The case holding that it is not a loss in light of respect of right to life and duty of support of a person with parental authority for child support and educational expenses, other than childbirth expenses and consolation money, where a person gives birth to an abandoned child due to non-performance of the contract of infertility operation;

The case holding that it is not a loss in light of respect of right to life and duty of support of a person with parental authority for child support and educational expenses, other than childbirth expenses and consolation money, where a child who has not been abandoned was given birth due to non-performance of the contract of infertility operation.

Articles 393, 763, 913 of the Civil Act, Article 10 of the Constitution

Private police officer;

School Foundation (Attorneys Jeong Tae-tae et al., Counsel for the defendant-appellant)

Seoul District Court Decision 95Da4661 delivered on February 2, 1996

1. Of the judgment below, the part of the judgment against the defendant ordering payment to the plaintiff (appointed party) and the plaintiff (appointed party) in excess of 10,305,412 won per annum from May 21, 1995 to October 17, 1996, and the part against the defendant ordering payment in excess of 25 percent per annum from the next day to the date of full payment, and the part against the plaintiff (appointed party) and the plaintiff (appointed party) as to the revoked part are dismissed, respectively.

2. The plaintiff (appointed party)'s appeal and the defendant's remaining appeal are dismissed.

3. The costs of the lawsuit shall be five minutes for both the first and second instances, and four minutes for them shall be borne by the plaintiff (appointed party) and the remainder by the defendant.

The defendant shall pay to the plaintiff (appointed party, hereinafter referred to as the "Plaintiff") and the selected at the rate of 25 percent per annum to the plaintiff, 124,630,000 won, 30,000 won to the plaintiff, 50,000 won to the plaintiff, 124,30,000 won to the plaintiff, 50,000 won to the selected, and 25 percent per annum from May 21, 1995 to the date of full payment.

The plaintiff shall revoke the part of the original judgment against the plaintiff and the plaintiff to be paid under the following. The defendant shall pay 11,858,104 won to the plaintiff and the plaintiff to the plaintiff and the plaintiff to the date of the original judgment from May 21, 1995 to the date of the original judgment, 5% per annum, and 25% per annum to the date of full payment from the next day to the date of the original judgment.

Defendant: The part against the Defendant in the judgment of the lower court is revoked, and each of the claims against the Plaintiff and the selector corresponding to the revoked part is dismissed.

1. Occurrence of liability for damages;

A. Grounds for liability

In full view of Gap's evidence Nos. 1, 4 through 6, 10, Eul evidence Nos. 2 and 5 and the testimony of Co-Defendant 1 at the court below, the plaintiff and the Selection are legally married couple who has reported marriage on July 5, 1989, and the above son was under the circumstance of 21 weeks of son's pregnancy, and the above son's co-defendants at the court below's 1900s, which did not follow the first king surgery on behalf of the above son's co-Defendant 1 at the above 5th son's hospital's hospital's hospital's hospital's clinic's hospital's hospital's hospital's hospital's hospital's hospital's hospital's hospital's hospital's hospital's hospital's hospital's hospital's hospital's hospital's hospital's hospital's hospital's 190s hospital's 190s 190s 100s 100s 14.

According to the above facts, the defendant corporation shall be deemed to have established a medical contract for the infertility surgery between the plaintiff spouse and the defendant by receiving without objection the plaintiff spouse's subscription for the infertility surgery. Thus, the defendant corporation shall be liable to compensate for damages suffered by the plaintiff's husband and wife due to the non-performance of the contract.

The defendant argued that the above vehicle's negligence was caused by neglecting this duty of care and thus, the plaintiff's negligence should also be considered in determining the amount of damages to be compensated for because the above vehicle's negligence was caused by the occurrence or expansion of the damages. However, there is no evidence to recognize that the king operation by the above vehicle's medical doctor was an emergency, and even if it was an emergency for domestic affairs, the vehicle's medical doctor was clearly willing to perform the stery operation before and after the operation, and therefore, the vehicle's attention was urged to the medical doctor before and after the operation, or confirmed whether the stery operation was performed after the operation. However, the above vehicle's negligence was caused by the occurrence or expansion of the damages in this case, there is no reason to acknowledge that the king operation by the medical doctor of this case was an emergency operation by the above vehicle's medical doctor, and even if it was an emergency for domestic affairs, there is no reason to urge the above vehicle to perform the king operation separately from the extreme situation before and after the operation.

2. Scope of damages.

The plaintiff couple's non-performance of the obligation of the defendant led to the plaintiff's child-care expenses and educational expenses from the kindergarten to the university graduation, etc. of the plaintiff couple's child-care expenses until the plaintiff's child-care expenses and the kindergarten graduates from the university due to the plaintiff's non-performance of the obligation of this case, and thus, the defendant claims that the plaintiff couple is liable to compensate for the above property damage and consolation money as damages. Thus, the defendant will first examine the above property damage and consolation money in sequence.

(a) Expenses for delivery;

Due to the nonperformance of this case, the plaintiff's husband and wife gave birth to the plaintiff in this case, and the plaintiff's husband and wife paid the delivery cost of the plaintiff in this case, which is an ordinary property damage caused by the nonperformance of this case. Furthermore, according to the statement in the evidence No. 6, it can be acknowledged that the above plaintiff paid 610,824 won at the delivery cost (the medical insurance amount) while giving birth to the non-party's interest at the above university hospital, and there is no other data, and it is ratified that the delivery cost of the plaintiff in this case is the same amount as the delivery cost of the plaintiff in this case.

(b) consolation money;

Due to the nonperformance of this case, the above vehicle was pregnant and given birth to the principal of this case against his will and was suffering from severe mental distress during the period of pregnancy and delivery. The plaintiff also can be sufficiently recognized in light of the empirical rule that the plaintiff suffered from severe mental distress due to the pregnancy and delivery of the above vehicle in contravention of his family plan. Therefore, the defendant is obligated to accept this money. In full view of all the circumstances such as the age, family relationship, and property level of the plaintiff's husband and wife as shown in the argument of this case, it is reasonable to determine the amount of consolation money to be paid by the defendant to the plaintiff and wife as KRW 10,000,000, respectively.

C. Determination on the claim for child support and educational expenses

(1) With respect to the claim for the child support and education expenses of the plaintiff couple, the defendant first asserts that the plaintiff couple's claim for the child support and education expenses of this case was unfair against the principle of trust and good faith because the plaintiff couple could perform an induced abortion operation when he knew of the pregnancy of the plaintiff couple, which resulted in a child's claim for the child support and education expenses of this case. However, it is obvious that the artificial abortion operation under the Mother and Child Health Act is exceptionally allowed only when it falls under Article 14 (1) 1 through 5 of the same Act, and it is obvious that the case of the plaintiff couple of this case does not fall under any of the above exceptional provisions. Thus, it cannot be argued that the plaintiff couple's refusal of an induced abortion operation is unreasonable. Therefore, the defendant's argument is without merit.

(2) Furthermore, this paper examines whether the burden of child support, etc. for the Plaintiff’s husband and wife due to the nonperformance of this case constitutes “damage” of the Plaintiff’s husband and wife due to nonperformance of this case’s obligation to pay child support, etc.

Unlike other general contracts, medical contracts for the purpose of impergic treatment are contrary to the human life and the birth of the child who has not yet been embodied. Rather, non-performance is directly connected with the birth of human beings. In addition, from the perspective of parents, pregnancy and the birth of a child who is not originally caused by such non-performance can bring about economic damage to their parents. However, if we look at from the point of view of the father's life, the problem of whether the father's life will be damaged by non-performance of the contract is the only act of protecting the child's life (such as the child's duty to care) and the child's right to life should be protected by the child's duty to care. Article 10 of the Constitution of the Republic of Korea provides that the child's duty to care should be protected by the child's property interest and the child's right to life should be protected by the child's duty to care and the child's basic right to life should be guaranteed by the child's right to life and the child's duty to care.

Therefore, even if the child support, etc. was paid until the plaintiff's husband and wife becomes an adult due to pregnancy due to the defendant's non-performance of obligation, it cannot be viewed as the damage of the plaintiff's husband and wife. Therefore, the claim for this part of the child support and the education expenses of the plaintiff's husband and wife based on the premise that the expenses are losses shall not be considered more and more reasonable.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff and the selected at the rate of 10,305,412 won per annum (10,000,000 won per annum + 610,824/2 per annum) and each of the above amounts to the plaintiff and the selected at the rate of 10,305,412 won per annum per annum from May 21, 1995 to October 17, 1996, which is deemed reasonable for the defendant to dispute over the scope of the obligation to pay from May 21, 1995 on the record that is the day following the delivery date of the copy of the complaint in this case, and from the next day to the full payment date, 20,000 won per annum as stipulated in the Act on Special Cases Concerning the Promotion of Legal Proceedings, etc., the plaintiff and the Lessee's claim shall be justified within the above recognized limit and the remaining claims shall be dismissed. The judgment of the court below which partially rejected the plaintiff's appeal and the plaintiff's appeal shall be dismissed.

[Attachment]

Judges Cho Jae-han (Presiding Judge)