(영문) 서울중앙지방법원 2013.12.19.선고 2013가합565 판결

1. The defendant shall pay to the plaintiff 203, 990, 755 won with 5% interest per annum from September 7, 1981 to December 19, 2013, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 are assessed against the Plaintiff, and the remainder are assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant's claim of this case against the plaintiff 1,00, 127, 526 won and its claim of this case from September 7, 1981.

Until the delivery date of a copy of the application for change, 5% per annum, and 20% per annum from the following day to the date of complete payment.

The payment shall be made at each rate of money.

Reasons

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of arguments as a result of the inquiry into the Army Records Information Management Agency of this Court into account the entries in Gap evidence 1 through 4:

A. After entering the Army on April 22, 1980, the Plaintiff transferred to the 21th Military Service Corps No. 96 Military Service Corps on July 11, 1980 and served as the 96 Military Service Corps.

B. On the ground that the Plaintiff had a normal military life immediately after the entry of the military, and the Plaintiff took action, unlike South and North Korea, and was faced with the duty of association, on the ground that the Plaintiff’s activities were boomed. In particular, around the spring of 1981, the employees belonging to the personnel division of the military unit, such as the Plaintiff, used the Plaintiff to rescue the Plaintiff, followed the combat to the Plaintiff’s head and head, and the boom of the Plaintiff. The Plaintiff was transferred to the association duty by showing the abnormal symptoms, such as the Plaintiff’s failure to speak after the time of the instant accident.

C. On May 10, 1981, the Plaintiff was hospitalized after receiving a diagnosis of illumination at an association’s stage, and was hospitalized on May 1981.

12. It was transmitted to the 102 Campe Hospital.

D. On May 26, 1981, the Plaintiff was sent to the Mana Hospital, and was diagnosed as “the instant wounds, (Li) Magnosis, (Lior), (Lior nautical nautical nautical nautical nautical nautical nautical nautical nautical nautical miles, (Lior),” and on June 18, 1981, the Plaintiff was discharged from military service on September 7, 1981.

E. The plaintiff shows abnormal symptoms, such as mental division, even after discharge from active service, and was hospitalized in the Busan National University Hospital with the mental department, and was not under normal living conditions, such as medical care, at the Sexual Medical Care Center. From July 1989, the plaintiff * is under hospitalized treatment with the mental department of hospital *.

F. On October 19, 2010, the Plaintiff filed a petition for adjudication of incompetency against the Plaintiff as Busan District Court Family Branch 20 * Pool 1* *0 *. The above court declared incompetency against the Plaintiff on October 19, 2010, and appointed △△ as his legal representative.

2. Determination

A. The plaintiff's assertion (1)

After entering the military, the plaintiff was discharged from military service due to the defendant's illegal acts, such as ice and sacity, while performing his duties, and had been in the state of mental disorder due to mental disorder. Thus, the defendant is obligated to compensate the plaintiff for the damages suffered by the plaintiff due to the above illegal acts.

Damage suffered by the Plaintiff is ① the sum of the daily income of the Plaintiff from September 7, 1981 to the age of 60, KRW 435,798,941, ② the amount of KRW 18,784,400 from July 18, 1989 to February 5, 2010, ③ the amount of KRW 445,54,185 [the amount of KRW 21,429,651 + the sum of the daily income of the Plaintiff from September 7, 1981 to July 17, 1989; KRW 21,429,651 + the sum of the total amount of KRW 435,98,94; KRW 18,70,000 from November 23, 2013 to KRW 30,514; and KRW 50,01,50,000 from June 31, 204].

Although the defendant asserts that the plaintiff's right to claim damages has expired by prescription, it is very serious need to protect the plaintiff, who is the victim in this case, while recognizing non-performance based on the completion of prescription by the defendant is remarkably unfair and unfair, so the defendant's assertion of completion of prescription constitutes an abuse of rights against the principle

(2) The defendant's assertion

It is difficult to see that the existence of an illegal act alleged by the plaintiff, the existence of causation between the illegal act and the plaintiff's damage, etc.

Even if the plaintiff's right to claim damages is recognized, since the extinctive prescription of the right to claim damages has run from the time of the plaintiff's expulsion, the extinctive prescription has already expired before the lawsuit of this case was filed, and the defendant'

B. As to the occurrence of liability for damages, the following circumstances are acknowledged by adding the overall purport of arguments to the above facts, namely, (i) the Plaintiff did not appear to have any special mental disorder disorder immediately before entering the military and immediately after entering the military; (ii) the Plaintiff appears to have sustained ice from military officers and appointed soldiers after entering the military; and (iii) the Plaintiff started to show symptoms after he was cleeped with head and neck from the superior officer belonging to the relevant military personnel committee around 1981; and (iv) the Plaintiff was related with the Plaintiff’s symptoms, personality change; (v) the Plaintiff was closely related to the Plaintiff’s act of management and symptoms before both sides and flicks, which caused the Plaintiff’s mental disorder and flicks’ disease-related symptoms; and (v) the Defendant is deemed to have been liable to eradicate the Plaintiff’s occupational symptoms or flicks’ disease-related factors, such as the Plaintiff’s act of management and flicks’ disease-related supervisor’s disease.

C. Whether the statute of limitations for the right to claim damages has expired (1) The Defendant asserts that the Plaintiff’s right to claim damages has expired. The right to claim damages against the State on the ground of an illegal act has expired by prescription unless it is exercised within five years from the date of the illegal act (amended by Act No. 849 of Dec. 19, 1961).

31. Article 71(2) and (1) of the former Budget and Accounts Act before the amendment by Act No. 4102, and Article 96(2) and (1) of the current National Finance Act are immediately in progress from the date of tort, and thus, the statute of limitations for the right to claim damages is terminated at the expiration of five years from the date of tort. According to the basic facts, it is reasonable to deem that the defendant's tort was terminated at the latest around September 7, 1981 when the plaintiff discharged. Since the facts raised on December 14, 201 after the five years from the lawsuit of this case are apparent in the records, the plaintiff's right to claim damages had already expired before the lawsuit of this case was filed, barring any special circumstance, since the plaintiff's right to claim damages had already been extinguished. (2) The plaintiff asserts that the expiration of the statute of limitations is an abuse of rights.

The exercise of a debtor's right of defense based on the statute of limitations is governed by the principle of good faith and prohibition of abuse of rights, which are the major principles of our civil law. Thus, if there are special circumstances, such as the obligor's exercise of a creditor's right or interruption of prescription prior to the expiration of the statute of limitations, the obligor's act of making it impossible or remarkably difficult for the obligee to exercise a creditor's right or the obligor's right to believe such measure is unnecessary, the obligee was objectively disabled, or the obligor did not invoke the statute of limitations after the expiration of the statute of limitations, the obligor's refusal to perform the obligation is remarkably unfair or unfair due to such special circumstances as there is a great need to protect the obligee, and other creditors under the same conditions receive the repayment of the obligation, etc., the obligor's assertion for the completion of the statute of limitations should not be allowed as an abuse of rights against the principle of good faith and thus, it should be recognized that the above special circumstances should also be applied to exclude the operation of the specific system under the law by applying the general principles as above.

In the instant case, the following circumstances, which are acknowledged by adding the whole purport of each of the above evidence, are as follows, namely, the Plaintiff’s tort following the discharge on September 7, 1981, after the Defendant’s discharge on October 19, 201.

In light of the fact that the plaintiff, who was drafted by a general soldier, sustained damages due to the defendant's illegal acts, such as harsh acts in the military and management and supervision over persons related to the military, but the defendant did not notify the plaintiff or his family members of the cause of the damage until now, and did not give any compensation or compensation until now, it is difficult to say that the general public, such as the plaintiff or his family members, have committed an illegal act committed within the military where the confidentiality is strictly maintained due to military security. Even if there is suspicion of such illegal acts, it seems that there was no way to investigate the illegal act or secure evidence, and the defendant is responsible for the advancement of the military culture. Thus, the defendant is responsible for the defendant to prevent the occurrence of a subsequent type of accident in the military as a harsh form, such as the cruel act against the plaintiff or his family members, as well as to prevent the occurrence of a subsequent type of accident in the military where the accident occurred.

In light of the fact that there is a duty to faithfully compensate and compensate for the person, there was an objective disability that the plaintiff could not file the claim of this case against the defendant, and in this case, it is reasonable to deem that recognizing the defendant's refusal to perform his/her obligation is remarkably unfair and unfair.

Therefore, the defendant's defense for the completion of extinctive prescription is an abuse of right against the principle of good faith and cannot be allowed. Ultimately, the defendant is liable for damages caused by tort to the plaintiff

D. The scope of damages (1) the date of recognition and evaluation of the lost income (1) and gender: 19*.* January 2, 1981, which is the day following the Plaintiff’s discharge date, can obtain income by engaging in daily work as an ordinary father from September 8, 1981 to the day on which he/she reaches 60 years of age, with the maximum working age as an urban worker.

3) Ratio of loss of labor capacity: Permanent loss of labor capacity of 100% after discharge (the state of mental disorder).

[Ground of Recognition] Unsatisfy, each evidence, rule of experience, and purport of the whole pleadings as mentioned above (B)

On the basis of the above facts of recognition, the discount method that deducts interim interest at the rate of 5/12 per month based on the above facts of recognition, and the method that calculates the plaintiff's daily income at the present price at the time of discharge, upon the plaintiff's request, the sum of KRW 175,206,355 as shown in the attached Form No. 49 in order to prevent excessive compensation (Provided, That the discount coefficient of KRW 49 in order to prevent excessive compensation exceeding 240).

(2) The plaintiff's medical expenses

Comprehensively taking account of the overall purport of the arguments in Gap evidence No. 13, medical expenses paid by the plaintiff due to the defendant's unlawful acts from July 18, 1989 to February 5, 200 are recognized as constituting 18,784,400 in total. (3) Nursing expenses are acknowledged.

From September 7, 1981, the date of discharge of the Plaintiff, to July 17, 1989, the date of hospitalization at Yangsan Hospital, from September 7, 1981, to July 17, 1989. From November 23, 2013, after the date of closing argument of the instant case, the Plaintiff becomes 88 years of age (the name of lease) and 88.6

30. Seeking nursing expenses up to 30. Then, we cannot accept the plaintiff's claim for this part, since there is no evidence to acknowledge whether the plaintiff needs nursing, and if nursing is necessary, there is no sufficient need for nursing.

(4) Consolation money

In light of the empirical rule that the plaintiff suffered mental pain due to the defendant's tort, the plaintiff's claim for actual income of the plaintiff is partially accepted, the plaintiff's claim for damages for delay from September 7, 1981, the discharged day of discharge of consolation money, and the plaintiff's monthly income of an ordinary worker engaged in urban daily labor as of September 7, 1981 is determined as 10,000,000 won when considering the above reasons.

E. Sub-decision

Therefore, the Defendant’s damages for tort damages amounting to KRW 203,90,755 ( = lost income amounting to KRW 175,206,355 + medical expenses + KRW 18,784,400 + solatium amounting to KRW 10,00,00) and its scope from September 7, 1981, which was the date of discharge claimed by the Plaintiff after the date of tort, is deemed reasonable to dispute as to the existence or scope of the Defendant’s obligation to perform the instant case from September 7, 1981.

19. up to the day, 5% per annum under the Civil Act, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim is reasonable within the above scope of recognition, and the remaining claims are dismissed as there is no ground. It is so decided as per Disposition.