20 Ba211125 Damage, Claim

A

Attorney Lee In-bok, Counsel for the defendant

B

Law Firm Cheonglim, Counsel for the plaintiff-appellant

Attorney Kim Chang-hee, Counsel for the plaintiff-appellant

November 11, 2020

December 23, 2020

1. The defendant shall pay to the plaintiff 38,50,000 won and 20,000,000 won from October 22, 2017; 18,500,000 won with 5% per annum from September 1, 2018 to December 23, 2020; and 12% per annum from the following day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. One-fifth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 49,150,470 won with 5% interest per annum from October 22, 2017 to the service date of a copy of the complaint of this case, and 12% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. The Plaintiff is a graduate student who was enrolled in the course of the computer engineering and doctoral degree at C University, and the Defendant was a doctoral degree professor.

B. On July 10, 2019, the Defendant was prosecuted against the Plaintiff for committing an indecent act by force on duty and was sentenced to imprisonment with prison labor for August and two years of suspended execution as Seoul Western District Court Decision 2018Da3613 Decided July 10, 2019, and both appeals (Seoul Western District Court Decision 2019Do1039) and appeals (Supreme Court Decision 2020Do240) were dismissed and the judgment became final and conclusive (hereinafter “instant criminal judgment”).

From October 22, 2017 to October 31, 2017, the Defendant (the Defendant) and the victim (the Plaintiff) visited Italian benes to participate in the “D Association” (hereinafter referred to as the “school conference of this case”) held in Italian Republic of Korea, and the victim was scheduled to make a presentation at the school workshop of this case on October 23, 2017. The Defendant and the victim came to door the “E” hotel F where the victim’s accommodation is located in order to prepare the above presentation. At around 20:30 on the day of the above hotel, the Defendant 20:0 on October 22, 2017, she was able to see the victim’s right hand over, and she was able to see the victim’s left hand over, and she was able to see the victim’s left hand over, and she was able to see the victim’s left hand over, she was able to do so.

C. After being subjected to the aforesaid indecent act by the Defendant (hereinafter referred to as “the instant indecent act”), the Plaintiff took part in the workshop at a school and participated in it. The Plaintiff purchased the boarding ticket at KRW 659,470 and returned to Korea using an aircraft departing from Italy (on-site time) on October 24, 2017.

D. Meanwhile, the Plaintiff participated in the Defendant’s research task and obtained a monthly average of KRW 1,850,000 in the Defendant’s research task, but did not acquire it after being excluded from the service around November 2017. In addition, the Plaintiff was temporarily absent from the doctorate program in which the first semester remains until completion after the instant indecent act, and finally completed February 2020.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 17, Eul evidence 1 to 7, the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion

① The Defendant is obligated to compensate the Plaintiff for consolation money of KRW 30,00,000 due to mental damage that has been habitually caused by the Defendant’s indecent act, which committed the instant indecent act, and habitually experienced sexual disrest behavior. ② The Plaintiff was taking part in the Defendant’s research task, thereby obtaining an average of KRW 1,850,00 per month, by participating in the Defendant’s research task. However, the Plaintiff was excluded from the research after the instant indecent act and delayed the completion of the doctor’s course (from November 1, 2017 to August 2018), thereby incurring economic damage equivalent to KRW 18,50,000 corresponding to the 10-month doctor’s degree (from November 2017 to August 2018), and thus, the Defendant is obligated to compensate the Defendant. ③ Since the Plaintiff’s purchase price of boarding tickets 659,470 won paid by returning to It after the instant indecent act occurred due to the Defendant’s tort, the Defendant is obligated to compensate for this.

(2) The defendant's assertion

① The Defendant did not commit the instant indecent act against the Plaintiff, and did not habitually engage in verbal sexual harassment. ② The Defendant did not exclude the Plaintiff from the research service, but did not return the Plaintiff to the laboratory voluntarily after the Plaintiff’s leave of absence, and the delay in completing the doctoral degree course cannot be said to be due to the Defendant. ③ Since the purchase price for boarding tickets paid by the Plaintiff was paid from the business trip expenses, the Plaintiff cannot claim compensation without returning the balance of the expenses, and this should be deducted from the amount of compensation for damages.

B. Determination

(1) Consolation money

(A) Although a 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. Therefore, in light of other evidence submitted in the civil trial, it cannot be recognized that there is no special circumstance where it is difficult to adopt a criminal judgment's factual determination in light of other evidence (see, e.g., Supreme Court Decision 89Meu6812, Aug. 14, 1990). The defendant has no dispute that there is an indecent act in this case. However, in light of the above legal principles and evidence based on the above, the defendant can be sufficiently recognized that the plaintiff suffered mental damage by committing the indecent act in this case by the plaintiff.

(B) In calculating consolation money, the relationship between the Plaintiff and the Defendant, the situation at which the Plaintiff was suffering from the indecent act in this case, the situation where the Plaintiff gave up the presentation at the international conference prepared for a long time and immediately returned to the Republic of Korea, the circumstance where the Defendant’s partial improper speech and behavior in the Plaintiff’s guidance process is inferred (However, there seems to be insufficient evidence to the extent that it is recognized to have reached a habitually sexual harassment), and other factors such as the degree of the tort in this case, the degree of the Plaintiff’s mental impulse, and the Defendant’s response after the tort in this case, it is reasonable to determine it as KRW 20,000.

(2) Loss from lost income

(A) As to the Plaintiff’s participation in the Defendant’s research task and raising the monthly average of KRW 1,850,000 in the Defendant’s research task, there is no dispute between the parties concerned. (1) In addition to the purport of the argument as to Gap’s evidence Nos. 11 and 17, and the result of the fact-finding on the Cuniversity G GUG G G in this court, the Plaintiff participated in various service research tasks as a research assistant of the Defendant’s research task; (2) the Defendant excluded the Plaintiff from the participating researcher since the instant indecent act was committed on November 2017; and (3) the Plaintiff closed the school year of 2018 due to shock, etc. caused by the instant indecent act.

(B) In full view of the facts that the Plaintiff could have been unable to continue to conduct research on services in the Defendant’s laboratory after the instant indecent act, and that the Defendant directly excluded the Plaintiff from the participating researcher, it cannot be deemed that the instant indecent act committed by the Plaintiff was unable to participate in the research task, thereby causing loss of lost income. The period during which the Plaintiff suffered loss would not be deemed to have reached a total of ten months of income for the period of one semester (one month from March 2018 to six months from August 2018) that would have been expected to have been able to obtain income due to the Plaintiff’s participation in research, if he/she had attended the normal doctorate course from November 2017.

(C) Therefore, the amount of damages for the economic loss of the lost income that the Defendant is liable to pay to the Plaintiff is the total of KRW 18,500,000 (the Defendant asserted the offsetting of profit and loss, but did not prove specific proof to support the offsetting of profit and loss).

(3) Purchase price of boarding tickets for the aircraft of this case

(A) On the purchase price for boarding tickets paid by the Plaintiff after the instant indecent act, after the Plaintiff gave up the presentation of the Council and returning home immediately, the Defendant examined the purchase price for boarding tickets for boarding tickets for boarding machines, the amount paid from the business travel expenses, and the above amount cannot be claimed unless the Plaintiff returned the business trip expenses.

(B) In addition to the written statements in Gap evidence Nos. 5 through 7, the plaintiff testified to the effect that "the plaintiff had already stopped a return flight ticket while planning the business trip in this case, 2) that the plaintiff paid the flight flight ticket in this case rapidly, and that the amount would have been paid by his credit card, and 3) at the time of criminal trial on the indecent act in this case, the plaintiff was paid 500 knife at his own expense. At the time of the criminal trial on the indecent act in this case, the plaintiff testified to the effect that "the right to embark on the flight aircraft in this case is 500 knife at his own expense."

(C) Ultimately, the defendant's argument that the purchase price for boarding tickets of this case shall be the damage suffered by the plaintiff due to the defendant's illegal act, but inasmuch as the plaintiff acquired the business trip expenses exceeding this amount and did not return it to the defendant managing the research service, the part equivalent to the purchase price for boarding tickets of this case should be deducted from the above amount of damages. Accordingly, the plaintiff asserted that the purchase price for boarding tickets of this case should be deducted from the above amount of damages. Although the plaintiff asserted that the purchase price for boarding tickets of this case was exchanged for the part of his own personnel expenses already owned, it is not a separate business trip expenses, but it goes against the plaintiff's above testimony to the purport that the plaintiff

C. Sub-committee

In full view of the above review, the Defendant is obligated to pay the Plaintiff damages amounting to KRW 38,50,000 (30,000 per annum from September 1, 2018 to December 23, 2020, the amount of damages for lost income + KRW 18,500,000 per annum from October 22, 2017, the date of tort, and KRW 18,500 per annum from October 22, 2017, and KRW 10 (from November 2, 2017 to August 8, 2018), as the Plaintiff seeks, for lost income damages amounting to KRW 18,50,00 per annum from September 1, 2018, the date following the lapse of the payment date of KRW 18,500,00 per annum from September 1, 201 to December 23, 2020, respectively.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed. It is so decided as per Disposition.

Judges Cho Byung-gu

1) The Plaintiff’s revenue (the total amount received, not the total amount received, but the amount received as the Plaintiff’s share) received by participating in the service research task does not dispute both parties on the monthly average of KRW 1,850,000 per month.

2) It appears that subsequent waivers or refunds have been made (No. 5 No. 2 pages).

(iii) Eul evidence 5, 4 and 6, respectively.

4) 2017. 10. 24. 당시 유로화 환율(매매기준율)은 1,327.48원/€ 이다.