In the case of life infringement, the deceased's claim for consolation money

Article 752 of the Civil Code, which prescribes the claimant for consolation money in the case of life infringement, is not a restrictive provision, but merely an example of reducing the burden of proof of mental suffering, so there is a claim for consolation money under the premise of mental distress even to the siblings who is a relative other than relatives as provided in the above provision.

Articles 752, 751, and 750 of the Civil Act

Plaintiff 1 and three others

Suwon Transportation Corporation

Seoul Central District Court (69 Ghana10735) in the first instance trial

(1) The appeal is dismissed.

(2) The plaintiff 1's claim (the extended part in the trial) is dismissed.

(3) Of the costs of lawsuit, the part arising from the defendant's appeal shall be borne by the defendant, and the part arising from the expansion of the claim in the trial of the plaintiff 1 shall be borne by the above plaintiff.

The plaintiffs' attorney shall pay to the plaintiffs 1 an amount equivalent to 965,183 won (the extension from the trial to 1,748,758 won), 2, 3, and 4 respectively, 50,000 won to the plaintiffs 2, 3, and 4 with an annual rate of 5 percent from January 23, 1969 to the full payment system.

The judgment that the costs of lawsuit shall be borne by the defendant and a provisional execution declaration are declared.

The defendant-appellant shall revoke the part against the defendant among the original judgment.

The plaintiffs' claims are dismissed.

The court costs are assessed against all the plaintiffs in the first and second instances.

1. Among the grounds for determining this case, the point of determining the Defendant’s liability for damages and the point of determining the Defendant’s assertion of comparative negligence is the same as the reasoning indicated in the judgment in the original judgment, and therefore, we decide to accept it as it is in accordance with Article 390 of the

2. Calculation of passive damages;

In full view of Gap evidence Nos. 1 (No. 1), 4-1, 5-1, and 5 (Simplified Life Table), and the testimony of non-party 1, the victim non-party 2 is a healthy woman of 11 years of age and 9 months at the time of the accident, and the average life expectancy of Korean women of this age is 50.80 years, and if they do not die due to the above accident, they would normally grow up and live within 20 years of age and are no longer than 30 days of age, and the above 280 won of the above 30-day pension income can be recognized as 50 days of living expenses of the deceased (the above 30-day pension income of non-party 1, 1969 as of July 23, 1969) for 36 years, and the above 30-day pension income of 400 days of age can be recognized as 50 days of the above 300-day pension income each year.

However, according to the above Gap evidence Nos. 1 (No. 1), the plaintiff 1 can recognize the fact that he is the deceased non-party 2's mother. The above plaintiff is the deceased's property heir (the father of the above deceased was already dead at the time of the accident and the mother of the above plaintiff is the sole property heir), and as such, the above deceased's claim for the above income loss amount to be incurred each year in order after eight years from the time of the accident. Thus, as the above plaintiff's claim, it is reasonable to pay 865,182 won [54,00 won] to the above plaintiff who is the sole heir of the deceased in accordance with the so-called "No. 54,00 won" which deducts the intermediate interest rate of 5% per annum from the total amount of 35 years as claimed by the above plaintiff.

Plaintiff 1 extended the claim amounting to KRW 1,748,758, which is the cause of this case, and the victim Nonparty 2, as the physical health person at the time of the instant accident, has earned KRW 15,00 per month from the high-water collection and sale of water at the time of the instant accident. As such, the above income was generated annually for 8 years up to the age of 20 years since the above deceased was 11 years and 9 months since the above income was killed due to the instant accident, and the above income was lost once after deducting KRW 3,00,00 per month living expenses of the deceased. Thus, it is difficult to conclude that the above content was 14,00 per annum based on the net income of KRW 14,00 per annum, and it is difficult to conclude that the above content was 15,758,000 per annum, and it is hard to conclude that Nonparty 2, as the witness at the time of the instant accident collection and sale business, did not have any other reasons to prove that the above content was 30,0,0.

3. Consolation money.

According to the above Gap evidence Nos. 1 (a certified copy of family register), the plaintiff 1 is the mother of the deceased non-party 2, and the other plaintiffs are in the same family register as their siblings, and there is no dispute between the plaintiffs and the above deceased that they lived in the same family register at the time of the accident of this case. Thus, it is obvious in light of the rule of experience that the plaintiffs in the above status and living relationship suffered considerable mental suffering due to the death of non-party 2.

Therefore, the defendant is obligated to pay consolation money for mental suffering to the plaintiffs, and it is reasonable to pay consolation money for 100,000 won to the plaintiffs and 20,000 won to the plaintiffs each, in full view of the circumstances mentioned above, such as the background of the accident in this case, the status of the plaintiffs and the deceased, the degree of negligence between the perpetrator and the victim, and the academic background and living level of the plaintiffs known by the non-party 1's testimony, and other circumstances revealed by the non-party 1's testimony.

However, as Plaintiff 2, 3, and 4 did not have the right to claim consolation money in this case because they do not have any legal relation with the deceased non-party 2 of this case, Article 752 of the Civil Act stipulating the claimant for consolation money in the case of life infringement is not a restrictive provision, but an example clause that reduces the burden of proof of mental suffering. Thus, in relation to relatives other than relatives provided for in the above provision, as in this case, as in this case, Plaintiff 2, 3, and 4 are siblings with the deceased non-party 2 who is the victim, and as long as they are living together in the same family register, they are recognized as being subject to separate mental distress due to the death of the above deceased, so the above plaintiffs are not entitled to claim consolation money pursuant to the provisions of Articles 750 and 751 of the same Act, so the above plaintiffs' defense cannot be accepted.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1 the amount of KRW 800,000,00, including the amount of KRW 700,000 and KRW 100,000, and damages for delay at the rate of 5% per annum from January 23, 1969, the day following the day when the accident occurred within the scope of the plaintiffs' assertion, to the full payment. Thus, the court below's decision with the same purport shall be justified and dismissed, and the defendant's appeal is without merit. Accordingly, the plaintiff 1's claim expanding the claim at the trial is dismissed, without merit, and it is so decided as per Disposition by the application of Articles 89 and 95 of the Civil Procedure Act with respect to the burden of litigation costs.

Judges Lee Tae-ho (Presiding Judge)