2015 Gohap4395 Compensation (Definition)

A

Attorney Lee Sung-sung, Counsel for the defendant

Attorney Lee Jae-soo, Lee Dong-hoon

1. B

2. C

Defendant 1 (Attorney Han Jae-ro, Counsel for defendant-appellant)

Defendant 2 Law Firm Tong-gu, Counsel for the defendant-appellant

[Defendant-Appellant]

October 4, 2016

November 1, 2016

1. The Defendants jointly committed against the Plaintiff KRW 41,445,436, and as to the Plaintiff, from September 1, 2014 to September 2016.

11.1.1. Payment of 5% interest per annum and 15% interest per annum from the following day to the date of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. Of the costs of lawsuit, 2/3 is borne by the Plaintiff, and the remainder is borne by the Defendants, respectively.

4. Paragraph 1 can be provisionally executed.

The Defendants jointly and severally filed against the Plaintiff KRW 123,156,570 and the instant case as from September 1, 2014

Until the service date of a copy of the complaint, 5% per annum, 20% per annum from the following day to September 30, 2015, c

The payment shall be made at the rate of 15% per annum from the date of full payment to the date of full payment.

1. Basic facts

A. The relationship between the parties

1) Defendant B is the Einsian Council member on the first floor of the D Building in Incheon (hereinafter referred to as “the instant Council member”).

A herb doctor who is operating the Dong, and the defendant C is employed by the defendant B and worked as an assistant nurse at the Hanwon of this case.

2) On September 1, 2014, the Plaintiff is a person who received a procedure using the extreme ultra-frequency therapy (hereinafter referred to as “the instant therapy”).

B. On September 1, 2014, while the Plaintiff was suffering from urine disease, the Plaintiff undergone an operation at the Gacheon-gu Hospital located in the Southern-gu Incheon Metropolitan City, for the treatment of crypitis occurring on the left floor, and applied to the instant oriental medical clinic on August 26, 2014 for the treatment of side species, etc. after the operation. (ii) the Plaintiff was under medical treatment at the instant oriental medical clinic on September 1, 2014, while being under medical treatment. The Plaintiff was under treatment by using the instant medical device on the left side and 4 degrees radiation on the part of the instant medical clinic, such as 3 and 4 degrees, and was under treatment on the part of the Plaintiff (hereinafter referred to as the “accident”). The Plaintiff received 10 parts of 3 and 10 degrees urine surgery on the left side of Yeongdeungpo-gu or 14 degrees urine surgery on the part of the Plaintiff (hereinafter referred to as “the instant accident”).

C. On December 9, 2015, Defendant B was indicted as a crime of injury by occupational negligence with the following content as the Incheon District Court 2015Ra715 on December 9, 2015. On April 15, 2016, Defendant B was sentenced to one year of imprisonment without prison labor and two years of suspended execution from the above court. As an oriental medical doctor operating the instant oriental medical clinic, Defendant B provided treatment to the Plaintiff, who was receiving treatment of the Plaintiff on September 1, 2014, and had the Plaintiff undergo treatment using the instant medical device on the part of the Plaintiff. Defendant B, who was in charge of the instant medical services, did not know of the Plaintiff’s outbreak and existing medical records, and did not know of the Plaintiff’s performance and performance during the appellate trial, and did not know that the Plaintiff’s treatment of the instant device by negligence during the course of receiving the treatment for the purpose of treatment for the Plaintiff’s 2, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 2, 6, 7, Eul evidence 4 (including the number of branches; hereinafter the same shall apply) and the purport of the whole pleadings

2. Occurrence of liability for damages;

A. Summary of the parties' arguments

1) Plaintiff 1:

Although, when using the instant treatment apparatus at risk of video, the Defendants exercised due care to prevent risks, the Defendants neglected the Plaintiff without confirming the Plaintiff’s condition while treating the Plaintiff. Accordingly, the Plaintiff entered the video and cut down the left cover, and the Defendants breached their duty of care in the course of treatment. Accordingly, the Defendants are liable to compensate the Plaintiff for damages incurred by the Plaintiff.

2) Defendant B

Defendant B notified the Plaintiff of the treatment method and duty of care using the instant treatment apparatus, and Defendant C, an assistant nurse, instructed the Plaintiff to re-inform the Plaintiff, and did not violate the duty of care in the course of treatment using the instant treatment apparatus. 3)

Defendant C’s 30cm away from the instant treatment machine to the Plaintiff. As Defendant C had taken care of the instant treatment machine to the nearest one, Defendant C notified her of the directions, which is an oriental medical doctor, and used the instant treatment machine in accordance with Defendant B’s instructions, there was no violation of the duty of care in the course of treating the instant treatment machine.

Even if the negligence is recognized against Defendant C, the Plaintiff’s image and salves cutting were caused by urologys known to the Plaintiff prior to the instant accident, and there is no causation between Defendant C’s negligence and the Plaintiff’s image and salves cutting.

B. Determination

1) As to the Defendants’ breach of the duty of care, a doctor has the duty of care to provide the best treatment required to prevent risks depending on the patient’s specific symptoms or circumstances in light of the characteristics of the duties of managing the patient’s physical health, but such duty of care shall be determined on the basis of the level of medical practice performed in the field of clinical medicine, such as a medical institution, at the time of performing the said medical act (see Supreme Court Decision 93Da59304, Apr. 26, 1994). In the case of a medical worker who is not a doctor, the determination of whether a doctor is negligent shall be made on the basis of general standards of a person engaged in the duties of a medical worker who is not a doctor, but who is engaged in the duties of a doctor. However, if a medical worker performs a medical act outside his/her duty of care and not in the area of a doctor, the determination of whether

B) Accordingly, the following circumstances can be revealed from the statement of the above evidence and evidence Nos. 11 and 13, namely, ① The treatment machine of this case can avoid heat damage when it delivered to the heart and assist the treatment of the affected person in treatment, so in the treatment of the affected person, it should be confirmed from time to time the treatment of the affected person’s body condition, compared to ordinary patients, and ② The defendant Eul, as an oriental medical doctor, has the responsibility to verify whether it is appropriate treatment method to use the treatment machine of this case before using the treatment machine of this case. In light of the above, the plaintiff’s duty of care to check the location of the treatment machine of this case and to check whether the treatment machine of this case was damaged by the treatment machine of this case, and whether the treatment machine of this case was damaged by the plaintiff’s negligence. However, the defendant Eul used the treatment machine of this case without the plaintiff’s duty of care to check whether the treatment machine of this case was damaged by the treatment machine of this case.

2) A causal relationship in civil disputes is not a medical and natural medical causal relationship, but a social and legal causal relationship. The causal relationship is not necessarily a clear medical and natural scientific causal relationship (see Supreme Court Decision 9Da67147 delivered on March 28, 200).

Accordingly, as seen earlier, the Plaintiff suffered pictures due to the above negligence of the Defendants, and cut off the left cover in the course of treating the images. It is difficult to deem that other causes have occurred, regardless of the Defendants’ breach of duty of care, that the Plaintiff’s violation of the said duty of care and the Plaintiff’s present state of the Plaintiff’s present state were recognized (see, e.g., Supreme Court Decision 201Da15488, Apr. 2, 201).

C. Limitation on liability

In full view of the following circumstances, which are recognized by the aforementioned evidence and the purport of the entire pleadings, namely, where there is a sense of sense in case of a urology patient accompanied by a neologic merger certificate, increase in the risk of video generation, and the Plaintiff’s urology appears to have influenced the degree and treatment of the video of this case, taking such circumstances into account in calculating the amount of damages that the Defendants should compensate for, accords with the ideology of the compensation system that provides guidance on fair and reasonable sharing of damages. Therefore, the Defendants’ responsibility is limited to 70% of the total amount of damages.

3. Scope of liability for damages

The basis for calculation of property and mental damages suffered by the plaintiff due to the accident of this case, expenses for disbursement, details of calculation, and the amount shall be calculated as follows (in accordance with the discount method that deducts interim interest at the rate of 5/12 per month, it shall be calculated at the present price at the time of the accident of this case, and the amount less than KRW 1 and less than monthly shall be discarded for the convenience of calculation).

(a) The date of birth and gender: The age at the time of birth on November 20, 197, and the time of accident: the occupation and the period of operation (the age at the time of birth on November 20, 197: September 2, 36);

At the time of the instant accident, the Plaintiff was working as a business employee belonging to F, and the said company’s retirement age is until the end of the month when he reaches 58 years of age. As such, the Plaintiff is an employee of F, Co., Ltd. until November 30, 2035, the end of the month when he reaches 58 years of age, and the said employee thereafter becomes 60 years of age, the maximum working age.

11. By the time of September 19, it shall be deemed that a part of urban daily employed can be operated every 2th day of a month. 3).

The Plaintiff earned income of KRW 3,296,156 each month until November 30, 2035, which was retired from office after the instant case ( = 39,553, 878 won/12 months) and KRW 75,608 each day until November 19, 2037, as sought by the Plaintiff, until November 19, 2037, since the Plaintiff earned income of KRW 3,553,878 (unit price of the first half-year wage in 2012).

such income shall be deemed to be able to increase the revenue of the Fund.

4) In a case where 50% of the victim's salkings has contributed to the creation of a specific injury to the victim, the prolongedization of the treatment period, or the expansion of the degree of disability after the treatment is completed, it is reasonable to have the victim bear the corresponding amount of compensation out of the whole injury, including the specific injury, in a fair principle of liability for damages. In determining the degree of contribution to the whole injury of salkings, it does not necessarily have to be determined in medical science accurately in determining the degree of contribution to the whole injury of salkings, and it is not necessarily necessary to have the court determined the degree of contribution to the whole injury of salkings, in consideration of the cause and degree of injury, degree and degree of injury, the correlation between salkings and salkings, the correlation between the whole injury and salkings, the degree of injury, the relationship between the victim's age and the whole injury, 201 and the whole injury, 305Da19725, etc.

In light of the fact that the Plaintiff suffered from urology prior to the occurrence of the instant accident, and received surgery from the Defendants due to infection of the left urology due to urology, such as undergoing surgery, etc., the Plaintiff’s above urology aggravated the Plaintiff’s injury condition after the instant accident. It is reasonable to view that the Plaintiff’s contribution to the current state of disability exceeds 50%, and thus, it is considered in the course of calculating all damages.

(2) Ratio of labor capacity: 7%

The rate of loss of labor ability applying 14, cut - V - (1), and occupation coefficient 6 shall be 14%, and contribution to 50% shall be taken into account: Provided, That since the accident in this case was unable to work until November 2, 2014 after the accident in this case, the rate of loss of labor ability during the above period shall be 50% in consideration of contribution to 50%.

On the other hand, while the Plaintiff sought lost income for the period of two weeks of hospitalization for future treatment, the evidence submitted by the Plaintiff alone, even if necessary for future treatment, cannot be deemed as realizing the loss of income due to hospital treatment for the current two-day period, and there is no other evidence to prove otherwise, this calculation does not take into account when calculating lost income. 5)

[Ground of recognition] Facts without dispute, Gap's evidence 1, 15, 16, Eul's evidence 4, and the result of the commission of physical examination to the chief of the medical branch of the school of the next generation of this court and the result of fact inquiry, the purport of the whole pleadings

(b) Active damage 1) Future medical expenses: 2,830,931 won [2,00 won [2,830,931 won, which is the amount equivalent to the percentage of contribution to the sking out of the medical expenses borne by the plaintiff ( = hospital expenses of 5,661,862 won + medicine expenses of 33,60 won] 2] Future medical expenses: 2,264,00 won;

The Defendant appears to need an operation for the tragic tragic tragic tragic tragic tragic tragic tragic tragic tragic lag, which is the total of 5,000,000,000,000,000 following the day following the day of closing argument in the instant case for the convenience of calculation. When calculating the present price at the time of the instant accident, KRW 4,528,00 is the KRW 4,528,00,000, among them, KRW 2,264,00,00 in consideration of the Plaintiff’s contribution 50%.

As to this, the Defendants asserted that since the Plaintiff did not receive any treatment until the date of the closing of argument after the date of physical examination, it should not be recognized as medical expenses in the future. Accordingly, according to the evidence Nos. 6, the Plaintiff’s physical examination is recognized as having continued to receive medical treatment until the date of the physical examination. Therefore, the Defendants’ above assertion is without merit.

[Ground of recognition] The absence of dispute, Gap evidence Nos. 9, Eul evidence Nos. 6, and the result of the physical commission to the chief of the medical school of the next generation of this court, and the result of fact inquiry, the purport of the whole pleadings

(c) Liability limitation1): Calculation of the Defendants’ liability ratio: 34,445,436 won: = ((((44, 112, 836 won + 2,830, 931 won + 2,264, 00 won) x 70%). Whether the Plaintiff deducts the insurance proceeds received from the insurance company

The Defendants asserted that since they received insurance proceeds of KRW 3,726,864 from the Hansung Life Insurance Co., Ltd., which the Plaintiff joined, they should be deducted.

Unless otherwise agreed by the parties to an insurance contract, subrogation is prohibited pursuant to Article 729 of the Commercial Act, and it does not constitute a profit to be deducted as a offsetting profit and loss in calculating the amount of compensation (see Supreme Court Decision 98Da25061 delivered on November 24, 1998).

Accordingly, the fact that the plaintiff received insurance proceeds of KRW 3,726,864 in relation to the medical treatment of the accident of this case from the Korea Life Insurance Co., Ltd., but there is no dispute between the parties, and the following circumstances acknowledged from the overall purport of evidence and arguments, namely, the Commercial Act regulates an accident insurance which covers the bodily injury of a person as an insured accident as well as life insurance (Articles 727 and 737 of the Commercial Act). ② In the case of personal insurance, the insurer is prohibited from subrogation (Article 729 of the Commercial Act); ③ There is no agreement on subrogation of the insurer in the terms of the insurance clauses to which the plaintiff subscribed otherwise.

Therefore, this part of the defendants' assertion is without merit.

(e) Considerational reasons: The Plaintiff’s age, occupation, background and result of the instant accident, degree of the Plaintiff’s disability, and other various circumstances shown in the pleadings of the instant case: 7,00,000 won; and

F. Sub-committee

Therefore, the Defendants are jointly obligated to jointly pay to the Plaintiff 41, 445, 436 won and delay damages calculated at the rate of 15% per annum under the Civil Act from September 1, 2014, which is the date of the instant judgment, to November 1, 2016, which is the date of the instant judgment, where it is deemed reasonable to dispute about the existence or scope of the Defendants’ performance obligations.

In regard to this, Defendant C is merely in accordance with the direction of Defendant B and thus the degree of participation is insignificant. Thus, Defendant C is asserting that it did not be jointly liable for all the Plaintiff’s damages. However, joint tort liability does not individually seek damages from each act of an individual committed by the perpetrator, but imposes liability for the tort jointly committed by the perpetrator. As such, the scope of liability for damages caused by joint tort is determined by comprehensively assessing and assessing all the acts committed by the tortfeasor in relation to the victim. The amount of liability for damages is borne by each tortfeasor for the whole amount. Even if the degree of compensation is minor for the tort compared to other tortfeasor, the scope of the tortfeasor’s liability cannot be limited in relation to the victim, as above, in relation to the victim, even if the degree of the tort is minor, it cannot be recognized by limiting the scope of the tortfeasor’s liability to part of the amount of compensation determined (see Supreme Court Decision 2003Da66066, Nov. 10, 2005). Defendant C is liable for damages to the Plaintiff as a joint tortfeasor. Accordingly, Defendant C’s claim in this part of this part is without merit.

4. Conclusion

Therefore, each claim of the plaintiff against the defendants is accepted within the scope of the above recognition, and each remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Hong-chan

Judges Jeong-chul

Judges Park Jong-ro