2017Da211559 Compensation (ar)

Plaintiff 1 and three others

Law Firm Cheong-chul, Counsel for the defendant-appellant

Attorney Lee Jae-ap et al., Counsel for defendant-appellee

Korea

Seoul High Court Decision 2015Na2049505 Decided January 20, 2017

May 28, 2020

The original judgment shall be reversed, and the case shall be remanded to the Seoul High Court.

The grounds for appeal are determined.

1. The summary of the instant case. The reasoning of the judgment of the original court and the record reveal the following facts.

A. On July 2, 2012, Nonparty 1 (date of birth omitted) was admitted to the Marine Basic Military Education Group and received education on September 1, 2012, and received a post-round education on climatic exploration ( sound clibing) assigned by the Education Institute at the Information and Communications School on September 1, 2012. From January 7, 2013, Nonparty 1 (date of birth omitted) was killed on May 14, 2013 when Nonparty 1 was on duty as noncommissioned Officer while serving as Nonparty 2 as the clib in the ○○○○○○○○○○ located in the Navy from January 7, 2013 (hereinafter “the instant accident”). The Plaintiffs are Nonparty 1’s father, mother, arna, and siblings.

B. Around September 6, 2012, Nonparty 1 was subject to a personality examination by an education company. Nonparty 1 was determined to be necessary to have a specific interview with Nonparty 1 on the family relation, personal relation, and specific interview with Nonparty 1 on the day of the inspection. Nonparty 2 met with Nonparty 1 on the day of Non-Party 1’s active interest or assistance, and suicide prediction. In this inspection, Non-Party 1 was determined to be “satisfy,” “satch,” “satisfy,” “satisfy,” and “satisfy, or may be pointed out from his superior or motive due to lack of basic ability,” and Non-Party 1 was determined to have no special interview with Nonparty 1 on the day of the inspection. Non-Party 2, who was Nonparty 1’s head of the family office of Nonparty 1 on the day of the inspection. Nonparty 1 did not know Nonparty 1’s new manager and did not know of the result of the inspection of Non-Party 1 on the day of the inspection.

After Non-party 1 transferred to ○○○, on January 22, 2013, Nonparty 1 was judged to have adapt to the work without a problem and there was no exceptional circumstance in both meetings and prosecutor, including human nature tests conducted on January 22, 2013. Nonparty 1 managed Non-party 1’s personal status as Class B at the time of new transfer, and changed to Grade C around April 2013.

C. Around one year, ○○○○○○○ was performing the capacity evaluation of noncommissioned officers twice a year, the two-time meetings of sound exploration skills, and the two-time integrated locked performance evaluation. Nonparty 1 received two-time evaluations of noncommissioned officers capacity evaluation, and prepared two-time meetings of sound exploration skills, which were scheduled to be conducted on May 24, 2013. The sound exploration skills competition is the subject of the 1st and second-class combat box, including ○○○ box, with the highest level of sound exploration and the opportunity to participate in the operations competitions. Nonparty 1 received the 3th anniversary of the 1st and second-class combat box’s preparation and implementation of the 10th anniversary of the 1st and second-class group’s preparation and implementation of the 3th group’s preparation and implementation of the 10th group’s preparation and implementation of the 10th group’s preparation and implementation of the 3th group’s preparation and implementation of the 10th group’s sexual evaluation in the instant case.

D. Before Nonparty 1 entered the school, there was no special problem in school life, and there was no medical treatment for mental illness such as depression. A court appraiser who conducted a psychological autopsy with Nonparty 1 was analyzed as follows based on Nonparty 1’s first-day flag, record of trial, interview with the surrounding person, etc.

① Nonparty 1 had an in-depth tendency to take responsibility for dependent inclinations and themselves, and has maintained self-esteem by suppressing Nonparty 1’s positive reaction without expressing his own emotions.

Before being transferred to ○○, it was impossible to find out high risk factors of suicide to Nonparty 1.

It seems that the tendency of Nonparty 1’s transfer into this 000 led to the decline of internal pressure of work, and that there was no way to resolve this, and that it continued to be friendly through the adaptation disorder. The 13 Nonparty 1 did not request her help to the surrounding area because she did not suppose her own emotions, and did not seem to have maintained a flexible attitude up to the immediately preceding her death. Nonparty 1’s surrounding areas, it appears that she could not have caused her emotional distress related to suicide, such as depression, apprehension, and criminal liability. Although each stress situation given to Nonparty 1 was not extreme, it is presumed that the continuous occurrence of stress situation would have become a supposed stress, subjectively, to Nonparty 1. Prior to Nonparty 4’s death, it is necessary to assess and adjust the stress at an early stage, and thus, it seems that there was a need for early treatment or adjustment.

No. 1) It means that the determination of suicide forecast was very uneasy or uneasy, and that the personality test conducted on September 6, 2012 shows that the personality test result shows that Nonparty 1's suicide forecast is high, presumed high, and the possibility of having difficulty in performing his duties is sufficiently shown. The personality test conducted on January 22, 2013 is more reliable than before the prosecutor who responded to the second question that was already familiar with the military, and in general, it is not easy to defend in the situation where there was no change in the human environment that Nonparty 1's suicide forecast and difficult adaptation. If Nonparty 1's personality improvement commander was unable to have any particular help with the gender improvement unit, it is highly probable that it could not have any other help with the external prosecutor's explanation, while it is highly probable that it could have any other help with the external counsel.

2. The judgment of the court below

For the following reasons, the court below rejected the plaintiffs' claim for state compensation on the ground that it is difficult to determine that there was negligence due to the non-party 1's negligence of neglecting the ordinary duty of care required in the course of performing his duties.

A. During the interview with Nonparty 1 on the basis of the personality test conducted by the House of Education, Nonparty 2, Nonparty 1, who met with Nonparty 1 on the basis of the personality test conducted by the House of Education, can think of suicide at one time, which is difficult to do so, but the author respondeded to the following: “I do not think of suicide at this time.” However, Nonparty 3 did not think of suicide at this time. Nonparty 3 met Nonparty 1 on two occasions and determined that there was no special problem in the education company’s life. There was no ground to deem that the court could not find high risk factors before moving into the ○○○○○○, and that Nonparty 2 appeared to have shown signs in the course of suicide. In light of these circumstances, it is difficult to view that Nonparty 2 did not hand over the personality test result, or that Nonparty 1’s failure to classify and manage Nonparty 1 as an interested soldier was a cause attributable to the accident of this case.

B. Although Nonparty 1 appears to have suffered heavy stress in the course of Nonparty 1’s preparation of the climatic climatic solidarity, it is difficult to deem that Nonparty 1 was responsible to the relevant unit’s personnel on the ground that Nonparty 1 was subjectively under extreme stress and experienced depression because such circumstance was difficult to view that Nonparty 1 had caused excessive stress beyond the ordinary scope. Nonparty 1 was able to be deemed to have expressed externally the internal suffering from stress in the daily life of Nonparty 1’s 000, but it is difficult to deem that there was a possibility for the instant accident to the relevant unit’s personnel.

C. In light of the fact that Nonparty 1’s signs of suicide and other special factors cannot be found in the interview observation records up to the day immediately before the instant accident after the transfer of ○○○○, and Nonparty 1 had a tendency to suppress his own emotions and not revealing external concerns, etc., even if the result of the personality test conducted by the education company was transferred to ○○○○, and the person in charge managed Nonparty 1 in accordance with the strengthened standards, it is difficult to readily grasp Nonparty 1’s adaptation issues or depression, or to deem that the instant accident could have been prevented.

3. Supreme Court Decision

A. Recognizing the State’s liability for damages caused by a public official’s omission should meet the requirements of Article 2(1) of the State Compensation Act, “when a public official intentionally or negligently causes damage to another person in violation of the statutes.” The term “violation of the statutes” refers to cases where a public official violates the duty to act clearly in a strictly formal sense, but it does not mean cases where a public official violates the duty to act, such as respect for human rights, prohibition of abuse of power, and good faith, and where a public official violates the duty to act without objective justification (see, e.g., Supreme Court Decision 2007Da64365, Jun. 12, 2008). If a public official’s duty to act or omission is not likely to violate the duty to act or omission of the public official, it should be determined as a result of the public official’s failure to act or grave danger to the public official’s life, body, property, etc., and thus, if the State does not have a duty to protect the people’s life, body, etc.

The "administrative rules," which set the work process guidelines or the criteria for interpretation and application of statutes, to public officials belonging to the higher administrative agency or subordinate administrative agencies, generally have effect only within the administrative organization, and do not externally bind the people or the court. On the ground that public officials' measures were in violation of the administrative rules, they do not immediately become illegal merely because they were in violation of the administrative rules.

The legality of the measure is not guaranteed solely on the basis of administrative rules. Determination ought to be based on whether the measure of a public official conforms to legitimate administrative rules, rather than on whether the measure conforms to superior statutes and legislative purposes (see, e.g., Supreme Court Decision 2017Du38874, Jul. 11, 2019).

B. The Act on the Prevention of suicide and Creation of Culture of Respect for Life (hereinafter referred to as the “Act on the Prevention of Suicide”) stipulates that the State has a duty to actively rescue persons in danger of suicide from danger and to establish policies according to each stage of prevention of suicide, response to the occurrence of suicide and response after the occurrence of suicide (Article 4). In particular, military units have strict regulations due to their nature, and are in control of action according to class action, and are likely to be exposed to the risk of suicide relatively because there are many cases where duties are focused on group action and physical and mental difficulties. Accordingly, military management directives, military regulations, rules on the operation of the Navy, and established rules on the operation of the ○○○○○○○○○○○○○○○○○○○’s personal information, etc., which are directives of the Ministry of National Defense, are specifically set out in detail measures for the prevention of suicide of soldiers.

The former military commander's instructions for the management of military units (amended by Ordinance of the Ministry of National Defense No. 1483, Dec. 31, 2012; hereinafter referred to as "the instructions for the management of military units") shall be detailed for the procedures to identify, manage, and deal with persons likely to commit suicide at each stage of military service (from Chapter 4 to Chapter 237). During the education period, school inspectors shall engage in activities to identify persons likely to commit suicide through personal records, personality tests, and high-level daily surveillance between military life, and to identify persons who are likely to commit suicide by the military commander at each stage of service, such as instructions for the management of new military units by the military commander at each stage of service (including instructions for the management of new military units). He/she shall be provided with counseling services by the military commander at each stage of service, and shall be provided with counseling services by the military commander at each stage of service at each stage of service at each time during the education period, so that persons who are likely to commit suicide shall be selected as persons subject to intensive examination and treatment by the second-level.

When comprehensively considering the provisions of the Act on the Prevention of suicide and the instructions on the management of military units related to non-party 1’s suicide, the public prosecutor’s duty to identify the risk of suicide and to grasp the person’s personal injury by complying with the relevant regulations, such as the commander of each military unit responsible for the identification, management, and treatment of the non-party 1’s suicide. The public prosecutor’s duty to identify the person in charge of the non-party 2’s suicide and to take necessary measures for the identification of the likelihood of suicide, including the diagnosis by the psychiatrist and the military doctor, to prevent the occurrence of suicide and to recover his/her physical and mental health in accordance with the aforementioned regulations. Thus, the public prosecutor’s duty to identify the person in charge of the non-party 1’s suicide, who was identified as the result of the non-party 2’s suicide in light of the aforementioned regulations, can be identified as the result of the non-party 1’s accident and to identify the person in charge of the relevant military unit’s personal injury.

Then, the circumstance that Nonparty 1 did not discover the characteristics of the non-party 1’s suicide, such as the non-party 1’s signs of suicide, and that there was a tendency to suppress the non-party 1’s emotional distress after entering the military, rather than that the non-party 1 had been exposed to the environment where the non-party 1 was exposed. The non-party 1, who did not know that the non-party 1 was responsible for the treatment of the non-party 1’s suicide, should not be able to overcome the likelihood of active concern and help the non-party 1, even if the result of the non-party 1’s non-party 1’s suicide inspection conducted on the non-party 1’s identification and management of the non-party 1’s suicide, and the result of the non-party 1’s non-party 1’s non-party 1’s suicide inspection conducted on the non-party 1’s identification and treatment of the non-party 1’s suicide, should not be able to receive counseling or consultation.

D. As the lower court’s determination, the following should be carefully examined: (a) in detail, by examining the method of self-injury and the provisions regarding measures for the prevention of suicide of soldiers in detail; (b) ascertaining the duty to identify persons likely to commit suicide and to take specific measures to be taken by the relevant persons responsible for ascertaining, managing, and processing their personal information; (c) whether the management of the results of the personal nature test conducted by an educator and subsequent measures were properly taken; and (d) if appropriate, whether there was a possibility of preventing the instant accident if appropriate.

Nevertheless, the lower court determined that the Defendant was not liable for the instant accident without examining the aforementioned circumstances. In so determining, the lower court erred by misapprehending the legal doctrine on the prevention of suicide, etc. of soldiers, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

The plaintiff's appeal is with merit, and the judgment of the court below is reversed, and the case is remanded to the court of the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Kim Jae-hyung

Justices Min You-sook

Justices Noh Tae-ok