Waiver of the right to claim damages due to mistake

Even if the bereaved family member of the deceased victim's bereaved family member received a solatium of one hundred thousand won and renounced the right to claim compensation for damages, it is recognized that the above pledge was prepared with the knowledge of the fact that it is part of the lost remaining damages.

Article 109 of the Civil Act

Plaintiff 1 and two others

Defendant corporation

Cheongju District Court of the first instance (66A428)

The part against the defendant in the original judgment shall be modified as follows:

The defendant shall pay to the plaintiff 1 the amount of 436,720 won and the amount of 216,720 won from September 5, 1965 to 220,000 won with the rate of 5 percent per annum from March 19, 1966 to each full portion, the amount of 134,480 won to the plaintiff 2, the amount of 72,240 won and the amount of 5 percent per annum from September 5, 1965 to the full payment.

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

The appeal by the plaintiff, etc. is dismissed.

The total expenses of a lawsuit shall be six minutes, and five of them shall be borne by the plaintiff, etc., and the remainder shall be borne by the defendant.

The defendant shall pay to the plaintiff 1 an amount equivalent to five percent per annum from September 5, 1965 to 1,46,485 won with 2,675,440 won and 1,208,958 won with five percent per annum for 1,46,485 won from September 5, 1965 to 1,46,485; 604,479 won to the plaintiff 2; 352,239 won to the plaintiff 3; and 5 percent per annum from September 5, 1965 to the full payment.

The judgment that the lawsuit costs shall be borne by the defendant and provisional execution declaration

The plaintiff et al. shall revoke the part against the plaintiff in the original judgment.

The defendant shall pay to the plaintiff 1 an amount equivalent to five percent per annum from September 5, 1965 to 1,339,724 won with an amount equivalent to five percent per annum from March 19, 1966 to 1,49,921 won, an amount equivalent to 119,960 won to the plaintiff 3, and an amount equivalent to five percent per annum from September 5, 1965 to 1,339,724 won, respectively.

The costs of lawsuit shall be borne by the defendant in both the first and second trials and a declaration of provisional execution.

Defendant: The part against the Defendant in the original judgment shall be revoked.

The plaintiff's claim is dismissed.

Litigation costs shall be assessed against the plaintiff, etc. in the first and second instances.

1. Facts that there has been no dispute;

The fact that the Defendant’s official capital is operating gold 17,00,000 won and that the deceased Nonparty 1 was a driver’s car employed by the Defendant and operated the Defendant-owned (vehicle No. 1 omitted) bus around 14:50 on August 29, 1965, and that Nonparty 2 felled from the front door of the blue-gun, Cheongcheon-gun, Cheongcheon-gun, Cheongcheon-gun, the above vehicle was down to the front door of 38 meters high, and died during the medical treatment of the vehicle due to brain death, and Nonparty 3 was working at the Defendant company for the purpose of acquiring mechanical maintenance from January 12, 1966, and there was no dispute between Nonparty 1 and Nonparty 4 on March 13:50 of the same year while working as alight of the bus No. 2 omitted) and Nonparty 1 was working at the front door of the above two parking lots, which was under the Defendant’s front door of the two parking lots.

2. Whether liability for damages has arisen;

A) Illegality

(1) Illegal acts against Nonparty 2

According to Gap evidence No. 3 (Judgment), which does not conflict with the establishment, the deceased non-party 1 was driving the above vehicle at around 07:30 on August 29, 1965, and driving it at around 14:00, after drinking it to the Cheongcheon Parking Lot at around 14:50, while driving it at around 14:50, at around 14:50, at around 14:30, while driving it, at around 15:4.3 meters in the Cheongcheon-gun, Cheongcheon-gun, Cheongcheon-gun, Cheongcheon-gun, Cheongcheon-gun, and 15 degrees in the speed of 10:3 meters in the speed of 10 miles, and then, it is hard to reverse the above vehicle's 20 degrees by taking the front door of the 20 degrees right-hand edge of the vehicle, and it is impossible to recognize the remainder of the vehicle with the front 5 meters of the road.

(2) Illegal acts against Nonparty 3

According to Gap evidence No. 4 (Judgment) without dispute over the establishment, when the non-party 4 operates the above vehicle parked as a driver of the vehicle, he can be found to have caused the death of the non-party 3 who was on the back of the vehicle with the rear wheels of the vehicle, and there is no evidence to reverse the above recognition, even though the non-party 4 had to confirm whether there is any obstacle or any other error in driving the vehicle, and even if there is a duty of care to prevent the accident by neglecting it, it can be recognized that the non-party 3, who was operating the vehicle as a driver of the vehicle, was killed with the rear wheels of the vehicle.

However, according to the records of evidence No. 1-3 (No. 3) of the deceased non-party 2, the deceased non-party 3, the deceased non-party 2, the deceased non-party 2, and the deceased non-party 3 were born between the deceased non-party 2 and the deceased non-party 1, and the deceased non-party 2 was jointly inherited by the plaintiff et al. and the deceased non-party 3 (the deceased non-party 3 died after the death of the deceased non-party 2)'s right to claim damages against the deceased non-party 3 was inherited by the plaintiff non-party 1. Thus, the defendant is liable to compensate for the material damage caused by the tort of the above recognition as the employer.

B) Defendant’s defense

(1) Defenses under the proviso of Article 756(1) of the Civil Act

The defendant asserts that there is no liability for damages since he had paid considerable attention to the appointment and supervision of the above driver's license, etc. as an employee.

However, according to the evidence No. 7 (Examination Protocol) without dispute in the establishment, the defendant could have observed the fact that he had generally urged the attention to the execution of his duties to all drivers employed by the defendant. However, the deceased non-party 1 can recognize the fact that he was employed at the time of the incorporation of the company without undergoing a reasonable appointment procedure at the time when he was employed to the defendant, while he cannot be said to have fulfilled his duty to supervise the appointment to the extent that he could be exempted from the employer's liability to the extent of a state of attention in the execution of general affairs as above. Only only the testimony of non-party 4 and non-party 6 of the court below witness of the court below did not have any other evidence to have pride in the defendant's defense and there is no other evidence to have pride otherwise.

(2) The defendant's defense of reconciliation of the damage of the non-party 2, and the plaintiff's re-appeal of reconciliation error

After the death of the non-party 2 on September 16, 1965, the plaintiff et al. and the non-party 3 set up a defense that the plaintiff et al. received 100,000 won from the defendant as damages and consolation money for the accident of this case and gave up the right to compensation against the non-party 2.

In full view of each testimony of the non-party 6, 7, and 8 and each statement of the non-party 1-2 (a delegation letter) that the authenticity is recognized by the witnesses of the above non-party 6, 7, and 7, the plaintiff et al. and the non-party 3 received 100,000 won as consolation money for the death of the non-party 2 from the defendant on September 16, 1965, and then deliver to the defendant a written pledge that the compensation for damages due to this case shall not be all made up to the defendant. However, the above written pledge among the testimony of the non-party 7 is printed in the same language after this accident, and it is hard to accept that the non-party 6 testimony and the non-party 3 knew that it was merely the non-party 1's non-party 1's non-party 1's non-party 2's non-party 3's non-party 1's non-party 1's non-party 1's non-party 3's non-party 1's non-party 1's non-party 1's witness's witness'.

(3) The non-party 3's defense of extinction of the right to claim damages due to legal concurrence

Since the deceased non-party 3 died during the course of performing his duties as the defendant's employee, the defendant paid 103,400 won to the plaintiff 1 on March 19, 1966 as bereaved family's compensation under the Labor Standards Act. Thus, the right to claim damages under the Civil Act has become extinct.

In light of the above, even if the claim for accident compensation under the Labor Standards Act and the claim for damages under the Civil Act are different in terms of raw milk for the same accident, they do not recognize double liability. However, if a person entitled to the compensation under Article 87 of the Labor Standards Act receives money or goods equivalent to accident compensation under the Civil Act and other Acts and subordinate statutes for the same reason, the employer is exempted from liability for compensation. Thus, if the defendant paid 103,400 won to the plaintiff 1 as accident compensation under the Labor Standards Act (this point is recognized as non-party 6's testimony), it is exempted from liability and does not exempt liability for damages under the Civil Act existing in excess of the limit. Thus, the above defense is not justified.

(4) The non-party 3's negligence

According to the testimony of the non-party 4 and the non-party 6 above, although the driver cannot maintain the vehicle without the driver's consent or instruction, it can be recognized that the accident occurred while maintaining the vehicle without the driver's consent or instruction. Thus, the non-party 3's negligence in the above victim non-party 3 should be considered in calculating the damages.

3. Scope of damages;

A) Material damages

앞에서 본 을 1호증의 3과, 성립에 다툼이 없는 갑 2호증(간이생명표)의 각 기재에 의하면 망 소외 2는 1924.10.14. 망 소외 3은 1948.6.6.에 각 출생한 보통의 건강한 남자로서 본건 각 사고로 사망할 당시 소외 2는 만 40세 11월 가량이었고 소외 3을 만 17세 9월 가량이었으며 위 문종래의 평균여명은 24.19년 소외 3의 평균여명은 42.65년인 사실을 인정할 수 있으니 본건 각 사고가 없었더라면 소외 2는 65세, 소외 3은 60세까지 각각 생존할 수 있다고 추정되고, 원고등은 소외 2는 사망당시 소외 10과 도자기공장을 공동 경영하여 금 160,000원 상당의 수입이 있었으며, 소외 3은 소외 10과 소외 2가 경영하던 도자기 공장의 제조공으로 종사하여 매일 평균 금 300원 내지 400원의 수입이 있었다고 주장하나 이에 부합되는 원심증인 소외 10, 11의 각 증언은 공성부분을 인정하므로 그 진정성립이 추정되는 을 8,9호증(각 증명원)의 각 기재와 원심증인 소외 6, 7의 각 증언에 비추어 믿을 수 없고 한편 위에서 인용한 을 8,9호증의 각 기재에 의하면 망 소외 2는 본건 사고당시 소외 10이 경영하는 도자기공장에서 일용노동자로 종사하고 있었고 소외 6, 7의 각 증언과 당사자변론의 취지에 의하면 소외 3은 그 아버지인 소외 2가 본건 사고로 사망하게 되자 피고의 주선으로 곤궁한 생활을 타개하기 위하여 피고의 자동차 조수로 채용되어 본건 사고당시까지 근무한 사실을 인정할 수 있으며, 위 망인등은 본건 각 사고가 없었더라면 달리 특별한 사정이 없는 한 소외 2는 본건 사고당시부터 경험칙상 현저한 55세까지, 소외 3은 20세가 되면 군에 입대하여 병역법에 따른 3년의 병역의무를 마치는 기간을 제외하고 본건 사고당시부터 경험칙상 현저한 55세까지 앞에서 판시한 직업에 종사하여 수입을 얻을 수 있을 것이 예상된다고 할 것이고, 성립에 다툼이 없는 갑 5호증의 1,2(조사월보 표지 및 그 내용)의 기재와 원심증인 소외 4의 증언에 의하면 본건 각 사고당시의 망 소외 2의 노동노임은 1일에 금 242원, 소외 3의 일당은 금 100원으로서 이러한 직업은 일년중 300일을 가동할 수 있음은 경험칙상 현저하므로, 망 소외 2의 연간 수입은 금 72,000원, 소외 3의 연간 수입은 금 30,000원 상당이며, 위와 같은 직업에 종사하는 경우 망 소외 2는 연간 생활비로서 금 30,000원, 소외 3은 연간 생활비로서 금 12,000원 상당을 각 소비하는 사실도 경험칙에 비추어 알 수 있으니 망 소외 2의 연간 수입손실액은 금 42,600원, 소외 3의 연간 수입손실액은 금 18,000원 상당으로서 이 금원의 가동연한까지의 총화가 본건 각 사고로 인하여 위 망인등이 입은 손해라고 할 것인 바, 이손해는 망 소외 2에 관하여는 본건 사고당시부터 55세까지 15년 1개월간에 걸쳐 연차적으로 발생되는데 원고등이 그중 사고당시부터 14년간의 손해만을 청구하고 있고, 소외 3에 대하여는 본건 사고당시부터 20세될 때까지 2년 3개월간과 제대되어 가동하는 23세부터 55세까지 33년간에 걸쳐 연차적으로 발생하는데 원고 1이 그중 입대전 2년분과 제대후 32년분의 손해만을 각각 일시에 청구하고 있으므로, 호프만식 계산법에 따라서 연 5푼의 중간이자를 공제하고 본건 각 사고당시를 기준으로 하여 일시에 청구할 수 있는 금원으로 환산하여 보면 망 소외 2에 대한 손해는 금 443,440원(42,600×10.40940667 원미만은 버렸다), 소외 3에 대한 손해는 금 326,205원〔ⓛ 입대전 2년분 18,000원×1.86147186=33,506원 ② 제대후 32년분 18,000원× (20.62547115-4.36437041)=292,699원, ⓛ+②=326,205원, 원미만은 버렸다〕임이 각 계산상 명백하다.

However, as seen earlier in the damages against the deceased non-party 2, the plaintiff et al. and the non-party 3 received gold KRW 100,000 from the defendant as part of the damages. Accordingly, the deduction from the amount of the above recognition would be KRW 343,440 if it is deducted from the amount of the above recognition, and if it is divided according to the share of the inheritance of the Civil Code, the plaintiff 2 and the non-party 3 would be KRW 114,480, the plaintiff 1, and the non-party 3 would be KRW 57,240, respectively, and the share of the non-party 3's inheritance due to the death of the non-party 3

In addition, as seen earlier, Plaintiff 1 received KRW 103,400 as an accident compensation under the Labor Standards Act, as set out in the above, and thus, it would be KRW 22,805 if it is deducted from the above recognized amount.

In addition, in consideration of the deceased’s negligence as seen earlier, the damages in this case are recognized to be reasonable in 180,000 won, and the plaintiff 1 succeeded to this.

B) Mental damages

Considering the above mentioned in Eul evidence 1-3, and the age, occupation, education level, property status, specific situation of the illegal acts shown in this case's pleading, and the negligence of the non-party 3, which are acknowledged by the testimony of the non-party 11 of the witness of the court below, the consolation money shall be KRW 20,000 for the death of the non-party 2 of the deceased non-party 1, and KRW 10,000 for each of the non-party 2 of the deceased non-party 3 and KRW 30,000 for the non-party 2 of the deceased non-party 3, and the non-party 3 jointly succeeds to the non-party 3, the consolation money shall be divided into KRW 10,00 for each of them, KRW 10,00 for the plaintiff and the non-party 3, KRW 5,000 for each of them, and the share of inheritance against the non-party 3 shall be deemed to have been inherited by the plaintiff 1, the non-party 3000 won.

C) Defendant’s defense of mitigation claim

In order to compensate all damages to each claimant for damages due to the occurrence of 16 or 15 injured persons due to an accident in this case, the amount of compensation required therefor reaches 0 million won, and if so, the defendant would endanger the existence of the company when it comes to the light of Dotan, and thus, the defendant would be at risk of the existence of the company. Therefore, it is argued that the defendant claim to reduce the amount of compensation

In full view of the statements in Eul evidence Nos. 2, 3-1, 2, 6-1, 6-1, 4, and 5-4, the authenticity of which is recognized by the statements in evidence Nos. 6, and the facts that the defendant has to pay or pay a large amount of compensation due to the accident at issue, and that if all damages incurred due to the accident at issue were compensated by the time of September 1966, the company's management will incur a debt to the extent that the risk would occur. However, according to the above records, the defendant held a motor vehicle with capital of KRW 17,00,000, and the economic condition of the plaintiff et al. at issue and the economic cause of the accident at issue and the cause of the accident at issue are not considered, it is reasonable to accept the claim for mitigation of damages.

4. Conclusion

Therefore, the defendant is liable to pay to the plaintiff 1 the above recognition amount of KRW 436,720 and KRW 216,720, among these amounts, to the plaintiff 1's tort against the deceased non-party 2. From September 5, 1965 to the death day of the non-party 2,20,000, which is obvious by the argument that it is the day when the above plaintiff's tort against the non-party 3 was committed, and from March 19, 1966 to the full payment day, it is obvious that the above recognition was committed against the non-party 3. The above recognition amount of KRW 134,480 and the above recognition amount of KRW 72,240 and the above recognition amount of KRW 216,720, respectively. The defendant's appeal is justified by applying Article 98 of the Civil Procedure Act to the part of the plaintiff's appeal to the non-party 2's remaining amount of KRW 36,000,000.

Judge Syle (Presiding Judge)