2017 Ghana 5004402 damages (ar)

1. A;

2. B

[Defendant-Appellant] Kim Jong-nam

C

Attorney Shin Jae-chul, Counsel for the defendant-appellant

November 28, 2017

January 23, 2018

1. The defendant shall pay to the plaintiff B 10 million won with 5% interest per annum from May 11, 2016 to January 23, 2018, and 15% interest per annum from the next day to the day of complete payment.

2. The remaining claims of Plaintiff B and the claims of Plaintiff A are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff A and the Defendant is 70% of the part arising between the Plaintiff A and the Defendant, and 30% of the part arising between the Plaintiff B and the Defendant, respectively, borne by the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff A and B 30,000,000 won with 5% interest per annum from May 11, 2016 to the delivery date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. The Plaintiffs are legally married couple who completed the marriage report on November 15, 2010, and have 1 South and 1 son’s children (the two children seems to have not attended until the closure of the pleadings in this case). The Defendant is an appointed employee of the bank located in Yeongdeungpo-gu Seoul Metropolitan Government D’s working for the Plaintiff A.

B. From May 10, 2016, from around 18:00 on May 10, 2016, the Defendant met with the same workplace bonus and the same workplace bonus and the same workplace bonus at the workplace’s home. Plaintiff A and the Defendant met with the above 30 minutes later. The participants, including Plaintiff A and the Defendant, were mixed with the workplace bonus and the beer, and most of the participants, except for some number of persons, were mixed with the workplace bonus and the beer, were combined with the neighboring singing at the second meeting between 20:30 to 21:00 on the same day.

C. After the second meeting, the Plaintiff and the Defendant were accommodated in a nearby hotel around 00:20 on May 11, 2016, and the Defendant, despite being aware that the Defendant had a legal spouse, had sexual intercourses with the Plaintiff A while having known that the Defendant had a legal spouse, and the Plaintiff A had a telephone conversation with the Plaintiff B during which he had had a legal spouse, left the said hotel at around 04:39 on the same day.

D. Meanwhile, on May 11, 2016, the Plaintiff alleged that “the Defendant had sexual intercourse with himself, which is in the state of mental disorder, at the time when he was accommodated in the hotel as seen above, and filed a complaint with the Defendant as quasi-rape.” In light of the statements made by the relevant person on September 19, 2016, monetary details and CCTV images, etc., the Prosecution appears to have sexual intercourse with the Plaintiff and the Defendant. However, there was no evidence to prove that at the time the Plaintiff was in the state of mental or physical disorder, or the Defendant did not have sexual intercourse with the Plaintiff, or that there was no evidence to prove that the Plaintiff had sexual intercourse with the Plaintiff A by recognizing the Plaintiff’s status, and the Prosecutor’s appeal against this was dismissed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, 7, 8, 14 through 18, Eul evidence Nos. 1, 2, 12 and 18, and the purport of the whole pleadings

2. Determination

A. Summary of the plaintiffs' assertion

The Defendant, as seen earlier, had sexual intercourse with the Plaintiff who was in the state of mental disorder by drinking alcohol at the time of being accommodated in the hotel. Nevertheless, at the workplace, the Plaintiff’s sexual intercourse with the Defendant and brought the Defendant into the hotel, followed the Plaintiff’s suit that the Defendant was sexually imprisoned, and was in the place of work. As such, the Plaintiffs up to the time of the failure of the marital relationship with the Defendant, and the Plaintiffs continued to suffer from difficulties in the workplace’s life due to depression, etc., and the Plaintiff B also suffered from psychological treatment due to abnormal behavior.

Therefore, the defendant is obliged to pay the consolation money for mental damage caused by the above illegal acts to the plaintiffs, each of which is 30 million won and the delay damages.

B. Determination

1) Determination as to Plaintiff A’s assertion

The evidence presented alone is insufficient to acknowledge the fact that the defendant and the plaintiff Gap were at the time of being accommodated in a hotel, the currency content between the plaintiffs, the currency content between the plaintiff and the police, the statement of hotel employees, the result of the complaint against the defendant as seen earlier, and all other circumstances acknowledged according to the above evidence and the evidence Nos. 3 through 5, such as the defendant's sexual intercourse, to the extent that the defendant's sexual intercourse was committed by the defendant at the time of having sexual intercourse with the defendant as seen earlier, and that the plaintiff was at the time of having sexual intercourse with the defendant, to the extent that the defendant's sexual intercourse was committed by the defendant, to the extent that the defendant was at the time of having sexual intercourse with the defendant, or that the defendant was at the workplace after the sex relationship as seen above, and there was no other evidence to support it

2) Judgment on Plaintiff B’s assertion 1

However, according to the above facts, the defendant's act of sexual intercourse between the defendant and the plaintiff A was in a state of mental disorder or impossibility to resist, or there is no evidence to acknowledge that the defendant had filed a lawsuit like the plaintiff's assertion in the workplace after the sex relationship with the defendant. Meanwhile, the third party's act of infringing the couple's communal life falling under the essence of marriage or interfering with its maintenance and his spouse's right as the spouse, and infringing upon the plaintiff's spouse's right as the spouse, which constitutes tort. As seen above, the defendant, even though the plaintiff's legal spouse is, has a duty to compensate for mental damage suffered by the plaintiff B as the plaintiff's spouse, barring any special circumstance, in light of the defendant's spouse's marital relationship and family relationship, the relation between the plaintiff A and the defendant, and the circumstances and contents of the relationship with the plaintiff A (the defendant's mental suffering is not sufficient to protect the plaintiff's mental suffering, and it seems that the plaintiff's mental suffering is not sufficient to protect the plaintiff's spouse's mental suffering from the plaintiff's mental suffering.

Therefore, the Defendant, upon paying consolation money, is obligated to pay the Plaintiff B the amount of KRW 10 million and the delay damages calculated at the rate of 5% per annum as stipulated in the Civil Act from May 11, 2016, which is the date of the imposition of a reasonable judgment, to January 23, 2018, and 15% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the following day to the date of full payment.

3. Conclusion

The plaintiff B's claim is justified within the scope of the above recognition, and the remainder of the plaintiff B's claim and the plaintiff A's claim are dismissed as they are without merit. It is so decided as per Disposition.

Judges Park Jong-ho

1) In the case of Plaintiff B, it is reasonable to view that the aforementioned assertion included the purport of seeking damages on the ground of the Defendant and Plaintiff A’s fraudulent act.