2019 Doz. 13168 Compensation, etc.

A

Attorney**

B

소송대리인 변호사 @@@

소송복대리인변호사 ###, $$$, %%%

November 27, 2019

December 18, 2019

1. The defendant shall pay to the plaintiff 114,774,848 won as well as 5% per annum from April 1, 2018 to December 18, 2019, and 12% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 1/2 of the litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph (1) may be provisionally executed.

Defendant 207,222,956 won and its judgment from April 1, 2018

Until the date of full payment, 5% per annum and 12% per annum from the following day to the date of full payment

Class D D.

1. Basic facts

A. Defendant 1 is a person operating a penta in the trade name, i.e., c 3-6 Dolla (hereinafter “the instant penta”) located at ○○ 33-6 Dolla (hereinafter “the instant penta”). The Plaintiff is a guest who, along with his family members, provided accommodation in the instant pentathy room (alphatha) from March 31, 2018 to April 1, 2018, with his family members.

나. 원고 는 2018. 4.1.6:30경 이 사건 펜션 O호실 복층에 있는 침대 매트리스 틈새로 들어간 원고 부인의 휴대폰을 꺼내기 위하여 매트리스 및 매트리스를 받치고 있던 합판 을 걷어 낸 후 그아래 설치된 목재 상판(이하 '이 사건 루바'라 한다) 위로 발 을 디뎠다 가 이 사건 루바가 붕괴되면서 약 3m 아래의 거실 바닥으로 추락하였다(이하' 이 사건 사고 ' 라 한다).

C. As a result of the instant accident, the Plaintiff entered the mouths at the lower end of the Bridges accompanied by the upper end of the Bridges, and was hospitalized in the Indones Busan Hospital from April 1, 2018 to April 9, 2018, and was hospitalized in the Indones-type department from April 9, 2019 to April 18, 2018.

[Grounds for Recognition] Facts without dispute, entry of Gap evidence Nos. 5 and 6 (if there are serial numbers, including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The parties' arguments

A. The plaintiff's assertion

Defendant was able to obtain the instant lux, which could easily collapse when protruding down from the floor surface of the instant 2th floor, and did not provide the Plaintiff with any explanation, warning, or instruction, such as matters of care to the Plaintiff. The instant accident was not caused by the Defendant’s breach of the duty of safety consideration, or was caused by the defect in the installation or preservation of the instant lux, and thus, the Defendant is obliged to compensate the Plaintiff for any property or mental damage caused by the instant accident.

B. Defendant’s assertion

The instant accident is not for pedestrian traffic, but for the purpose of laying down only part of the corner at the right side of the burgical lease, and is a space exposed only to be paid by entering the burgical lease and making up a large scale next thereto. The instant accident occurred due to an exceptional behavior that does not use a household, such as the Plaintiff’s arbitrary use of the burg lease, and large-scale burging the burging, etc., as originally intended by ordinary usage, and cannot be deemed that there is any liability due to the Defendant’s breach of duty of care or any defect in the installation or preservation of the instant pent. Even if liability for damages is recognized to the Defendant, the rate of loss of labor ability and income amount claimed by the Plaintiff was set excessively, and the Defendant’s liability should be limited to 10% if considering gross negligence, such as the above.

3. Determination

A. 1) The liability for damages arising from breach of the duty to protect under the contract is an incidental duty recognized by the principle of good faith, taking into account the characteristics of the lodging contract, and the lodging business operator is liable for nonperformance due to incomplete performance in cases where the proprietor violated the duty to protect the life and body of the customer and thereby causes losses to the guests. In such cases, the victim must assert and prove the existence of the specific duty to protect the lodging business operator, which may be assessed as default, and the causal relationship exists between the act and the consequence thereof. A lodging business operator cannot be exempted from its liability unless he/she asserts and proves that there is no negligence on his/her part, as in the case of an ordinary default (see Supreme Court Decision 200Da38718, Nov. 24, 200).

B) Each of the evidence mentioned above, Gap evidence 1, Eul evidence 1, Eul evidence 1, 4 and 5, and this court

의 현장 검증 결과 , 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정 즉, ① 이 사건 루바 는 이 사건펜션 O호실 복층 바닥 바깥으로 튀어나온 매트리스를 받치기 위하여 설치된 것으로그 하부 에 바닥 이 없음에도 견고한 지지대 없이 타카 핀으로만 고정 되어 있어 , 하중 이실릴 경우 붕괴될 위험이 있다고 쉽게 예견되는 점, ② 그렇다면 펜션 을 운영 하는 피고로서는 이 사건 루바를 좀 더 견고하게 조립 또는 지지해두거나, 또는 펜션 이용객 이이 사건 루바 상부에 놓인 나무 합판을 들어내어 이 사건 루바 를 밟는 것이 불가능 하도록 합판을 완전히고정하여 두는 등 조치를 취하여야 하고, 만일 그 와 같은 조치 를 취하지 못하였다면 펜션 이용객에게 이 사건 루바를 밟으면 안 된다는 내용 을 명시 적 으로 설명하거나 최소한 경고문 또는 안내문을 제공할 주의의무가 있는 점 , 3 그럼에도피고는 그 와 같은 주의의무를 게을리하여 이 사건 루바를 견고 하게 설치 하거나 이 사건 루바 상부 의 나무 합판을 고정해두지 않았고, 펜션 이용객 인 원고 에게 이 사건 루바의 위험성에 관한 설명을 하거나 경고문 등 을 제공하지도 않은 점 ( 피고 는 복층 객실의 경우 계단 및 난간에서의 사고가 나지 않도록 유의해달라는 주의사 항 을 부착 해 두었으므로 주의의무를 다하였다고 주장하나, 그것만으로 이 사건 루바 의 위험성 안내 에관한 주의의무를 다 하였다고 볼 수 없다), 4 이로 인하여 원고는 사고 발생 에 대한 경각심을 갖지 못한 채 이 사건 루바에 발 을 디뎠다 가 이 사건 사고가 발생 하게 된 점 ,⑤ 원고는 매트리스 틈으로 빠진 원고 아내의 휴대폰을 꺼내기 위하여 피고 에게 여러차례 연락하였으나 연락이 닿지 않아 부득이 원고 스스로 매트 리스 및 그 아래 나무합판을 들어내게 된 점 등에 비추어 보면, 피고는 펜션 이용객 인 원고 에 대한 보호 의무를 위반하였고 그로 인하여 이 사건 사고가 발생하였으므로 이 사건 사고 로 인하여원고가 입은 손해를 배상할 책임이 있다.

C) On this premise, the Defendant asserts to the effect that the circumstances that the Defendant may fall out of the scope that can normally be expected to take measures to protect the Defendant by predicting the foregoing exceptional actions by the Plaintiff. However, the Defendant’s assertion that the Defendant was not obliged to take measures to protect the Defendant, such as the instant structure’s installation/maintenance of cell phoness and cellular phones, can sufficiently be seen as outside the scope of the Defendant’s assertion on different premise, on the ground that it is difficult to view that the Defendant was not obliged to take measures to maintain the safety of the instant structure, such as the installation/maintenance of the instant structure, even if it was not obliged to take measures to maintain the safety of the instant structure, such as the installation/maintenance of the instant structure, to the extent that the Plaintiff was not obliged to take measures for the safety of the instant structure, such as the installation/maintenance of the instant structure, to the extent that the instant structure was not installed for the purpose of protecting the safety of the instant structure (see, e.g., Supreme Court Decision 2009Du8581, supra).

(b) limitation on liability;

However, it is reasonable to limit the defendant's liability to 70%, taking into account the following circumstances, i.e., ① not ordinarily exposed to the users of the instant penta, ② there is a danger of accident in the nearest location of the instant penta, especially in the margin, and ③ there is an error in the Plaintiff's arbitrary discretion without asking the Defendant about whether he or she is able to contain furnitures or installing the penta, and whether he or she is able to do so. The scope of liability for damages) daily income is the personal information of the Defendant.

○ Gender and Date of birth: Male, 80.Wols

○ The date on which an accident occurred: The age at the time of the accident: 11th of April, 2018;

○ The end date of life expectancy: November 16, 2060 (42.66 years)

The term of operation: 65 years old (20 February 20, 2045) or year (1) above is 2,898,420 won when the Plaintiff worked as a high school teacher at the time of the instant accident, and 28,923,590 won (wages up to June 2018) as earned income. According to the above 18 months, the Plaintiff asserted that there are 9 years old and 20 years old and 4 years old and 5 years old and 20 years old and 4 years old and 5 years old and 20 years old and 9 years old and 4 years old and 5 years old and 5 years old and that there are 9 years old and 20 years old and high school staff, and that there are 9 years old and high school staff and 4 years old and 5 years old and high school staff, and that there is a specific and high probability that the Plaintiff should be 9 years old and 5 years old and 5 years old, and that there is a reasonable basis for the Plaintiff’s allowance for operation.

C) Ratio of loss of labor capacity

① From April 1, 2018 to April 18, 2018: Ratio of Loss of Labor Capacity 100% (Recognition as 1/2 months for the convenience of calculation) due to being hospitalized and received treatment.

(2) From April 19, 2018 to February 20, 2045: 14% (14% of the Mabrid’s diameters and satisfaction level II-1 - (b) applicable), permanent disability (based on recognition), there is no dispute, each entry in Gap’s evidence Nos. 5 through 6, the result of the physical appraisal commission to the Busan National University Hospital, the significant facts in this court, and the purport of the entire pleadings).

Based on the facts of the above recognition of the amount of actual income of the plaintiff, it shall be calculated in accordance with the simple discount method that deducts interim interest at the rate of 5/12 per month (not including any assertion by the parties, but any statement below the cost for the convenience of calculation). (A) According to the result of the response to the physical appraisal of the head of the Indones University Busan Hospital in this Court, according to the result of the response to the physical appraisal of the head of the Indones University in the Court, the plaintiff needs to perform a sexual surgery for the chest chest of the operation due to the fluor, the right fluor, and the expected treatment cost is KRW 31,464,60, and the expected treatment cost is deemed to have been paid on the date of December 27, 2019, which is one month after the date of the closing of the argument in this case, and the present price at the time of the accident in this case is calculated as 29,04,246 won.

3) Consolation money

In light of the background and result of the instant accident, the degree of negligence of the Plaintiff and the Defendant, the Plaintiff’s age, gender, occupation, and all other circumstances shown in the argument in the instant case, it is determined to be KRW 5,00,000.

Therefore, the Plaintiff’s loss amount is KRW 109,774,848 (=156,821,212 won + KRW 127,76,966 + KRW 29,04,246 of daily actual income + KRW 70%) ¡¿ 114,74,848 (= KRW 109,74,748 + KRW 5,000,000 + KRW 00). As such, the Defendant is obligated to pay the Plaintiff the amount of damages for delay from April 1, 2018, to December 18, 2019, KRW 114,774,848, and KRW 5,000,000, the amount of damages for delay from the date of tort, to the date of full payment of the annual amount of damages for delay as stipulated in the Civil Act.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-chul

Judges Dom Line

judges are judges:

1) Recognition of 4,526,558 Won1/2 of the amount calculated on a monthly basis