2012Na105460 Damages (ar)

[Attachment 1] The list of Plaintiffs (Appellants and Petitioners) shall be as stated in the column.

[Attachment 1] The list of the Plaintiffs (Appellants and incidental appellants) shall be as stated in the column.

[Attachment 1] The list of Plaintiffs (Appellants) shall be as stated in the list.

Korea

Seoul Central District Court Decision 201Gahap106827 Decided 11, 2012

April 10, 2014

July 10, 2014

1. The defendant's losing part of the judgment of the court of first instance against the plaintiff EF shall be revoked, and the plaintiff EF's claim corresponding to the revoked part shall be dismissed.

2. Of the judgment of the first instance court, the part of the judgment against the Plaintiff IK, JE, LM, LN, LP, Q, DZ, and PE that orders additional payments below shall be revoked.

The defendant shall pay to the above plaintiffs the amount of money in question as stated in the "amount claimed in attached Form 2", "amount of appeal and the amount of prize" in the "amount of additional prize", and each of the above amounts shall be 5% per annum from October 25, 2012 to July 10, 2014, and 20% per annum from the next day to the date of full payment.

3. Of the judgment of the court of first instance, the part against the defendant in respect of plaintiffs HG, HH, HI, IL, IM,IN, JC, JD, JU, JD, JU, JV, JV, and net LO's lawsuit acceptance (SN, SO, SO, SP, Q, Q, S, S), LR, EB, MB, MC, MCR, MCR, MCE, MG, MU, MV, MD, PD, PF, PG, and QG, and each of the above plaintiffs' claims corresponding to the revoked part are dismissed.

The defendant shall pay to the above plaintiffs the amount of claim(attached Form 2], the amount of appeal, and the amount of award in the "statement of the amount of award" to the above plaintiffs, and the amount calculated by the rate of 5% per annum from October 25, 2012 to July 10, 2014, and 20% per annum from the next day to the day of full payment.

4. (1) The rest of the plaintiffs' appeals, excluding the plaintiffs' IK, and KRK, TPPK, TPPK, TPPK, TPP, TPP, TPP, PE, and the rest of each incidental appeal, 4 [Attachment 1] the rest of the plaintiffs' appeals except the plaintiffs' JE, LM, LN, LP, LP, LP, PE, and PE, 6th defendant's remaining appeals, 6th MAO, PE, PE, PE, PEMM, PE, PEF, PEMM, PE, PEMM (Plaintiff 5), PE, DM, HH, HG, HHM, HM, and HJJ, HJ, PE, PEMM, PEM, PE, PEM, RE, PEM, RE, PEM, PEM, PEM, RE, PEM, PEM, PE, PE, PE, PE, PE, RE, RE, RE,

5. (1) The total cost of the lawsuit between the plaintiff EF and the defendant shall be borne by the plaintiff EF; (2) 65% of the total cost of the lawsuit between the plaintiffs and the defendant mentioned in paragraphs (2) and (3) above shall be borne by the above plaintiffs; and the remainder shall be borne by the defendant; and (3) [Attachment 1] list of the plaintiffs [Appellant 1] column and [Respondent 1

The appellant and the incidental appellant) from among the plaintiffs stated in the list of the plaintiffs, the remaining plaintiffs except the plaintiffs listed in paragraphs (2) and (3) of the above Article and the defendant shall bear the costs of appeal and incidental appeal, and the costs of appeal arising from the expanded claims in the trial shall be borne by the relevant plaintiffs. (4) [Attachment 1] The list of the plaintiffs [Appellant] shall bear the costs of appeal between the plaintiffs other than JU, JV and EL and the defendant.

6. The part ordering a payment of money under paragraph (2) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiffs the amount stated in the "amount claimed in attached Form 2", "amount claimed in the "amount claimed" and "amount claimed in the "amount claimed in the corresponding section", the amount calculated at the rate of 5% per annum from September 1, 1950 to the service date of a copy of the complaint of this case, the amount calculated at the rate of 20% per annum from the next day to the day of full payment, the amount of appeal or incidental appeal, the amount of 5% per annum from October 25, 2012 to November 22, 2012, and the amount calculated at the rate of 20% per annum from the next day to the day of full payment.

① The Plaintiffs indicated as the “extension” column of [Attachment 2] extended the claims as above in the trial of the Party, and ② Plaintiff HM, HN, HN, HN, HO, HW, HW, SW, SP, and QB died after the instant lawsuit was filed by the joint Plaintiff of the first instance court, and Plaintiff HH, HN, HH, HW, SW, SP, and QB took over the HB’s legal proceedings in the trial of the Party, and Plaintiff HC and LE’s legal proceedings, Plaintiff LCR, SN, SO, SP, SP, STR, and SS’s legal proceedings, Plaintiff N, NR, NTR, NTS, NTS, SU, and SB’s legal proceedings, respectively).

2. Purport of appeal

(a) [Attachment 1] In the column of “Appellants and Petitioners”, the relevant Plaintiffs

Among the judgment of the first instance court, the part against which the above plaintiffs lost shall be revoked.

The defendant shall pay to the above plaintiffs the amount of claim(attached Form 2], the amount of appeal, and the amount of appeal in the "statement of the amount of appeal" as stated in the "amount of appeal", and each of the above amounts shall be 5% per annum from October 25, 2012 to November 22, 2012, and 20% per annum from the next day to the date of full payment.

B. The part against the defendant among the judgment of the court of first instance against the defendant is revoked, and all the plaintiffs' claims corresponding to the cancellation are dismissed.

3. The purport of the incidental appeal (attached Form 1) (the appellant and the incidental appellant)

Of the judgment of the first instance court, the part against the plaintiffs in the list of the plaintiffs [Attachment 1] shall be revoked.

The defendant shall pay to the above plaintiffs the amount of claim(attached Form 2], the amount of appeal, and the amount of appeal(the amount of appeal) stated in the table of the amount of appeal(the amount of appeal) and each of the above amounts shall be 5% per annum from the 25th to November 22, 2012 and 20% per annum from the next day to the day of full payment.

1. Quotation of judgment of the first instance;

The reasoning for this Court's explanation concerning this case is as follows. The defendant's argument that was not judged in the main safety defense and the first instance court by the defendant in the trial is identical to the statement of the reasons for the first instance court's decision (excluding the attached part) except for the part to be determined additionally in paragraph (3) above. Thus, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Parts in height:

In the 5th, 16, 8th, 13th, 17th, 8th, 19th, 22th, 13th, 24th, 7th, and 25th of the first instance judgment, each "attached Form 1. The statement of damages amount" shall be read as "attached Form 3".

In Part 6, Part 7 through 8 of the first instance judgment, the "attached Form 1. Detailed Statement of Compensation for Damages" shall be "(No. 4)" as the inheritance relation table.

In the 6th sentence to 19th sentence of the first instance judgment, the "amount of claim" column of the "amount of claim" in attached Forms 18 through 19 shall be read as "(attached Form 2), the amount of claim, the amount of appeal, and the amount of claim in the "amount of claim" column.

The first instance court's first instance court's decision No. 5 stated that "the above deceased's case of this facts and evidence is as follows." [1] According to the evidence No. 138-2 and 22 of the deceased's CP, in the course of investigation by the past company reorganization committee, the plaintiff EF sent back the deceased's CP to undergo training on the Round immediately after the Korean War, and made a statement that the deceased CP was led to a large amount of light pressure mine, and the witness EG stated that the deceased CP was led to a large amount of light pressure mine, and that the deceased CP did not receive training on the Round's Roster as well as a large amount of light pressure.

However, each of the above evidence, Gap evidence No. 35-1 and No. 110-1, as a whole, reviewed the whole arguments, namely, the following circumstances: (a) it is unclear whether the net CP was married because the both sides of the Z, which is the ex post facto adoption of the net CP, were stated as TA; and (b) there is no other evidence to acknowledge that plaintiff EF was the parent-child of the net CP; and (c) even if the plaintiff EF is the deceased-child of the net CP, the plaintiff EF stated that the defendant EF did not have any direct experience in the instant case; and (d) the witness stated that the defendant EG was the victim of the instant case, not the contents of his witness or experience; and (d) there is no clear evidence to acknowledge the defendant EF's claim for damages from the heir of the instant case for reasons of lack of evidence to acknowledge that EG transferred the right to compensation for damages from the victim of the instant case.

[2] In the case of the Deceaseds described in Paragraph (2) other than the net CP, the following circumstances, i.e., the part from No. 14 to No. 9 to No. 15 of the judgment of the first instance court, which can be seen by integrating the evidence and facts as seen earlier, are as follows.

(h) On July 1950, TB, a student of the net CI, stated that the police box under its jurisdiction was aware of the death of a person who works in the village and then was committed to the police station. After that, the police station, there was no ceremony until now, and then the person was aware that the person was killed in the future as a whole. Plaintiff JL, a member of the net CJ, was committed by the net CJ, from the TD, to the TD and the third village of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the city of the Gu.

The part of the first instance judgment Nos. 30 to 6 is as follows: “The consolation money of the deceased and their bereaved families recognized by these facts and evidence was inherited to the plaintiff and their relatives as shown in the inheritance relation table [Attachment 4]; on the other hand, after the filing of the lawsuit in this case, some of the plaintiffs died and their inheritors succeeded to the lawsuit in this case while succeeding to the deceased’s property. In light of these inheritance relations, if the defendant calculates consolation money to be paid to the rest of the plaintiffs except the plaintiff EF, it shall be deemed as follows: “The consolation money of the deceased and their bereaved families recognized by these facts and evidence was inherited to the plaintiff and their relatives.”

(1) The part of the first instance judgment 31 to 15 is as follows: ① the amount indicated in the claim amount of Plaintiff IK, JE, LM, LN, LP, Qz, DZ, and PE (attached Form 2), and the amount quoted in the first instance judgment excluding the above 20% annual amount of damages for delay from the 20th day after the date of the closing of the first instance trial to the 20th day after the 20th day after the 20th day after the 20th day after the 1st day after the 20th day after the 20th day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 3th day after the 2nd day after the 3th day after the 2nd day after the 2nd day.

[Plaintiffs claimed for damages for delay from September 1, 1950, immediately after the occurrence of this case, including the case of sacrifice of civilian citizens in the Gyeongchit Mine. However, when considerable changes have occurred in comparison with the time of tort in monetary value, etc. at the time of the conclusion of arguments at the time of the arguments to be considered, in calculating damages for delay due to tort, it shall be deemed that damages for delay to pay damages for delay due to tort occurs from the date of the conclusion of arguments at the court of first instance (see Supreme Court Decision 2009Da103950, Jan. 13, 201). In this case, it is reasonable to deem damages for delay from the date of the conclusion of arguments at the court of first instance as follows: (a) since 60 or more years have passed since the time of mass destruction by public officials belonging to Defendant around July 1950 to the date of the conclusion of arguments at the court of first instance, and there have been changes in our prices, income level of citizens, etc., such changes shall be considered above.

3. Parts to be determined additionally

/ Judgment on this safety defense

A. Defendant’s defense

The intent of delegation of a lawsuit against the plaintiffs' legal representative shall be clearly indicated by the method prescribed in the Civil Procedure Act. Since the delegation of a lawsuit submitted by the plaintiffs does not prove whether the plaintiffs' legal representative has been granted a legitimate power of attorney from the plaintiffs, the lawsuit of this case by the plaintiffs shall be dismissed.

B. In light of the following circumstances, it is reasonable to view that the Plaintiffs’ legal representative expressed his/her intent to delegate litigation to the legal representative, in light of the following: (a) the submission of the instant complaint on October 12, 201; (b) the submission of a certified transcript, family relation certificate, or basic document related to the persons who have made the instant sacrifice and the Plaintiffs was accompanied by the certified copy, family relation certificate, or family relation certificate related thereto; and (c) the Plaintiffs themselves, their lineal family members, or their spouse submitted a certified copy or abstract of the resident registration application or family relation certificate; and (d) the Plaintiffs submitted a certified copy of the said document, in the absence of the above documents, the Plaintiffs expressed their intention to delegate litigation to the legal representative.

The defendant's main defense is without merit.

/ Whether the plaintiffs' exercise of rights is within a reasonable period of time

A. The defendant's assertion

Since it is difficult to view that the plaintiffs exercised their rights within a reasonable period of time under the good faith principle from the time when the truth of the past History Settlement Commission was established, the plaintiffs' damage claim expired

B. Determination

As seen earlier, the past History Settlement Commission rendered a determination of the truth-finding on the victims of the instant case, including the case of sacrificeing the civilian in the Gyeongchip mine in Gyeongsan on March 16, 2009; on September 15, 2009; on June 29, 2010; on November 17, 2010; and on October 30, 2010; and on March 16, 2009; and on March 16, 201 as of March 16, 2009, the fact that the Plaintiffs filed the instant lawsuit on March 10, 201 as of March 16, 2009, is apparent in the record.

However, in full view of the purport of the entire argument in the above facts, the Plaintiffs, as the bereaved family members of the victims of this case who received the truth-finding decision under the Act on the Settlement of History, expected to take appropriate legislative measures to restore their honor and compensate for damages in accordance with the provisions of the Act on the Settlement of History and the recommendations of the Committee on the Settlement of History, etc., but did not take any affirmative measures against the Defendant, can be found to have filed a lawsuit claiming damages individually against the Defendant. This is reasonable to deem that the Plaintiffs’ legislative measures were reasonable even before the lapse of the period after the truth-finding decision, and that the Plaintiffs filed the lawsuit of this case before the lapse of three years from the date of the truth-finding decision.

4. Conclusion

그렇다면 원고 EF를 제외한 나머지 원고들의 각 청구는 위 인정범위 내에서 이유 있어 이를 인용하고, 위 원고들의 나머지 각 청구 및 원고 EF의 청구는 모두 이유 없어 이를 기각할 것인바, ① 제1심 판결 중 원고 EF에 대한 피고 패소부분과, 주문 제3 항 기재 원고들에 대하여 위 인정 금원을 초과하여 지급을 명한 피고 패소부분은 이와 결론을 달리하여 부당하므로 이를 각 취소하고, 그 취소부분에 해당하는 위 원고들의 청구를 각 기각하며, ② 제1심 판결 중 위 인정 금원에서 제1심 인용금액을 제외한 나머지 금액에 관한 주문 제2항 기재 원고들의 패소부분 또한 이와 결론을 달리하여 부당하므로 그 부분을 취소하고, 피고에 대하여 위 원고들에게 위 인정 금원에서 제1심 인용금액을 제외한 나머지 금액을 추가로 지급할 것을 명하고, ③ 제1심 판결 중 원고 EF 및 주문 제2, 3항 기재 원고들을 제외한 원고들에 대한 부분과 주문 제2, 3항 기재 원고들에 대한 나머지 부분은 정당하므로 원고 IK, DZ의 각 나머지 항소, [별지1] 원고들 명단의 [피항소인 겸 항소인]란 기재 원고들 중 원고 IK, DZ를 제외한 나머지 원고들의 각 항소, 원고 JE, LM, LN, LP, LQ, PE의 각 나머지 부대항소, [별지1] 원고들명단의 [피항소인 겸 부대항소인]란 기재 원고들 중 원고 JE, LM, LN, LP, LQ, PE을 제외한 나머지 원고들의 각 부대항소, 피고의 주문 제3항 기재 원고들에 대한 각 나머지 항소, 피고의 원고 EF 및 주문 제3항 기재 원고들을 제외한 나머지 원고들에 대한 각 항소를 기각하며, ④ 원고 GZ, HA, HB, CH(원고 5번), HC, DM, HD, HE, HF, HG, HH, HI, HR, HS, HT, IE, IF, DO, IO, IQ, IR, IS, IT, IU, DR, IV, IW, IX, IY, IZ, JA, JB, JC, JD, JE, JF, JG, JH, JO, JZ, KB, KC, KD, KE, KG, KH, KI, EB, EF, KO, KV, KW, KY, LE, LH, LI, LJ, LK, EK, LW, LX, DS, LY, LZ, MH, MI, MJ, MK, MP, MQ, MR, MU, MV, MW, MX, MY, MZ, NA, NB, NK, NO, NP, DC, OE, OF, OP, OQ, OR, OV, OW, PC, PD, PE, PF, PG, PH, EW, PU, QA, 망 QB의 소송수계인(ST, SU, SV), QC, QD, FD, QE, FE, QF, QG, QH, QI, QJ, QK, FX, GF, QW, GJ, RD, RE, GT의 당심에서 확장된 청구를 각 기각하기로 하여, 주문과 같이 판결한다.

The judge, assistant judge and deputy judge

Judges Shin Jin-hee

Judges fixed-scale