2012Da56375 Compensation (as stated)

1. A;

2

03

4. D;

Plaintiff 4 is a minor, and the legal representative A and the parent B

Korea

Seoul High Court Decision 2011Na70413 Decided June 5, 2012

February 12, 2015

The judgment below is reversed, and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court determined that: (a) even though the deceased was unable to have any mental illness before entering the hospital, and was unable to adapt to his/her duties, so long as he/she was placed in the military, there was a serious depression to the extent that he/she could consider suicide; (b) as a result of an independent psychological examination, the deceased’s commander should be carefully protected and managed the deceased, and (c) even though he/she had to receive professional diagnosis and medical treatment, he/she did not take any measures other than meeting with the commander and counseling expert until another soldier’s suicide case occurred; (b) the deceased’s symptoms were temporarily provided by the hospital and new illness leave; and (d) the deceased did not have any mental problem with his/her care; and (d) the mentor commander, in particular, did not have been aware of the possibility that he/she could not have been hospitalized in the process of his/her suicide, and did not have any other measures to ensure that he/she could not have been able to take appropriate measures to protect the deceased, such as consultation.

2. However, it is difficult to accept the above determination by the lower court in view of the following circumstances that can be recognized by the records.

(1) The Deceased did not have any special problem in the previous school or home life before entering the hospital, and did not receive the treatment of a mental illness, and was awarded a reward with other training soldiers as well as with excellent training capabilities at the time of receiving the education for a new illness. It was evaluated that the Plaintiff, who was in charge of the education of the Deceased, would be an example of others as he or she is active and active, of the character of the Deceased. In addition, it was determined that the Deceased, as a paradician, he or she was aware of a strong negative perception of suicide as a paradician in a written suicide saving pledge prepared by the New Disease Education Team.

(2) On June 26, 2010, the president of the unit to which the deceased belongs reported to the large commander to the effect that he/she identified the deceased's suicide after conducting an interview with the deceased, and on July 27, 2010, the large commander designated the deceased as a class A soldier, and had a commander frequently interviewed the deceased from time to time to time, and had a professor of Matin University, a private consultant, a military chaplain, etc. consulted on several occasions. From August 2, 2010 to September 13, 2010, the head of the unit to which the deceased belonged had been given medical treatment four times from August 2, 2010 to September 22, 2010. (3) On July 22, 2010, the head of the unit to which the deceased belonged with a serious member of the deceased, changed his/her position from the boundary to the CCTV surveillance team, and prevented him/her from taking full charge of the deceased's bathing or management of the deceased.

(5) On a multiple occasions, the above civil counseling specialist, who consulted the deceased, judged that military service adaptation disorder was not simply caused by the risk of suicide, etc., but rather caused the deceased. From August 2, 2010 to September 16, 2010, the medical officer in charge who treated the deceased four times only diagnosed the deceased as adaptation disorder, WIG disorder, etc., or did not diagnose that there was a risk of suicide.

(6) The fleet commander informed the Plaintiff A and B, the parent of the deceased, experienced difficulties for the deceased to adapt to the military unit on a multiple occasions, and there was no risk that the above Plaintiffs may commit suicide against the deceased, or thus there was no demand from the military unit to take measures such as hospitalization or early discharge.

(7) The Plaintiffs asserted that they were bullying and senior soldiers’ harassment in the unit of the Deceased, but there is no evidence to support this.

As such, insofar as the commander of the military unit, etc. to which the deceased belongs has paid special attention to whether the deceased could commit suicide and has taken active measures to help the deceased adapt to military service, even if he did not take any more detailed measures, such as hospitalizing the deceased or designating substitute mentor’s disease, such circumstance alone does not immediately lead to the failure of the above military personnel to exercise their duty of care required in the course of performing their duties, and it is difficult to easily recognize the possibility of the occurrence of special circumstances that the deceased may commit suicide.

3. Therefore, the lower court should have examined more closely and examined the cause and motive that the deceased’s suicide, in order to assume the Defendant responsible for the suicide of the deceased, and whether the commander of the unit belonging to the deceased discovered the signs of suicide due to the aggravation of depression, etc., including the deceased’s occurrence of suicide, but failed to do so, and whether there was a bullying or harassment against the deceased.

Nevertheless, the lower court erred in determining that the Defendant is liable for suicide of the Deceased by failing to exhaust all such deliberations.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin-chul

Note 1: Min Il-young

Justices Park Young-young

Justices Kim Jong-il