(영문) 서울고등법원 2016.12.9. 선고 2016나2051048 판결

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

2. The costs of the lawsuit are assessed against the Plaintiffs.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff A and B 107,770,543 won, 300,000 won to the plaintiff C, and 5% per annum from April 10, 201 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Facts of recognition;

2. Existence of liability for damages

(a) a Party’s assertion, (b) fact of recognition, (c) relevant provisions;

The reasoning for the judgment of this court is identical to that of the judgment of the court of first instance, and such judgment is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

D. Determination

According to the above facts, the following circumstances are revealed.

(1) Around 2003, the Deceased entered on December 13, 2010 when he was diagnosed with depression and did not receive any specific treatment. In the event of receiving a new illness education, he was judged by a public prosecutor on the level of service suitability, and was living without any particular problem during the period of the new illness education.

(2) On February 11, 2011, the Deceased was posted to the commander of the competent military unit, and on March 13, 2011, the Deceased was first used while waiting for a parent interview.

(3) Around that time, the commander of the military unit belonging to the deceased knew that the deceased was unable to work on the army room, and that he was diagnosed with depression in the past, classified the deceased as an interest soldier. From that time to that time, the deceased was provided with medical care from the military department of the National Army Waterworks Hospital for three times until the deceased committed suicide.

(4) On March 30, 2011, the president of the headquarters directly served as a mentor and consulted with the deceased. During that process, as there are other soldiers performing their duties as to the assignment of a main officer who wishes to be a deceased on March 30, 201, he promised to make a change of the assignment to another job if the deceased wishes to do so more in the current assignment between the month, and that on April 3, 201, he will make a change of the assignment if the deceased wishes to do so.

(5) The chief of the headquarters ordered the ancillary officer to report to him/her immediately in the event of a special situation of the deceased, and ordered the chief of the headquarters to refrain from performing his/her duties to control the deceased’s responsibilities.

(6) Accordingly, the Deceased was exempted from imprudent work, and 1 hour’s late attendance was delayed than the appointed soldiers, and 1 day’s interview took place with the head of the Abrupt Headquarters.

(7) The president of the Central Headquarters instructed the deceased to take out his/her dental stability agents every day, and confirmed whether the deceased took out his/her chronic stability agents through a medical disease.

(8) Meanwhile, there is no evidence to deem that the deceased was due to bullying or harassment from the selected soldiers in the military unit.

As such, insofar as the commander of the military unit belonging to the deceased has paid special attention to the risk of suicide and has taken active measures to assist the deceased in their adaptation to military service, even if he did not take any more serious measures, such circumstance alone alone is difficult to deem that the military commander was negligent by neglecting the duty of care required in the course of performing his duty, and there is also a need to recognize the predictability of special circumstances that the deceased may commit suicide. There is no evidence to deem that there was an excessive error by the commander of the military unit belonging to the deceased, even though he could have discovered the signs of suicide due to the aggravation of depression, etc., or that there was bullying or harassment on the deceased.

If so, even though the deceased's suicide within the military unit to which the defendant belongs, the defendant's liability for damages can be recognized.

3. Conclusion

The plaintiffs' claim shall be dismissed in its entirety as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, the defendant's appeal is accepted, the part against the defendant among the judgment of the court of first instance is revoked, and the plaintiffs' claim corresponding to that part