(영문) 의정부지방법원 2017.1.20.선고 2016나54934 판결

1. Of the judgment of the court of first instance, the part against the Defendants exceeding the money ordered to be paid under the above order shall be revoked, and the Plaintiff’s claim corresponding to the revoked part shall be dismissed.

The Defendants jointly pay to the Plaintiff 11,637,130 won with 5% interest per annum from April 30, 2013 to January 20, 2017, and 15% interest per annum from the next day to the day of full payment.

2. The defendants' remaining appeals are dismissed.

3. Of the total litigation costs, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

Purport of claim and appeal

1. Purport of claim

The Defendants jointly pay to the Plaintiff 35,195,90 won with 5% interest per annum from April 30, 2013 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The part of the judgment of the court of first instance against the Defendants shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

Reasons

1. Basic facts

A. The Plaintiff and the Defendants are those who had both K Middle Schools and L High Schools located in Pakistan-si.

B. Defendant D, from November 2012 to April 2013, 2013, repeatedly added the part inside the Plaintiff’s arms, and on October 10 and February 17, 2012, committed an indecent act against the Plaintiff, such as threatening the Plaintiff’s chest by hand.

C. Around September 2012, Defendant F assaulted the Plaintiff by repeatedly breaking the Plaintiff’s left side surface (hereinafter “Defendant D’s act” and Defendant F’s act as stated in the above B B and the instant indecent act and assault”).

D. Meanwhile, the Plaintiff committed an indecent act against the Plaintiff, including intimidation on July 14, 2014 and July 15, 2014, when the Plaintiff was enrolled in L High School, intimidation the Plaintiff’s chest, prompt delivery of the Plaintiff’s chest, etc. (hereinafter “I’s indecent act”).

E. On December 17, 2014, the Defendants received a disposition to send a juvenile protection case from the Seoul Central District Prosecutors’ Office (hereinafter “Seoul Central District Prosecutors’ Office”) on December 17, 2014, and Defendant D was subject to a disposition to entrust the custody of custody, etc. as the Jung-gu District Court 2014 Pu1776 on April 1, 2015, and Defendant F was subject to a disposition to entrust the custody of custody by the Jung-gu District Court 2014 Pu177 on April 1, 2015. Meanwhile, Defendant F was indicted for the said indecent act and was subject to a protective disposition under the Juvenile Act as the Defendant’s High Court 2015 Pu59 on August 12, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 12 (including each number in the case of additional evidence), the testimony of the witness M of the trial court, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Defendants did not only commit the instant indecent act and assault against the Plaintiff, but also talked to the effect that I had an easy female child, and we had done so, which we had us done so, had the Plaintiff do an indecent act as above, and caused severe mental distress to the Plaintiff. Therefore, the Defendants jointly liable to pay to the Plaintiff KRW 35,195,90,000 (the amount calculated by deducting KRW 20,000,000,000, which was paid by the Plaintiff as compensation for damages caused by the tort, as well as KRW 5,195,90,000, which was paid by the Plaintiff as compensation for damages.

B. The defendants' assertion

Since the Defendants did not introduce the Plaintiff to I as above, they do not constitute a joint tort with I. Furthermore, the Defendants did not commit sexual harassment, sexual indecent act, or assault against the Plaintiff at the Plaintiff’s request, even though they stated the Plaintiff’s arms, there was no fact that they committed an unlawful act. Therefore, even if the Defendants are liable for damages due to a tort, a considerable portion of the damages should be limited in light of such circumstances.

3. Determination

A. Whether a joint tort with the Defendants constitutes a joint tort

1) In order to establish a joint tort under Article 760(1) of the Civil Act, where several persons jointly inflict damages on others, each act must be objectively related to and jointly with the requirements of a tort (see, e.g., Supreme Court Decision 2010Da102755, Apr. 26, 2012). Furthermore, Article 760(3) of the Civil Act imposes joint tort liability on an aided person by deeming the aided person as a joint tortfeasor. Aid and abetting refers to all direct and indirect acts facilitating tort, and aid and abetting by negligence is also possible in the area of civil law, where the negligence is in principle the same as that of tort. However, in such a case, negligence refers to a violation of the duty of care not to assist the tort, on the premise that the aided person was not able to commit it, and whether the aided person was able to have contributed to the victim’s aided and abetting by negligence should be determined in full view of the degree of the aided and abetting person’s 201.

2) However, the evidence presented by the Plaintiff alone is insufficient to recognize that the Defendants’ indecent act and assault committed by the Defendants in relation to the instant indecent act and assault, or that the Defendants made it easier for the Defendants to commit an indecent act. Rather, comprehensively taking account of the following circumstances acknowledged by the overall intent of each evidence and pleading, the Defendants cannot be deemed to be jointly and severally liable with 1 as to the Defendants’ indecent act.

① On July 14, 2014, the Plaintiff had completed a literature-based project and returned home to the Plaintiff and had the Plaintiff engage in an indecent act. On the following day, the Plaintiff had the Plaintiff talked with and had the Plaintiff take the Plaintiff in front of the house, thereby committing an indecent act. [The said indecent act is different from the instant indecent act by the Defendants, assault and assault, and the timing or circumstances thereof, and thus, it cannot be deemed that each of the said acts is objectively related.

② Meanwhile, according to the Plaintiff’s assertion, the Defendants aiding and abetting the Plaintiff by facilitating the indecent act while introducing the Plaintiff, and thus, are liable for the commission of the 1st indecent act as a joint tortfeasor. However, in the process of investigating the Plaintiff due to an indecent act against the Plaintiff, I stated that he was aware of the Plaintiff’s experience in sexual indecent act from Defendant D, but he did not hear detailed comments. The Plaintiff also made a statement to the effect that Defendant D was sexually indecent act by delivering the Plaintiff’s experience in sexual indecent act to Defendant I in the course of investigating, but did not mention that Defendant D attempted or facilitate the commission of the Plaintiff’s indecent act.

③ In addition, although Defendant D had experienced in the Plaintiff’s sexual indecent act at the end of the third grade and the second grade and the second grade and vacation from Defendant D, I’s indecent act was conducted after a considerable period of time has elapsed from that time. Therefore, even if Defendant DO notified Defendant DO I of the Plaintiff’s sexual indecent act experience, it is difficult to predict in detail the circumstances that the said act of Defendant D’s above act would facilitate I’s indecent act, and it is difficult to view that there is a proximate causal relation between Defendant D’s above act and the Plaintiff’s injury caused by the Plaintiff’s indecent act.

3) Therefore, the part of the Plaintiff’s claim under the premise that the Defendants are liable for joint tort with respect to the indecent act committed by the Defendants is without merit.

B. Occurrence of damages liability

Meanwhile, according to the above facts, the Defendants’ indecent act and assault in this case committed by the Defendants are co-related with each other, and the Defendants are liable for joint tort, and the Defendants were capable of changing their liability for their own act as a middle or high school student at the time. Thus, the Defendants are jointly liable for the damages suffered by the Plaintiff.

C. Scope of damages

1) Medical expenses: In full view of the overall purport of the statements and arguments written in Evidence Nos. 3, 4, 5, and 6 of 5,195,900, the Plaintiff received mental treatment and counseling treatment due to depression, etc. from November 15, 2013 due to the instant indecent act and assault, and the total amount paid at the expense was 5,195,90,00.

2) Limitation on liability

In full view of the aforementioned evidence and the purport of the entire pleadings, the Plaintiff and the Defendants appear to have a friendly relationship with each other, namely, the Plaintiff appears to have existed in the same anti-students. In addition, as the Plaintiff committed one indecent act while being treated due to the instant indecent act and assault by the Defendants, mental suffering has increased and thus continuous medical treatment has been required. In addition, taking into account all the circumstances such as the nature and degree of the instant indecent act and assault, and the age of the Plaintiff and the Defendants at the time, it is reasonable to limit the Defendants’ liability to 70%.

3) Consolation money: 8,000,000 won;

Considering the fact that the Defendants repeatedly committed the indecent act and assault in this case against the Plaintiff, the fact that the Plaintiff appears to have suffered from mental suffering, such as the Plaintiff’s fear of sense of shame and decline, and the type and degree of the indecent act and assault in this case, the duration of the act and assault, the relationship between the Plaintiff and the Defendants, etc., it is reasonable to authorize the Plaintiff to write down KRW 8,00,000 as consolation money corresponding to the Plaintiff’s mental suffering.

D. Sub-determination

Therefore, the Defendants are jointly obligated to pay to the Plaintiff 1,637,130 won (=5,195,900 won x 70%) plus 8,000,000 won (=3,637,130 won + 8,00,000 won) and damages for delay calculated at each rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, as sought by the Plaintiff, from April 30, 2013, the final date when the instant indecent act or assault was committed, to dispute about the existence or scope of the Defendants’ obligations, from January 20, 2017 to January 20, 2017, and from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the part of the judgment of the court of first instance ordering payment in excess of the above recognition amount is unfair, the plaintiff's claim corresponding to the revoked part shall be revoked, and the remaining appeal by the defendants shall be dismissed as it is without merit. It is so decided as per Disposition.