Whether or not the cost of an uncertain surgery falls under a conclusive damage.

If the medical treatment is not completely cured even after the medical treatment has been provided, the cost to be incurred in an uncertain case can not be considered as a conclusive damage.

Article 750 of the Civil Act

Plaintiff 1 and two others

Korea

Daejeon District Court of the first instance (68Ga376)

(1) The original judgment is modified as follows.

The defendant shall pay to the plaintiff 1 an amount of 253,615 won, 50,00 won to the plaintiff 2, 462,302 won to the plaintiff 3, and an amount of 5 percent per annum from April 19, 1968 to the date of full payment.

The plaintiffs' remaining claims are dismissed.

(2) The plaintiffs and the defendant's remaining appeals are dismissed.

(3) All the costs of lawsuit are divided into three parts of the first and second trials, and one of which is the defendant and the remainder are the costs of the plaintiffs.

(4) The main text (1) provides that a provisional execution shall be carried out only in the amount of KRW 200,000, KRW 50,000 for Plaintiff 2, and KRW 300,000 for Plaintiff 3.

The plaintiffs' legal representative shall revoke the part against the plaintiffs in the original judgment.

The defendant shall pay to the plaintiff 1 the amount equivalent to 691,730 won, 80,000 won to the plaintiff 2, and 1,024,605 won (including the amount of the daily award of each trial) to the plaintiff 3, and the amount equivalent to the rate of 5 percent per annum from April 19, 1968 to the full payment day.

The costs of lawsuit shall be determined by a judgment and a sentence of provisional execution that all the costs of lawsuit shall be borne by the defendant, and the defendant litigation performer shall revoke the part against the defendant in the original judgment.

The plaintiffs' claims are dismissed.

The court costs are assessed against all the plaintiffs in the first and second instances.

(1) In light of the contents of Gap evidence Nos. 2 (Medical Certificate), 3 (Medical Examination Record), 4 (Examination of Suspect), Gap evidence Nos. 5 (Field Map) which is acknowledged to have been authenticity by the testimony of the non-party 1, the court below's witness Nos. 1, 2, and 3 and the results of on-site inspection (except for the portion which is not believed later than the above evidence) of the contents as shown on the criminal records verified by the court below, the part of the non-party 1, 2, and 3 of the defendant evidence Nos. 345 (G.M.C) are no different from the above part of the defendant evidence Nos. 3 and the defendant Nos. 3 and 445 (G.C) were installed on the right side of the defendant's 1, 1967, and the part of the defendant's 6-day bar was no longer known to the left side of the defendant's 1, 4000 mal.

Thus, the injury of the above recognition suffered by the plaintiff 3 is caused by the negligence of the military personnel who was on duty, so the defendant is liable for compensating for the damages caused by the injury in accordance with the State Compensation Act. As mentioned above, the defendant is also liable to the plaintiff 3 as the victim, as well as the negligence, so the defendant is also responsible for determining the amount of damages to be compensated by the defendant.

(2) First of all, considering the following facts: Gap evidence Nos. 3 (written opinion of medical treatment), 9-1 and 2 (written statement), and evidence Nos. 6 (written claim of medical treatment expenses) which are acknowledged to have been genuine by the testimony of non-party 5 by the court below and the witness non-party 5, the above contents were examined as to the active damages suffered by the plaintiff 1, and considering the whole purport of the witness non-party 5's testimony and oral argument, the plaintiff 3 was hospitalized in the Chungcheongnam-do Hospital located in Daejeon, from October 23, 1967 to October 8, 1968, and was under medical treatment and treatment but still failed to complete treatment, the plaintiff did not have any dispute as to the total damages suffered by the plaintiff 1 as the father of the same evidence Nos. 6 (written claim of medical treatment expenses) which is acknowledged to have been genuine by the testimony of the non-party 5 (the meal expenses of the plaintiff 3).

In addition, Plaintiff 3’s attorney argued that the expenses should be paid by the Defendant since Plaintiff 3 was hospitalized for about 60 days in the future and undergo an operation for the treatment of the ambia, etc., and that the expenses should be paid by the Defendant. However, according to Nonparty 6’s testimony, it cannot be readily concluded that Plaintiff 3’s operation for the treatment of the ambia (the treatment expenses are not claimed by the Plaintiff, and the amount cannot be known) must be completely cured even after Plaintiff 3 received the treatment for the ambia extension (the treatment expenses cannot be claimed by the Plaintiff, and it cannot be said that the expenses required for the ambia are conclusive damages. Thus, the above assertion is groundless.

Therefore, the amount of active damages sustained by the plaintiff 1 is KRW 407,230,00, but as mentioned above, the victim was negligent, so considering the degree of negligence, it is reasonable to determine the amount to be compensated by the defendant as KRW 203,615.

(3) We examine the following passive damages suffered by Plaintiff 3, as evidence Nos. 1 (No dispute over establishment) and evidence Nos. 7 (Simplified Life Table) of the court below, if we look at the testimony of Nonparty 7 of the witness of the court below, Plaintiff 3 was born on December 7, 1950 and was healthy male at home engaged in agriculture as its main business, and the age at the time of injury was under 17 years and average remaining life expectancy was under 46 years. If the plaintiff 3 did not suffer from the accident, the duty of military service was reduced to the long age of less than 24 years, and the plaintiff 24 years old at the latest (7 years from the time of injury) were to work at the minimum of 30 days in rural day and the defendant 4 years old at the rate of 10 days in total cannot be acknowledged as being 50 days in accordance with the above appraisal evidence No. 96 of the court below's 80-day average wage loss rate per day, and thus, the plaintiff cannot be acknowledged as an appraiser of this case.

(400 won 】 300 】 40/100) = 48,00 won

48,000 won 】 (20,97029873-5, 87434192) = 724,605 won

However, as seen earlier, since there was negligence on the part of the injured party, so considering the degree of negligence, it is recognized that the amount of lost profit of Plaintiff 3 to be compensated by the defendant is reasonable to set as KRW 362,302.

(4) Finally, it is reasonable to determine the amount of consolation money as KRW 100,00 for Plaintiff 3, and KRW 50,000 for each of the plaintiffs 1, 2, and 3, whose parents suffered emotional distress due to this case's injury. Thus, the defendant is obligated to pay the above mental distress of the plaintiffs in cash. In light of all the circumstances such as the injured part and degree of the plaintiff 3, which can be recognized as a result of the appraiser 6's appraisal, the current sick age, and the degree of the plaintiffs' living education, age, and the background of the accident, etc., the amount of consolation money should be determined on the part of the plaintiff 3.

(5) Thus, the defendant is obligated to pay to the plaintiff 1 253,615 won, 50,000 won to the plaintiff 2, 462,302 won, and damages for delay at the rate of 5% per annum from April 19, 1968, 1968, which is the next day after the delivery of gushes to the plaintiff 3, and the next day after the completion of payment, so the plaintiffs' claims shall be accepted within the above recognition scope and the remainder shall be dismissed. Since the original judgment was partly concluded, the above recognition amount in the plaintiffs' claims shall be modified pursuant to Article 386 of the Civil Procedure Act, and the remainder shall be dismissed. Since the plaintiffs and the defendant's remaining appeals are without merit, it is so dismissed as to the burden of litigation costs by applying Article 89, 92, 93, 96 of the same Act, and Article 199 of the same Act to the declaration of provisional execution.

Judges Cho Jong-dae (Presiding Judge)