(영문) 서울북부지방법원 2021.1.28. 선고 2020나31737 판결

A. On March 30, 2018, around 15:20 on March 30, 2018, it is confirmed that the damages liability of the Plaintiff (Counterclaim Defendant) against the Defendant (Counterclaim Defendant) regarding the traffic accident that occurred at the crosswalk in front of the D Middle School located in Dobong-gu Seoul Metropolitan Government does not exist in excess of the amount stated in paragraph (b

B. The Plaintiff (Counterclaim Defendant) pays to the Defendant (Counterclaim Plaintiff) 23,784,519 won with 5% interest per annum from March 30, 2018 to January 28, 2021, and 12% interest per annum from the next day to the day of full payment.

C. The remaining principal claim and the remaining counterclaim claim of the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

2. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by the Defendant (Counterclaim Plaintiff), respectively.

3. The above paragraph 1(b) may be provisionally executed.

Purport of claim and appeal

1. The plaintiff (the counter defendant; hereinafter referred to as the "Plaintiff");

On March 30, 2018, the judgment of the first instance is modified as follows. At around 15:20 on March 30, 2018, it is confirmed that there is no obligation of the Plaintiff against the Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”) with respect to traffic accidents occurred at the front of the D Middle School located in Dobong-gu Seoul Metropolitan Government. The Defendant’s counterclaim is dismissed.

2. The defendant;

A. Claim for a counterclaim

The plaintiff shall pay to the defendant 151,148,94 won with 5% interest per annum from March 30, 2018 to the service date of a duplicate of the counterclaim of this case, and 12% interest per annum from the next day to the day of complete payment.

B. Purport of appeal

Of the judgment of the court of first instance, the part against the defendant regarding a counterclaim corresponding to the amount ordered to be paid under the judgment of the court of first instance and the part against the defendant as to the principal lawsuit shall be revoked. The plaintiff shall pay to the defendant 12,13,321 won and the amount calculated at the rate of 5% per annum from March 30, 2018 to the service date of a duplicate of the letter of counterclaim of this case and 12% per annum from the next day to the day of complete payment. The plaintiff's claim on the principal lawsuit corresponding to

Reasons

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts recognized;

A. On March 30, 2018, E driving a G bus owned by F Co., Ltd. (hereinafter referred to as “Plaintiff bus”) around 15:20, and driving the crosswalk in front of the D Middle School located in Dobong-gu Seoul Metropolitan Government, which is located in the children protection zone, along with the vehicle travelling signal, at the H middle school level from H level to about 38.9 km each of the two-lanes, at a speed exceeding 38.9 km from the two-lanes, while driving the said crosswalk, E was placed on the right side of the Plaintiff bus in order to cross the said crosswalk to the port from the right side of the passage of the Plaintiff bus, and the back wheel of the Plaintiff bus, while going beyond the Defendant, was facing the Defendant’s right side part (hereinafter referred to as “accident”).

B. The Defendant suffered injury, due to the instant accident, such as damage to minculization alley in the upper right brush in the upper right brush and damage to human-conformation of raw brush, minculverization alley in the upper right brush, flusium in front of the upper right brush, flusium in front of the front right brush, strusium in front of the bru

C. The Plaintiff is a mutual aid business entity that entered into a comprehensive motor vehicle mutual aid agreement with respect to the Plaintiff bus.

[Ground of recognition] Facts without dispute, Eul's statements 1, 5, 8, 9, 13, and 14, Gap's evidence 1, Gap's video, Seouldo Chief of the first instance court's Seouldo Chief of the Road Traffic Authority and the head of the Seoul Metropolitan Government District Office's Local Head of the Road Traffic Authority's District Office's inquiry results

2. Occurrence of liability for damages;

A. Recognition of liability for damages

1) According to the above facts, the Plaintiff is responsible for compensating the Defendant for the damages caused by the instant accident, barring any special circumstance, as a mutual aid business operator of the Plaintiff bus.

2) As to this, the Plaintiff did not have a duty of care to drive the crosswalk without permission, in disregarding the signal to the Plaintiff bus driver E, and even if E complies with the restricted speed within the children protection zone, the Plaintiff could not avoid the instant accident, considering the distance necessary for the suspension, and therefore, the Plaintiff should be exempted from liability.

In light of the following circumstances acknowledged by the above evidence, i.e., (i) when E arrives at the location of the accident in this case, i.e., speed exceeding 30 km per hour, (ii) Plaintiff bus was in progress by using two lanes among two lanes, and (iii) the bicycle exclusive lane was in progress on the right side of the above two lanes, and the bicycle exclusive lane led to the day before the crosswalk, which is the place where the accident in this case occurred, and followed again after the crosswalk. The Plaintiff bus was in close close to the yellow line at the right side of the road at the time of the accident in this case, and was in close close to the Defendant at the time of the accident in this case, the Defendant was not negligent in driving the Plaintiff bus by taking account of the following circumstances: (i) the Plaintiff’s failure to comply with the speed limit, and (ii) the Plaintiff’s failure to exhaust the bicycle exclusive lane, and (iii) the Plaintiff’s failure to use the bus as a whole, did not cause any minor injury to the Plaintiff’s bus.

B. Limitation on liability

However, the following circumstances revealed by the aforementioned evidence are as follows: (a) the defendant, as a person with a disability of class 1 with intellectual disability, did not properly verify whether there is a vehicle in progress by the guardian who was next to the crosswalk while the pedestrian signal at the time is red, and (b) the traffic speed limit at the accident site of this case is limited to 30km per hour, because the place is not a child protection zone; (c) the accident of this case occurred due to the plaintiff bus's invasion of the bicycle exclusive lane, but the defendant entered the crosswalk from India as a pedestrian, but the defendant did not get a bicycle and not going on the bicycle exclusive lane, it is limited to 40% of the plaintiff's liability.

3. Scope of liability for damages

The following items are as follows, and the period for the convenience of calculation shall be calculated on a monthly basis, but the period of less than the last month and the amount less than the last month shall be discarded. The current price calculation at the time of the accident shall be governed by the door-to-door discount method which deducts the statutory intermediate interest at the rate of 5/12 per month from the statutory intermediate interest at the rate of 5/12 per annum. The purport of rejecting any of the parties' arguments that do not separately state

[Ground of recognition] Facts without dispute, Gap evidence 6, Eul evidence 7 and 15, each of the records of Eul evidence 7 and 15, the result of each physical appraisal commission to the head of the first instance court's I Hospital, the rule of experience, significant facts, and the purport of the whole pleadings

(a) Actual income:

1) Personal information

(a) Date of birth: J and in the event of an accident: Three (3) months of age 1;

B) Gender balance

2) Operating Period: Until December 28, 2055 years of age (in December 28, 2058), the date on which the name is ended: June 18, 2074

(iii) Income: 40% of urban daily wage;

① The Defendant is a person with intellectual disability 1, and there is no medical appraisal result as to which degree of labor ability was compared with non-disabled persons prior to the occurrence of the instant accident. ② The former Enforcement Rule of the Welfare of Disabled Persons Act (amended by Ordinance of the Ministry of Health and Welfare No. 606, Jun. 4, 2019) provides that “a person with intelligence index less than 35, who needs to protect others for their daily life and social life due to considerable difficulty in adaptation to their daily life and social life.” However, even if a person with intellectual disability 1 is a person with mental disability, it is not impossible to perform his/her duties such as simple production or office organization, food-related service, etc. Even if he/she is a person with mental disability, it is not possible to perform his/her duties easily, ③ Article 3(6) of the State Compensation Act and Article 2 [Attachment 2] [Attachment 7] of the Enforcement Rule of the Welfare of Disabled Persons Act (amended by Ordinance of the Ministry of Health and Welfare No. 606, Jun. 4, 2019).

(iii) the rate of loss of labour capacity due to the latter disability;

○ Application of the Labor Capacity Loss Rate 17% due to the limitation, etc. on the right-hand satisfaction exercise, etc. 17%, permanent disability (application of Mabrid Mabro-II-B-a, vocational coefficient 6)

○ Rate of Loss of Labor Capacity by Period

① From March 30, 2018 to August 4, 2018: 10% (it shall be deemed that the Defendant received hospitalized treatment for 127 days from March 30, 2018 to August 3, 2018 due to the instant accident, and for 128 days from the date of the instant accident to August 3, 2018, and for 1 October 4, 2018, for calculation convenience, it shall be deemed that he/she received hospitalized treatment for 128 days from the date of the instant accident to August 4, 2018).

(2) From August 5, 2018 to December 28, 2058: 17%

○ Calculation: 49,967,013 won, as stated in the column of “total income (won)” on the following calculation lists:

A person shall be appointed.

(b) Wang medical expenses: 5,675,000 won (from March 30, 2018 to August 30, 2018);

The auxiliary equipment equivalent to KRW 250,000 is required every five years. Since there is no evidence to deem that the Defendant spent it until the closing date of the instant pleadings, it shall be deemed that the Defendant first disbursed it on December 11, 2020, which is the day following the closing date of the instant pleadings, and shall be calculated at the present price at the time of the instant accident. The detailed calculation details are as follows.

A person shall be appointed.

(d) Future medical fees;

(a) Expenses for the removal and operation of fixed objects within the satisfaction level: 2,267,511 won;

As of December 11, 2020, the day following the closing of argument in the instant case, the Defendant is deemed to disburse the same at the present price at the time of the instant accident.

A person shall be appointed.

2) The Defendant asserts that the Defendant would have claimed for payment of the expenses for preservation in relation to the external colony salt, expenses for satisfaction and sacriffying surgery, and the expenses for recompeting surgery for sacriffying surgery for sacriffy, out of sacriffy sacriffys (i.e., 4,050,230 won - 2,570,000 won for the removal of sacriffys) as an express claim for medical expenses in the future. However, considering the fact that there was no evidence to deem that the Defendant had received medical treatment related to sacriffys after the physical examination in the first instance, it is insufficient to admit this part of the Defendant’s assertion, and there is no other evidence to prove this otherwise.

E. Limitation of liability

1) The Plaintiff’s liability ratio 40%

2) Calculation: 23,689,079 won = (((49,967,013 + 5,675,00 won + 1,313,175 won + 2,267,511 won) + 40%)

(f) Mutual aid;

Of the Defendant’s total medical expenses paid by the Plaintiff from June 1, 2018 to November 1, 2019, KRW 9,904,560 equivalent to 60% of the Defendant’s fault ratio of KRW 16,507,60.

(g) Consolation money;

1) Reasons for consideration: The details of the accident in this case, the injury of the defendant and the degree and degree of the injury of the defendant, the degree of negligence of both parties, the age of the defendant, and all other circumstances shown in the arguments in this case.

(ii) Amount recognized: 10,000,000 won;

H. Sub-committee

Therefore, the Plaintiff is obligated to claim damages from the Defendant for damages arising from the instant accident at KRW 23,784,519 (=property damages amounting to KRW 13,784,519 (=property damages amounting to KRW 23,689,079 – KRW 9,904,560) + solatium amounting to KRW 10,000] and the damages for delay arising from the instant accident from March 30, 2018, which is the date when the instant accident occurred, to January 28, 2021, which is the date when the judgment was rendered, to dispute about the existence or scope of the Plaintiff’s obligation to pay 5% per annum under the Civil Act from March 30, 201, until January 28, 2021, and damages for delay calculated at 12% per annum from the next day to the date of full payment. On the other hand, there is no interest in seeking confirmation of the absence of such obligation.

4. Conclusion

Therefore, the plaintiff's main claim and the defendant's counterclaim are justified within the scope of each above recognition, and the remaining main claim and the remaining counterclaim are dismissed as they are without merit. Since the judgment of the court of first instance against the plaintiff which concluded otherwise is unfair, the plaintiff's appeal is accepted, and it is decided to modify this as above, and it is so decided as per Disposition.