2019ddan205783 Compensation for Damages (Consolation Money)

A

Section B.

July 19, 2019

August 23, 2019

1. The defendant shall pay to the plaintiff 10,00,000 won with 5% interest per annum from November 20, 2018 to August 23, 2019, and 12% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each party.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 30,000,000 won with 15% interest per annum from the day after the delivery date of a copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

A. The plaintiff and Byung are the legal couple who completed the marriage report on October 23, 2004 and has two minor children among them.

B. The Defendant became aware of illness through Internet hosting, and the Defendant sent Byung with the relationship of sexual intercourse, such as making a concurrent sexual intercourse with the knowledge of his/her spouse.

C. On October 21, 2018, the Defendant sent a text message informing the Plaintiff of the relationship with the Plaintiff as to the Plaintiff’s disease, and the Plaintiff hedgingd and changed both the Plaintiff and the Plaintiff.

D. On March 14, 2019, the Plaintiff filed an application with this court for confirmation of the intention of divorce, but was dismissed by the absence of both parties on the confirmation date.

E. From November 19, 2018 to January 23, 2019, Byung paid KRW 30,000,000, in total, to the Plaintiff as consolation money for unlawful act.

[Recognition of Facts of Recognition] The entry of Evidence Nos. 1 through 6, the purport of the whole pleadings

2. Determination

(a) Occurrence of liability for damages;

A third party who commits an unlawful act with either side of the married couple, thereby infringing or impeding the jointly-living activity of the married couple falling under the essence of marriage, and infringing on the rights of the spouse as the spouse.

In addition, the act of causing mental suffering constitutes a tort in principle (see Supreme Court Decision 2013Meu2441 decided May 29, 2015, etc.).

According to the above facts of recognition, the defendant committed an unlawful act with knowledge of the spouse's existence, thereby infringing upon the plaintiff's right as a person who has suffered emotional distress, and thereby infringing upon the plaintiff's right as a person who has been born by the plaintiff. Since it is obvious in light of the rule of experience that the plaintiff suffered considerable mental distress, the defendant is liable to compensate for mental damage suffered by the plaintiff.

B. Scope of liability for damages

1) Comprehensively taking account of the various circumstances shown in the pleadings, such as the marriage period and family relation of the Plaintiff and Byung, the period and degree of fraudulent act, the influence of the act on the Plaintiff’s marital life, the circumstances leading up to the occurrence of fraudulent act, the circumstances thereafter, and the payment of the Plaintiff KRW 30 million to the Plaintiff as consolation money. The amount of consolation money that the Defendant is liable to pay to the Plaintiff shall be determined as KRW 10 million.

2) As to this, the Defendant asserts to the effect that Byung, who is a joint tortfeasor, paid consolation money of KRW 30 million to the Plaintiff, thereby exempting the Defendant from liability.

However, with respect to the amount of consolation money for mental suffering caused by a tort, the fact-finding court may determine it at its own discretion, taking into account all the circumstances (see, e.g., Supreme Court Decision 2002Da43165, Nov. 26, 2002); and the perpetrator shall pay consolation money to the victim.

If money is paid as part of it, the court can bring about such circumstance in calculating the amount of consolation money, and this legal principle is about the whole amount of damages by each party in accordance with Article 760 of the Civil Code.

One of the joint tortfeasors who are responsible for the payment of consolation money to the victim is to be M&A (see Supreme Court Decision 2004Da66001 delivered on June 23, 2005, etc.).

With respect to the instant case, the health team: (a) the Defendant: (b) informed the Plaintiff of the fact of unlawful act; (c) informed the Plaintiff of the fact of unlawful act; and (d) did not have been able to do so properly to the Plaintiff; and (c) was fluened only to criticize the Plaintiff and Byung as the victim of the instant lawsuit, and was fluent

In light of the foregoing, even if the Plaintiff received KRW 30 million from Byung, it cannot be deemed that the Defendant’s damage claim against the Defendant was fully repaid and extinguished. However, as seen earlier, the Defendant’s payment of consolation money would only be a ground for taking into account in determining the amount of consolation money. This part of the Defendant’s assertion is without merit.

3) Therefore, the Defendant is obligated to pay to the Plaintiff consolation money of KRW 10 million and the damages for delay calculated by the rate of 12% per annum under the Civil Act from November 20, 2018, which is the day following the day when the copy of the complaint of this case was sent to the Plaintiff, to August 23, 2019, which is the date when the Defendant rendered a substantial judgment, to dispute on the existence and scope of the Defendant’s obligation to perform, and the damages for delay calculated by the rate of 12% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day until the day when the obligation is fully paid.

3. Conclusion

If so, the plaintiff's claim is accepted within the above scope of recognition, and the remaining claims are dismissed as they are not reasonable.

Judges Jeong-il