[1] In a case where a medical act infringing on the body, such as an operation, is dangerous or serious and the result is not uncertain, and where the victim could expect the defense of a customary and considerable result, but the damage was expanded by refusing the medical act without reasonable grounds, whether the scope of the tortfeasor’s compensation should be limited to the remaining part obtained by deducting the expanded damage (affirmative)

[2] The scope of compensation for damage and the method of determining the degree of contribution of the victim of a traffic accident in case where the king of the victim contributed to the expansion of the damage due to aggravation of the accident in competition with the accident

[1] In general, in cases of conducting medical acts that infringe on the body, such as the surgery of a patient, consent to the medical act should be obtained by explaining matters deemed reasonable in light of the current medical level as to the symptoms of the disease, the content and necessity of the method of treating the disease, the anticipated risk of the occurrence, etc., and allowing the patient to choose whether to receive the medical act by sufficiently comparing the patient’s necessity or risk. The patient’s consent is to guarantee the individual’s personality right provided in Article 10 of the Constitution and the right to self-determination protected by the right to pursue happiness, and the patient has the right to decide how to maintain his/her life and body function and choose to choose the medical act. However, in light of the principle of good faith or the ideology of the damage compensation system, the victim of the tort has a general duty to endeavor to prevent or mitigate the expansion of damage caused by the medical act, such as the surgery, and in cases where the victim can expect the improvement of the customary, customary, and considerable result without any reasonable reason, the part of the damages suffered by the victim by exercising the right to self-determination should be limited to the remainder.

[2] In a case where the king evidence of the victim of a traffic accident has contributed to the occurrence of a specific injury, the prolongedization of the treatment period, and the expansion of the degree of a subsequent disability after the treatment is completed, it is reasonable from the perspective of fair and equitable burden of damages to bear the amount of compensation corresponding to the victim's total damages, depending on the degree that the king contributed to the occurrence of the whole result of the injury including the specific injury. It is not necessarily necessary for the court to determine the degree of contribution to the whole injury in medical science, and it is not necessarily necessary for the court to determine the degree of contribution to the whole injury in medical science. It can be reasonably determined in light of all the circumstances, such as the cause and degree of the king evidence, the degree of injury, the degree and degree thereof, the correlation between the king evidence and the whole injury, the treatment process, the age, occupation, and health conditions of the victim, etc.

[1] Article 10 of the Constitution, Articles 393, 396, 750, and 763 of the Civil Act / [2] Articles 393 and 763 of the Civil Act

[1] Supreme Court Decision 91Da45929 delivered on September 25, 1992 (Gong1992, 2987), Supreme Court Decision 92Da25885 delivered on April 15, 1994 (Gong1994Sang, 1434), Supreme Court Decision 2006Da20580 Delivered on August 25, 2006 (Gong2006Ha, 1617), Supreme Court en banc Decision 2009Da17417 Delivered on May 21, 2009 (Gong209Sang, 849) / [2] Supreme Court Decision 94Da1517 delivered on November 25, 1994 (Gong195, 82, 195Sang, 195), Supreme Court Decision 2006Da294749 delivered on September 26, 194)

[Judgment of the court below]

Dongbu Fire Marine Insurance Co., Ltd. (Seoul General Law Firm, Attorneys Lee Il-il et al., Counsel for the plaintiff-appellant)

An intervenor;

Seoul High Court Decision 2008Na110137 decided October 23, 2009

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal related to spine genome

In general, in cases of performing medical acts that infringe on a patient’s body, such as surgery, the patient’s consent to such medical acts should be obtained by explaining matters deemed reasonable in light of the current medical level as to the symptoms of the disease, the content and necessity of the method of treatment, the potential risk of the occurrence, etc., by sufficiently comparing the necessity or risk of the patient’s medical practice. The patient’s consent is to guarantee the individual’s personality right and the right of self-determination protected by the right to pursue happiness as stipulated under Article 10 of the Constitution, and the patient has the right to decide how to maintain the patient’s life and body function and to choose the medical practice (see, e.g., Supreme Court Decisions 92Da25885, Apr. 15, 1994; 2009Da17417, May 21, 2009).

However, in light of the good faith principle or the idea of the damage compensation system, the victim of a tort, has a general duty to prevent or mitigate the expansion of damage caused by the tort (see, e.g., Supreme Court Decision 91Da45929, Sept. 25, 1992; Supreme Court Decision 2006Da20580, Aug. 25, 2006). In a case where medical practice infringing on the body is dangerous or serious due to the occurrence of danger or serious injury, and where it can be expected that the result would not be uncertain and that customary, considerable result would be improved, in a case where the victim's refusal of such medical act without any reasonable reason is expanded by exercising the right to self-determination, the part remaining after deducting the expanded damage from the fair burden of damage is limited or expanded by the victim's compensation scope should be borne by the victim.

citing the reasoning of the judgment of the first instance, the lower court, citing the reasoning of the judgment, found the facts as indicated in its reasoning, and subsequently, found the Plaintiff as follows: (a) as severe damage is observed at the intervals of the body No. 5 - 1 YU, the lower court calculated the amount of damages by taking account of the following reasons: (b) the effect of reducing the pain may be expected when spinal febage is necessary and implemented; and (c)

In light of the records, this part of the judgment below is justifiable to the effect that, in the case of the plaintiff, spine milk is not dangerous or serious, and that the plaintiff can expect considerable support for the result. Therefore, as long as the damage was increased by the plaintiff's refusal without reasonable grounds, it is reasonable to view that the part of the damage is the fair burden of damage to the plaintiff, who is the victim.

In light of the above legal principles, although it is inappropriate at the time of the judgment below's explanation, the conclusion of calculating damages except for the extended damages by the plaintiff is justifiable on the premise that the plaintiff is obliged to make efforts to prevent or mitigate the expansion of damages, and there is no error of law that affected the conclusion of the judgment due to misunderstanding of legal principles as to mitigation measures of damages by the victim of

2. As to the ground of appeal relating to the degree of contribution of king

If the king evidence of the victim of a traffic accident has contributed to the occurrence of the victim's occurrence of a specific injury, the prolonged period of treatment, or the expansion of the degree of disability after the treatment is completed, it is reasonable from the perspective of fair and equitable burden of damage to bear the amount of compensation corresponding to the victim's whole injury, depending on the degree recognized as having contributed to the occurrence of the whole result of the injury including the specific injury. In determining the degree of contribution to the whole injury of the king evidence, the court does not necessarily have to make an accurate judgment in medical science. In determining the degree of contribution to the whole injury, it is not necessarily necessary to determine the degree of contribution to the king evidence in medical science, and it can be reasonably determined by taking into account all the circumstances such as the cause and degree of the king evidence, the degree of injury, the correlation between the king evidence and the whole injury, the degree of relation between the king evidence and the whole injury, the age, occupation, and health conditions of the victim (see, e.g., Supreme Court Decisions 94Da1517, Nov. 25, 2094>

The court below, citing the reasoning of the judgment of the court of first instance, acknowledged the facts as indicated in its reasoning, and determined the contribution rate of king to 30% by taking into account all the following factors: (a) the expansion of side signboards between 2-3, 3-4, and 4-5, each side signboard escape card between 5th, 5th, 00,00, and 300,000, which existed in the Plaintiff prior to the instant traffic accident; and (b) the fact that the symptoms have deteriorated due to the infection by the infection of the part of the instant veterinary surgery; and (c) the degree of contribution to the s

In light of the above legal principles and records, the court below's measure is just, and there is no error in the misapprehension of legal principles as to the degree of contribution, such as the ground for appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party, including the part arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices

Justices Min Il-young (Presiding Justice)