207Gaz. 18815 Claims

Korea

The legal representative Kim Minister of Justice

D.(76years, South Korea)

Law Firm Cheongcro, Attorney Cheong-chan

Attorney Park Young-gu, Justice Park Young-chul, Counsel for the plaintiff-appellant

Attorney Ha Han-chul et al.

August 13, 2008

August 27, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 100,845,610 won with 5% interest per annum from August 2, 2007 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged in full view of the purport of the whole pleadings as stated in Gap evidence 1-1, 2, 2, 2, 3, 4-1, 2, 1, 2, 3-1, 3-5, and 3-1, 3-5:

A. Relationship between the deceased A and the defendant

On December 15, 2003, the deceased A (hereinafter referred to as the "the deceased") was on leave of absence while attending the first year of the computer applied design department of B University, and entered the military on December 15, 2003, and was on military service by transferring the Army ① Osup of BOsup of BOsup, and the defendant was on duty as a major of the above company.

B. Circumstances of the instant accident

(1) The deceased was first 90mm M&D officer, who was placed in the position of his superior, and served as a sub-commissioned soldier, and the non-party C (the discharged on November 21, 2004) who was performing his duties as an administrative soldier in the above major administrative team was selected as his successor, and subsequently, the deceased decided to change the military speciality from a combat soldier to a communications soldier, and was assigned to a major administrative team from the beginning of October 2004, and carried out administrative duties as an information and education officer in addition to the serious communications duties by obtaining the transfer of duties from C for about one month.

(2) From the beginning of December 2004, the Defendant completed the work of correcting and supplementing the detailed enforcement rules of the War (which is classified as external expenses and is, in principle, accessible only by a person who has obtained authorization for confidential treatment, and is, in principle, not obtaining authorization for the deceased) that he or she is required to prepare and manage as a commander, from the first day of December 2004. In addition to preparing training and evaluation of the scheduled joint tactical (RCT) during the period from January 17, 2005 to January 21, 2005, the Defendant prepared an order to revise and prepare the detailed enforcement rules of the BB and the annual incidental management order guidelines to the deceased who is an administrative soldier by abusing his authority.

(3) However, at the time of the above work instruction, the Defendant prepared a draft of the specific work draft or drawing necessary for each work, but failed to instruct the Deceased to enter or correct the details of work to be conducted by using computers, etc., and presented the details of work to the Deceased’s own ability, who is an administrative soldier, and had him/her prepare most of the details of work to be conducted from time to time, and repeated instructions to re-examine the contents of work where he/she did not reach mind. The Deceased’s work process of taking over the short work, which was 2 months after the commencement of full-time work as an administrative soldier, and the preparation of materials on the operational direction, instruction, and education to be conducted by the commander based on his/her own military tactical knowledge, was first experienced, and the preparation of materials about the work to be conducted by the captain during the work process was conducted to the extent that the number of times was frequent and repeated during the work process, and even if the demand for the preparation of documents, etc. conducted by an acting police officer was considerably possible, it should be divided from 200 to 10 minutes to 20.

(4) On the other hand, the defendant did not prepare materials to understand the instructions in the process of performing the work instructed by the deceased at a level sufficient to show the progress of the work, and the defendant did not prepare them at a more and satisfactory level. ① on December 2004, on the ground that in the serious administrative team around December 2004, "I do not know that I do not know about the deceased," "I do not know that I do not know about how I do not know about, and I do not respond to, what I want to answer, "I do not know that I would not know that I would like to say that I would not know that I would not know about how I would like to see if I would like to correct the documents to the deceased and report it to the head of the educational service," and I would like to see how I would know that I would not know that I would not know that I would have any material omission.

③ 2004. 12.경 망인에게 주간훈련예정표를 수정하게 하면서 망인에게 시범식 자료 및 교범을 가져오라고 지시했는데, 지시 내용을 제대로 알아듣지 못한다는 이유로 “야, 이 새끼야, 너는 아직까지도 교범 제목도 모르냐, 중대장실 책장에 보면 C 때 잘 정리해 뒀는데 인수인계를 어떻게 받았길래 아직도 잘 모르고 있냐, 너 지금 내가 하는 말이 무슨 말인지 이해는 하고 있냐”, “자료를 실컷 모았으면 뭐하냐, 지가 정리해 놓고도 찾지도 못하는데, 제발 정리 좀 해라”는 취지로 질책하고,

(4) Around January 3, 2005, the deceased's failure to maintain communications with each sub-speak, on the ground that the situation was not revealed due to lack of communication with each sub-speak, the operation itself should not be ensured, and the width was able to train several times during that period, and it would be able to see whether it is a blicked network, a flick, and a flicked with each sub-speak.

6) At around January 10, 2005, around 20:45, the deceased edits the current status plate of a wooden field, and is written in the following ways: “Doing why it is unnecessary and necessary to print out the printed material, whether it remains in excess, and if it is son’s length, it is larger to extract printed material in 2005; and

6) 10 to 20 minutes are grounded on the deceased’s failure to properly correct the part of the direction to correct on the wooden ground plate outputed at around 21:00 on the same day, with the purport that “If the deceased does not correct the correction even if this son does not do so, she shall do so, she shall do so only, she shall do so, she shall do so, she shall do so, she shall do so, and if she do so, she shall she come to her woman.”

7) At around 00:50 on January 11, 2004, E’s day, who supported the deceased’s help and gambling work, continued to work without returning the deceased’s accommodation until the time, and, on the part of the deceased, the deceased was cruel by the large sound to the effect that “I see why I sing, sing, and sing about I sing, why I she would have come to know, why I sing, why you would see, when I sing, and how I sing I am well,” and “I sing the deceased’s mental pain.”

(5) Accordingly, the Deceased caused cruel acts, such as a hummatic and abusive language repeated to him in the course of performing the tasks excessively given by the Defendant, and as a result, he had a humping in the military life. Around 02:15 on January 11, 2005, upon performing the tasks ordered by a serious administrative team, the Deceased died of his own humping with the humping of the pine trees located in the said unit as movable property located in the said unit (hereinafter referred to as the “accident”).

(6) After that, the Defendant was found guilty of committing harsh acts and abuse of authority against the deceased, and was convicted of committing harsh acts, etc., and was sentenced to imprisonment for one year in June at the 200 general military court at the 20th general military court at the Army (2005 high-2). However, the Defendant was found guilty of both abuse of authority and harsh acts in the High Military Court for National Defense (2005 high-level military court). However, the sentence was suspended, but the sentence was suspended.

C. As a result of the Defendant’s action for damages that the deceased’s bereaved family members filed, the judgment of 0% on the deceased’s 20% of the total number of occasions of suicide and 0% of the deceased’s 20th day after the Defendant’s 0th day after the Defendant’s 20th day after the Defendant’s 7th day after the Defendant’s 20th day after the Defendant’s 20th day after the Defendant’s 20th day after his death, which is considerably difficult to view that the Defendant’s 0th day after the Defendant’s 5th day after his death and that the Defendant’s 1st day after his death had been on the deceased’s 0th day after his death and that the Defendant’s 5th day after his death had been on the deceased’s 1st day after his death and that the Defendant’s 5th day after his death had been on the part of the Defendant’s 5th day after 20th day after 20th day after 200s day after his death.

D. Payment of damages to the plaintiff

On August 2, 2007, the Plaintiff paid a total of KRW 100,845,610 to the bereaved family members of the Deceased.

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that since the accident of this case occurred by intention or gross negligence while performing his duties, the defendant is obligated to pay to the plaintiff 100,845,610 won and delay damages for the accident of this case to the bereaved family members of the deceased pursuant to Article 2 (2) of the State Compensation Act.

B. Determination

(1) Whether there is a proximate causal relation

According to the above facts, while the deceased was transferred from a combat soldier to an administrative soldier without an appropriate opportunity for education, and was under heavy duties on behalf of the superior without an appropriate training opportunity, and caused suicide without any mental or physical suffering from the plaintiff's unilaterally through abusive or abusive language, etc. in connection with his duties while he was under heavy duties. Unlike the general society, in a military society where strict regulation and collective action are focused on, the control and closure of the control are considerably different from that of the general society. In light of the above facts, the imposition of heavy duties and related harsh suspicions by the defendant's abuse of official authority and the causes of proximate causal relation between the defendant's above act and the accident of this case exist.

(2) According to Article 2(2) of the State Compensation Act, where the State or a local government is liable for damages caused by a public official’s intentional or gross negligence, the State or a local government may claim against the public official concerned if the illegal act was committed intentionally or by gross negligence. As seen earlier, the fact that the Defendant’s harsh act against the Deceased directly and indirectly caused the instant accident may be the basis for recognizing the existence of proximate causal relation between the Defendant’s act and the deceased’s suicide. However, the Defendant’s intentional or gross negligence cannot be acknowledged immediately. At least, even if the Defendant knew of the occurrence of the instant accident, even though he did not pay considerable attention to the degree ordinarily required, he did not engage in the act against the Deceased, or did not pay considerable attention to the degree ordinarily required. If the Defendant could have easily predicted the result of the illegal or harmful act, it can be seen that the Defendant did not know about the occurrence of the instant accident by gross negligence (see, e.g., Supreme Court Decision 2003Da6529, Feb. 29, 2003).

(B) First, as to whether the Defendant had intentionally committed the instant accident, there is insufficient evidence to acknowledge that the Defendant committed a cruel act against the Deceased, solely on the basis of the descriptions of the evidence No. 1-6 to No. 7, No. 1-6 to No. 1-2, and No. 4, as to whether the Defendant had intentionally committed the instant accident, and there is no other evidence to acknowledge it.

(C) Next, as to whether there was gross negligence on the accident of this case by the Defendant, the health team, the Defendant’s harsh act, etc. committed suicide on the grounds of secondary adaptation to the group life itself in the military team as seen earlier, and the occurrence of suicide even in the case where a subordinate in the military team makes a extreme choice of suicide. However, it cannot be readily concluded that the above general fact and the statement of evidence No. 5-1, No. 2, and evidence No. 6 can be presumed that the accident of this case occurred due to the Defendant’s harsh behavior, etc. on the sole basis of each of such general fact and evidence No. 5-1, No. 5-2, and No. 6, and there is no proof that the deceased did not specifically adapt to the military life in the military, or because of its character, it cannot be deemed that there was any apparent lack of care, and there was no evidence to prove that there was gross negligence on the accident of this case by the Defendant.

Rather, as seen earlier, the Defendant’s abuse of authority and insult against the Deceased cannot be deemed to be serious enough to cause personal injury; the Defendant’s above act did not cause injury to the Deceased; the Deceased was also at fault from the Defendant; the Deceased’s injury was caused by his mass and verbal abuse; other serious sources stated that the Deceased did not have any particular harsh conduct against the Deceased; even though the Deceased suffered mental and physical pain due to the Defendant’s harsh conduct, it was said that the Defendant could not have easily predicted that the instant accident was caused due to the Defendant’s harsh behavior, etc., in light of the Defendant’s general experience and experience in other soldiers in the same unit as well as his experience.

(3) Sub-decisions

Therefore, without any need to examine the plaintiff's claim based on the premise that the defendant had intention or negligence as to the accident of this case under the State Compensation Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and it is so decided as per Disposition.

presiding judge, presiding judge and vice-incompetent

Judge Jeong-young

Judges Choi Young-chul