2018 Gohap 57438 Compensation for damages

1. A;

Since it is a minor, the legal representative B and C

2. B

3. C

[Judgment of the court below]

Attorney Yoon-soo, Counsel for the plaintiff-appellant

1. D;

Since it is a minor, the legal representative E and mother F

2. E:

3. F;

Attorney Noh-ho et al., Counsel for defendant 1 to 3

4. Gridges association;

5. H;

6. I

7. J;

Defendant 4 through 7 Law Firm Cheongh, Counsel for defendant 4-7

Attorney Lee Jae-sik, Counsel for the plaintiff

September 20, 2019

November 15, 2019

1. Defendant D, E, F, G, H, and I jointly pay to Plaintiff A 35,00,000 won, 5,000,000,000 won to Plaintiff B, and 6,210,700 won to Plaintiff C, and 5% per annum from September 10, 2018 to November 15, 2019, and 12% per annum from the next day to the day of full payment.

2. The plaintiffs' remaining claims against Defendant D, E, F, G, H, and I and the claims against Defendant J are dismissed, respectively.

3. Of the costs of lawsuit, 2/3 of the parts arising between the plaintiffs and the defendant D, E, F, G, H, and I are borne by the plaintiffs, and the remainder is borne by the above defendants, and the part arising between the plaintiffs and the defendant J is borne by the plaintiffs.

4. Paragraph 1 can be provisionally executed.

The Defendants jointly pay 205,010,000 won to Plaintiff A, 30,000,000 won to Plaintiff C, 31,210,700 won to Plaintiff C, and 5% per annum from September 10, 2018 to September 19, 2019, and 12% per annum from the next day to the date of delivery of the duplicate of the claim and the cause of the claim.

1. Basic facts

A. Defendant Ghye (hereinafter referred to as the “Defendant church”) is a person operating the K school which is an alternative school (hereinafter referred to as the “instant school”); Plaintiff A (L students) and Defendant D (M students) are students of the instant school; Plaintiff B and C are the parents of Plaintiff A; Defendant E and F are the parents of the instant school; Defendant H is the principal of the instant school; Defendant I is the teacher of the instant school; Defendant I is the teacher of the Plaintiff’s office; and Defendant J is the teacher of the Plaintiff’s office; and Defendant J is the teacher of the Defendant D’s office.

나. 피고 D은 2018. 9. 10. 14:45경 학교 수업을 마치고 집으로 가기 위하여 학교에서 운영하는 통학버스를 기다리고 있던 원고 A를 이 사건 학교 식수대 쪽으로 유인한 후 바지와 속옷을 벗기고 성기를 만지고 혀로 핥아 추행하였다(이하 '이 사건 추행행위'라 한다).

C. After being subjected to the instant indecent act, the Plaintiff A was given the opinions of clinical psychologists and psychological counselors that the emotional instability is shown to be high psychological anxiety, and that it requires at least 10 months or 12 months’ psychological treatment due to self-value and confusion, and the Plaintiff C was diagnosed as an adaptation disorder requiring at least 6 months’ medical treatment due to psychological stress inducedd by the instant indecent act.

[Reasons for Recognition] Facts without dispute, Gap's statements and images, and the purport of the whole pleadings

2. The plaintiffs' assertion

The plaintiffs suffered from active and mental damages equivalent to the medical expenses due to the indecent act against the plaintiff Eul. The defendant Eul is the person with parental authority responsible for supervising the defendant Eul. The defendant Eul, I, and J are the principal of the school of this case or teachers of the school of this case who are responsible for managing and supervising the defendant Eul and protecting the plaintiff Eul. The defendant church is responsible for compensating the plaintiff as the employer of the defendant H, I, and J. The defendant church is jointly liable for compensating for the above damages. The defendant's 205,010,000 won + 5,000,000 won + 20,000,000 won for active damages to the plaintiff, 30,000,000 won for consolation money to the plaintiff, and 31,210,700 won for active damages to the plaintiff Eul, 210,700 won for damages to the plaintiff, 300,000 won for consolation money to the plaintiff.

3. Determination

A. Whether the liability for damages occurred

1) Defendant D

According to the above facts, Defendant D, who committed the instant indecent act, is liable to compensate the Plaintiffs for the damages incurred by the instant indecent act.

2) Defendant E, F

A) Relevant legal principles

In cases where damage was incurred due to a minor’s illegal act, if there is a proximate causal relation with the minor’s breach of duty by the supervisor, the supervisor is liable to compensate for the damage as the general tortfeasor (Supreme Court Decision 2001Da68662 Decided February 26, 2002).

B) Determination

In full view of the aforementioned facts, the facts that there was no dispute between the parties, Eul evidence No. 1, and the purport of the entire argument, it is reasonable to view that at the time of the indecent act in this case, defendant Eul was 14 years of age and 5 months of age, and that at the time of the indecent act in this case, defendant Eul was able to change responsibilities with defendant Eul as the parents of defendant Eul, and the defendant Eul and F were able to have economic dependence upon the defendant Eul's protection and supervision. The defendant Eul seems to have been in an dynamic relationship with the defendant Eul, and around 2014, there was a lack of boundary AD diagnosis due to the dynamic behavior and concentration degradation, around 2014. In light of this, the defendant Eul and the defendant Eul are liable for management and supervision of the defendant Eul's indecent act in this case by neglecting the obligation of management and supervision by giving normal guidance and advice so that the defendant Eul can adapt to society without preventing the unlawful act in this case, and there was a negligence between the defendant Eul and the defendant Eul's joint tortfeasor.

3) Defendant church, H, I, and J

A) The plaintiffs' assertion

(1) Defendant I is a teacher of Plaintiff A’s fence, and Defendant H was negligent in protecting Plaintiff A as the principal of the instant school, and thus, the above Defendants jointly have a duty to compensate the Plaintiffs for damages arising from the instant indecent act. Defendant H and I is the employer of Defendant H and I, and the Defendant church is obligated to compensate the Plaintiffs for damages.

(2) Defendant J is a teacher of the instant school, and Defendant H neglected his duty to manage and supervise the instant indecent act as the principal of the instant school so that Defendant H does not commit the instant indecent act. As such, the said Defendants jointly have a duty to compensate the Plaintiffs for damages caused by the instant indecent act, and Defendant H and J is the employer of Defendant H and J, and the Defendant church has a duty to compensate the Plaintiffs for damages jointly with Defendant H and J.

B) Relevant legal principles

The heads, principals, and teachers of kindergartens or schools shall be obligated to protect and supervise kindergarten students and students who receive education from them pursuant to relevant Acts and subordinate statutes, such as the Framework Act on Education, on behalf of persons with parental authority, etc.

In such cases, the scope of the duty to protect and supervise kindergartens or school teachers, etc. shall be limited not to the overall living relationship of kindergarten students or students, but to the living relationship closely related to educational activities in kindergartens and in schools, and the responsibility of teachers, etc. may be recognized only if a student is negligent in performing his/her duty to protect and supervise, and the possibility of such occurrence shall be determined in consideration of the student's age, social experience, judgment ability, and all other circumstances.

In general, with respect to kindergarten students who have no ability to take responsibility for care of their age or lack of mental capacity or low school students, the scope of their living relationship and the possibility of predictability about the occurrence of accidents should be recognized more broadly. In particular, in a case where a kindergarten student or those who have a similar age, social experience, and judgment ability is used to transport them to school vehicles, the operator of the relevant kindergarten, school, or driving school, or school teacher, etc. shall be deemed to have the duty to protect and supervise students from the completion of educational activities in the school, etc. after the completion of educational activities in the school, etc. from the guardian to the safe place designated in advance by the guardian (see Supreme Court Decision 2007Da40437, Jan. 17, 2008).

C) Determination

(1) Determination on the assertion of violation of the duty to protect Plaintiff A

In light of the following circumstances, there is no dispute between the parties, or in view of the descriptions and videos of the evidence Nos. 1, 2, 1, 2, and 3, and the overall purport of the pleadings, Defendant H or Plaintiff A, the principal of the school of this case, was negligent in failing to protect the Plaintiff, and there is a proximate causal relation between the negligence and the damage of the Plaintiffs, even though he/she has the duty to protect the Plaintiff, until he/she goes on the school bus of this case and safely goes on the school bus of this case. Accordingly, Defendant H, I, and Defendant church, the user of the said Defendants, are jointly liable to compensate the Plaintiffs for the damage caused by the instant indecent act.

① At the time of the instant indecent act, Plaintiff A was only six years of age at the time of the instant indecent act with Lins, and the period of attending the instant school in 2018 was less than one year after having been admitted to the instant school in 2018.

② At the time of the instant indecent act, the Plaintiff, in waiting with other children to board a school bus in accordance with Defendant I’s direction, went away from the atmosphere of Defendant D, and was moved to the food that the instant indecent act occurred. At the time of Defendant D’s inducement, it can be seen that the Plaintiff was under the direct protection and supervision of Defendant I at the time of Defendant D’s inducement.

③ The school of this case is a school in which approximately 250 students attend the first and second years from the first grade to the third grade of high school. At the time of the indecent act in this case, there was no strict space between the elementary school students in the lower grade and the middle and high school students in the lower grade at the time of the indecent act in this case. In such a case, it can be sufficiently predicted that the possibility that the high school students in the lower grade could have induced the students in the lower grade to commit harmful act, such as assault, money fraud, etc., and thus, Defendant H and I are obliged to protect the lower grade students in order to prevent the inducement and harmful act against the lower grade students in the lower grade.

(2) Determination on the assertion that Defendant D violated the management and supervision duty

In light of the following circumstances, although there is no dispute between the parties, or considering the entries and videos of Gap evidence Nos. 1, 2, 11, Eul evidence Nos. 1 through 4, Eul evidence Nos. 1, 6, 7, 11, 12, 15, and 16 (including each number number; hereinafter the same shall apply) and the overall purport of the pleadings, the defendant J, who is the principal of the school in this case, and the teacher of defendant H or defendant D's office, seems to be practically impossible to prevent the plaintiff from predicting the fact that defendant D's guidance teacher and student's attending school would be waiting for the school bus, and thus, it is difficult to recognize the violation of the duty of management and supervision of defendant H and J's defendant D's violation of the duty of care and supervision, there is no room to establish the liability of the employer of defendant H's church on the premise that the occurrence of the obligation of the above breach of duty of the defendant HJ's above.

① Defendant D is acknowledged as being 14 years old at the time of the indecent act in this case due to M&M, and the scope of living relationship with which Defendant H and J’s duty to manage and supervise and supervise the occurrence of an accident, and the degree of predictability of the occurrence of an accident is narrow compared to the scope of living relationship with which the duty to protect the Plaintiff A is duty to protect the Plaintiff.

② The fact that the place waiting for the Plaintiff A to wait for school buses and the place where the instant indecent act was committed on the same floor is not far away from the distance, and the instant indecent act was committed within the short time of not less than two minutes.

③ Although Defendant D was diagnosed with ADDD for about four (4) years prior to the instant indecent act, there is no evidence to deem that Defendant D was diagnosed with regard to sexual intercourse, etc., and that there was no evidence to deem that Defendant D had caused a sex offense related to the instant indecent act prior to the instant indecent act.

④ Defendant D also is a student of the instant school, and even if Defendant H and J returned to the school of the instant case, including the lower school student’s lower school student’s summer waiting place, it is difficult to expect that Defendant D would anticipate the instant indecent act in advance and control all Defendant D’s actions.

⑤ In light of the fact that the point at which the instant indecent act was committed is lower than 14:45, and that there were many students and teachers waiting to teach the school at the time of the instant school, it seems difficult for Defendant H and J, etc. to anticipate the possibility of the instant indecent act.

(6) The school of this case has conducted sex education for students and sex education and training for school teachers and staff.

Therefore, this part of the plaintiffs' assertion is without merit.

D) Small conclusion

Therefore, the defendant church, H, and I are jointly obligated to compensate the plaintiffs for the damages incurred by the indecent act in this case.

B. Scope of liability for damages

1) Active damages

The following facts are acknowledged: (a) Plaintiff A paid KRW 5,010,00 for psychological counseling treatment expenses, etc. to be incurred from October 5, 2018 to September 28, 2019 due to psychological trauma, etc.; (b) Plaintiff C was diagnosed with psychological stress arising from the instant indecent act, and was diagnosed with psychological stress and paid KRW 1,210,70 for psychological counseling treatment, etc. from October 1, 2018 to September 10, 2019; or (c) each of the above medical treatment expenses was paid for KRW 1,210,70 for the medical treatment expenses under psychological counseling treatment, etc., without any dispute between the parties concerned; or (d) comprehensively considering the overall purport of each of the statements and arguments stated in subparagraphs 4, 5, 6, 12, and 16, and according to these facts, each of the above treatment expenses was the damage caused by the instant indecent act.

Therefore, Defendant D, E, F, churches, H, and I jointly have a duty to compensate Plaintiff A for KRW 5,010,00 and KRW 1,210,70 to Plaintiff C.

2) Consolation money

Considering the age of Plaintiff A, the content and degree of the act of indecent act in this case, the family relationship of the Plaintiffs, the degree of suffering suffered by the Plaintiffs, the circumstances after the act of indecent act in this case was committed, and all other circumstances revealed in the argument in this case, consolation money to be compensated by Defendant D, E, F, church, H and I shall be determined as KRW 30,000,000 for Plaintiff B and C, respectively.

C. Small conclusion

Therefore, Defendant D, E, F, church, H, and I jointly do so and jointly with the Plaintiff KRW 35,010,00 (i.e., positive damages of KRW 5,010,000 + solatium of KRW 30,000) and KRW 5,00,000 to Plaintiff B, and KRW 6,210,70 to Plaintiff C (=affirmative damages of KRW 1,210,700 + KRW 5,000 + solatium of KRW 5,000 + KRW 5,000) and damages for delay calculated annually from September 10, 2018, which is the date of the instant tort, by which it is recognized that it is reasonable for the said Defendants to object to the existence or scope of the obligation to perform, from September 10, 2018 to November 15, 2019.

4. Conclusion

Therefore, the plaintiffs' claims against the defendant D, E, F, church, H, and I are justified within the above scope of recognition, and each remaining claims are dismissed as they are without merit. The plaintiffs' claims against the defendant J are dismissed as they are without merit. It is so decided as per Disposition.

Judge Hun-Ba

Judges Kim Sung-hoon

Judge Lee Dong-hoon

1) On the CCTV screen that taken the entrance of the meal room of the instant school, the time when the Plaintiff A enters the meal room where drinking water is located is 14:45:32, and the time when the Plaintiff A and Defendant D emitted from the meal room is 14:47:09, the time interval between the relevant site and the relevant site is 14:47:09, and the time interval between the Plaintiff A and Defendant D does not exceed 37 seconds.