The nature of survivor pension paid by the State.

The amount of consolation money paid pursuant to the provisions of the Military Death Benefits Act or the survivor's pension paid pursuant to Article 18 (1) of the Military Aid Benefits Act has the nature of consolation money paid to the deceased's bereaved family in order to protect the deceased's bereaved family, and the right to claim consolation money pursuant to the Military Aid Benefits Act and the right to claim consolation money pursuant to the State Compensation Act are in conflict with each other.

Article 750 of the Civil Act

Plaintiff

Korea

Seoul Central District Court (67Ga1121) in the first instance trial

Supreme Court Decision 67Da2192 Decided July 16, 1968

(1) The part against the defendant in the original judgment shall be revoked.

(2) The plaintiff's claim is dismissed.

(3) The total costs of the lawsuit are assessed against the Plaintiff.

The plaintiff claimed that the defendant shall pay to the plaintiff the amount of KRW 200,000 and the amount at the rate of five percent per annum from August 27, 1966 to the date of full payment.

The defendant has the same judgment as the disposition of the court.

Among the reasons for the decision on this case, the fact that the defendant's tort has been established and therefore the plaintiff is liable to compensate for mental damage is the same as the judgment in the original judgment, and therefore, it will be accepted.

Therefore, the defendant should pay 80,000 won as consolation money to the plaintiff in consideration of the circumstances of the accident in this case, the relation with the victim, the degree of the victim's negligence (the fact that there is negligence on the injured party), and all other circumstances shown in the argument in this case.

However, since the defendant paid 85,800 won to the plaintiff as a total of 8,200 won of the death benefit of the military person and 8,200 won of the survivor's pension under the Military Compensation Benefit Act after the accident occurred, there is no dispute between the parties concerned, the defendant defense that the defendant should deduct it. Thus, the above death benefit or survivor's pension has the nature of consolation money paid to the deceased's bereaved family in order to protect the deceased's bereaved family, and the right to claim consolation money under the State Compensation Act and the right to claim consolation money under the State Compensation Act are in conflict with each other since the deceased's death benefit or survivor's compensation benefit and the right to claim consolation money under the State Compensation Act conflict with each other, the purpose should be achieved within the limit of the claimant's two claims, and it is reasonable to deduct the death benefit of the military person and survivor's pension paid thereafter from the amount of consolation money recognized. Therefore, if the defendant deducts this amount, it would result in the defendant's non-payment of consolation money and the plaintiff's claim.

In the same sense, the plaintiff's claim of principal lawsuit shall be dismissed with the grounds for appeal. However, since the original judgment with different purport is unfair as to the part against the defendant, and the appeal against the defendant is reasonable, the part against the defendant in the original judgment shall be revoked and the plaintiff's claim against it shall be dismissed, and it is so decided as per Disposition by applying Articles 96 and 89 of the Civil Procedure Act

Judges Hong Nam-nam (Presiding Judge)