The consolation money for mental suffering caused by the infringement of property right is accepted only when the infringer knew of the special situation or could have predicted the situation as a loss due to the special circumstance.

The consolation money for mental suffering caused by the infringement of property right will be accepted only when the infringer knew of the special situation or could have predicted the situation due to the special circumstance.

Article 751 of the Civil Act, Article 393 of the Civil Act

Plaintiff

Korea

Seoul High Court Decision 69Na748 delivered on October 15, 1969, Seoul High Court Decision 69Na748 delivered on October 15, 1969

Of the original judgment, the part of the Defendant’s failure regarding consolation money of KRW 70,000 shall be reversed, and the case shall be remanded to the Seoul High Court.

The appeal against the part on the defendant's failure in property damage in the original judgment shall be dismissed, and 9/10 of the costs of appeal shall be borne by the defendant.

1. The defendant appealed against the defendant's failure portion of the original judgment and appealed, or in the petition of appeal or the appellate brief, there was no objection on the part of the lost part concerning the property damage. Therefore, the appeal on that part is groundless.

2. We examine the Defendant’s grounds of appeal.

(1) According to the records, the court below did not have any evidence to find that the plaintiff had withdrawn a lawsuit concerning the claim of consolation money from the principal claim on the date of the first pleading ( September 17, 1969) and there was no evidence to find that the plaintiff had withdrawn the lawsuit concerning the claim of consolation money from the principal claim on the date of the pleading (the record was examined in detail, and there was no discovery that the lawsuit concerning consolation money was withdrawn from the principal claim). Therefore, there is no ground to discuss the part concerning consolation money from the principal lawsuit which was lawfully withdrawn from the original court's pleading, and the original judgment was judged on the principal claim (No. 2).

(2) Since mental damage caused by the infringement of property right is deemed to have been caused by special circumstances, consolation money for the damage was accepted only when the infringer knew of the special situation or at least it is recognized that the situation could have been predicted. According to the original judgment (citing the reasoning of the judgment of the first instance), the court below confirmed that the trees in the forest owned by the plaintiff were illegally cut out by the labor members as stated in its holding that the defendant should be liable for compensation under the State Compensation Act, and that there was a special circumstance for the mental suffering caused by the deforestation, and that the defendant or the illegally cuter was suffering from mental suffering without any deliberation and judgment as to whether or not there was a special circumstance for the mental suffering caused by the deforestation, and as long as it is recognized that the defendant or the illegally cuter predicted the situation, it is sufficiently recognized in light of the empirical rule that the plaintiff suffered from mental suffering (the ordinary mental suffering related to the infringement of property is recovered by compensation for the property damage), it is not erroneous in the misapprehension of legal principles as to consolation money due to the infringement of property (it is without merit.)

Therefore, the reasons set forth in the above 1-2-2-2 (2) and the opinion agreed upon by all participating judges in accordance with Article 92 of the Civil Procedure Act shall be decided as per the Disposition.

Justices of the Supreme Court (Presiding Judge) Ma-dong (Presiding Judge) and Ma-dong B-Jed Han-gu