207 Gaz. 18075 Compensation for damages

1. P1 (Year 57, South Korea)

2. P2 (P2 (P289 Years, Residuals)

3. P3 (Year 01, South)

Plaintiff 2 and 3 are minors, and they are legal representatives P1

[Judgment of the court below]

D. (49 years old, South)

Attorney Kim Yong-tae, Counsel for the defendant-appellant

Attorney Kim Jin-soo

December 18, 2008

January 22, 2009

1. The defendant shall pay to the plaintiff P1 21,704,406 won, the plaintiff P2, and P3 13,469,604 won, each of which shall be 5% per annum from December 5, 2006 to January 22, 2009, and 20% per annum from the next day to the day of full payment.

2. The plaintiffs' remaining claims are all dismissed.

3. Of the costs of lawsuit, 80% is assessed against the Plaintiffs, and the remainder is assessed against the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay 108,541,183 won to the plaintiff P1, and 65,027,455 won to the plaintiff P2, and each of them shall be 5% per annum from December 5, 2006 to the delivery date of a copy of the complaint, and 20% per annum from the next day to the day of full payment.

1. Facts of recognition;

A. Plaintiff P1 is the husband of Plaintiff A (hereinafter referred to as “the deceased”) who died due to the instant accident as seen below, and Plaintiff P2 and P3 are the offspring of the deceased, and the Defendant is the manager and operator of “00 fishery”, a fish farming facility.

B. The Defendant installed 6 water intake pipes of 60m or 80m in length in front of the sea water intake station in order to draw seawater to the ground water intake station. The water intake pump (37kw, 50m, 1,177m, 1.2km, 1.2km) operation at the sea water intake outlet. The deceased is a husband and BBho (1.89 tons, coastal complex, 250m, 250m) around 18:0 on December 5, 2006, the captain of the vessel and the captain of the vessel, who arrived at the sea above the sea of the 00-sea water intake and moved at the sea to the sea, and died at the 2140-sea water intake (hereinafter referred to as the "water intake") and died at the 2140-sea water intake.

D. As of the time of the instant accident, the Deceased was working as a diving for about 25 years. At the time of the instant accident, the Deceased and Plaintiff P1 were engaged in illegal diving fishery.

E. At the end of November 2006, the Defendant did not remove a safety net installed in the intake outlet of the water intake pipe in order to prevent the inflow of sea water from being drained into the wind with a vinyl and a sea bed from being attached to the inhaled of the water intake pipe at the end of the end of the end of November, 2006. In addition, the Defendant, around 200, displayed 200 liters on the sea of the intake hole without a separate warning by combining 5 plastic water with a sign informing the risk of the intake of the water intake pipe at around the end of the accident. Accordingly, it was lost by a nearby vessel, etc. and there was only one remaining at the time of the accident.

F. Regarding the instant accident, the Defendant is guilty of occupational injury and violation of the Public Waters Management Act, and the Plaintiff P1 is indicted for occupational injury and violation of the Fisheries Act (Seoul District Court Decision 2007Da5236, Jul. 30, 2007). The Defendant was sentenced to a summary order of KRW 5 million, and the Plaintiff P1 was sentenced to a fine of KRW 2 million, and the Defendant was sentenced to a summary order of KRW 2 million from the above court. Accordingly, the Defendant filed a petition for a formal trial as prescribed by the above court 2007DaMa405, Aug. 27, 2008, but appealed a fine of KRW 200,000 from the above court, and is in the middle of the appellate court (Seoul District Court Decision 2008Da17444, Jul. 4, 2008) as of the date of closing the argument.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, and 7 (including virtual numbers), the purport of the whole pleadings

2. Liability for damages;

(a) Occurrence of liability for damages;

In full view of the above facts, the defendant, as a manager and an operator of 00 fishery, has installed a sea water pipe and has been in charge of safety management, and in such a case, there is a concern that accidents such as the diversating body of divings, etc. might occur due to the operation of the sea water pumps with strong inhalement capacity, and thus, there is a duty of care to prevent various accidents by installing a safety net in the inhale of the sea water pipe or attaching a warning mark, etc. in the vicinity of the sea water pipe. In addition, the defendant neglected this, without installing the safety net at the time of the accident, caused the death of the deceased by negligence without installing the safety tag at the time of the accident.

Therefore, the defendant is liable for damages suffered by the deceased and the plaintiffs as tort of this case.

B. At the time of the accident involving limitation of liability, the view was limited at night, and one set was installed in the vicinity of the accident area, and the lower floor was installed in the water intake center of 00 fishery stables, and the accident was likely to occur, such as the operation of the water intake center, if a diving operation is conducted in the vicinity of the water intake center.

Therefore, the deceased, who engages in diving operations, should not have engaged in diving operations at a dangerous place such as late night at which the view is restricted, engaged in diving operations, and should have been in mind so as not to have it near the water intake pipe even if they were in operation, and even during operation, it was necessary to secure his own safety in preparation for an emergency by maintaining a distance at which he can immediately contact with E while in operation. However, it was found that, even if it was necessary to take such measures to ensure his safety in preparation for an emergency, he arbitrarily operated the operation without any permission or approach the water intake pipe to the water intake for the purpose of collecting fishery products, and thereby, he was able to dump the water from the water intake (According to the investigation record, “E temporarily locked with the deceased at the same place” was dumped and dumped with the water tank, and there was no danger of water from the water intake in the process, or there was no statement at all, that water intake or water pressure was dumped by water intake).

In addition, as the deceased’s husband and the captain of BB, the Plaintiff P1, who is the captain of the water intake outlet, shall not allow the deceased to conduct diving operation at the same dangerous place (which seems to have been used at night to conduct illegal operations). In that case, the deceased had taken all measures to prevent unexpected accidents such as the control of the deceased in a thorough manner and preparation against dangerous situations. However, the deceased did not receive approximately 30 meters away from the water intake outlet so that it could not be discovered that the deceased engaged in illegal operations without examining the movement of the body of the deceased, and it was found that the deceased moved from the water intake pipe to the place where approximately 200 meters away from the water intake pipe to the place where the deceased might not be dismissed.

The deceased and the plaintiff P1's mistake shall be a serious cause for the occurrence of the instant accident or the expansion of damages. Therefore, in calculating the defendant's damages, the defendant's liability ratio shall be limited to 20% (80% of the lost negligence) in consideration of this.

3. Scope of liability for damages;

(a) Actual income:

The amount of damages equivalent to the gross monetary value of the lost capacity of the deceased as to the instant accident is KRW 188,218,074 calculated at the present price at the time of the instant accident (hereinafter referred to as the “cost”) according to the discount method that deducts intermediary interest at the rate of 5 percent per month based on the facts and assessment as follows 1).

1) Facts of recognition and evaluation

A) Gender: Women;

Date of birth: May 14, 1962: June 22, 1999 at the time of an accident.

Name of rental: 37.51

B) Occupation and income, maximum working age

The Deceased was a diving part at the time of the instant accident. Until he reaches the age of 50, the maximum working age as a diving part, it is reasonable to view that the monthly income calculated by 119,692 won (based on the increased wage from February 1, 2007, since the locking part per day of February 1, 2007 increased to 127,596 won on the construction business wage survey report, and that the monthly income can be earned by 69,456 won (the second half of the year of 2007) as a ordinary seafarer in a fishing village where he was the deceased’s residence, and that the monthly income may be earned by 60,456 won (the second half of the year of 207) per day as a daily wage, as a ordinary seafarer in a fishing village where he was the deceased’s residence until he reaches the age of 60.

In this regard, the defendant alleged that the deceased engaged in diving fishing illegally without obtaining permission for diving fishing, and that the deceased's income from such fishing cannot be used as the basis for calculating lost income. Thus, there is no dispute between the parties that the deceased engaged in diving fishing without permission, but on the other hand, illegal income that can be gained by continuing a criminal act cannot be used as the basis for calculating lost income amount, but whether it is illegal income shall be determined specifically and individually by taking into account the legislative intent of the law or the degree of the possibility of criticism caused by the legal act, in particular, the degree of illegality in the violation, and the degree of illegality in violation (see Supreme Court Decision 85Meu718, Mar. 11, 1986). According to the evidence No. 63 of the evidence No. 73, the deceased's income from diving fishing can be recognized as having completed a report on diving fishing without permission, and thus, the deceased's assertion that the deceased's income from the possibility of criticism or the degree of the illegality of the deceased's operation cannot be seen as unlawful.

(c) Cost of living: 1/3 of revenues;

[Evidence] Facts without dispute, significant facts in this court, Gap evidence 1 through 5, evidence 9-1 to 10-2, the purport of the whole pleadings

(ii)Calculation;

A) Two months from the date of the instant accident until February 4, 2007, 207, the daily wage of 119,692 won x 22 days x 1.9875 x 2/3 x 63 months from the day following the instant accident to May 14, 2012, which is the maximum working age of diving: 127,596 won x 22 days x 55.4275 (57.4150-19875) x 103 = 103,727,460 x 120 months: 69,456 x 275 (3) x 15,075 x 2885 x 2085 x 1865 x 1865 x 1685 x 1865 x 1865 x 2075 1965 x 1675385.1.65

(b) Funeral expenses: 5,00,000 won (in the absence of any dispute). Restriction on liability shall be limited.

1) The defendant's liability ratio: 20%

(ii)Calculation;

A) Property damage of the deceased: 188,218,074 won from lost income x 20% = 37,643,614 Na) Property damage of the Plaintiff P1: Funeral expenses 5,000,000 won X 20% = 1,000,000 won for consolation money.

1) Reasons: All the circumstances shown in the arguments of this case, such as the deceased and the plaintiffs' age, family relations, and circumstances surrounding the accident of this case

(ii) the amount determined;

Deceased: 6,000,000 won

Plaintiff P1: 2,000,000 won

Plaintiff P2, P3: 1,000,000 won each

(e) Inheritance relationship;

1. Deceased’s property inheritor: the Plaintiffs

(b) Inheritance amount: 43,643,614 won (property damage 37,643,614 won + 6,00,000 won) Plaintiff P1 (Inheritance share 3/7): 18,704,406 won;

Plaintiff P2 and P3 (Inheritance Shares 2/7): 12,469,604 won, respectively.

(f) the amount recognized;

1) Plaintiff P1: 21,704,406 won (property damages 1,00,000 won + 2,000,000 won + 18,704,406 won in inheritance)

2) Plaintiff P2 and P3

Each 13,469,604 won (each 1,000,000 won + each 12,469,604 won in inheritance) 4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff P1 21,704,406 won, the plaintiff P2, and P3 each of them at 13,469,604 won and the rate of 5% per annum under the Civil Act from December 5, 2006, which is the date of the accident of this case, to January 22, 2009, and 20% per annum 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 are accepted within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judge, respondent

Judges Kim Jae-young

Judges Shin Jae-hwan