In case of infringement of life, whether or not the deceased sibling claims consolation money.

Article 752 of the Civil Act lists the claimant for consolation money in the case of infringement of life as a lineal ascendant, descendant, or spouse, but this does not limit only the claimant to the consolation money, but merely stipulates the claimant as an example of the claimant, it can claim consolation money for mental suffering from the sale of a dead person's punishment or self-determination.

Articles 752 and 750 of the Civil Act

67Da1550 delivered on September 19, 1967, 72Da331 delivered on April 25, 197 (Supreme Court Decision 2072Da1550 delivered on September 19, 1967, Article 752(12)542 delivered on March 16, 1965 (Supreme Court Decision 1918 delivered on March 16, 1965, Supreme Court Decision 750(53)514 delivered on March 16, 1965)

Plaintiff 1 and three others

Korea

Busan District Court (71 Ghana226)

Supreme Court Decision 72Da331 Delivered on April 25, 1972

Among the parts against the defendant in the original judgment, the part concerning consolation money shall be revoked.

The plaintiffs' claim (request for materials) is dismissed.

The total cost of the lawsuit against this part is borne by the plaintiffs.

As consolation money, the defendant shall pay to the plaintiff 1 the amount of 200,000 won, 100,000 won for each of the plaintiffs 2, 3, and 4, and 5 percent per annum from July 22, 1969 to the full payment system.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

If the contents of Gap's evidence No. 1,4,8,9,10 and 11 are all not disputed, non-party 1, who is a public official belonging to the 12th military unit of the Army, the military agency of the defendant country, is driving disease of 2 (1/2) tons of the unit belonging to the defendant country. On July 21, 1969, he was driving the above truck by burning the number of non-party 2's monthly replacement of soldiers other than the deceased non-party 2's disease to the 7th parallel of the 16:50 on the same day while he was driving the vehicle with the same 6th parallel of the above 60-meter width, and the above 15th parallel of the above 60-meter width of the vehicle, and thus, he can be found to have gone through the driver's duty of care at the speed of 50 meters on the right side of the road, and thus, he can be found to have gone through the 15th parallel of the plaintiff's engine, including the above 6th parallel.

Therefore, since the plaintiff et al. suffered mental pain due to the above accident, the defendant is obligated to pay consolation money to him. The defendant asserts that since the above deceased, who is the victim of the accident, died in the military service as a soldier, he cannot claim consolation money under the State Compensation Act in accordance with the provisions of the proviso of Article 2 of the State Compensation Act, but the legal provision of such assertion cannot be applied to the unconstitutional legal provision in violation of Articles 26, 8, 9 and 32 (2) of the Constitution, so the argument that this provision is advanced is groundless.

Meanwhile, Plaintiffs 2, 3, and 4, who are the siblings and siblings of the above deceased, asserted that they cannot claim consolation money because they are lineal ascendants, descendants, and spouses as stipulated in Article 752 of the Civil Act. Thus, the provisions of the same Act do not purport to recognize the right to claim consolation money only to those who are in the personal relationship listed in the provisions in the case of damaging another person's life, but merely stipulate it as an example to the claimant, and therefore, they can claim consolation money for their mental distress. Therefore, it is without merit.

Furthermore, in light of all the circumstances, such as the status relationship with the deceased, property relations and their family environment, the circumstances of the case, and the facts that the damage claim that the plaintiff 1 succeeded to due to the above accident, as shown in the whole purport of the above evidence and arguments, it is reasonable for the defendant to pay the plaintiff 1 the amount of KRW 100,513,315 with the amount of KRW 30,000 per annum in civil law and the damages damages amount by the rate of 5% per annum until the full payment after the accident occurred. Thus, the defendant claims that the plaintiff et al. receive KRW 209,40,000 from the amount of consolation money after the accident, and that the amount of consolation money should be deducted from the amount of consolation money calculation. Thus, if the plaintiff 1 received KRW 10,513,315 from the deceased, the defendant paid to the plaintiff 2,3,400 and the bereaved family's family's 10,000 won after the death of the plaintiff.

However, these amounts are considered to have the nature of consolation money that the defendant pays to the above deceased's bereaved family members, so they should be deducted from consolation money calculation amount, and eventually, it is the result of paying 19,400 won in excess of 19,400 won as consolation money calculated as above. Accordingly, the defendant's argument on this point is groundless.

Therefore, the part concerning the claim for consolation money of the plaintiff et al. shall not be dismissed unfairly, and the part concerning consolation money of the part against the defendant in the original judgment shall be revoked, and it shall be decided as per Disposition by applying Articles 95 and 89 of the Civil Procedure Act to the burden of litigation costs.

Judges Lee Yong-su (Presiding Judge)