’s failure of the driver of the Defendant’s vehicle in the occurrence of the instant accident, the Defendant asserted that the Plaintiffs, the heir of the Deceased, should return KRW 7,590,100 to the Defendant’s passengers, as the reimbursement of the reimbursement, and sought payment of the said money as a counterclaim.

B. As acknowledged earlier, the defendant bears 10% of the accident of this case, and even if the defendant deducts or offsets the amount of the deceased's fault from the damages paid by the defendant to the passengers of the defendant, the damages payable to the plaintiffs shall remain. Thus, the defendant's counterclaim claim is without merit.

4. Conclusion

The plaintiffs' claims in the principal lawsuit are accepted within the scope of the above recognition, and each of the remaining claims in the principal lawsuit and the defendant's counterclaim are dismissed as they are without merit. It is so decided as per Disposition.