(영문) 서울고등법원 2018.1.23. 선고 2016나2064778 판결

1. Of the judgment of the court of first instance, the part against the defendant exceeding the amount ordered to be paid below is revoked, and the plaintiffs' claims against the defendant falling under the revoked part are dismissed.

A. The Defendant shall pay the Plaintiff A 50,000,000 won with 4,00,000 won per annum from August 31, 2014 to January 23, 2018, and 15% per annum from the next day to the day of full payment.

B. As to KRW 18,469,160 and KRW 14,469,160 among them, the Defendant shall pay to Plaintiff B 5% per annum from August 31, 2014 to August 19, 2016, KRW 4,000 per annum from August 31, 2014 to January 23, 2018, and KRW 15% per annum from each of the following to the date of full payment.

2. The defendant's remaining appeal is dismissed.

3. 80% of the total litigation costs incurred between the plaintiffs and the defendant shall be borne by the plaintiffs, and the remainder by the defendant.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff A 250,00,000 won, 66,682,760 won, and 54,321,420 won to the plaintiff C, and 54,321,420 won per annum from August 31, 2014 to the date of delivery of a copy of the application for modification of the purport and cause of the claim of this case, and 15% per annum from the following to the date of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiffs' claims against the defendant corresponding to the revoked part are dismissed.

Reasons

1. Scope of the judgment of this court;

A. The Plaintiffs filed a claim for damages against the Defendant for tort in the first instance trial, which was KRW 250,00,000 (i.e., KRW 150,00,000 for GPF research scholarship loss + ② KRW 100,000,000 for solatium). Plaintiff B claimed for damages for the amount of KRW 66,682,760 for the amount of damages (i.e., KRW 14,469,160 for medical treatment costs of Plaintiff A and C + ④ KRW 2,213,60 for the treatment of the Plaintiff and C + KRW 50,00 for the amount of KRW 54,321,420 for the amount of KRW 4,321,420 for the amount of damages + KRW 50,00 for the treatment of the Plaintiff and C + KRW 50,000 for the amount of damages for delay.

B. The first instance court, among the claims against the Defendant, declared the full acceptance, (2), (5), (7) partial acceptance, (1), (4) and (6) only the Defendant appealed. As such, among the claims against the Defendant, the part is excluded from the scope of the adjudication of this court.

2. Basic facts

This part of the reasoning of the judgment of the court of first instance shall be cited in accordance with the main sentence of Article 420 of the Civil Procedure Act (from 5 to 6th day of the judgment of the court of first instance, and up to 8th day below: Provided, That the part concerning joint defendant educational foundation E of the court of first instance shall be excluded), however, it shall be partially dismissed as follows:

○○ The 4th sentence below the 3th sentence of the first instance judgment was consolidated, and the following 4th to 13th sentence was followed:

On July 4, 2016, the first instance judgment convicting the whole and part of the indecent act by compulsion was rendered, and the part of the indecent act by compulsion is as follows.

1. At around 16:40 on August 19, 2014, the Defendant committed an indecent act by putting the Plaintiff’s shoulder, which was parked in the third floor parking lot of F University University underground, into his own car, by putting the Plaintiff’s shoulder on the top of 3rd floor, and then placing the Plaintiff’s shoulder into the Plaintiff’s entrance and forced to put the Plaintiff into the Plaintiff’s entrance, by force (hereinafter “first indecent act by force”). 2. On August 23, 2014, the Defendant: (a) at one’s own laboratory located on the fifth floor of F University Engineering 20:0 on August 23, 2014; (b) Plaintiff A, who was standing in the me B B B B, and she was bucked, and she was placed in the buck, and thus, she was unable to make the Plaintiff go against the Plaintiff’s indecent act by force (hereinafter “the Plaintiff’s indecent act by force”).

Therefore, both prosecutors and the defendant appealed. At the appellate court (Seoul Eastern District Court 2016No1161), the first instance court's judgment which found the defendant guilty of some fraud and the first indecent act by force was maintained, but the defendant's absence in the second indecent act by force was accepted as to the relevant date, time, place, and the judgment of innocence was pronounced. The prosecutor and the defendant appealed all of the appeals, but the judgment of dismissal was handed down by Supreme Court Decision 2016Do18986 Decided October 17, 2017, and the above judgment became final and conclusive at that time (hereinafter referred to as "related criminal case").

○ 6th 13-14 of the judgment of the court of first instance, "Nos. 1 through 29" was added to "Nos. 1 through 29, 33".

3. The parties' assertion

This part of the reasoning of the judgment of the court of first instance shall be cited in accordance with the main sentence of Article 420 of the Civil Procedure Act (excluding the part concerning the argument of the joint defendant educational foundation E in the first instance, excluding the part concerning the argument of the joint defendant educational foundation E in the first instance). However, part of the reasoning of the judgment shall be dismissed or added as follows:

[Supplementary Use]

○○ The 7th day after the last day of the judgment of the first instance to the 8th day after the last day of the judgment of the first instance, and therefore, Defendant D was directly a tort, and Defendant corporation, as the user of Defendant D, was engaged in a tort.

[Supplementary Parts]

Then, “The plaintiff A’s assertion on the first indecent act and other sexual harassment is also false, so long as it is found that the plaintiff’s assertion on the second indecent act in the related criminal case is false, all of the plaintiff’s assertion on the first indecent act and other sexual harassment will be added.”

4. Occurrence of liability for damages;

A. The existence of the first indecent act by compulsion

1) Even if the original civil trial is not bound by the finding of facts in a criminal trial, the facts found guilty of the same facts are significant evidence. Thus, barring any special circumstance where it is deemed difficult to adopt the factual judgment in light of other evidence submitted in the civil trial, it cannot be recognized that the facts against the judgment are opposed (see, e.g., Supreme Court Decision 90Meu21886, Dec. 7, 1990).

2) Comprehensively taking account of the following circumstances acknowledged by the evidence and the purport of the entire pleadings as seen earlier, even if Plaintiff A did not actively resist the Defendant at the time of the first indecent act, it is reasonable to view that the Defendant committed an indecent act against Plaintiff A, such as having been committed against Plaintiff A’s will, in light of the relationship with the Defendant and Plaintiff A, and the conduct of the Defendant and Plaintiff A committed before and after the first indecent act by compulsion, etc., on August 19, 2014.

① With respect to the situation at the time of the first indecent act by compulsion, Plaintiff A consistently worked in the investigation process and related criminal cases, and consistently called “the Defendant: (a) coming to drink the Plaintiff; and (b) went back to the school after getting on and off the Plaintiff’s vehicle; and (c) the Defendant was unable to immediately get off the Plaintiff’s vehicle after parking at the underground parking lot; and (d) continued to listen to that talk. However, at the same time, Plaintiff A was unable to get out of the Plaintiff’s body and continued to have a talk on school life, etc.

② Plaintiff A took a lecture for the Defendant’s course in the spring semester 2012, started a laboratory internship life that the Defendant directed from June of the same year, and was admitted to a graduate school from March 2014 and received the Defendant’s instruction. As such, at the time of the first indecent act, at the time of the first indecent act, the Defendant and Plaintiff A was in a full-time relationship with the teaching faculty and the third party.

③ 1차 강제추행은 타인이 없는 장소에서 은밀하게 이루어졌으므로 목격자가 있지는 않으나, ㉠ 당시 상황에 관한 원고 A의 진술이 매우 구체적이고 일관된 점, ㉡ 피고는 1차 강제추행 당시 원고 A에게 입맞춤을 하는 과정에서 "열어줘"라고 말하였는바, 피고의 이러한 언행은 원고 A가 진심으로 피고와의 입맞춤을 원하지 아니하여 입을 다물고 있었다는 원고 A의 주장에 부합하는 점, ㉢ 1차 강제추행 이후 피고가 원고 A의 요구로 '더 이상 좋아하지 않기'라는 내용이 포함된 이 사건 서면을 작성한 점, ㉣ 원고 A의 아버지인 원고 B은 2014. 10. 19. 피고에게 1차 강제추행에 대해 항의하였는데, 당시 피고는 자신의 강제추행 사실에 관하여 명시적으로 부인하거나, 원고 A와 좋아하는 감정으로 합의 하에 한 것이라는 주장을 하지 않았고, 1차 강제추행 당시 입을 맞추면서 '열어줘'라는 말을 한 사실을 인정하면서도 차 문을 열어달라고 한 것이라는 이해하기 어려운 변명을 한 점(갑 제6호증) 등에 비추어 볼 때, 1차 강제추행에 관한 원고 A의 주장에 신빙성이 있다.

④ On August 19, 2014, at around 23:30 on August 19, 2014, the Plaintiff and A told that they were sexually indecent at the same graduate school located in the vicinity of the F University, the Plaintiff and A were sexually indecent. Since that date, the Plaintiff and the said researcher discussed the Defendant’s abduction.

⑤ On August 20, 2014, the Plaintiff sent to the Defendant an e-mail with the content that “I wish to see that I want to see to see that I will see to see that I will see to see that I will see to see that I will see to see that I will see to see that I will see to see that I will see to see that I will see to see that I will see to see that I will see to see that I will see to see that I will see to see that I will see that I will see to see it, but I will see that I will see to see that I will see to see that I will see to 09:14, and that I will see to see that I will see to see that I will see to see that I will e-mail, and that I will see to see that I will see that I will see that I will e-mail within 10 days.

(6) On August 21, 2014, the day after the above e-mail was sent and sent by the Defendant: (a) on its own initiative with the Plaintiff, the instant document was drawn up with the Plaintiff as a “pact”; (b) it was understood that the content was made up in the sense that the two parties maintaining the relationship based on the e-mail would normalize the inappropriate relationship, not with the meaning of cutting off the relationship; and (c) in light of the acts before and after the Plaintiff’s conduct, at least the Plaintiff consented to the preparation of the said document in the said sense (only even though the above document contains a part of “the prohibition of good expression: it is not good”).

7) As to this, the Defendant asserted that the instant document signed by the Plaintiff A was skis, kis, kis, kis, and kisskis in the instant document, and that the Defendant also caused the Defendant to feel skis as a skis, on the ground that it includes the content that the Defendant permitted kis, kis, kis, and kiskis in the seaside after three years, and that kiskis

In the investigation process and related criminal cases, Plaintiff A stated to the effect that “The content of the instant document is unilaterally determined and prepared by the Defendant, which is not considered as H, which overlaps with the first love, etc., and no longer good, etc., the remainder is made in accordance with Plaintiff A’s request. However, since the Defendant is a personnel in the U.S., it is deemed that the Defendant is fine because he is a person, he is a person, and that the Defendant unilaterally made a signature, and that it is merely a degree that he would know the Defendant’s proposal in order to escape the situation without the intention to perform the work for three years.” The content of the instant document itself does not appear to be a content that is made between normal patriotism.

In accordance with the evidence Nos. 1 and 2, it is recognized that the plaintiff A made a speech or behavior that "A continues to express the defendant to his fellows continuously before his study," "A professor's interview too frequently," "A professor needs to keep a video call and to monitor privacy," and "A professor will be able to leave her home," and "I will leave her home."

According to the contents of the Kakakao Stockholm conversation (12, 93 pages of evidence A No. 9) exchanged between the plaintiff A and the defendant, the plaintiff A expressed his intention of leave to the defendant on September 23, 2014, and the author continued the pains from the past August 2014. The author sent a message stating that "I continue the conduct that I would like to do not refuse. I continue the behavior that I would like to do, and due to such time, I would am sufficiently suffering."

8. As seen earlier, the Defendant was convicted in the relevant criminal case regarding the primary indecent act by compulsion and became final and conclusive as it is.

B. The existence of the second indecent act by compulsion

1) The plaintiffs asserted to the effect that, around 20:00 on August 23, 2014, the defendant's act of indecent act by the defendant was continued until 23:30 on the same day, the defendant's act of indecent act by the defendant was committed against the defendant's laboratory located on the fifth floor of Funiversity engineering center, following the plaintiff A, who was working to engage in crowdfunding by being instructed by the defendant.

2) However, in full view of the following circumstances acknowledged by the aforementioned evidence and the purport of the entire pleadings, the evidence submitted by the Plaintiffs alone is insufficient to acknowledge the above assertion, and there is no other evidence to acknowledge it.

① Plaintiff A asserts that the Defendant’s indecent act was continued from around 20:0 to 23:30 on August 23, 2014. [The foregoing Plaintiff’s statement in the relevant criminal case is likewise the same (No. 9-9). In particular, the content of No. 9-12 (including the process in which D sexual indecent act was committed) No. 9-21, which appears to have been prepared by the said Plaintiff, “at 11:0 on August 23, 2014,” stated that the Defendant committed such indecent act as above] However, according to the respective descriptions of No. 5 and No. 7, the Defendant’s vehicle went at school around August 23, 2014, and the Defendant continued to commit the said indecent act from around 22:00 to around 30:30 on the same day.

② On August 23, 2014, Plaintiff A made a statement that he/she had been aware that he/she had committed an indecent act by the Defendant, and that he/she had been late in his/her house, and whether he/she had been in his/her house, the Plaintiff stated that he/she had been in his/her house after the second indecent act by force was committed on November 13, 2014 at the time when the police statement was made by the prosecution in the investigation procedure of the criminal case related to the crime, and on January 20, 2015. In particular, at the time of the police statement at the time of the police statement, Plaintiff A made a statement that he/she had been in his/her house after the second indecent act by force was committed by the police, it is difficult to reverse the Plaintiff A’s statement that he/she had been in his/her house before the Plaintiff’s house (as soon as he/she had been in his/her house, he/she sent his/her house without any other expression).

③ From the end of September to October, 2014, Plaintiff B sent e-mail to the Defendant on September 8, 2014, and then, on October 8, 2014, Plaintiff B demanded the Defendant to send e-mail to the Defendant for sexual harassment and sexual indecent act, and the specific form of conduct (to be sent by affixing a photo only once) was stated in the Defendant’s statement of sexual harassment and sexual indecent act, and the Defendant’s statement of form of conduct (to be bucked before people, kiscing down the bucks, kiscing off the bucks, kiscing off the bucks, kiscing off the first one, with the first love and good faith for each Party, and Kao Kao Kao Kao Kabro gate, scoping the Defendant on a late and late basis, but it cannot be easily stated that Defendant B’s conversation and the first one on October 16, 2014 were recorded on several types of indecent acts by compulsion.

④ According to the conviction in the first instance court of the relevant criminal case, if the illegality of the second indecent act by compulsion seems to be more serious than the first indecent act by compulsion, and if the second indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by the Plaintiff A and the Plaintiff B also seems to be natural to ask the Defendant about the second indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecently, the fact that the Plaintiff B did not mention the Defendant of the second indecent act by indecent act by indecent act by indecent act by

⑤ Unlike the judgment of conviction of the first instance in relation to the second indecent act by compulsion in a related criminal case, the appellate court accepted the defendant’s absence of evidence on the relevant date, time, and place, and rendered a judgment of innocence, and thereafter the judgment of dismissal of the lower court became final and conclusive.

As to this part, the corresponding part of the reasoning of the judgment of the court of first instance (from 12th to 13th day below) shall be cited in accordance with the main sentence of Article 420 of the Civil Procedure Act. However, the existence of other sexual harassment in the 12th day judgment of the court of first instance shall be construed as "whether there is any other sexual harassment", and "the establishment of a tort in the 12th day ("3th day")" shall be construed as "the establishment of a tort."

5. Scope of damages.

A. Medical expenses of plaintiffs A and C (Recognition) paid by plaintiffs B

With respect to this part, the corresponding part of the reasoning of the judgment of the first instance (17-13 of the judgment of the first instance) shall be cited pursuant to the main sentence of Article 420 of the Civil Procedure Act.

(b) consolation money;

① The Defendant’s actual power-related relation between guidance professors and graduate students appears to have committed the tort in this case, even though he knows that the Plaintiff was unable to properly resist, the attitude and circumstance of the tort is not good. ② The Plaintiff’s mental suffering from the tort in this case, and the Plaintiff’s continued research in the major field he wanted to his mother. ③ The Defendant’s tort in this case and the Plaintiff’s refusal to receive the GPF scholarship cannot be found to have a proximate causal relation between the Defendant’s tort and the Plaintiff’s tort in this case’s refusal to receive the GPF scholarship, but it cannot be denied that the Defendant’s refusal to offer the call. ④ The Defendant’s infringement of the sexual self-determination right and personality right in this case remains in a state of pain and mind that it is difficult to cure the victim, ⑤ The Plaintiffs’ relations were considered, calculated separate mental treatment expenses as damages, and the Plaintiff’s mental disability appears to have been relatively improved due to the Plaintiff’s mental disability treatment, and the Plaintiff’s judgment in this case’s related case’s tort in this case’s case’s case’s damages in 100 billion won and damages.

C. Sub-decision

Therefore, the defendant paid to the plaintiff A consolation money of KRW 50,00,000, consolation money of KRW 4,000, and KRW 4,000 to the plaintiff C for delay compensation of KRW 15% per annum from August 19, 2014, which is the first indecent act day of indecent act, as the above plaintiffs seek from August 31, 2014 (However, there is no evidence to acknowledge that infringement on the personality rights of August 31, 2014 alleged by the plaintiffs) that it is reasonable to dispute about the existence or scope of the defendant's obligation to pay consolation money of KRW 18,469,00,00, and KRW 160 per annum from the following day to the date of full payment; KRW 18,469,160, KRW 160, KRW 460, KRW 160, KRW 160, KRW 168,00 and KRW 164,00,016).

6. Conclusion

The plaintiffs' claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since part of the judgment of the court of first instance against the defendant is unfair with different conclusions, the part against the defendant ordering payment in excess of the above recognition amount among the judgment of the court of first instance is partially accepted, and the part against the defendant ordering payment in excess of the above recognition amount among the judgment of the court of first instance is revoked, the plaintiffs' claim against the defendant corresponding to the revoked part is dismissed,