2013Da203215 Compensation (as stated)

1. A;

2. B

Busan Metropolitan City

Busan High Court Decision 2012Na50445 Decided February 28, 2013

July 26, 2013

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1, the collective harassment means a phenomenon in which multiple students have intention and active nature for one or a small number of students in a group, such as a school or class, and continuously and repeatedly in relation to non-party or harassment (see Supreme Court Decision 2005Da16034, Nov. 15, 2007). It is justifiable for the court below to find that the deceased was informed of collective harassment from some of his students, citing the reasoning of the judgment of the court of first instance, and there is no violation of the rules of evidence, incomplete hearing, etc., contrary to what is alleged in the ground of appeal.

2. As to the grounds of appeal Nos. 2 and 3

A. The court below, citing the reasoning of the judgment of the court of first instance, acknowledged facts as stated in its reasoning, and found that the suicide (hereinafter “accident in this case”) of the deceased occurred due to C’s failure to perform its duty to protect and supervise the deceased, and determined that C’s employer is liable to compensate the deceased and the plaintiffs for the damages caused by the accident in this case.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

While the principal of a school or a teacher established and operated by a local government has the duty to protect and supervise students, such duty to supervise students on behalf of the legal supervisor, such as persons with parental authority, pursuant to the Education Act shall not affect all their daily lives in the school, but shall be limited to their daily life relationship closely related to educational activities and prevention. Even if their duty is life relationship within the scope of such duty, the principal or teacher shall be liable for the violation of the duty to protect and supervise students only if the accident is predicted or predictability (specific risk of the accident) in light of the time and place of educational activities, the offender's ability to separate the offender, the offender's character and conduct, the relationship between the perpetrator and the victim, and other various circumstances. Furthermore, if the victimized student commits suicide due to a collective harassment, it is difficult to see that the perpetrator or the teacher was objectively responsible for the result of the suicide and thus, it is difficult to expect or have predicted that the victimized student could have committed such a violation, even if it is difficult to expect or have reached the degree of 10 bullying or mental harm itself.

Examining the facts acknowledged by the judgment of the court of first instance as cited by the court below in light of the above legal principles, it is difficult to view it as a degree of malicious or serious collective harassment that can not be permitted by social norms in light of the fact that the deceased's suicide was caused by the sexual harassment, criticism, robbery, and the non-party, etc. of anti-students, but such an act seems not to have been frequently frequent, and that it was the main method of sexual harassment or criticism, not by transfer of the act's attitude and violence, etc., rather than by violence, and that it was difficult to recognize the possibility of suicide of the deceased at the time of the occurrence of the accident of this case. Although the deceased prepared a mera that suggests suicide, there was no special act that could have anticipated suicide at the time of the accident of this case, but there was no special act that could have anticipated suicide. The deceased did not go on Sundays on November 29, 2009 and did so on around 22:0 of that day.

Nevertheless, the court below recognized the defendant's liability to compensate for the accident of this case. The court below erred by misapprehending the legal principles on the responsibility to protect and supervise teachers, and it is clear that this affected the judgment. Thus, the ground of appeal pointing this out is with merit.

3. Conclusion

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

Justices Lee In-bok

Justices Min Il-young

Justices Park Young-young

Chief Justice Kim Shin-chul