2015 Ghana 22796 Damages

1. A;

Since the legal representative is a minor, AA of a person with parental authority or a parent AB

2. AA

3. AB

[Defendant-Appellee] Defendant 1

1. B

Since it is a minor, the legal representative BA

2. BA

3. C.

Since it is a minor, the legal representative CAB, the parent of parental authority

4. CA;

5. CB

6. D.

Since it is a minor, the legal representative DA

7. DA

Since it is a minor, the legal representative EA, the parent of parental authority

EB

19. EA

10. EB

11. F;

Legal Representative FB

12.FB

[Defendant-Appellant]

November 8, 2016

November 22, 2016

1. The Defendants jointly pay to Plaintiff A 5,00,000, 1,000,000 won to Plaintiff A, and 1,000,000,000 won to Plaintiff A, and 5% per annum from April 9, 2015 to November 22, 2016, and 15% per annum from the next day to the date of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. The costs of lawsuit are five-minutes, and four of them are assessed against the plaintiffs, and the remainder is assessed against the defendants.

4. Paragraph 1 can be provisionally executed.

The Defendants pay to each of the Plaintiffs A 19,784,948 won, 11,744,868 won, 8,000 won to Plaintiff A 8,00,000 won, and each of the above amounts, 5% per annum from April 9, 2015 to the service date of a duplicate of the complaint of this case, and 15% per annum from the next day to the day of complete payment.

1. Basic facts

A. Status of the parties

The Plaintiff is a student attending a middle school, and the Plaintiff A and AB are the parents of the Plaintiff. Defendant BA is the father of the Defendant B, the Defendant CA, and the CB are the parents of the Defendant D, the Defendant D’s father, the Defendant EA, and the Defendant FB are the parents of the Defendant E, the Defendant FB’s parents of the Defendant F for convenience (hereinafter referred to as “Defendant B, F, D, E, and C”), and the remaining Defendants are the parents of the Defendant F. The Defendant students who were enrolled in the first year of G High School are the parents of the said Defendant at the time when they were in the said high school. The Defendant students, who were enrolled in the first year of G High School, were dependent solely on the relevant Defendant’s parents in economic terms when they were examined or supervised.

B. Occurrence of the instant harmful act

1) At around 16:30 on April 6, 2015, Defendant B and C demanded the Plaintiff to pay money to the PC located in the PC located in the Kimhae-si, 00 building, but there is no money, Defendant B and C lent the money to H who was engaged in entertainment at the Plaintiff’s side and asked the Plaintiff to make a horse, and then released the cash amount of KRW 50,000,000 to H who was engaged in entertainment at the Defendant B, D, E, and C, which were playing a recreation at the above PC on April 17:00, 2015, but, at the same time, Defendant B, D, and C had the Plaintiff play a part of entertainment in the said PC, and had the Plaintiff take a bath by taking out the PC and setting up the PC in accordance with “A, and had the Plaintiff do assault and bridges, such as assault and bridges.

3) On April 9, 2015, the Defendant students committed the assault, such as taking the Plaintiff’s chest part on the part of the Plaintiff A’s chest, and taking part in the bridge, at the game room for the elderly apartment in the outside-dong apartment of Kimhae-si, Kim Jong-si (hereinafter collectively referred to as the “instant harmful act, etc.”) (hereinafter collectively referred to as the “instant harmful act”).

4) As a result, Defendant students were referred to juvenile protection cases due to the instant harmful act, and were subject to a protective disposition.

C. The Plaintiff’s diagnosis and treatment content

Due to the aforementioned harmful act of this case, Plaintiff A suffered injury, such as a chest stroke, scoke, scoke, scoke, and scoke, which require at least four weeks of treatment of 8 weeks of scoke, and a mental shock that requires at least four weeks of scoke.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4 (including each number, if any) and the purport of the whole pleadings

2. Occurrence of and limitation on liability for damages;

A. Responsibility of Defendant students

According to the above facts, Defendant students committed the act of this case, such as assaulting Plaintiff A ( even if Defendant C and F et al. did not directly neglect Plaintiff A in relation to the act of assault committed on April 9, 2016, when based on the above facts, Defendant C et al. appears to have participated in the act of assaulting the same location at the time of the remaining Defendant students' assaulting). Defendant students were able to be held liable for damages incurred to Plaintiff A due to the act of this case as they directly and jointly committed the act of this case, and it is reasonable to view that Defendant C et al. jointly and severally liable for damages incurred to Plaintiff A due to the act of this case, since Defendant students were 14 years of age or older (the degree of injury of Plaintiff A due to the act of this case committed on April 9, 2015 cannot be distinguished from each other). However, in accordance with Article 760(1) of the Civil Act, where several persons incurred damages to others as joint tort, it is reasonable to view that Plaintiff A et al., as joint tortfeasor.

B. Responsibility of Defendant parents

As seen earlier, Defendant students were dependent solely on Defendant parents in economic terms because they were killed students of the minor at the time, or under protection and supervision with Defendant parents. In such a case, Defendant parents have the duty to protect and supervise them by providing normal guidance and advice so that Defendant students, who are their children, do not commit any unlawful act, such as assaulting or bullying, etc. against others, but in spite of the duty to protect and supervise them, Defendant students neglected to do so, thereby preventing Defendant students from committing the instant harmful act against Plaintiff A, and have proximate causal relation between the breach of duty and the harmful act.

4) Accordingly, Defendant parents are jointly and severally liable for damages suffered by the Plaintiffs due to the instant harmful act with Defendant students who are their respective children.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 5, 18 through 21 (including serial numbers; hereinafter the same shall apply), Eul evidence Nos. 1 and 4, and purport of the whole pleadings;

(a) Property damage;

1) Determination on Plaintiff A’s assertion of property damage

A) Plaintiff A’s assertion

The plaintiff A asserts that he should pay the amount of KRW 2,407,848, the amount of KRW 377,100, total of KRW 2,784,948 (=2,407,848 + KRW 377,100) as active damages.

B) Determination on the amount of KRW 2,407,848

The fact that Plaintiff A paid medical expenses of KRW 2,407,848 due to the instant harmful act by the Defendant perpetrator does not conflict between the parties, and thus, the damage equivalent to this part of the medical expenses is acknowledged as positive damage.

C) Determination as to the sum of 377,100 won of the expenses for surgery and treatment and the issuance of a medical certificate

When comprehensively taking account of the overall purport of the arguments in the statement No. 6-1, 2, 4, 5, and 6 of the evidence No. 6-1, 500, 500, 1500, 19, 19, 200, 23, 200, 200, and 14,400, 28, 28, 2015, and 14,900, and 900, respectively, are deemed to have been paid from a large number of offenders on November 5, 2015. In addition, it is reasonable to deem that the Plaintiff spent for mental treatment, etc. of this case as a harmful act, for mental treatment, etc.

Next, according to the health class, Gap evidence 6-3, Gap evidence 7-1 through 6 with respect to the expenses for issuing various medical certificates and various certificates, the plaintiff's medical records and evidence 7-1 to 6 include the expenses for issuing medical certificates and evidence 10,000 won on October 19, 2015, and the expenses for issuing the medical records and evidence 10,000 won on April 13, 2015 at the Kim Sea Hospital, and the expenses for issuing the medical records and evidence 10,00 won on June 11, 2015, and the expenses for issuing the medical records and evidence 10,00 won on July 14, 2015, and the expenses for issuing the medical records and evidence 10,000 won on August 4, 2015, and the expenses incurred by the plaintiff's medical records or evidence 20,000 won on the medical records 14,000 won on the medical records 2,015.

Ultimately, the sum of the expenses incurred by the Plaintiff A due to the instant harmful act and the expenses incurred in issuing various kinds of certificates is recognized as active damages.

2) Determination on Plaintiff A’s assertion of property damage

A) Plaintiff A’s assertion

The Plaintiff AA’s injury to the mental stability of the Plaintiff A due to the instant harmful act

(2) The plaintiff's submission of a written application for coal in various criminal cases, etc., 11,100 won and 3,589,468 won and 3,800,268 won and 3,000 won and 3,000 won and 3,589,468 won and 3,80,268 won and 4,000 won and 4,00 won and 54,70 won and 54,700 won and 4,00 won and 4,00 won and 5,00 won and 4,00 won and 4,00 won and 4,00 won,

The evidence submitted by Plaintiff AA alone cannot be deemed as a loss caused by the instant harmful act, and even if such loss was caused, it is difficult to view that it was ordinary loss, and it is difficult to view that the Defendants knew or could have known about the occurrence of such loss. Therefore, it is difficult to accept the claim by Plaintiff A for this part of this case.

C) Determination on the part of the non-business suspension damage

The plaintiff A sought payment of KRW 3,589,468 for temporary closure damage for 56 days, asserting that it was impossible to work for the care of the plaintiff A, and thus, it is insufficient to find out that the evidence submitted by the plaintiffs alone was insufficient to find that the plaintiff A could not work for the care of the plaintiff A. Even if such fact was acknowledged, the above assertion is not accepted as there is no evidence to support that the defendants knew or could have known the circumstances as a special reason.

B. Determination as to the assertion of mutual aid

1) The defendants' assertion

The Defendants asserted that since the Plaintiff paid KRW 2,407,848 for medical expenses paid by the Crime Victim Support Deliberation Committee, KRW 5,000,00 for criminal agreement deposited by the Defendants, and KRW 1,678,60 for indemnity paid to the National Health Insurance Corporation, each of the above amounts should be deducted from the damages of this case.

2) Determination

A) First, the facts that Plaintiff A received KRW 2,407,848 from the Deliberation Committee on Economic Support for Crime Victims as medical expenses are not disputed between the parties. However, according to the statement in the evidence No. 1, Plaintiff A can be acknowledged as having agreed to notify the State of the fact that Plaintiff A received money from the perpetrator regardless of the name, such as the agreed amount, damages, deposit money, etc. after receiving the medical expenses, and return the amount equivalent to the amount of the medical expenses received to the State. Thus, it is difficult to view that the above received medical expenses are paid from the Defendants as compensation for damages, and it is ultimately difficult to view that Plaintiff A obtained the money to be returned to the State, and thus, the Defendants’ assertion that such deduction should be made is difficult.

B) On October 2, 2015, when the Defendants made entries in the evidence No. 5 with respect to criminal agreement amount deposited by the Defendants, the Plaintiff A as the principal deposit and the fact that the cause of deposit was 0:0 on April 9, 2015, at around 17:00 Kimhae-si, Kimhae-si, and at around 19:00 on April 9, 2015, the victim (Plaintiff A) suffered bodily injury, such as frightter, which requires medical treatment for 42 days, and the amount of money deposited by the victims and their parents was actually offered at several times, but the victim was refused to receive the agreed amount, and thus, the Defendant F was 1,00,00,000 won as the principal deposit ** 0,000,000 won as the principal deposit ** 0,000,000 won as the principal deposit ** 10,000,000 won as the district court ** 10,0105,0000.

In addition, it is reasonable to view that the amount was paid as part of the compensation (property damage) unless there are circumstances such as specifying that the amount paid at the time of agreement was paid as consolation money, in the course of the investigation or criminal trial against the perpetrator of the illegal act or in the course of the criminal trial, where the victim agreed that the perpetrator would not be punished for the perpetrator by receiving the money under the pretext of agreement from the perpetrator (see, e.g., Supreme Court Decision 2000Da46894, Feb. 23, 2001). The same applies to the case where the perpetrator did not directly pay the amount of criminal agreement to the victim and deposited it in relation to criminal punishment, and in light of the above legal principles, the amount should be deducted from the amount of property damage, since the victim did not specify the fact that the deposit cause of the instant deposit is the cause of consolation money, and thus, the amount exceeds the above amount 5 million won,748,948 won, and thus, the Defendants did not have any property damage to the Plaintiff.

C) The Defendants asserted to the effect that the amount of indemnity paid to the National Health Insurance Corporation should be deducted. However, when based on the statement in the evidence No. 2 of the National Health Insurance Corporation No. 2, the National Health Insurance Corporation appears to have sought reimbursement of the amount of indemnity paid by the National Health Insurance Corporation in subrogation of the Plaintiffs, and the Plaintiffs appears to have sought reimbursement of damages equivalent to the amount of medical expenses paid by the Plaintiffs, excluding the amount of indemnity paid by the Corporation, and the Defendants’ assertion

C. Determination on consolation money

Considering all the circumstances revealed in the arguments in this case, such as the type and degree of the harmful act by the Defendant students, the degree of damage by the Plaintiff and the Defendants, the relationship between the Plaintiffs and the Defendants, and the amount of the deposit received by the Plaintiffs, it is reasonable to recognize the solatium amounting to KRW 5,00,000, and KRW 1,000,000, respectively, for the Plaintiff A and AB.

D. Sub-committee

Therefore, the Defendants jointly have a duty to jointly pay to Plaintiff A 5,00,000 won each of the above amounts of KRW 1,000,000 and each of the above amounts of KRW 1,000,000 to Plaintiff A and each of the above amounts of money from April 9, 2016, which is the date of the last illegal act, to the extent that the Defendants’ dispute over the existence and scope of such obligations is reasonable, 5% per annum under the Civil Act until November 22, 2016, and 15% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the following day to the date of full payment.

4. Conclusion

Therefore, the plaintiffs' claims are justified within the above scope of recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges Lee Jae-Un