2015Da234466 Damage, Claim

1. A;

2. B

3. C

Korea

Seoul High Court Decision 2015Na2014998 Decided July 23, 2015

July 29, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment and the reasoning of the first instance judgment partially accepted by the lower court, the lower court determined that: (a) the deceased’s failure to take appropriate measures and measures were caused to commit suicide, on the grounds that (i) the condition has deteriorated due to the increase in depression due to the decrease in the burden of care due to the duty of the commander of the competent unit; (ii) the unit to which the deceased belongs, based on the deceased’s tendency and aptitude; (iii) the diagnosis result of the military officer; and (iv) the deceased’s demand, etc., should have taken professional diagnosis and treatment of depression; and (iv) the deceased should have taken active measures to recover from depression, including changes in assignment, on the ground that they did not take such appropriate measures and necessary measures.

2. However, it is difficult to accept the above determination by the lower court in view of the following circumstances that can be recognized by the records.

(1) Around 2003, the Deceased entered on December 13, 2010 when he was diagnosed with depression and did not receive any specific treatment. In the event of receiving a new illness education, he was judged by a public prosecutor on the level of service suitability, and was living without any particular problem during the period of the new illness education.

(2) On February 11, 2011, the Deceased was posted to the commander of the competent military unit, and on March 13, 2011, the Deceased was first used while waiting for a parent interview.

(3) Around that time, the commander of the military unit belonging to the deceased knew that the deceased was unable to work on the army room, and that he was diagnosed with depression in the past, classified the deceased as an interest soldier. From that time to that time, the deceased was provided with medical care from the military department of the National Army Waterworks Hospital for three times until the deceased committed suicide.

(4) On March 30, 2011, the president of the headquarters directly served as a mentor and consulted with the deceased. During that process, as there are other soldiers performing their duties as to the assignment of a main officer who wishes to be a deceased on March 30, 201, he promised to make a change of the assignment to another job if the deceased wishes to do so more in the current assignment between the month, and that on April 3, 201, he will make a change of the assignment if the deceased wishes to do so.

(5) The chief of the headquarters ordered the ancillary officer to report to him/her immediately in the event of a special situation of the deceased, and ordered the chief of the headquarters to refrain from performing his/her duties to control the deceased, even in the event of the chief of the headquarters.

(6) Accordingly, the Deceased was exempted from imprudent work, and 1 hour’s late attendance was delayed than the appointed soldiers, and 1 day’s interview took place with the head of the Abrupt Headquarters.

(7) The president of the Central Headquarters instructed the deceased to take out his/her dental stability agents every day, and confirmed whether the deceased took out his/her chronic stability agents through a medical disease.

(8) Meanwhile, there is no evidence to deem that the deceased was due to bullying or harassment from the selected soldiers in the military unit.

As such, insofar as the commander of the unit to which the deceased belongs has paid special attention to the risk of suicide and has taken active measures to help the deceased adapt to military service, it is difficult to see that the unit commander was negligent in performing his/her duty of care required in the course of performing his/her duties immediately due to such circumstance, even though he/she did not take any more serious measures, such as hospitaling the deceased or changing his/her position, and it is difficult to easily recognize the predictability of special circumstances that the deceased may commit suicide. 3. Therefore, in order to assume the Defendant responsible for the suicide of the deceased, the lower court should further examine whether the unit commander of the unit to which the deceased belongs, including the details and motive leading up to suicide, could find out the signs of suicide caused by aggravation of depression, etc., but failed to do so, and examine whether the unit commander of the deceased violated his/her duty of care after a thorough examination.

Nevertheless, the lower court erred by determining that the Defendant is liable for suicide of the Deceased solely on the grounds as indicated in its reasoning, which did not exhaust all such deliberations.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Park Byung-hee

Chief Justice Park Jong-young

Justices Park Jae-young