(영문) 광주지방법원 2010.9.16.선고 2009가합3403 판결

(a) 5% interest per annum from April 28, 2009 to September 16, 2010 with respect to KRW 87,020,063 and its amounts. Payment shall be made at 20% interest per annum from the following day to the date of full payment;

B. Subject to the Plaintiff’s survival:

1) Money in proportion to KRW 3,253,423 (one thousand,365,507 won up to May 7, 2032) from April 28, 2012 to April 27.

2) Money with the rate of KRW 10,429,646 per annum from April 28, 2012 to April 27, 2012;

3) From December 9, 2015 to December 9, 2012, 270,000 won

sub-payment.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 621,971,813 won with 5% interest per annum from April 10, 2009 to the date of this judgment, and 20% interest per annum from the next day to the date of full payment.

Reasons

1. Basic facts

The following facts do not conflict between the parties, or are written on January 2, 3 of the evidence No. 3-2. In full view of the purport of the entire pleadings as a result of the commission of physical examination to the president of the Joseon University Hospital, the court may recognize each of the following facts.

(a) Circumstances leading up to the Defendant hospital;

1) 원고는 1996. 2 . 9. 소외 ㅁㅁㅁ가 운영하는 방주병원에서 위 병원 소속 의사 소외 ㅁㅁㅁ로부터 좌측 다리의 경비골개방성분쇄골절에 대한 치료를 받았는데, 위 ㅁㅁ 그의 치료상의 잘못으로 구획증후군이 발생함으로써, 그 후유증으로 족관절에 관여하는 근육이 부분적으로 기능이 상실되고, 족부배부의 감각신경의 기능이 상실되고, 비골신경 및 후경골신경의 심한 손상으로 족관절 운동이 신전 15도에서 고정되어 43% 의 노동능력 을 상실하였다.

2) On July 8, 1998, the Plaintiff was hospitalized at the Defendant Hospital on July 8, 1998 in order to remove metals administered for the fixing of the bend to the bend to the bend to the bend to the bend to the bend to the bend to the bend to the bend to the bend to the bend to the bend to the bend to the bend to the said hospital. At

B. Treatment and progress of the medical professionals of the Defendant Hospital

1) Under the supervision of July 10, 1998 and July 11, 1900, the Defendant hospital affiliated with the Defendant hospital, 000, carried out variable removal and pelping surgery on two occasions with respect to the Plaintiff.

2) The Plaintiff suffered from an accident that caused low oxygen cerebral brain damage and fell into a state of food human being by suffering from an accident after the aforementioned two operations (hereinafter referred to as “instant accident”).

1) As to the above medical accident, the Plaintiff and his parents, 000, and 000 filed a lawsuit for damages claim (No. 98Gahap13237, Gwangju High Court No. 98Gahap13237, Gwangju High Court No. 2002Na20, hereinafter referred to as “the Plaintiff”) against the Defendant Hospital.

2) The court of the first instance held that the instant accident occurred due to the negligence of the medical personnel of the Defendant hospital, who did not prepare for excessive blood transfusion, when the medical personnel of the Defendant hospital administered anti-bloods to the Plaintiff.

3) In addition, by employing the results of physical commission and fact-finding for the head of the Joseon University Hospital, the Plaintiff’s name of lease up to 10,8 years after the accident of this case (i.e., April 27, 2009), and then calculating the Plaintiff’s actual income, future treatment expenses, support expenses, nursing expenses, and consolation money based on this Eul, and on November 16, 2001, the Defendant sentenced the Plaintiff 00 to 243,57,001 won, Plaintiff 00, and each of them to 4,000,000 won and 5% per annum from July 10, 1998 to November 30, 2001, and 25% per annum from the next day to the day of full payment.”

4) On March 14, 2003, the appellate court of the previous lawsuit appealed by the plaintiff et al., and rendered a decision in lieu of conciliation that "if the remaining remaining life of 000 won is ten.8 years from July 10, 1998, the date of the accident of this case, the plaintiff shall withdraw the appeal of this case, but if the plaintiff is alive more than the above 100 years, the plaintiff shall be excluded from the damages claim of 10.8 years from the date of the accident of this case, the above decision became final and conclusive on April 8, 2003.

D. The plaintiff's survival after the expiration of life expectancy

However, the Plaintiff still remains in a vegetable state after April 27, 2009, which is the end date of this term lease, in a vegetable state until the day of the closing of argument in this case.

2. Occurrence of liability for damages;

Comprehensively taking account of the above facts acknowledged, the Defendant is liable to compensate the Plaintiff for damages incurred by the lost income in relation to the living expenses from April 28, 2009 on the day following the date of the expiration of the above life expectancy, which was excluded from the claim for the lost income of the previous suit, and for damages incurred by the expenses incurred in addition, the expenses incurred in purchasing assistive devices, and the expenses incurred in nursing.2)

3. Scope of liability for damages.

(a) Payment of life expectancys and money for regular use;

(i) the borrowed name;

A) According to the result of the commission of physical appraisal and the commission of physical supplementation to the captain of the Joseon University Hospital in this court, the physical appraisal physician stated that “the Plaintiff is in a state of serious disability where bruted bruting, fingers, body diggings, intelligence is unable to get all bad, and the life expectancy is 20-30% of average remaining life expectancys, and the average remaining life expectancy of 37 years old is 35.85 years old, 4) in the future is expected to be reduced to 28.68-25.09 years old, and that it is expected that the life expectancy will be reduced to 28.68-25.09 years old.” As a basis for the judgment, the physical appraisal physician cited in the table 11-102, which is 245 pages of the medical judgment of compensation and compensation (201).

(b)However, the results of the physical examination request and the results of the request for supplementation of physical examination shall not be accepted in the following respect:

In the relevant part of the above literature, where the physical appraisal is based on the evidence, continuous plant-type patient shall be 10-20% of the normal female, 15-25% of the normal female in the case of more than 7 years of age, and 6% of the normal female in the case of more than 7 years of age). If 4 functions of "bed, malm, malm, body mar, intelligence," among persons with severe disabilities who are unable to operate, are bad, 20-30% of the normal female in the case of 7 years of age.

However, the date of termination of the life expectancy predicted in the charging station is continuing to continue to be alive. The Plaintiff’s life expectancy was extended more than that predicted in the charging station. However, there is no reason to deem that the Plaintiff was off the Plaintiff under the continued plant condition or has improved the health condition to the extent that the life expectancy would have been greatly extended. The Plaintiff immediately left the plant status as of the date of the instant accident until October 20, 209, the date of physical assessment, until November 209 (11.25). Moreover, even until the date of the instant argument, the Plaintiff continues to live as an plant, even until the closure of the pleadings. Even if the Plaintiff’s life expectancy was predicted to be shorter than the actual time, it would be reasonable to view that the reduced Plaintiff’s life expectancy caused by the instant accident did not remain long in light of the life period until now. Moreover, the Plaintiff’s life expectancy is an accident as of the date of the instant accident, which led to the extension of the Plaintiff’s life expectancy based on the date of the instant accident.

However, the above physical appraisal result was simply based on the above literature, and it was unreasonable to consider that the plaintiff was living in a plant state for at least 20-30 percent of the normal person in the future, by treating the plaintiff at the same standard as a patient with severe disability that is not able to move badly, or by treating the plaintiff, who is such patient, after suffering from an accident at the time of physical appraisal. The plaintiff's life is predicted to be reduced to at least 20-30 percent of the normal person in the future.

(c)Therefore, the remaining life of the plaintiff shall be predicted again on the basis of the date of the accident in this case, taking into account the plaintiff's present health condition, the life expectancy period up to the gold, the life expectancy number expressed in the above literature referred to the opinion of physical examination, etc.

However, in the case of continuous plant conditions such as the plaintiff, the future life-sustaining period is short compared to normal conditions, but in the light of the current medical technology level, the individual is limited.

In addition, when the Plaintiff’s life expectancy is based on 46.09, the life expectancy of 26 years of age according to the life expectancy in 1997, the life expectancy is already extended beyond the life expectancy of 15-25 (6.91 - 11.52) in a continuous vegetable state. The life expectancy of the Plaintiff may vary according to the degree of future medical treatment and nursing. The life expectancy of the Plaintiff may also change according to the degree of future medical treatment and nursing.

In full view of these circumstances, it is reasonable to view that the Plaintiff is able to survive at least from July 10, 2008, which was the date of the instant accident, to May 7, 2012 after the expiration of 13,83 (13, 302), the date of the instant accident (13, 302), and that it is difficult for the Plaintiff to uniformly speak on whether it is possible to survive thereafter.

2) Lump-sum and fixed-term funds mixed

As seen above, it is difficult to determine the degree of remaining remaining life expectancy because there are many differences in life expectancys depending on the development of modern medical science, the health status of the patient, the degree of support for medical professionals and family members, etc. In the case of patients with vegetable conditions such as the plaintiff. In fact, in the case of the plaintiff, it is difficult to determine the degree of

The proportion of life expectancy generally applicable to patients in a human form or the number of life expectancys recognized in the charging station is still in existence until now, and it has become more difficult to predict the remaining time among the life jackets reduced due to the accident in this case, and the future treatment costs and nursing costs are to be treated by patients.

It is recognized as expenses for nursing and nursing. In case where the life expectancy of a patient is uncertain and orders compensation for damages based on a lump-sum payment method, in light of social justice and equity ideology, it might bring about unreasonable results in the case of issuing an order to pay the patient's future treatment costs and nursing expenses, etc. on the premise of the patient's survival, it cannot be deemed disadvantageous to the patient or his/her family members. Even if a judgment ordering the payment of periodic payments became final and conclusive, in case where a special circumstance occurs that seriously infringes on equity between the parties as the circumstance forming the basis of the situation significantly changed, the parties may file a lawsuit claiming to change the amount of regular payments to be paid in the future, in accordance with Article 252 of the Civil Procedure Act, the parties may order the plaintiff's remaining, as a lump-sum payment, and the damages shall be paid from April 28, 199 to May 7, 2012 to April 29, 201 to April 29, 2008.

(iii) the base point of time for calculating the current price and damages for delay.

A) A claim for damages caused by a tort is generated in the course of a tort and its due date has expired. As such, even in the case of passive and affirmative damages that may occur in the future, in principle, an order for additional payment of damages from the time of a tort to the time when the current price of the illegal act is calculated, and the amount obtained by deducting the intermediate person from the time of the occurrence of the future damages is the basis for calculating the current price of the illegal act and, in principle, an order for additional payment of damages from the time of a tort to the time of the occurrence of each future damage is issued. However, after the

The damages for delay shall be calculated and the damages for delay shall also be claimed from the base point of time (see Supreme Court Decision 97Da26043 delivered on October 28, 1997).

B) Pursuant to the foregoing legal doctrine, the amount of damages for a lump-sum payment is calculated on April 28, 2009 on the basis of the date following the life expectancy recognized in the prior suit, and the subsequent annual damages are added thereto.

(b) Daily income;

(i) loss of lost income equivalent to the cost of living deducted from the previous suit;

The Plaintiff, on April 27, 2009, deducted an amount equivalent to 1/3 of the actual income of the next day from the time being reduced to April 27, 2009. However, the Plaintiff still remains alive after April 27, 2009. As such, the Defendant is liable to compensate the Plaintiff for damages equivalent to 1/3 of the living cost out of the actual income from April 28, 2009, which was deducted from a claim for the actual income of the previous term lease, from April 28, 2009 to May 7, 2032, the maximum working age, as the condition for the Plaintiff’s survival.

(ii)Calculation;

A) Part of the lump sum payment

[Attachment 9.623,583 Won13] as stated in the column of "actual income in the attached table of calculation of damages."

B) Part of the periodical fund

Subject to the Plaintiff’s survival, the amount of money calculated by the rate of KRW 1,517,230 per month shall be paid from April 28, 2012 to May 7, 2032, each month (the first due date of May 27, 2012) from May 27, 2012.

[Reasons for Recognition] Evidence No. 1-2 and Evidence No. 3-1 of this Act

Results of a request for appraisal and a request for supplementation of physical appraisal, which are significant facts and experience in this court;

The purport of the entire pleadings

(i) the number of family guards;

Although the Plaintiff had been recognized as requiring the opening of two adult female workers in the previous suit, the Plaintiff had been constantly stable since the date of the instant accident after the lapse of at least ten years, and the Plaintiff does not have to continuously engage in a life in which it is not necessary for the Plaintiff to engage in a daily life in a state that it is impossible for him to lead a daily life, and the Plaintiff needs to play a role, such as administering food, treating urines, treating urines, and changing body body body. Considering the general eight-hour number of pages, one adult female (ordinary father) per day until the Plaintiff waits.

It is determined that the defense is necessary (see Supreme Court Decision 93Da10675 delivered on August 13, 1993, Supreme Court Decision 93Da52020 delivered on January 25, 1994).

(ii)Calculation;

A) Part of the lump sum payment

In view of monthly expenditure from April 28, 2009 to April 27, 2012, which is the date following the expiry date of the term of lease recognized in the previous suit, from April 28, 2009, to April 28, 2012, which is within the Plaintiff’s life period, and calculated at the present price as of April 28, 2009, the sum of KRW 70,028,065, as indicated in the “damage to the Opening Expense” in the attached Form

B) Part of the periodical fund

As a condition of the plaintiff's survival, the amount of money calculated by the ratio of KRW 2,097,685 per month shall be paid from April 28, 2012 to April 27, 2012 ( May 27, 2012).

[Reasons for Recognition] The result of the commission of physical examination to the captain of the Joseon University Hospital by the court of this case

On January 12, 2010, the results of the request for physical examination and supplementation of the principal of a school and the purport of the entire pleadings.

(d) Future medical fees;

(i)the necessary treatment details and the cost required (one-year base amount) 14);

(1) Inspection and treatment: 2,426,256 won

(2) Physical treatment: 4,930,120 won

(3) Pharmacologic treatment (including skin treatment): 4,232,120 won

Total 11,588,496 won

(ii)Calculation;

A) Part of the lump sum payment

As seen earlier, the Plaintiff did not receive the above treatment from the hospital medical personnel in addition to the opening of the house, and there is no assertion that he would immediately commence the above treatment after the closing date of the pleadings in the instant case. Therefore, it is deemed that he/she begins the treatment from October 28, 2010 on the convenience of calculation, but he/she is deemed to have spent six months on April 27, 201 in the lump sum, and that he/she spent the treatment for six months on April 27, 201 in the next one year on April 28, 2012 in the lump sum, and calculated on April 28, 2009 as of April 28, 2009. Accordingly, the amount is 15,40,531 won in total, as stated in the column for “afterward treatment” in the attached table of damages compensation.

B) Part of the periodical fund

From April 28, 2012 to April 27 of each year (the first due date of payment April 27, 2013) as the condition of the Plaintiff’s survival, 11,588,496 won per annum shall be paid.

[Reasons for Recognition] The result of the commission of physical examination to the director of the Joseon University Hospital of this Court

(e) Costs of purchasing assistive equipment;

(i)necessary auxiliary equipment, names and expenses;

(1) Lease for the prevention of public bath: One thousand won per five years, and three million won per one unit.

(2) Special beds: semi-permanent, 500,000 won.

(3) Special wheelchairss: Reflectionis, 1,000,000 won.

(ii)Calculation;

A) Lump-sum payment portion

The following expenses are calculated at the present price as of April 28, 2009 at the same time for the purchase of t lease, special bed, and special wheel chairs for the prevention of bathing as follows: 1,636,780 won in total, as stated in the item of the “cost of purchase” column of the attached Form for calculation of damages.

(1)Trare lease for the prevention of bathing: In the charging station, it was calculated that a vertical three-year grace lease was first purchased on December 9, 2001. Accordingly, in this case, it is deemed that a vertical five-year grace lease was purchased on December 9, 201.

(2) Special bed: In the charging station, the special bed with ten years of life-sustaining was calculated to purchase on December 9, 2001, and thus, in this case, it is deemed that the reflected special bed in this case purchased on December 9, 201.

(3) Special wheelchairss: In the electric charging station, it was calculated that a flooded tamper with three-year life style was the first purchase on March 10, 199. Accordingly, in the instant case, it is deemed that a reflected special wheelchairs was purchased on March 10, 201.

b)part of the periodical fund;

As a condition of the plaintiff's survival, 300,000 won shall be paid from December 9, 2015 (from December 9, 2010, the date five years have elapsed since the date of the last entry of the public bath hold lease, which is the date of December 9, 2010) to December 9, 205 (the date of the first purchase, December 9, 2015), at the purchase cost of the relicing lease for the prevention of bathing.

[Grounds for recognition] The result of the commission to supplement the person's body on March 15, 2010 to the director of the Joseon University Hospital of this Court

(f) Limitation on liability

1) The scope of the defendant's liability: 90% (the ratio of liability recognized in a prior suit)

2) Part of the lump sum payment

87,020,063 won (per day imported 9,623,583 won 70,028,065 won + future treatment expenses of 15,40,531 won + purchase expenses of 1,636,780 won) x 90%

3) Part of the periodical fund

A) The Plaintiff’s survival conditions:

(1) From April 28, 2012 to May 7, 2032, 203, 1,365,507 won (i.e., KRW 1,517,230 x 90%) shall be paid from the daily income to the date of May 7, 2012.

② From April 28, 2012 to 27th of each month ( May 27, 2012), cash is paid at the rate of 1,887,916 won per month (=2,097,685 won x 90%).

③ From April 28, 2012 to April 27, 2017 each year (the first due date of payment April 27, 2013), cash shall be paid at the rate of 10,429,646 won (=11,58,496 won x 90%) per annum.

④ 270,000 won (=300,000,000 won x 90%) shall be paid from December 9, 2015 to December 9, 2012 (from December 9, 2015 when the first purchase was made) as the purchase cost of assistive devices.

G. Sub-committee

Therefore, the defendant shall pay to the plaintiff 87,020,063 won and its late payment damages at the rate of 5% per annum as provided by the Civil Act from April 28, 2009 to September 16, 2010, which is determined to be reasonable for the defendant to dispute about the existence or scope of the obligation, and 20% per annum as provided by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the date of complete payment. Under the condition of the plaintiff's survival, 3,253,423 won per month from April 28, 2012 to April 27, 2012 (1,365,507 won among them, from April 28, 201 to May 7, 2032, 205 to 200,500 won per annum from April 28, 2012 to April 29, 2015.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.