(a) Whether the proviso of Article 2 (1) of the State Compensation Act is unconstitutional (former legal relationship);

B. Whether the accident compensation and survivor pension should be deducted from the amount of damages

A. The proviso of Article 2(1) of the State Compensation Act is an invalid law that violates the provisions of Articles 8, 9, 26, and 32(2) of the Constitution.

B. The accident compensation under the Military Pension Act or the survivor’s pension under the Military Aid Benefits Act is not in the nature of deducting the amount from the property damage of the loss of expectation interest.

Article 2 of the State Compensation Act, Articles 8, 9, 26, and 32 of the Constitution of the Republic of Korea, Article 31 of the Military Pension Act, Article 18 of the Military Aid Benefits Act

Supreme Court Decision 68Da664 delivered on September 3, 1968 (Supreme Court Decision 8140 delivered on November 8, 1968; Supreme Court Decision 68Da602 delivered on June 18, 1968 (Supreme Court Decision 460 delivered on June 4, 1968; Supreme Court Decision 16Du1531 delivered on June 15, 196)

Plaintiff 1 and one other

Korea

Seoul Central District Court (71 Gohap6338) in the first instance trial

The part against the defendant in the original judgment shall be modified as follows:

The defendant shall pay to the plaintiff 1 the amount of 80 million won, 266,666 won with the annual rate of 5% from November 4, 1970 to the full payment.

The remaining claims of the plaintiff et al. are dismissed.

The lawsuit cost shall be divided into three parts through the first and second trials, and the remainder of the plaintiff, etc. shall be borne by the defendant.

The legal representative of the plaintiff et al. shall pay to the plaintiff 1 an amount of 1,174,060 won, 391,355 won, and 5% per annum from November 4, 1970 to the full payment.

The judgment that the costs of lawsuit shall be borne by the defendant and the declaration of provisional execution are sought.

The defendant litigation performer shall revoke the part of the original judgment against the defendant.

The plaintiff's claim is dismissed.

All the costs of lawsuit are assessed against the plaintiff, etc.

(1) Occurrence of damages liability

성립에 다툼이 없는 갑 제4호증(의견서), 동 제5호증(검증조서), 동 제6호증(진술조서), 동 제7호증(피의자 신문조서), 동 제8호증(사망진단서)의 각 기재에 의하면 피고 예하 해군함대 6전단 204기지 소속 중사 소외 1은 운전병은 아니었으나 1970.11.3. 위 기지에 배차된 차량(3/4톤, 쓰리쿼타)을 세차하기 위하여 소속장의 허가를 얻어 같은 소속대 일병 소외 2 외 3명의 작업병을 위 차량에 태우고, 당시 동 차량의 운전병은 휴가중이었으므로 차량책임자인 위 소외인이 직접 이를 운전하여 소속대로부터 약 4킬로미터 떨어진 냇가로 가서 동 차량을 세차한 뒤 다시 위 작업병등을 태우고 소속대로 돌아오던 중 같은날 17:50경 전남 신안군 도초면 우의도리 돈목부락 돌섬산 중턱, 노폭 약 3미터 경사 약 15도 되는 곳을 통과하다가 동 차량의 오른쪽 앞바퀴가 도로 밖으로 미끄러지면서 동 차량이 약 45도 경사진 언덕 아래로 굴러 떨어져 동 차량에 탔든 소외 2가 뇌출혈상을 입고 다음날(1970.11.4.) 사망한 사실, 위와 같은 사고는 자동차를 운전하든 소외 1이 노폭이 약 3미터 밖에 안되고 약 15도 경사진 지점을 통과할 때는 속력을 줄이고 전방 좌우를 잘 살펴 동 차량이 그 도로를 벗어나지 않도록 제반조치를 강구하여 운행하여야 할 업무상 주의의무가 있음에도 불구하고 위 주의의무를 게을리한 채 과속으로 달리면서 좌회전을 할려고 한 과실로 인하여 발생하였다는 사실, 반면 망 소외 2는 동 차량의 적재함에 승차하여야 함에도 불구하고 동 차량의 운전석 옆에 매달려 오다가(당시 운전석 옆 좌석과 적재함에 탔든 사람은 사망하지 않았음)이 차량이 전복됨으로써 사망하게 된데 대하여 과실이 있었다는 사실을 각 인정할 수 있고 위 인정을 좌우할 증거는 없다.

Thus, the defendant is liable to compensate for damages suffered by the deceased non-party 2 due to the illegal acts recognized in the presence of the non-party 1, who is a state public official. On the other hand, the negligence recognized before the deceased should be considered in determining the amount of damages.

However, the defendant's litigation performer argues that the defendant is not liable for damages under the proviso of Article 2 (1) of the State Compensation Act because the death of the deceased non-party 2, who is a soldier, was injured while on duty, and the mother of the deceased was paid accident compensation under Article 31 of the Military Pension Act and the bereaved family's pension under the Military Aid Benefits Act to the non-party 3, who is the mother of the deceased, respectively. However, the provisions of the proviso of Article 2 (1) of the State Compensation Act are interpreted as invalid laws in violation of each provision of Articles 8, 9, 26, and 32 (2) of the Constitution. Thus, the defendant's argument that the defendant is not liable for damages to the defendant under the proviso of Article 2 (1) of the State Compensation Act is not accepted.

In addition, the defendant 1's litigation performer asserts that the non-party 1 did not have a driver's license and the non-party 1 could not be deemed to be an act of performing the duties of the non-party. Thus, the defendant is not liable for damages. However, although the non-party did not have a driver's license, the non-party 1's act of washing the above vehicle with the permission of the head of the vehicle as the person responsible for the vehicle and caused the accident shall be deemed to be an act during the performance of duties of the Dong, so the defendant's assertion

(2) Damages

According to Gap evidence No. 1 (No. 1), evidence No. 2 (B), evidence No. 3 (Simplified Life Card), evidence No. 9 (Examination Record), and evidence No. 12 (Examination Record), which do not conflict with the formation of the deceased, the deceased non-party 2 remains 20 years old and 11 months old at the time of the accident, and the average remaining life life of Korean people at that age shall be 38 years old, and the above deceased was 11 months old and 4 months old before entering the Gun and was 10 months old and 5 months old, and the defendant was 10 years old and 5 months old and was 4 years old and 5 months old and was 40 days old and 5 months old and 5 months old and was 10 years old and 4 years old and 10 days old and 5 months old and later, 16 days old and 4 years old and later, 197.

Thus, the deceased was engaged in daily work in rural communities for 31 years until he reached the age of 55,00 after his military service due to the death of the accident on the part of this case, and suffered losses from profits that can be earned by 147,400 won per year (673 won x 300-54,000 won). Since the plaintiff et al. claimed to pay in a lump sum on the basis of the time of tort, the plaintiff et al. claimed to deduct the interim interest of 50% per annum from the calculation method of 148,092 won (147,900 x 900 x 538,199.538-147,90 x 90 x 2.7310). If the negligence of the above deceased recognized as above is considered in the damages amount, the amount of damages that the defendant would compensate for shall be determined as 2,000 won.

However, according to the above evidence No. 1, since the above deceased was unmarried, his lineal descendant or mother, who was no lineal descendant or spouse, and the non-party 4 and the non-party 3 jointly inherited the above damage claim. According to each inheritance ratio, the non-party 4 succeeded to 1,33,34 won, and the non-party 3's 66,666 won, respectively. In addition, according to the above evidence No. 1, the non-party 4 died on March 30, 1971 after he succeeded to the above damage claim, it is acknowledged that the plaintiff 1 and his her her son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's 1 and son's 1066666.

(3) Thus, the defendant is obligated to pay the plaintiff 1 with 80,002 won and 266,666 won and damages for delay at a rate of 5% per annum from November 4, 1970, the next day of the tort for which the plaintiffs sought against the plaintiff 2, and each of the above money, to the full payment system. Each claim by the plaintiff et al., is reasonable only within the above scope of recognition, and the other claims are without merit. Thus, the original judgment which excessively accepted them is unfair, and the defendant's appeal is reasonable only within the above scope of recognition, and it is reasonable to change the part against the defendant among the original judgment, and Article 89, Article 92, and Article 95 of the Civil Procedure Act shall apply to the cost of lawsuit and Article 95 of the same Act shall not apply to the burden of provisional execution. It is so decided as per Disposition by the assent that this is not permitted under the law.

Judges Sick-man (Presiding Judge) Jink Tae-man