(영문) 전주지방법원 2020.7.24. 선고 2019가단18121 판결

1. The defendant shall pay to the plaintiff A 102,032,506 won, each of 64,021,670 won and each of them shall be 5% per annum from October 24 to July 24, 2017, 2020, and 12% per annum from the next day to the date of full payment.

2. The plaintiffs' remaining claims are all dismissed.

3. Of the costs of lawsuit, 30% is assessed against the plaintiffs, and the remainder is assessed against the defendant.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff A 135,894,031 won, the amount of 88,596,020 won, each of which shall be 5% per annum from October 24, 2017 to the service date of the application for modification of the purport of the claim and the cause of the claim in this case, and 12% per annum from the next day to the day of full payment.

Reasons

1. Occurrence of liability for damages;

(a) Facts of recognition;

1) E is a person engaged in driving of FD cross-city buses (hereinafter referred to as “Defendant vehicle”), and the Defendant is a user of E and the owner of the Defendant vehicle.

2) On October 24, 2017, E driven the Defendant’s vehicle on October 24, 2017, around 09:15, while driving the Defendant’s vehicle and driving the Habice on the troke-dong of the Honam Highway, which is located in the Yongsan-gu, Seogjin-gu, Jeonju Island, at the speed of 65.1km from the boundary of the main line of the Honam Expressway to the 6-lane in the speed of 65.1km.

3) At this time, E did not discover a network G (hereinafter referred to as “the network seal”) crossing the upper right lane from the left side of the proceeding direction and did not discover the network G (hereinafter referred to as “the network seal”) and received the head part of the deceased’s head in front of the right side of the Defendant’s vehicle, and died, such as two structural pelle, etc. on the site (hereinafter referred to as “the instant accident”).

4) On June 19, 2018, E was prosecuted for committing a crime of violation of the Act on Special Cases concerning the Settlement of Traffic Accidents that caused the death of the deceased due to negligence in the course of duties conducted at a speed exceeding 65.1km above the speed of 35.1km at a speed of 65.1km without neglecting the duty of care to prevent an accident by putting on the part of the person who ought to observe the speed of limitation, driving on the road, and safely, and driving on the road in advance, and appealed for one year after having been sentenced to the suspension of execution on April 19, 2018 (the Jeonju District Court 2018No883) and partially accepted the appeal (the Jeonju District Court 200,000,000 won, which was sentenced to a fine of 7 million won on October 1, 2018). However, the appeal became final and conclusive on December 28, 2018 and dismissed by a fine (Supreme Court 2018Do1646).

5) The plaintiff A is the deceased's spouse, and the plaintiff B and C are the deceased's children.

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

B. Recognition and limitation of liability for damages

In full view of the facts acknowledged earlier, the Defendant is liable for compensating the Plaintiffs, who are the bereaved families of the Deceased and the Deceased, as the operator of the Defendant’s vehicle, pursuant to Article 3 of the Guarantee of Automobile Accident Compensation Act.

On the other hand, the defendant asserts that the defendant's vehicle that had passed the section of the expressway road shall not be liable to compensate for damages because it did not have the obligation to pay prior attention to the plaintiff's crossing or passage.

Article 58 of the Road Traffic Act provides that pedestrians cannot walk or cross an expressway. Thus, barring any special circumstance, a driver of an automobile driving on an expressway is not obliged to pay a duty of care to drive a motor vehicle while preparing for allowing pedestrians to stop on the expressway by predicting that pedestrians should walk or cross the expressway, barring any special circumstance. Therefore, even in a case where a driver causes an accident due to shocking the victims crossing the expressway without permission, there was a circumstance in which the driver could anticipate such unauthorized crossing from a considerable distance in advance, and where a driver took measures such as speeding immediately and rapid speeding, barring special circumstances such as the occurrence of a collision with the victim, barring special circumstances where the driver could avoid collision (see, e.g., Supreme Court Decision 98Da5135, Apr. 28, 1998).

In light of the above legal principles, the place where the accident in this case occurred, including the above evidence as well as evidence Nos. 3 and 5 evidence and the purport of the pleading, is the expressway fare section that should take place at a speed of not more than 30 kilometers a hour. At the time of the accident in this case, there was no particular obstacle to the night, and the deceased parked on the side side of the bus driving direction, crossing the four lanes of the bus charges, and opened from the left side, so even if the defendant vehicle discovered the deceased who would have driven the vehicle at a speed of not more than 30km a speed of speed at the time of the accident and operated the defendant vehicle, it seems that even if it appears that the distance was very short, even if the defendant vehicle did not shock the deceased, even if it was shock or shock, it is likely that the damage caused by the accident might have been significantly reduced, in light of the fact that the defendant's vehicle's negligence could have been found to have been caused by the collision or shock of the deceased's duty without permission, and thus, the defendant vehicle's negligence could not have been determined.

However, the Defendant’s liability for damages is limited to 50% in light of the overall circumstances as seen earlier, since the Deceased’s negligence that was crossing the place of the instant accident prohibited without permission was also caused by the occurrence of the instant accident (50% in negligence of the deceased).

2. Scope of liability for damages

The damage of the deceased and the plaintiffs shall be calculated on a monthly basis as follows: In principle, the period of the calculation shall be calculated on a monthly basis, but less than the last month and less than won shall be discarded. The current value calculation at the time of the accident shall be governed by the single discount method which deducts intermediary interest at the rate of 5/12 percent per month. And it shall be rejected that the parties' arguments did not separately state otherwise.

[Reasons for Recognition] Facts without dispute, Gap evidence 4, Eul evidence 4, and Eul evidence 4, which are significant facts to this court, rule of experience and purport of whole pleadings

(a) Actual income:

1) Personal information of the Deceased: It is as stated in the column of “basic matters” in the annexed sheet of calculation of damages.

2) Operating period: Examining the overall index of socioeconomic circumstances, i.e., changes in the average lifespan, other social, economic structure and living conditions, changes in the deceased’s career, health conditions, etc., the deceased shall be deemed to have been capable of working until the age of 65.

(d) Cost of living: 1/3 (the fact that there is no dispute) of income;

5) Calculation: 367,151,696 won, as shown in the separate sheet.

(b) Funeral expenses: 5,00,000 won (the fact that the plaintiff paid A or does not dispute).

C. Limitation of liability: 50% of the defendant's liability

(d) Mutual aid and property damage;

1) Criminal agreement amounting to KRW 30,000,000 paid by the Defendant

2) Property damage (excluding funeral expenses): 153,575,848 won [=((367,151,696 won x 50%) - 30,000,000 won];

(e) consolation money;

1) Reasons for taking into account: The background and content of the instant accident, the deceased’s age, the relationship between the deceased and the plaintiffs, and all the circumstances revealed in the instant argument.

(ii) the amount recognized;

A) Deceased: 60,000,000 won

B) Plaintiff A: 8,000,000 won

C) Plaintiff B, C: each of 3,000,000 won

(f) Inheritance relationship;

1) Amount to be inherited: 213,575,848 won (=property damage 153,575,848 won + 60,000 won of consolation money + 60,000 won)

2) Inheritance shares: Plaintiffs A3/7, Plaintiffs B, and C, respectively, 2/7

(iii)the amount of inheritance;

A) Plaintiff A: 91,532,506 won (=213,575,848 won x 3/7)

B) Plaintiff B and C: Each of 61,021,670 won (=213,575,848 won x 2/7)

3. Conclusion

Therefore, the defendant 102,032,506 won (=Succession amount of KRW 91,532,506 + Funeral expenses of KRW 2,500,00 + funeral expenses of KRW 5,00,000 + 500,000) + 64,021,670 won for each of the plaintiffs Eul and C (= inheritance amount of KRW 61,021,670 + consolation money of KRW 3,000 + 3,000,000) and each of the above claims are dismissed since the defendant raised a dispute over the existence or scope of the obligation of performance of this case from October 24, 2017 to July 24, 2020. The remaining claims against the defendant for damages for delay calculated within the scope of 1% per annum as stated in the Civil Act and the remaining claims against the plaintiff for damages for delay are without merit.