(영문) 서울중앙지방법원 2006.5.2.선고 2005가단119849 판결

1. The defendant shall pay to the plaintiff 00 50 won, 5% per annum from December 16, 2002 to May 2, 2006, and 20% per annum from the next day to the date of full payment. The defendant shall pay to the plaintiff 100 5% interest per annum from December 16, 2002 to the date of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. 30% of the costs of lawsuit shall be borne by the plaintiffs, and 70% by the defendant.

4. Paragraph 1 can be provisionally executed.

Purport of claim

Defendant: 26, 160, 527 won, Plaintiff 00, and 00 respectively to Plaintiff 00 each, and 1,000,000 won for the Defendant, respectively; and

From December 16, 2002 to the rendering of this judgment, 5% per annum for the period from the following day to the date of full payment; and 5% per annum for the period from such day to the date of full payment.

20% Payment shall be made in 20% interest.

Reasons

1. Determination on the defense prior to the merits

In regard to the plaintiff's lawsuit of this case seeking compensation under the main sentence of Article 2 (1) of the State Compensation Act on the ground that the plaintiff who was a soldier suffering from a tort committed by a public official under the defendant could not receive compensation under the Military Pension Act or the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, which is another Act under the proviso of Article 2 (1) of the State Compensation Act, the defendant asserts that the lawsuit of this case is unlawful since the plaintiff's lawsuit of this case is not just a claim for State compensation under the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, although

Even if a person listed in the proviso of Article 2 (1) of the State Compensation Act, such as a soldier, a civilian military employee, etc. was injured on duty due to combat, training, or other performance of duties, he/she may claim damages pursuant to the main sentence of Article 2 (1) of the State Compensation Act by being excluded from the subject of application of the proviso of Article 2 (1) of the Military Pension Act or the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State Compensation Act (see Supreme Court Decision 96Da42178 delivered on December 20, 196). In this case, where a separate compensation is not possible, it shall be sufficient that it is proved that he/she does not meet the requirements for compensation under the Military Pension Act or the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, and it shall not be filed first in the action to refuse compensation or revoke non-applicable decision

2. Occurrence of and limitation on liability for damages;

A. The fact that the occurrence of responsibility (1) occurred (A) Plaintiff 000 was admitted to the new illness training unit on May 3, 2002 and received education.

6. 14. 14. 00 00 00 00 00 00 00 00 00 00 00 Y. (b) The plaintiff 000 00 Y 1. 200 YY 200 YY 14.

Even after that accident, he was faced with knee due to his knee, and continues to receive education and training, such as kneeing in the reward in the above-mentioned accident.

12. From 16. Prizes, he was knee-free on the left-hand side and continued to be knee-free on the left-hand side.

(C) The plaintiff 00 was given medical treatment within the military unit to which he belongs due to continuous pains, but the symptoms were not shown. On October 14, 2003, the plaintiff 00 was diagnosed as a half-month fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluor. The plaintiff 00 was under the diagnosis that he was transferred to the National Armed Forces0 Hospital.

(D) Despite the continued physical therapy, the above symptoms were not shown, and the plaintiff 00 was discharged from active service on or around June 2004. (E) The plaintiff 000 filed an application for registration of distinguished service to the State for the above injury with the Seoul Regional Veterans Administration after the Japanese War Veterans Administration, and received a physical examination for the division of disability rating at the Seoul Veterans Hospital, but on March 3, 2005, received a physical examination for the division of disability rating.

4. Where the degree of physical sacrifice of the above plaintiff falls short of the criteria for the classification of disability ratings prescribed by Acts and subordinate statutes (Grade I through VII), and it does not fall under Article 4 (1) of the Act on the Honourable Treatment of Persons of

was notified of the decision equivalent to the person who rendered distinguished services to the State on the ground.

(F) Meanwhile, Plaintiff 00,000 is the parent of Plaintiff 000.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4, 6, 10, 11, 5-1 and 5-2, fact inquiry results of the National Health Insurance Corporation and the purport of the whole pleadings (2)

According to the above facts of recognition, the commander of the pertinent unit in charge of education and training sustained injuries to knenee in the course of the training, and taking appropriate measures such as preventing the injury from getting worse, but allowing the Plaintiffs to continue the reward training to make the injured kne more worse, thereby causing damage to the Plaintiffs.

On the other hand, since the above plaintiff is a soldier listed in the proviso of Article 2 (1) of the State Compensation Act, who was injured in combat, training, or performance of duties, it shall not be allowed to claim compensation under the Military Pension Act or the Act on Honor and Support of Persons, etc. of Distinguished Service to the State Compensation Act if he can receive compensation for the above injury.

However, as seen above, the above plaintiff was subject to physical examination for the classification of disability ratings under the Act on the Honorable Treatment of and Support for Persons of Distinguished Services to the State, but it was proved that the degree of the injury was below the standard and excluded from the application of the same Act. Furthermore, since the above plaintiff was disabled due to the above injury and received treatment at around June 2004, the above plaintiff did not meet the requirements for the payment of pension or disability compensation under the Military Pension Act (Article 23 of the Military Pension Act, Article 47 of the Enforcement Decree of the same Act, Article 67 of the Enforcement Decree of the Military Pension Act, and Article 6 of the Enforcement Decree of the same Act) and did not meet the requirements for the payment of disability or disability compensation under the same Act.

Therefore, the above plaintiff should be excluded from the subject of the proviso of Article 2 (1) of the State Compensation Act, and the defendant is liable to compensate the above plaintiff and the other plaintiffs who have such personal relations with the above plaintiff due to the illegal act of the public official under the main sentence of Article 2 (1) of the same Act.

B. Limitation on liability

However, even the Plaintiff 00 was unable to maintain the physical condition suitable for military service on his own, and the safety of his body should be considered by actively notifying the commander of the physical condition, such as knee injury, etc. before training, but the injury has deteriorated while participating in the training and thereby contributed to the expansion of the accident of this case. Therefore, the Defendant’s responsibility should be limited to 70% by taking this into account.

3. Scope of liability for damages (Provided, That a penalty against Won shall be abandoned).

(a) The fact that there is no dispute over passive damages (the fact that there is no dispute, the purport of the whole pleadings for each of the above evidences), the fact of recognition and the details of evaluation (A): Personal information: The same shall apply to the entry in the column of basic matters in the attached table of calculation of damages;

In addition to the above evidence, the plaintiff 00 temporarily closed the school and was in military service while attending the college of 000 university. Since the plaintiff 00 can be recognized the fact that he was enrolled in the school of 4 years in the new department after his expulsion from the school of 000, the plaintiff 100 can be recognized as being enrolled in the above school of 15 years in the new department of 4 years after his expulsion from the university, it is reasonable to view that the plaintiff 100 can be able to gain profits from the wage per wage level equivalent to the early appointment level of the worker who has the above university of 00 university after his graduation from the university of 1, 200, the maximum working age of 60 years after his graduation from March 1, 206 to February 22, 2041 - the plaintiff 1, 201, 1, 15, 215, 417, 15, 17, 2715.

(C) In light of the purport of the entire pleadings, Plaintiff 00, on July 197, received physical treatment from the left-hand knee, and around December 2001 and January 17, 2002, Plaintiff 7% of the permanent disability due to the protegra in the left-hand kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on kne-on.

The same shall apply to the actual income column of the attached table of calculation of damages.

B. According to the result of the physical examination entrusted to the head of the 00 University Hospital in this Court (hereinafter referred to as the 00 University Head of the 00 University), the Plaintiff 000 may recognize the fact that there is a need to perform anti-monthly medication in the future as it may cause inconvenience in the process of dynamics and physical exercise due to anti-monthss on the part of the slives of the slives, and that there is a need for five million won for the treatment expenses.

(2) The current cost of future medical treatment

The attached table of calculating the amount of damages and other damage column are as shown in the attached table of calculating the amount of damages (the current price of the accident shall be calculated on April 19, 2006, which is the day following the date of closing the argument of this case).

C. Limit of liability (1) The defendant's ratio of liability: 16,583,613 won ( = 23,690,877 won x 7.0): The defendant's ratio of liability: 16,583,613 won ( = 23,690,877 won x 0.7): The grounds for taking into account consolation money (1): the age, occupation and family relationship of the plaintiff 00, and the circumstances and result of the accident of this case, and the amount (a) the plaintiff 00: 1,000,000 won (b) and 500,000 won, respectively, as shown in the argument of this case.

(e) Final recognized amount (1) Plaintiffs 000: 17,583, and 613 won ( = 16,583, 613 won + 1,000 won for property damage + 000,000 won for 500,000 won for 16,583, and 613 won; and

4. Conclusion

Therefore, the defendant is liable to compensate the plaintiff 00 for damages caused by the accident of this case with 17,583,613 won ( = 16,583,613 won + consolation money 1,00,000 won + 5,000,000 won each for the plaintiff 1,00,000 won, and 5,000 won each for each of them from December 16, 2002, which is the date of the decision of this case sought by the plaintiff from December 2, 2006, which is 5% per annum under the Civil Act until May 2, 2006, which is the date of the decision of this case sought by the plaintiff, and 20% per annum as stipulated under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiffs' claims of this case are justified within the scope of the above recognition, and the remaining claims are dismissed as per Disposition.