The requirements for admitting consolation money for mental suffering suffered by a person who has suffered an unfair lawsuit

The mental suffering suffered by the other party who has suffered unfair lawsuit shall be recovered by winning in the ordinary lawsuit, and the irrecoverable mental suffering, even if winning the lawsuit, shall be deemed to be a loss due to special circumstances, so the consolation money for the damage shall be recognized only when the claimant has known or could have known the special circumstances.

Articles 751, 393, and 763 of the Civil Act

Supreme Court Decision 70Da2826 Delivered on February 9, 1971

Plaintiff 1 and one other

Defendant Han-man, Counsel for the defendant-appellant

Seoul Civil District Court Decision 78Na271 delivered on July 12, 1978

The part against the defendant regarding consolation money in the original judgment shall be reversed, and this part of the case shall be remanded to the Panel Division of Seoul Civil and Security District Court.

Judgment on the grounds of appeal by Defendant’s Attorney

In a case where a person who received an action unfairly and delegates to an attorney-at-law for the purpose of the action is against public order and good morals, and in a case where he constitutes tort, he can claim compensation for damages from an attorney-at-law who delegated for the action in accordance with the provisions of the Civil Act regarding the illegal act. Therefore, the part of the judgment below which stated the above purport as to the illegal lawsuit of the plaintiff (the defendant) in the same case as the time of the original decision is justifiable, and there is no reason to criticize the original judgment under the conflicting opinion, and the Supreme Court Decision 62Da500 Decided October 11, 1962 pointing out the arguments (Supreme Court Decision 62Da500 Decided October 11, 1962) is not appropriate, and it cannot be said that there is any error of omission of judgment as argued in the judgment of the first instance court cited by the court below. Therefore, it is without merit.

However, the mental suffering suffered by the other party in an unfair lawsuit shall be deemed to have been restored by winning the lawsuit in ordinary circumstances, and with respect to the irrecoverable mental suffering which may not be recovered even after winning the lawsuit, the consolation money for the damage may be quoted only in cases where the plaintiff was aware of, or was recognized to have known, the special circumstances (see Supreme Court Decision 70Da2826, Feb. 9, 1971). The court below, without examining and determining such special circumstances, accepted the plaintiff's claim for consolation money due to the plaintiff's unfair lawsuit in the above case without any deliberation and determination as to the special circumstances, cannot be deemed to have erred in the misapprehension of the legal principles as to consolation money, and there are grounds for pointing this out, and therefore, the part against the defendant as to the claim for consolation money in the judgment of the court below shall be reversed.

Therefore, this part of the case is remanded to Seoul Civil Procedure District Court Panel Panel Division. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Han-jin (Presiding Justice)