2019 Ghana 5116392 damages (ar)

A

Attorney Kim Tae-sik, Counsel for the plaintiff-appellant

B

Attorney Kim Jong-soo, and Kim

November 1, 2019

December 6, 2019

1. The defendant shall pay to the plaintiff 5,00,000 won with 5% interest per annum from March 15, 2019 to June 2019, and 12% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 85% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 30,00,100 won with 5% interest per annum from March 15, 2019 to the service date of a duplicate of the complaint of this case, 15% interest per annum from the next day to May 31, 2019, and 12% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. The plaintiff is unmarried female, and the defendant is married male.

B. On October 25, 2018, the Plaintiff and the Defendant began to contact with each other with the Messenger, and on November 2, 2018, the Plaintiff and the Defendant continued to contact with each other before the Defendant notifies the Plaintiff of its objection, and continued to have a sexual relationship with each other before the Defendant notifies the Plaintiff of its objection.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, and 8 (including branch numbers), the purport of the whole pleadings

2. Determination

A. The plaintiff's assertion

On November 3, 2018, the first day after the date of the Plaintiff’s delivery, the Defendant infringed the Plaintiff’s sexual self-determination right by deceiving the Plaintiff, by hiding the fact that the Plaintiff was married on November 3, 2018, and by deceiving the Plaintiff to make a decision on sexual intercourse with the Defendant, etc. The Plaintiff was aware that the Defendant was a married person. As such, the Defendant was liable to pay the Plaintiff consolation money for mental damage KRW 30,000,100 and delay damages.

B. Determination on the cause of the claim

The right to sexual self-determination refers to the right of selecting the other party and having a sexual relationship under his/her own responsibility on the basis of his/her own gender values based on his/her own choice, and based on the decision made by himself/herself. From the perspective of women, even if the other male demands a sexual relationship by actively expressing the aggressive circumstances, whether the other party has a sexual relationship or not shall be determined on his/her own, and in principle, he/she shall be held responsible for his/her own decision. However, the right to sexual self-determination refers to the right to choose the other party at his/her own free will and have a sexual relationship without undue interference, and furthermore, in light of our society’s awareness of marriage and sexual behavior, evaluation thereof, etc., whether the other party is a married person or not is a married person is very important in selecting the other party by concluding a sexual relationship.

Inasmuch as the facts are the basis for which one party is required, an act of actively notifying the other party of a false fact about his/her marriage or inducing the other party to omit a mistake constitutes a tort that infringes on the other party’s sexual self-determination right.

According to the above basic facts, the defendant, as a legally married spouse, has concealed and actively made a marriage to the plaintiff who is an unmarried female, and had a sexual relationship with the plaintiff. However, since the plaintiff had a sexual relationship with the defendant due to the defendant's implied deceptive act, the defendant's act constitutes a tort by interfering with the plaintiff's free decision-making on sexual self-determination and infringing on the right to sexual self-determination.

As such, it is obvious in light of the empirical rule that the unmarried female plaintiff suffered mental suffering, the defendant is obligated to do so in monetaryly against the plaintiff's mental suffering.

In light of the above facts, the consolation money shall be determined at KRW 5,00,000, considering the following circumstances: (a) the Plaintiff and the Defendant met; (b) the period of the Plaintiff and the Defendant’s teaching system; (c) the Defendant’s words before and after the teaching system; (d) the details and degree of the Defendant’s deceptive act; (e) the Plaintiff and the Defendant’s age; and (e) the Plaintiff’s awareness of marriage; and (e) other circumstances shown in the instant pleadings, the consolation money shall be determined at KRW 5,00,000.

Therefore, as the plaintiff seeks, the defendant is obligated to pay to the plaintiff the consolation money of KRW 5,00,000 as well as damages for delay calculated at the rate of 5% per annum under the Civil Act from March 15, 2019 to December 6, 2019, which is the date of this decision, and the next day to the date of full payment, from the next day to the date of full payment, to 12% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

3. Conclusion

Part of the plaintiff's claim is accepted.

Judges Park Chang-hee