Plaintiff 1 and three others (Law Firm Cheong, Attorneys Lee Han-soo et al., Counsel for the plaintiff-appellant)

Korea

July 17, 2015

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay 114,736,31 won, 3, and 4 respectively to plaintiffs 1 and 2 with 5% interest per annum from May 15, 2013 to the service date of a duplicate of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. Status of the plaintiffs

1) On July 2, 2012, the deceased non-party 1 (date of birth omitted; hereinafter referred to as “the deceased”) was admitted to the Marine Noncommissioned Officer of the Navy while attending △△△ University, and received education on July 2, 2012 after being admitted to the Basic Military Education Group, and was assigned to the Educational Institute’s Information and Communications School on September 1, 2012, and received follow-up education on exploration at the Educational Institute’s Information and Communications School. From January 7, 2013, the deceased non-party 1 (the date of birth omitted; hereinafter referred to as “the deceased”) was assigned as a music non-commissioned Officer from January 7, 2013.

2) Plaintiff 1 is the father of the deceased, Plaintiff 2 is the mother of the deceased, Plaintiff 3 is the son of the deceased, and Plaintiff 4 is the deceased’s punishment.

(b) A suicide accident of the deceased;

On May 14, 2013, during the instant service, the Deceased died of 9 combined professional wood in the sn beamline installed in the lower part of the underwater information search equipment room on May 14, 2013 (hereinafter “instant accident”).

[Reasons for Recognition] Facts without dispute, entry of Gap evidence Nos. 1, 2, 3, 18 (including branch numbers) and the purport of the whole pleadings

2. Summary of the plaintiffs' assertion

A. The following negligence is attributable to the executive officers and commander belonging to the defendant (hereinafter “affiliated employees”)

1) In the human nature test conducted on September 6, 2012 on the day following the date of transferring the post-education, the deceased neglected the protection and management of the deceased, such as conducting formal interviews and failing to report to his/her superior officer who is in charge of the deceased, inasmuch as the suicide was classified as a class A protective police officer and received systematic protection and management, such as predicting the possibility of side adaptation or accidents in military life and suggesting difficulties in personal relations.

2) According to the provisions of the box belonging to the instant case, the deceased was subject to education by a counselor specialized in military life after being placed in person, but the attached box of the instant case neglected to take necessary measures, protection, and management for incidental adaptation, including the education of the deceased, who was transferred to the military.

3) After the transfer of the deceased to the instant department, the deceased was exposed to the situation where a noncommissioned officer would be subject to serious psychological burden, such as the evaluation of noncommissioned capacity and the police conference for exploration, and accordingly, the deceased showed signs of suicide, such as smoking, request for transfer to a diving sub-commissioned officer, and personal rescue, but the relevant personnel neglected to protect and manage the deceased in order to prevent suicide.

B. The deceased was killed due to his negligence in the accident of this case, and it is reasonable to 30% of the deceased’s negligence in the accident of this case. As such, the defendant should pay consolation money to the plaintiff 1, the parent of the deceased, and the plaintiff 2, the plaintiff 1,736,31, the sum of consolation money, and the sum of consolation money to the plaintiff 3, the deceased, and the deceased 4, who are the arbitrae of the deceased, for damages caused by the tort.

3. Determination as to the cause of action

(a) Facts of recognition;

1) The deceased’s pre-entry environment

A) After graduating from high school, the Deceased was able to support noncommissioned Officers in the department of △△ University’s moleculary Organisms and entered the school. There was no special problem in school life before entering the school, and there was no risk of having been treated with mental illness, such as depression.

B) The deceased’s parent was divorced during his high school, and the father at the time of his entry was in the backside of the Do governor’s prison.

2) Inspection of the deceased’s personality as an educator and interview

A) During the period from September 5, 2012 to December 3, 2012, the Deceased was determined as “diversary, interest (the possibility of side adaptation or accident in the previous military life is predicted, but there is a high possibility of overcoming it through active interest or assistance), and suicide prediction” in the personality test conducted on September 6, 2012.

B) In the above prosecutor’s decision, the deceased was judged to be “satisfying” and “satisfying or being pointed out from his superior or motive due to lack of basic ability,” but all of the other parts were determined to be “high”, and there was a conflict in family relations among “special scale,” and a conflict in personal relations, but there was no specific interview, but to be judged as to the degree of suicide, suicide, and suicide.

C) On September 6, 2012, Nonparty 2, a manager of the education center of the deceased, recorded the interview with Nonparty 2, a manager of the education center of the deceased, on the basis of the result of the above personality test, stating that “A family and personal relationship was at issue at the time of the human nature test, but the motive and living conditions were not significantly abnormal and that the interview would always maintain the brightness at the time of the interview, and that he would make every effort to the student’s living or practical life in the future, but did not hand over the results and interview records to Nonparty 3, a teacher of the education center of the deceased.”

D) On September 13, 2012, Nonparty 3 held an interview with the Deceased on September 13, 2012, and recorded the contents of the interview with Nonparty 3 to the effect that “A student who is actively attending his/her studies, but does not have good academic achievement. However, there is no family and his/her own health or that he/she has endeavored to do so. It is not any matter to be considered at present, and there is no special circumstance, and recorded an interview with Nonparty 3 to the effect that he/she is not a family and his/her own health.” After an interview with the Deceased on November 5, 2012, Nonparty 3 recorded the content of the interview with Nonparty 3 to the effect that he/she is “after an interview with the Deceased

E) At the time, a member of the deceased was classified and managed as Class B (A) (a person who may somewhat interfere with the performance of his/her duties as a personal concern, but is not likely to cause an accident), and changed to Grade C (A) around November 2012.

3) The test of human nature and interview after the transfer of the Deceased

A) After the transfer of the case to which the deceased belonged, the deceased was judged as “n’try (presumed to adapt well to the military life)” in the human nature test conducted on January 22, 2013.

B) After the transfer of the affiliation of the instant case, the interview with the Deceased was conducted on January 25, 2013, February 24, 2013, March 19, and April 30, 201, and the interview recorded a record of interview to the effect that “the deceased adapts to the work of the unit, and there is no special reason.”

C) Considering that the deceased is a new person transferred to Grade B, the title of the instant case was classified and managed as Grade B, and the deceased was judged to have no abnormal results from the stress and depression diagnosis conducted on March 28, 2013, and the deceased changed the deceased’s personal class to Grade C around April 2013, taking into account that there was no other extraordinary and abnormal resistance.

D) On the other hand, the established rules to ascertain the personal affairs of the fleet belonging to this case (Article 428 of the 2nd established rules) stipulate that "the first person to ascertain the personal affairs of the soldiers at the time of transfer shall refer to the records of interview and transfer, and the person to be classified at Class A and B shall report to the person in charge of ascertaining the personal affairs at the time of transfer. The person to be classified at Class A and B must always be in charge of ascertaining the personal affairs at the time of transfer, and the person to be in charge of ascertaining the personal affairs at the time of the first class and B shall confirm and report whether the persons classified at Class A and B were classified at the time of the first class, and the person to be in charge of ascertaining the personal affairs at the time of transfer at the time of the first class and to report to the deputy commander or commander at the time of the occurrence of special matters." Accordingly, the person to be employed at the time of transfer was conducting the safety education, the suicide prevention education, the executive officers at the time of transfer, and the counselor of military life examination and counselor.

Therefore, at the time of the transfer to which the instant case belongs, the deceased received education from a person who was transferred to the military, including the psychological inspection by a counselor specializing in military life. However, due to the “education prior to the assignment of a food search and operation (from December 4, 2012 to January 4, 2013)” conducted by an educational officer, the deceased was affiliated with the instant case during which he was under long-term repair in the ▽▽△△△△, and was unable to receive a separate education for the transferred person.

4) The status of the deceased’s affiliation in the instant case

A) The affiliation of the instant case is conducting the two-time evaluation of noncommissioned Officers capacity during one year, the two-time evaluation of climatic skills, and the two-time evaluation of the capacity to perform the integrated locked.

① After transferring to the instant case, the Deceased had a noncommissioned officer capacity assessment twice on March 2013 and around April 2013, and had a record of more than 100 points in the first examination and more than 90 points in the second examination.

② 망인은 부사관 능력평가 후 2013. 5. 24.로 예정된 음탐사 기량 경연대회를 준비하고 있었는데, 그 과정에서 이 사건 사고 전날인 2013. 5. 13. 실시한 모의평가에서 60점의 성적을 거두었다. 위 모의평가에 응시한 이 사건 소속함 장병은 망인을 포함한 3인이었는데, 망인 외 하사 소외 4는 84점, 망인의 후임인 하사 소외 5는 91점의 성적을 거두었다. 모의평가 실시 후 채점 결과가 바로 공개되었고, 당시 음탐장 상사 소외 6은 망인과 하사 소외 4에게 ‘점수가 왜 이렇게 낮냐. 내일도 점수가 이러면 안 된다. ◎하사는 비슷하게라도 다 적었는데 빈칸이 많다’는 취지의 질책을 하였다.

③ Captain Nonparty 7, the division commander of the box belonging to the instant case, established a plan to prepare for the competition of climatic skills, and conducted self-learning at first stage by no later than May 16, 2013, and conducted two self-evaluation during the second stage from May 17, 2013 to May 21, 2013, and the person who failed to conduct such self-evaluation at night by no later than 21:0 to 23:0 on May 23, 2013; and the person who failed to conduct such self-evaluation at night by no later than two times until May 23, 2013; however, the person who failed to conduct such self-evaluation at the third stage shall be restricted to leave on the same day; but thereafter, the examination conducted on May 13, 2013 and 80 points were adjusted.

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B) On April 8, 2013, the Deceased supported the non-commissioned Officer on a diving boat, and on June 3, 2013, the Deceased was expected to receive education from the steering staff. Nonparty 8 asked the Deceased questions about the motive for diving support, and the Deceased responded to the purport that “I would not be able to unlocked if I want to unlocked,” and that “I would have supported the Deceased because I want to unlocked.”

C) The Deceased, who was a non-smoking, started smoking from March 2013.

D) On May 8, 2013, the Deceased considered Nonparty 9, who was appointed as the chief executive officer on May 1, 2013, that “I would incur a new arbitr because I would not cause it.” As the Deceased’s arbitr took the arbitrization of the deceased’s death age.

E) In the instant case, there was no bullying, safry, and cruel act against the Deceased.

5) The content of the statement made by the deceased on the deceased in the course of the investigation after the instant accident

The noncommissioned Officers of the Deceased made a statement to the following purport concerning the life, condition, etc. of the Deceased before the instant accident occurred.

A) Nonparty 10: The deceased was of a usual character, but his personal relationship was only fluored, and did not receive learning from his appointment. The principal frequently divided his usual dialogue with the motive of the deceased. Even if he talked about the selection and appointment, the deceased did not have such talked, and the deceased did not feel that it was difficult for him to do so due to vessel adaptation or job-level work. On the day of the instant accident, he was divided into the deceased, restaurant, and toilet on the day of the instant accident, but did not view that he did not act differently from his usual.

B) Non-party 4: The deceased did not have any satise or path from the deceased due to a somewhat resistant nature, but did not seem to have been the same as that of the deceased. The deceased participated in the self-evaluation in preparation for a competition with the deceased, but did not have a significant burden on the deceased. The deceased was aware that he had achieved excellent results in the previous two noncommissioned Officers capacity evaluation, and was conducted on May 13, 2013.

C) The Deceased, Nonparty 11, who was a passive letter, was the deceased, but had not been verbally, was able to adapt to the incidental life, such as the increase in the horse water after the lapse of time after the transfer, and the scambling. After the self-evaluation conducted on May 13, 2013, the Deceased did not seem to have a big different attitude from that of the deceased even after the scambling.

D) Nonparty 12: The Deceased, who was a usual resistant figure and was influence, showed that the time after the transfer was well melted into the incidental life. The day of the instant accident, however, did not seem to have a unique behavior on the day of the instant accident, and rather, had shown a somewhat more clearly expressed form than that of the usual.

6) Details of the psychological autopsy on the Deceased

망인의 일기를 포함한 기록들, 이 사건 재판기록, 망인 주변인에 대한 인터뷰 등을 토대로 망인에 대한 심리부검을 실시한 국립◁◁병원 원장인 감정인 △△△은 이 사건 사고의 원인에 관하여 다음과 같이 조사하였다.

(1) Before transferring to the affiliation of the instant case, the deceased was unable to find high risk factors of suicide.

② After the Deceased’s transfer of work in the instant case, it is repeated to suppress internal stress due to work, which gradually lower self-esteem, and it seems that there was no way to resolve this, and that it would have been done with depression through adaptation disorder.

③ The Deceased appears to have been unable to request assistance from the surrounding areas because he had prevented his own emotional distress, and had maintained an intentional attitude up to the time immediately before the Deceased’s death. Accordingly, it appears that the Deceased could not feel an emotional distress, such as depression and apprehension, and a crime, even around the Deceased’s surroundings.

④ Although each stress situation given to the Deceased did not seem to be extremely remote, it is presumed that the continuous occurrence of such stress situation would have resulted in extreme extreme stress against the Deceased.

⑤ Since it is presumed that there was the above adaptation problems and depression before the deceased’s death, it was necessary to control stress or isolation through early evaluation after entering a hospital, and early treatment seems to have been necessary.

[Reasons for Recognition] Each of the above evidence, Gap evidence Nos. 7 through 23, 25, Eul evidence Nos. 1 through 15, the appraisal result by appraiser △△△△, the purport of the whole pleadings

B. Determination as to whether there was a cause attributable to the party involved in the instant accident

1) Unlike the general society, since the physical and mental suffering of an individual who suffers from strict discipline and collective action is considerably different from that of the general society due to the characteristics of the Gun Ambassador’s meeting where a person is exposed to heavy discipline and collective action, the relevant soldier has a duty to pay sufficient consideration to ensure that he/she can return to the society in a healthy state by maintaining and preserving physical and mental health during his/her service period. Therefore, in order to verify whether the relevant soldier is likely to commit suicide, sufficient interviews and inspections should be conducted in advance to check whether the disease is likely to commit suicide, and measures necessary to prevent suicide, such as appropriate treatment, adjustment of duties, etc., should be taken. If the relevant soldier neglected to take such measures, he/she may be deemed to have violated the duty to protect and take care for the health of soldiers

The Constitution of the Republic of Korea has dignity and value as human beings and has the right to pursue happiness, and the State has the duty to confirm and guarantee the fundamental human rights of an individual (Article 10). All citizens are obligated to serve in national defense as prescribed by the Act (Article 39(1) of the Constitution). All citizens of the Republic of Korea shall faithfully perform their duty of military service as prescribed by the Constitution and this Act (Article 3(1) of the Military Service Act). In addition, according to the Military Service Rule (amended by Presidential Decree No. 25673, Oct. 28, 2014) (amended by Presidential Decree No. 25673, Oct. 28, 2014), soldiers are equal in terms of ① the purpose of pursuing the scope or contents of their duties according to their positions and positions, and thus, they shall not perform their duties closely with each other (Article 7(2)), ② the act of respecting and impairing the honor of other persons (Article 9(2)); ③ In any case, Article 35(1)5(2) of the former Act shall not be made his superior.

Therefore, the State creates a sound military service environment in order to prevent the injury to the lives and bodies of military personnel due to harsh treatment by superior officers or fellow soldiers or other personal sanctions and unfair treatment, and the commander and superior officers are obliged to actively take necessary measures to identify and resolve the grievances of a subordinate, who are in a state of significant inconvenience or disadvantage due to surrounding circumstances, or who are in a situation where it is difficult to perform their duties due to illness or other personal reasons, and the duty of the State exists even in cases where the relevant citizen is a soldier in the same occupation as the deceased.

Furthermore, in order to recognize the State liability due to the omission by a public official, as in the case of recognizing the State liability due to a public official’s act, the requirements of Article 2(1) of the State Compensation Act, which provides that “if a public official causes damage to another person by intention or negligence because he/she was in charge of performing his/her duties, and intentionally or negligently, he/she shall meet the requirements of Article 2(1) of the State Compensation Act.” Here, “the negligence in the performance of duties by a public official” means that a public official neglects his/her duty of due care to be performed by the average person in charge of the relevant

2) In light of the above legal principles, in light of the following circumstances, it is difficult to readily conclude that an affiliated party was negligent in neglecting his/her ordinary duty of care required in the course of performing his/her duties on the sole basis that he/she did not take any more detailed measures, such as designating the deceased as a class-A-related soldier or having a counselor or a professional counsel with respect to military life after the Deceased’s training course or the transfer to the position of the instant case, etc., and it is difficult to conclude that the affiliated party could have predicted the special circumstances that the deceased could commit suicide. Accordingly, the aforementioned assertion by the Plaintiffs on a different premise is without merit.

A) In a personal examination conducted on September 6, 2012, the deceased conducted an interview with the deceased on the basis of “daptation, interest, and suicide prediction,” and the non-party 2, who conducted a personal examination. In this case, the deceased confirmed that “I can think of suicide at the time of an difficult situation, but the deceased did not think of suicide at present at present.” Based on this, the non-party 2 classified the deceased as a class B soldier. Although the non-party 2 did not hand over the records and interview records of the deceased’s personality examination to the non-party 3, who was an education officer of the deceased, the non-party 3 did not appear to have any special reason for the deceased’s suicide or to have no reason for the transfer of the records of the deceased’s suicide to the non-party 2, who was the education officer of the deceased, in light of the fact that the non-party 2 had no reason to view that there was no special reason for the deceased’s suicide or that there was no other reason for the deceased’s training before the death.

B) After the deceased transferred to the military life of this case, he did not immediately receive education for a person transferred to the military, including the psychological examination by a professional counselor for military life. However, on January 25, 2013 after the time of the transfer of the deceased, a regular interview took place at once a month according to the provisions of the box belonging to the deceased before the accident of this case, including the interview done by his superior, and the interview took place on January 25, 2013 after the transfer of the deceased. In a series of interviews, the deceased did not particularly discuss his own concern or psychological conflicts, and the psychological examination and counseling conducted in the education of the transferred person could not be deemed to have discovered the problems or depression of the deceased through the external expression of conflicts. In light of the above, it is difficult to view that the transferred person failed to provide education to the deceased, and therefore, the accident of this case was caused directly by such negligence.

C) The Deceased appears to have shown the ability to perform the deceased’s remaining boomed work, Nonparty 5, who was in her own aftermath, and had low sexual stress on the result of the mother’s evaluation before the climatic conference, and had been suffering from serious stress. However, the Deceased had achieved excellent grades in the evaluation of the capacity of the front noncommissioned Officers before the instant accident, and did not undergo any brupt or brut that the deceased lacks work ability from the superior officers of the instant case before the instant accident. In light of the letter of sending the deceased to the Plaintiff 4, it is difficult to view that the deceased expressed an externally higher burden than the normal burden of the deceased even in the light of the content of the letter of sending the deceased to the Plaintiff 4. In addition, even though the internal mother evaluation process of the instant case, which carried out the climatic body and carried out the climatic body, it is difficult to view the deceased’s active stress to the deceased, which was conducted periodically in the climatic group, and it is difficult to view the deceased’s subjective stress or to have been urged.

D) Although the deceased, who was a non-smoking, started smoking after the transfer of the deceased belonging to the instant case, she supported the non-commissioned officer for diving, and her gymnasium, etc., it can be deemed that the deceased expressed externally the internal pain caused by stress that the deceased was inflicted on his living in the instant case. However, it is not possible for the relevant persons to anticipate that the deceased would immediately commit suicide on the sole basis of the aforementioned signs, and as seen earlier, it is difficult to view that there was a possibility for the relevant persons of the instant accident, in light of the fact that the deceased could not feel the depression or emotional harm related to the deceased’s depression or suicide during his own suppression of his own emotions until the date of the instant accident. In light of the foregoing, it is difficult to deem that there was a possibility for the relevant persons of the accident of this case.

4. Conclusion

Therefore, all of the plaintiffs' claims against the defendant are dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Sung-soo (Presiding Judge) (Presiding Justice)