2012 Gohap8264 Damage (as defined)

nan

nan

May 9, 2013

May 30, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall transmit to the plaintiff 121, 299, 554 won and a copy of the complaint of this case from May 8, 2012.

5% per annum and 20% per annum from the following day to the day of full payment.

H. H. H. H.D.

1. Basic facts

A. The defendant is a social welfare foundation established for the purpose of establishing and operating a child welfare facility, domestic and overseas adoption, consultation and support for unmarried mothers. The non-party 1 is an institution in charge of affairs such as temporary rearing of children waiting for adoption (hereinafter referred to as the "counseling center of this case"), and the non-party 2 is an entrusted mother who raises children upon entrustment by the above institution.

2) The deceased non-party 3 (hereinafter referred to as "the deceased non-party 3") is a deceased person on May 7, 2012 due to the following accident that occurred at the home of the mother non-party 2. The plaintiff is the deceased's father and the non-party 4 are the deceased's father and the deceased's mother.

B. Around February 2011, Nonparty 4 (the process of the Plaintiff’s consignment and the occurrence of the instant accident) was in alliance with the Plaintiff, and the Plaintiff was born on December 29, 201 (at that time, the Plaintiff was born on December 29, 201, but the Plaintiff did not have any circumstances to bring up, entrusted the bringing-up of the deceased to the instant counseling center through the adoption consent and the waiver of parental authority; 2) Accordingly, at the instant counseling center, Nonparty 2 entrusted Nonparty 2 with bringing-up of the deceased at the hospital on December 31, 2011, and Nonparty 2, around May 201, took over the deceased, entrusted the bringing-up of the deceased, including the deceased at his own home, (for the deceased, approximately 4 months, and two remaining two months, and one month after the birth).

3) At around 05 May 7, 2012: around 00, Nonparty 2: (a) ambling the diapers of the consigned children and locked again; (b) around 07:50 on the same day, Nonparty 2 knew that he was aware of the son’s situation, where he was aware that the son, who was immediately enjoyed, was frighted up, was sat down, and that she was sat down. Accordingly, Nonparty 2 reported the 119 Rescue Team and moved the son to an emergency room of the Daegu Pacific Hospital; (c) but, at the time of arrival in the emergency room, she was already dead (hereinafter “the instant accident”).

C. Opinions1) On May 7, 2012, 2012, prepared by the Council-based medical research institute (KFms) medical research institute (KFm) doctor's authorization on a private person, the body autopsy was written by the deceased on May 7, 2012, stating that the deceased's direct death is "Sudden Visa defant in deths syrom (Presumption)", and the major area of autopsy is part of the face and left left part of this column, and that there is a trace that it is divided into the upper part of the body, ma, snow, the left part, and the left part of the upper part of the upper part of the body, the body autopsy stated that "the deceased's private person can be considered first of all, and that there is no possibility that the changes in the body of the deceased would have caused respiratory disorder and that the upper part of the body would not have operated together."

2) On May 12, 2012, the letter of opinion of the doctor Lee Chang-il of the Daegu Tythma Hospital’s Lee Chang-ho, “Yaeaeaeae-Visa” was conducted to test the organization of a baby for the purpose of testing the path’s genes, which was hospitalized in the state of death at the time of arrival of this Won (the Emergency Office of the Daegu Tyma Hospital) (the patient) (the patient of the said pathma Hospital).

D. 1) In relation to the Youngbu Visa (Sudden Death Sydrome, 'Yhobu Madroe') means a diagnosis conducted when a baby is unable to identify a special private person due to his/her own death without any special disease, which accounts for 35% or 55% of the infant's death between one month and one year after his/her birth, and 95% of the infant's death occurs to a baby for less than six months, and there is no other opinion that can be a private person to the deceased baby.

2 ) 역학 연구를 통해 밝혀진 영아급사증후군의 위험요인 중 모체 및 출산 전 인자로는 임신 중 흡연 및 주류의 섭취, 자궁 내 저산소증, 태아 성장지연 등이 있고, 신생아와 연관된 인자로는 연령 ( 2 ~ 4개월 ), 남아, 미숙아, 엎드려 재우는 경우, 최근에 발열이 동반된 질환이 있었던 경우, 푹신한 이불을 사용한 경우 등이 있다 . 3 ) 그 중 특히 영아의 수면환경과 관련하여, ① 영아를 엎드려 재울 경우 체온이 상승하고, 내쉰 공기를 다시 들이마시는 재호흡이 유발될 수 있으며, 척추 동맥이 눌려서 뇌간에 허혈성 변화가 생김에 따라 호흡중추의 기능 저하가 일어날 수 있고, ② 지나치게 푹신한 이불을 사용할 경우 영아가 수면 중 뒤집기가 용이하지 않은 상황에서 질식의 위험성이 높아져 영아급사증후군 가능성이 커지는 것으로 알려져 있다 .

E. Nonparty 2 was suspected of having committed the instant accident by occupational negligence in relation to the instant accident (Seoul District Prosecutors’ Office 2012 penal code No. 35729), but was sentenced to a non-prosecution disposition on the ground that there was no reason to believe that Nonparty 2 failed to perform his duty of care.

[Ground of recognition] A without dispute, Gap evidence 1 through 8 (including branch numbers if there are branch numbers; hereinafter the same shall apply), Eul evidence 1 through 11, the purport of the whole pleadings, and significant facts to party members

2. The parties' assertion

A. The plaintiff's assertion

The instant accident entirely occurred within the control area of the Defendant or Nonparty 2, and there was no other cause of death other than the pulmonary death due to the difficulty of respiratory, as a result of the death of the deceased in the state where the deceased was shot up. The Defendant caused the instant accident to Nonparty 2 by failing to perform his/her duty of care to check and check the state of the body of the infant through safety education, etc. on the mother and to prevent the accident thoroughly. Accordingly, pursuant to Article 750 or 756 of the Civil Act, the Defendant is liable to compensate for property, mental damage suffered by the deceased and the Plaintiff due to the instant accident.

B. Defendant’s assertion

A person who has been entrusted to a mother cannot impose a duty of care on the mother to observe the baby in time, and as long as a private person of the deceased is presumed to have been after the Abasi visa, the result of the death of the deceased child cannot be deemed to have occurred due to the Defendant’s breach of the duty of care. Therefore, the Defendant has no liability to compensate for the instant accident pursuant to Article 750 or 756 of the Civil Act.

3. Determination

A. Determination as to whether Nonparty 2 breached his duty of care

We examine whether Nonparty 2, who is a premise for the Defendant’s tort liability, violated the duty of care. According to the above facts, it is clear that the Defendant has a general duty of care to protect the deceased’s children so as not to cause harm to their lives and health by carefully observing the deceased’s children and taking necessary measures according to the circumstances and circumstances.

여기에서 더 나아가 과연 소외 2가 이 사건 사고를 방지하여야 할 주의의무까지 부담하는지 여부에 관하여 보면, 앞서 거시한 증거들에 의하여 인정되는 다음과 같은 사정들 즉, ① 피고가 운영하는 이 사건 상담소의 위탁가정 관리지침 ( 을 제6호증 ) 의 " 위 탁가정 응급상황 매뉴얼 " 에는 출생 후 6개월까지의 아동에 관하여 영아돌연사를 방지하기 위하여 " 똑바로 눕혀서 재워야 하며 아기 잠자리 주변에는 부드러운 침구보다 단단한 매트리스나 단단한 요를 사용하도록 한다 ", " 아기와 같은 방에서 자되, 침대나 이불은 따로 사용하는 것이 좋다. 특히 음주나 감기약을 먹은 후 또는 피곤할 때는 아기 옆에서 자지 않는 것이 좋다 " 라고 구체적인 주의사항을 규정하고 있는 점, ② 1996년경부터 상당 수의 위탁 아동을 양육하는 등 영아 양육에 관하여 풍부한 경험이 있었던 소외 2는 위와 같은 영아돌연사 방지를 위한 주의사항을 충분히 숙지하고 있었던 것으로 보이고, 이 사건 사고 발생일에도 자신의 집 안방 바닥에 망아를 똑바로 눕혀 재우고 자신은 안방 침대에서 잠을 잤던 점, ③ 이 사건 사고 당시 망아는 4개월 남짓 된 남아로서 스스로 뒤집기를 하지 못하고 손으로 도와주어야 뒤집기를 할 수 있는 상태였으므로, 소외 2에게 망아를 똑바로 눕혀 재우는 것에서 더 나아가 망아가 자는 도중 스스로 뒤집기를 할 것에 대비하여 망아를 관찰할 것까지 기대하기는 어려운 점, ④ 소외 2는 사건 당일 05 : 00경 망아의 기저귀를 갈아주고 상태를 확인한 후 07 : 50경 망아에게 이상이 있음을 발견하였는바, 그 사이에 망아를 방치하였다고 보기도 어려운 점, ⑤ 그 밖에 망아를 지나치게 푹신한 침구에서 재웠다는 등 소외 2가 영아돌연사 방지를 위한 주의사항 등을 위반하였다는 점에 관한 충분한 입증이 없는 점 등을 종합하여 보면, 소외 2가 망아가 잠들어 있던 이 사건 사고 발생 당일 05 : 00경부터 07 : 50경까지 사이에 망아의 상태를 관찰하고 이상이 있을 시 즉시 조치하여야 할 주의의무까지 부담한다고 보기는 어렵다고 할 것이다 .

B. Determination on causation

Even if Nonparty 2’s breach of duty of care is recognized, the causal link is required that the accident in this case occurred due to the failure to fulfill the duty of care. As seen earlier, there are some parts of the faces of the deceased’s face and the upper left-hand chest, and the fact that there was a trace that is divided into the upper part of the upper part of the body of the deceased’s face, snow, the left-hand buck and the left-hand ske, it is difficult to readily conclude the deceased’s private life as a mass death. There is no evidence to find a proximate causal relationship between Nonparty 2’s negligence and the deceased’s death, and rather, it is reasonable to deem that the deceased’s death was caused by the aftermaba where it is impossible to find out the cause.

C. Sub-committee

Therefore, the plaintiff's assertion based on the premise that the causal relationship between the defendant's or the non-party 2's negligence and the deceased's death regarding the accident of this case is recognized is without any need to further examine it.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Dong-won

Judge Choi Jong-hoon

Judges Kim Gun-chul

1 ) 사후에 시체의 피부에서 볼 수 있는 옅은 자줏빛 또는 짙은 자줏빛의 반점으로서, 심장박동이 정지되면 혈액이

The effect that the body is invaded into the maternal bloodline of the part located at the lower part of the body due to the influence of the gravity and is stuck into the outer upper part of the part.

is a phenomenon that occurs by law.

2) Although it is written as " May 9, 2012", it is obvious that it is a clerical error in the name of " May 7, 2012".