[1] In the case of a traffic accident, whether his/her parents, separate from the victim himself/herself, have the right to claim consolation money unique to the perpetrator (affirmative), and in case where the victim himself/herself received the agreed amount and gave up the right to claim compensation, whether such effect extends to the right to claim consolation money unique to the parents (negative)

[2] The method of calculating the amount of damages that the victim can seek additionally where the victim suffered after receiving the agreed amount and making an agreement to waive his/her right or an agreement to waive his/her right and then the victim suffered from the subsequent loss

[1] In the case of a traffic accident, the victim's parents, separate from the victim's victim's own right to claim compensation for mental damage caused by the accident, and even if the victim and the perpetrator agree to receive the agreed amount and waive the remaining right to claim compensation, barring any special circumstance, such as the victim's explicit or implied expression that they would waive the right to claim compensation for damages without separately claiming compensation for damages, the validity of the agreement, such as renunciation, cannot be deemed to extend to their parents, who have unique right to claim compensation for damages.

[2] Where the agreement to waive a right or the so-called agreement to waive a civil or criminal lawsuit or not to raise any objection against the perpetrator with respect to tort damages was reached, even if the victim is entitled to claim additional compensation for damages incurred after the agreement by limiting the validity of the agreement through a reasonable interpretation of the parties' intentions, the above agreement still remains effective for damages within the extent recognized or foreseeable at the time of the agreement. Thus, the scope of damages that the victim may claim additional payment should be determined by the method of deducting the damages for each item of damages depending on the nature of the agreement, including passive damages, affirmative damages, and consolation money which the victim suffered based on the final or fixed after the agreement.

[1] Articles 105 and 750 of the Civil Act / [2] Articles 109, 393, and 763 of the Civil Act

[1] Supreme Court Decision 74Da1929 delivered on June 24, 1975 (Gong1975, 8558), Supreme Court Decision 92Da42606 delivered on September 28, 1993 (Gong1993Ha, 2946) / [2] Supreme Court Decision 90Da16078 delivered on April 9, 1991 (Gong1991, 1346), Supreme Court Decision 91Da3057 delivered on December 13, 1991 (Gong192, 509), Supreme Court Decision 97Da423 delivered on April 11, 197 (Gong197, 140), Supreme Court Decision 90Da609379 delivered on August 29, 197 (Gong1997, 140).

Plaintiff 1 and two others (Attorney Go Jong-chul, Counsel for the plaintiff-appellant)

Dongbu Fire Marine Insurance Co., Ltd. (Attorneys Lee Ho-ho et al., Counsel for the plaintiff-appellant)

Seoul District Court Decision 98Na32129 delivered on December 29, 1998

The part of the lower judgment against the Defendant as to Plaintiff 1 is reversed, and that part of the case is remanded to the Panel Division of Seoul District Court. The Defendant’s appeal against Plaintiff 2 and Plaintiff 3 is dismissed. The costs of appeal against the dismissed part are assessed against the Defendant.

1. We examine the grounds of appeal against Plaintiffs 2 and 3.

In the case of a traffic accident, their parents, separate from the victim himself/herself, have a claim for consolation money, and thus, even if they concluded an agreement between the victim and the perpetrator to receive the agreed amount and waive the other claim for compensation, the validity of the agreement, such as renunciation, etc., naturally extends to their parents, who have the right to claim consolation money, unless there are special circumstances, such as the victim and the perpetrator who are the party to the agreement, clearly or implicitly expressed their intent to waive the claim for compensation without separately claiming compensation (see Supreme Court Decision 92Da42606, Sept. 28, 1993).

According to the records, the plaintiff 2 was involved in the agreement between the plaintiff 1 and the defendant as the part of the plaintiff 1 as the victim, and signed and sealed the agreement with the plaintiff 1. However, the direct party to the agreement is not a party to the agreement, and there are other special circumstances, such as that the plaintiff 1 and the defendant as the plaintiff 3 as the victim are the parties to the agreement, and they expressed explicitly or implicitly their intent not to separately claim damages if the agreement between the plaintiff 1 and the defendant as the perpetrator is reached. Thus, the validity of the agreement is only limited to the plaintiff 1 as the party, and it does not affect the plaintiff 2 and the plaintiff 3 as the party to the agreement.

Therefore, we cannot accept the allegation in the grounds of appeal, which is based on the presumption that the agreement in this case is invalid even with the plaintiff 2 and the plaintiff 3.

2. We examine the grounds of appeal against the plaintiff 1.

A. As to the first point (the point of fact-finding person)

According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, the court below acknowledged various facts as stated in its holding concerning the assessment of the post-qualification disability as expected at the time of the agreement in this case, the agreement amount and its determination details, the degree of labor ability loss rate resulting therefrom, the necessity for nursing in the future, and other passive damages calculated based on the final and fixed post-age disability, etc., and rejected the defendant's defense on the ground that the agreement in this case did not affect the claim in this case seeking payment of unexpected damages. In light of related evidence and records, the above recognition and judgment of the court below are acceptable, and there is no error in the misapprehension of facts as to the scope of damages that could have been anticipated at the time of agreement in violation of the rules of evidence.

The ground of appeal on this point is without merit.

B. As to No. 2 (A Study and Violation of Law)

According to the reasoning of the judgment of the court below and the judgment of the court of first instance, which partially accepted the judgment of the court below, in this case, where the plaintiff 1 claims for additional damages from the harm caused by the harm caused by the aftermathal disorder beyond the scope foreseeable at the time of the agreement of this case, the court below finally determined the amount of the agreement by deeming the agreement amount actually received by the victim as a part of the damage compensation and simply deducting it from the amount of the damage.

However, in a case where a waiver of right or an agreement to waive a claim between the perpetrator and the victim to receive a certain amount and give up the remainder of the claim or to not raise any objection against the perpetrator in the future, or where the so-called non-committee agreement has been reached, even if the victim may claim additional compensation for losses incurred after the agreement by limiting the validity of the agreement through a reasonable interpretation of the parties' intentions, the above agreement still remains effective for losses within the extent recognized or foreseeable at the time of the agreement (see, e.g., Supreme Court Decision 96Da46903, Aug. 29, 197). Therefore, the scope of damages for which the victim can claim additional payment should be determined according to the nature of the damage subject to the agreement, including passive damages, active damages, consolation money, etc. which the victim sustained on the basis of the final or fixed after the agreement, in other words, damages that was aware or could have been predicted at the time of the agreement (by means of adequate appraisal, such as appraisal).

Nevertheless, the court below's determination of the amount of damages that the defendant should compensate for by simply deducting the amount of agreement received at the time of agreement from the amount of damages calculated based on the final or fixed postary legacy that the above plaintiff had been, or could have been, aware of the actual losses at the time of agreement is erroneous in the misapprehension of legal principles as to the scope of the validity of the agreement in the case of the agreement in which the defendant should compensate for the additional amount of damages. It is obvious that the decision affected the conclusion of the judgment.

The ground of appeal on this point is with merit.

3. Therefore, the part of the judgment of the court below against the defendant as to the plaintiff 1 is revoked, and that part of the case is remanded to the court below. The defendant's appeal against the plaintiff 2 and 3 is dismissed, and the costs of appeal against the dismissed part are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Seo Sung-sung (Presiding Justice)