Right to claim consolation money for his/her deceased person who died on his/her behalf.

In the case of the victim's death at the site of the vehicle accident, it is clear in the legal principle that there is a claim for consolation money, the content of which is non-property damage, even if the victim was in the state of mental disorder at the time of the death.

Articles 750 and 751 of the Civil Act

Supreme Court Decision 73Da1100 Delivered on September 25, 1973

Plaintiff 1 and one other

Korea

Gwangju District Court of the first instance (71 Ghana388)

The judgment below is modified as follows.

The defendant shall pay 50 million won to the plaintiff 1, 300,000 won to the plaintiff 2, and 5% interest per annum from September 28, 1970 to the date of full payment.

The remaining claims of the plaintiff et al. are dismissed.

All the costs of lawsuit shall be borne by the defendant.

The defendant shall pay 1,071,461 won to the plaintiff 1, 610,730 won to the plaintiff 2, and 5% interest per annum from September 28, 1970 to the date of full payment.

Litigation costs shall be borne by the defendant.

The part of the judgment against the defendant shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff, etc.

(1) Determination on this safety defense

The defendant litigation performer raises a defense that the plaintiff et al. has not gone through the decision of compensation payment council pursuant to Article 9 of the State Compensation Act. Thus, since the plaintiff et al. has no dispute over the establishment of Gap evidence Nos. 7 without dispute over the establishment of the whole document, Gap evidence Nos. 1-23, 2-2, 3-2, 4-12, 5-23 of the evidence Nos. 1, 3-1, 3-1, 5, 6-1 of the evidence Nos. 1, 3-1, 5, and 9-1 of the above evidence Nos. 7 of the State Compensation Act and the defendant's testimony of non-party No. 1 of the court below, the plaintiff et al. submitted a copy of the above evidence Nos. 1, 3-1, 5, and 6 to the witness testimony of the above 9-1 of the State Compensation Act, the plaintiff et al., which had no effect on the above 9-2's application for compensation council.

(2) Judgment on the merits

On September 27, 1970. 19:0, Nonparty 2 did not have an obligation to take a distance measurement between Jeonsung-gun-gun-dong-si, Gwangju, and thus, Nonparty 2 died on the road belonging to 3/4 tons of the Army Woo-dong-si-si, and Plaintiff 1 is the father of the deceased and his mother is not in dispute between the parties. If the testimony of Nonparty 11-9 without dispute, and the purport of the argument of the parties is combined, Nonparty 3 did not have an obligation to take a distance measurement between Jeonsung-gun-gun-gun-dong-si, Gwangju-si, and the fact that the above vehicle was driven by Nonparty 2 at the time of death on the road before and after the death of the above vehicle, Nonparty 2 was unable to take advantage of the above fact that the above vehicle was driven by Nonparty 5 on the left-hand side of the above vehicle and the remaining vehicle was driven by Nonparty 1 at the time of death on the same speed as 19:25 meters of the above vehicle.

However, the defendant's litigation performer shall lose his ability to exercise his right when he loses his life due to the infringement of his life. Thus, the defendant's defense that the deceased non-party 2 did not have the right to claim consolation money and there is no express provision that recognizes it under the current law can be recognized as a theoretical gap between the time he received a sacrife and the time of his death even if the victim died. Even if he was in the state of mental disorder during the time of his sacrife's death, it is obvious in the legal reasoning that he has the right to claim compensation for property damage as well as his own right to claim consolation money from the deceased who is the content of non-property damage, and it is clear that Article 750 and Article 751 of the Civil Code recognizes it, so the defendant's defense is groundless.

However, according to the entry of the evidence No. 11-4 (Verification Report) No. 1-1 and No. 2, the accident place is divided into the roadway and the delivery. Since the width of the vehicle is about 25 meters and 5 meters on both sides of the roadway, the pedestrian must walk according to the delivery, and even if the vehicle does not walk on the roadway, it is sufficient to recognize the fact that the pedestrian was negligent in walking along the roadway without walking the delivery, and it was part of the cause of the accident. Therefore, in determining the amount of damages to be compensated by the defendant, it is sufficient to consider the negligence of the non-party No. 2.

Therefore, this paper examines the amount of damages.

(A) Loss from profit

The facts of Gap evidence Nos. 8 and 9 and part of non-party 4 of the court below's testimony (except for part which is not trusted in the rear) are combined with the whole purport of the oral argument. The deceased non-party 2 was male born on September 4, 1957 and was 13 years old at the time of this accident. In this case, in 1970, general workers may have worked for work at an average of 400 won a day to an average of 250 days a year, and around that time, the monthly living expenses of 13 years old and above non-party 4 were 50.64 years old and 50 years old and 40 years old and 50 years old and 50 years old and 40 years old cannot be found to have worked for 50 years old and 40 years old and less than 50 years old and less than 50 years old and less than 40 years old and less than 50 years old and less than 40 days old and less than 5 years old and less than 40 years old.

However, as seen earlier, the Defendant’s damages amounting to KRW 450,000 is recognized to be reasonable in light of the degree of negligence as the victim was negligent in the occurrence of the accident, as seen earlier.

The plaintiffs received 20,00 won as funeral expenses from the wife of the non-party 3 after the accident of this case, there is no dispute between the parties, and the defendant's litigation performer must deduct the above funeral expenses from the damages of this case. However, in this case where it is evident that the plaintiffs did not claim funeral expenses of the non-party deceased, the above funeral expenses should not be deducted from the damages of this case, and the defendant's defense is not justified.

(B) Consolation money

Since mental distress received by the deceased non-party 2 at the time of the death of this accident and it can be easily recognized that the plaintiffs received a large amount of mental distress due to the death of the deceased, the defendant has a duty to pay a considerable amount of money to the above non-party deceased and the plaintiffs for the mental distress. In light of various circumstances such as the status of the deceased and the plaintiffs, their age, property level, home environment, education level, and the circumstances surrounding this accident, it is reasonable to pay consolation money of KRW 150,000 to the above non-party deceased and KRW 10,000 to the plaintiffs, respectively.

Therefore, the defendant should pay the above non-party deceased's property damage amount of KRW 450,00 and its consolation money of KRW 150,000,000 and its consolation money of KRW 600,000 to the plaintiffs who are co-property inheritors of the deceased, according to their shares of inheritance. The plaintiff's consolation money of the plaintiff should be separately paid to the plaintiff 1. The defendant is obligated to pay the plaintiff 1 the above share of KRW 400,000, 1000, 5000, 2000, 100,000, 300,000, and 300,000, and 500,000, and 150,000,000, from September 20 to 5, 1970, the following day of the tort of this case, and there is no reason to dismiss the plaintiff's claim for damages for delay within the scope of 9,000,000.

Judges Choi Yong-gu (Presiding Judge)