(영문) 춘천지방법원 강릉지원 2016.3.22.선고 2014가합1525 판결

1. The Defendants jointly pay to the Plaintiff (designated Party) 87,260,733 won, 83,287,901 won to the Selection E, 4,000,000 won to the Selection and each of the above amounts, 5% per annum from June 29, 2013 to March 22, 2016, and 15% per annum from the next day to the day of full payment.

2. The plaintiff (designated party)'s remaining claims are dismissed.

3. Of the costs of lawsuit, 20% is borne by the Plaintiff (Appointed Party) A, and the remainder is borne by the Defendants, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The Defendants: 135, 425, 604 won and 135, 425, 604 won to each of the Plaintiffs (designated parties, hereinafter referred to as “Plaintiff”) E

130, 459, 564 won, 10,000 won to Appointors and each of the above amounts, from June 29, 2013

5% per annum and 20% per annum from the next day to the day of complete payment of a copy of the complaint of this case

shall pay the money by means of money.

Reasons

1. Basic facts

A. The Plaintiff is the father of G (main and H) and the Selection E are the mother of G, and the Selection F are the dynamics of G, and the Defendants are the friendlys from high school to high school.

B. Defendants B and C committed the Defendants’ crime against G. A. A. around May 2012, Defendant B and C came to know G while taking part in the students’ practice at the International High School located in Gangseo-si, Gangnam-si, where G was enrolled.

2) Defendant C and B, while graduating from a university, moved their residence to Incheon around February 2013.

Defendant B, after the retirement of high school (the retirement of December 2012, 201), was living together in G, which was in Incheon, and in Yeonsu-gu, Yeonsu-gu, Incheon, J 403 studio (hereinafter “studio of this case”) and began to give official approval and public notice to G, and began to give extracurricular lessons.

3) The Defendants had a mind of having G study even through a harsh physical punishment, and committed assault or injury to G as shown in the attached Table 2 (hereinafter referred to as “each act of this case” in accordance with the sequence 1 to 8 attached Table 2, and added it to “each act of this case”).

G died at the original room of this case on June 29, 2013: 39, the G was due to the merger of images and pictures (such as spath, spathy spathy spathy, spathy spathy spathy spathy, spathy spathy spathy, spathy spathy spathy, etc.) suffered by the private person at the time of the 7 or 8 act (hereinafter “the instant accident”).

D. The Defendants jointly committed several injuries to G, including each of the instant acts, and thereby causing injury to G. “The Defendants were indicted on July 25, 2013 as follows: ① Defendant B was under the Incheon District Court No. 2013Kahap448 on July 25, 2013; ② Defendant C and D were under the jurisdiction of Defendant C and D on August 7, 2013, respectively.

2) As stated in the attached Form 3 criminal procedure, the above case is not acknowledged through the first instance court, the appellate court, and the final appeal, and ① Defendant B did not recognize the facts charged that Defendant B conspired with Defendant C and D to commit the crime of injury, and rejected Defendant B’s claim of mental or physical disability. However, Defendant B, who caused the occurrence of injury, caused the death of Defendant B to commit the act, and thereby caused G to death, was sentenced to seven years of imprisonment for the crime of injury. ② Defendant C and D, in collusion with Defendant B, did not recognize the facts charged, and the facts charged that “the crime of injury was committed.” However, Defendant B did not directly participate in the act of assault and injury with Defendant B and sentenced Defendant C to imprisonment with prison labor for 1,2,4,5 and 6, and not for Defendant B’s main purpose of not guilty, but for each of the above 3 years of imprisonment with prison labor for the crime of injury and assault.

It is difficult to see that there is a proximate causal relation between the injury by Defendant C and D and the death of G.

(e) Inheritance relationship;

G's property due to the death of the plaintiff and the selected person E inherited 1/2 each.

【Reasons for Recognition】

○ Defendant B: deemed confession under Article 150(3) and (1) of the Civil Procedure Act

○ Defendant C and D: In the absence of dispute, the entries in Gap evidence 1-1, 2, 3, 2 through 9, and 39, and the purport of the entire pleadings.

2. Occurrence of liability for damages;

A. According to the facts of Defendant B’s recognition, Defendant B committed an intentional act against G, which caused the death of G due to the acts set forth in Articles 1, 2, 7, and 8 among those committed by Defendant B, thereby constituting tort against G, Plaintiff, and designated parties. Therefore, Defendant B is liable to compensate for damages caused by the death of G, Plaintiff, and designated parties.

2) Defendants C, D, and D’s activities jointly committed by Defendant C, and D constituted an intentional act infringing on the body of G, thereby constituting a tort against G, Plaintiff, and designated parties. Furthermore, whether Defendant C, and D are liable for damages for the death of G is examined.

B) Whether the person is liable for the death (1) relevant legal principles

Article 760(3) of the Civil Act imposes joint tort liability on an aiding and abetting person by deeming the aiding and abetting person to be a collaborative act. Aid and abetting refers to all direct and indirect acts facilitating a tort. It includes not only cases of commission but also cases where an omission by which a person obligated to act does not take all measures to prevent it, thereby facilitating the commission of a tortfeasor. Aid and abetting by negligence is also possible in the area of civil law where negligence is the same as that of an intentional act in principle for the purpose of compensating for damages. However, the content of negligence in this case refers to a violation of the duty of care on the premise that the aiding and abetting person has a duty of care not to assist a tort. In order to hold the aiding and abetting person liable as a joint tortfeasor, there is a proximate causal relation between aiding and abetting person and the victim’s

In addition, whether proximate causal relation exists shall be determined by comprehensively taking into account the impact of negligent aiding and abetting on the occurrence of damage, the degree of contribution to the formation of the victim's trust, and whether the victim was able to prevent damage by himself/herself (Supreme Court Decision 2013Da91597 Decided March 27, 2014). (A) Recognizing the facts of recognition (2) (a) The relationship between Defendant B, C, and G

① Around 2009, Defendant C introduced Defendant B, a merchant, “K, as a male-friendly tool, to Defendant B, and pretended to contact “K by using a producerphone service (the mobile phone communications service that can use two telephone numbers). Defendant B, who believed that it is, during the course of investigating into the crime, sent contact only with “K” and text messages until the time when such circumstances were discovered.

② Defendant C finished the curriculum with G during around July 2012, when the curriculum was completed.

③ 피고 B는 2012. 8. 경부터 피고 C의 부탁으로 G에게 과외교습을 하기 시작하였고, 과외 시작 초기에는 G의 성적이 오르는 등 ( 꼴찌 부근에서 반에서 7등으로 ) 성과가 있었다 .

④ 피고 C는 I고등학교에 자신과 G가 교제한다는 소문이 돌자 자신의 신변에 문제가 생길 것을 염려하여 G로 하여금 자퇴하도록 하였다. 그리고 피고 B에게는 ' 자신이 G와 떨어져 있으면 정신분열증이 심해지니 G를 인천으로 데리고 와서 과외교습을 계속해달라 ' 고 이야기 하였다 [ 피고 C는 위 각 인정사실 중 G와의 교제사실, G가 자퇴하게된 경위, 자신이 인천으로 떠날 무렵 피고 B에게 과외를 부탁한 사실을 부인하고 있다. 그러나 ① 피고 C가 G 사이에 주고 받은 문자메시지상에는, 피고 C가 G를 ' 아빠, 오빠, 여보 ' 등으로 부르며 G에게 다른 사람은 보지 말고 자신만 사랑해달라는 내용 등이 포함되어 있는 사실 ( 갑 제14, 32, 33호증 ), ② 그 밖에 위 문자메시지 상에는 “ 너 과외 소문냈니 ? C가 한다구 ? 고3 얘들 난리났는데 G학습지 만든다고 ? ? C 죽인데 " ( 2012. 9. 4. 피고 C가 G에게 발송 ), “ 나 외상후스 트레스성 정신병왔데요. 주사맞으면 멀쩡한데요 아니면 또 이상해요 " ( 2012. 10. 14. 피고 C가 G에게 발송 ), “ C 아는 삼촌인데 C가 정신교란증이 왔거든. 약처방 했으니깐 꼭먹이구 ( 이하 생략 ) " ( 2012. 10. 14. 피고 C가 G에게 발송 ) 등의 내용을 비롯하여 G에게 자신의 곁에 계속 있어 달라는 취지의 내용이 다수 있는 사실 ( 갑 제14, 32, 33호증 ), ③ 피고 B는 2013. 8. 5. 수사기관에서 “ 피고 C와 G가 교제하는 사이였고, 피고 C는 교제사실이 공개될 까봐 두려워하였으며, 이를 이유로 G가 학교를 그만두기를 원하였다 " 고 진술하였고, 인천지방법원 2013고합490 사건에서 증인으로 출석하여 “ 피고 C와 G가 교제하는 사이였다. 피고 C는 피고 B에게 G와 떨어져 있으면 정신분열증이 심해지니 G를 인천으로 데리고 와 과외 교습을 계속해달라고 이야기하였다. 피고 B 스스로 피고 C가 아픈 것은 자신 때문이라고 생각하여 피고 C에게 미안한 마음에 과외를 시작하게 되었다 ” 고 진술한 사실 ( 갑 제12, 64호증 ) 을 종합하면 G와의 교제사실, 피고 C의 종용으로 G가 자퇴하게 된 사실, 자신이 인천으로 떠날 무렵 피고 B에게 과외를 부탁한 사실을 인정할 수 있고, 이를 뒤집을 만한 증거가 없다 .

C and D’s participation in physical punishment against Defendant B’s G in the Republic of Korea

① At the time of receiving the extracurricular from Defendant B in Incheon, G was not in accordance with the education career level, and was frequently followed by Defendant B’s instruction from May 2013. Defendant B was not in accordance with the direction of Defendant B.

8. While receiving mental pressure that an applicant shall pass the public announcement of the official examination in light of the background, G began to put a harsh punishment on G in mind in order to have his/her official examination even if having shown the above attitude and detained him/her.

1. Around that time, Defendant C sent a text message to Defendant B, stating that he would give more heat to G, prepare the date of learning, and make physical punishment more strongly in his name. On June 24, 2013, Defendant B sent a text message to Defendant B, who was hospitalized in the hospital “K as he did not listen well to Defendant C and D’s horses and did not listen well, thereby doing so, she sent a text message to the hospital.”

③ The Defendants provided and received from time to time text messages regarding the treatment of G, including the state of G’s Jindo and learning attitude and punishment therefor, in addition to the above message since G was in Incheon until it died.

④ Defendant D made it difficult for Defendant B to form a set of antennas. Around June 20, 2013, Defendant C sent a text message to the Plaintiff to the effect that it was difficult for Defendant B to listen to the horses due to Defendant B’s number.

(C) With respect to the appraisal entrustment by the court of first instance in the criminal case against Defendant B in the mental state of Defendant B, L of the Medical Treatment and Custody Center in the Ministry of Justice is deemed to be a friendly and dependent personality patient who shows the mental symptoms of the Defendant B, such as the depression, uneasiness and inorganic arms, damage accident, stimulation and enjoyion, the excessive dependence on interested parties, and the judgment disorder, etc., and it is presumed that at the time of committing the crime, the mental symptoms similar to the present mental state have been presumed to have been presumed to have been somewhat deteriorated in the ability to distinguish things or make decisions. The fact inquiry by the court of second instance is presumed to have experienced the opinion, and it is highly probable that Defendant B had caused piracy in the state where it lacks real judgment and decision making ability due to the lack of real judgment and decision making ability.

D) Domination of conduct 7, 8 or any subsequent circumstances

① On June 26, 2013: around 23: Around 15, 2013: (a) confirmed the degree of images that Defendant D suffered by G in the instant studio; and (b) around 15:35 on the same day, Defendant C sent to Defendant C a text message with the content of “at least how much Do substitute water is rootsd.”

② Since then, Defendant D heard that Defendant C could escape from self-defense when she raped Defendant B, and that Defendant D used a cell phone over two occasions on June 27, 2013, around 01:07 and around 12:21: (a) taken pictures using a dynamic image to the effect that Defendant B, who attempted to commit sexual assault against Defendant B, spreaded hot water to escape the Defendant B. Furthermore, Defendant B’s shot village by telephone, and the Plaintiff did not notify the Plaintiff of how “B intended to have sexual assault Defendant B.”

③ On the other hand, at around 01 June 27, 2013: 01: 53, Defendant C sent Defendant D a text message stating “I am at the end of the proposal. I am aware of why I am dyshyshyshyshysh.hyshyshyshyshyshysh.hyshyshyshyshyshyshysh.hyshyshysh.hyshysh.hyshysh.h.h.s.h.s.h.s.s.h.s.s.h.s.

④ On June 27, 2013, Defendant C also confirmed the condition of G suffered pictures by injury to the studio of this case in the studio of this case on June 27, 2013.

⑤ At the time when Defendant C and D confirmed the state of G, G was missing with their hairs and generated from scam. Defendant C and D attempted to take G into the hospital, but Defendant B refused to see that she was a manager of a scam in the video ward, to the extent that she tried to see in the video ward, and eventually, G was not taken into account in the hospital.

④ At the time of autopsy, G was found to have suffered images of 80% by telegraph, while being in motion 2 to 3 degrees, or in motion 4 degrees by side.

【Ground of recognition】 In the absence of a dispute, the entries in the evidence as provided in Article 4, 5, 7, 8, 12, 13, 14, 16, 20, 24, 25, 26, 32, 33, 34, 36, 37, 38, 43, 44, 45, 53, 55, 57, and 64, and the purport of the whole pleadings (3)

Defendant C and D, even though they had a duty to actively take relief measures after the occurrence of the 7 and 8th act, there was negligence that could facilitate Defendant B’s crime by neglecting the duty to take relief measures, and by concealing Defendant B’s crime.

In addition, it is reasonable to see that such negligence overlaps with Defendant B’s act and death, thereby causing G to be caused by the instant accident. The reasons are as follows: (a) it appears that: (b) minor G was moving to Incheon; (c) it appears that the purpose of maintaining the relationship with Defendant C was greater than for learning (applicable in light of the fact that G was satisfy with Defendant C; (d) it was satisfying with Defendant C; and (e) it was difficult to start the relationship with Defendant B with Defendant C; (e) it appears that Defendant C was closely connected with Defendant C’s first-class witness in light of the fact that Defendant C did not take part in the relationship with Defendant B, but rather, it appears that there was a significant difference between Defendant B and the Defendant C’s first time to have taken part in the relationship with Defendant C, and that it was closely related to Defendant C’s first time to have taken part in the relationship with Defendant C, which was not the first time to have taken part in the relationship with Defendant C.

C. As can be seen, Defendant C and D had a physical punishment against Defendant C and D, both equal to or superior to Defendant B, and even one of the Defendants three, there was a possibility of causing danger to G’s body or life by imposing excessive physical punishment. However, the risk actually occurred, resulting in the act committed by Articles 7 and 8, and thereby, Defendant B and D suffered a severe injury. At the time of discovery, the injury was found to be a very serious situation, unlike the previous cases, such as the exposure to the head of G by video and the occurrence of dust.

Thus, Defendant B and D had a duty to take active relief measures so that at least a minor G, who was under his supervision, can treat the superior status.

D. However, Defendant C and D did not take measures, such as immediately moving G to the hospital ( Defendant C and D could sufficiently take relief measures even if they oppose them in light of the Defendants’ relationship, and thus, cannot be exempted from their liability). Defendant C and D took pictures such as making false statements that G had sexual assault, and did not notify the Plaintiff of the injury, and did an act of informing the Plaintiff of the aforementioned false facts. As such, the period of leaving G neglected to the hospital seems to have aggravated as two days, thereby affecting the death of G.

B. Although the limitationG for liability is a minor or a strong male (as at the time of Gangnam, 174 cm, 74 cm, 174 cm, 174 cm at the time of death, 100 cm) and 100 cm in the studio of this case, Defendant B was living together with Defendant B. In the instant studio of this case, when the Defendants received unfair treatment such as harsh acts from the Defendants, they did not perform this even if they could have been deprived of the Defendants’ control at any time by means of suppressing, escape, or informing the outside, and eventually, the level of harsh acts by the Defendants was high, resulting in the death of the Defendants as stipulated in Articles 7 and 8. This attitude is also considered to have caused the occurrence of the instant accident or the expansion of damage. Therefore, the Defendants’ liability ratio should be limited to 80 % in consideration of these circumstances.

3. Scope of liability for damages

(a) Property damage 1) Daily income;

(1) On the basis of the facts and assessment as follows: (1) 2: (3) 5 per cent of the total amount of KRW 60,719,75 per annum 462: (2) 6 per cent of the empirical rule 5 per cent of the total amount of KRW 60 per month; (3) 3) 6 per cent of the total amount of KRW 60 per cent of the total amount of KRW 60 per annum 96 per cent of the total amount of KRW 46 per annum 70; (4) 3) 6 per cent of the total amount of KRW 9 per cent of the total amount of KRW 60 per annum; (5) 6 per cent of the total amount of KRW 9 per cent of the total amount of KRW 16 per cent of the total amount of KRW 96 per annum; (5) 6 per cent of the total amount of KRW 36 per cent of the total amount of KRW 96 per cent of the total amount of KRW 15 per month.

(b) Reasons for considering mental damage) G’s age: G’s age, the background leading up to the instant accident, the form of crime, the relationship between G and the Plaintiff, and the designated parties, or all other circumstances revealed at the instant argument: (1) G: 320 million won (2) and the selected parties E: 4 million won, respectively; (3) : The amount subject to inheritance: 28,575,802 won = (256,575,802 won + 3,200,000 won + 14,287,901 won (28,575,800 won) with the designated parties, and 14,500,000 won with the deposit of Plaintiff 14,575,802 in daily income + 3,202 won with the designated parties, and 14,501 won with the district court deposit of Plaintiff 14,500,000 won with the Defendant 14,5141.

【Based on Recognition】 Calculation 10 of Evidence No. 10 and the purport2 of the pleadings as a whole / [The plaintiff and the selected person E respectively (150 million won x 1/2)] 87,260,733 won ( = 144,287,90 in inheritance + funeral expenses + funeral expenses of KRW 3,972,832 + funeral expenses of KRW 14,00,000 + KRW 75,000,000)

(b) Selection E: 83,287,901 won ( = 144,287,901 inherited property + 14,000,000 won - 75,000 won, 00 won);

E. Sub-committee

Therefore, the Defendants jointly deal with the Plaintiff, 87, 260, 733 won, E, 83, 287, 901 won, 4 million won to the Selection F, and each of the above amounts, are disputed as to the existence and scope of the Defendants’ obligations from June 29, 2013, which is the date of the instant accident, to the Plaintiff.

3. By the end of 22.2, 5% per annum under the Civil Act and 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

4. 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.