The nature of the soldier's death allowance and survivor pension

In light of the special status relationship that the State is a soldier, the State has the nature of consolation money paid pursuant to the Military Aid Compensation Act or the provisions of the Military Veterans’ Death Benefits Act for the purpose of compensating for the sacrifice of the deceased and providing assistance to his bereaved family members. Therefore, the State’s compensation paid by the State pursuant to a special Act on Family Relationship cannot be deducted from the amount of damages that the Defendant shall pay to

Article 750 of the Civil Act

Plaintiff 1 and one other

Defendant corporation

Seoul Central District Court (69Da3570) in the first instance trial (Supreme Court Decision 69Da3570)

(1) The part against the plaintiffs in the lower judgment shall be revoked.

(2) The defendant shall pay to the plaintiff 1 an amount equivalent to 406,329 won, 213,164 won, and 5 percent per annum from January 18, 1969 to the full payment.

(3) The plaintiffs' remaining appeals are dismissed.

(4) The costs of lawsuit are five-minutes through the first and second trials, one of which is the plaintiffs, and the other is the defendant's burden.

(5) Of the amount not provisionally executed and the amount stated in Paragraph (1) of the original judgment and Paragraph (2) of the same Article, the Plaintiffs can be provisionally executed only by one half.

The plaintiffs' legal representative shall pay to plaintiffs 1 972,564 won, 536,282 won to plaintiffs 2, and 55% interest per annum from January 18, 1969 to the full payment.

The judgment that the costs of lawsuit shall be borne by the defendant and a provisional execution declaration are declared.

The plaintiffs' legal representative shall revoke the part against the plaintiffs in the original judgment.

The defendant shall pay to the plaintiff 1 an amount equivalent to 422,564 won, 236,282 won, and 5 percent per annum from January 18, 1969 to the full payment.

The court costs are judged to be borne by both the defendant through the first and second trials and a declaration of provisional execution.

(1) Since the part concerning the occurrence of liability for damages (except for the judgment on offsetting negligence) among the reasons presented by the present source in the instant case is identical to the entry of the reasons indicated in the original judgment, it shall be accepted in accordance with Article 390 of the Civil Procedure Act.

(2) passive damages

If Gap evidence Nos. 1 (No. 3), evidence No. 4-1, 2, 5-1, and testimony of non-party 1 of the court below without dispute over the establishment, the deceased non-party 2 was born on September 15, 194 and was in military service with a healthy male who was 24 years old at the time of the accident, and the entrance date of Dong person was on September 1, 1967. Thus, on August 31, 1970, the plaintiff 2 had an obligation to calculate the living expenses of the above 4-1, 2, 3, 4-1, 4-1, 5-2, 3, 500 won for the above time after the death of the deceased, and the defendant would have an obligation to calculate the living expenses of the plaintiff 2 of this case for less than 6-2, 300 won for the above time after the death of 5-1,500 won for the period of 9-1,000 won for the above time after the death of this case.

However, even when it is assumed that the victim non-party 2 was in charge of traffic control as a military police officer at the time of the accident in this case, the deceased argued that even if he had been in charge of traffic control, he could avoid the accident if he had been in the vicinity of the person, and that he could not avoid the accident due to negligence due to negligence due to neglect of care. However, according to the record verification conducted by the court below, according to the record verification conducted by the court below, the deceased non-party 2 was in charge of traffic control at the center of the 6-gu headquarters located in the Army headquarters located before the accident location in this case. In this case, although the non-party 3 was negligent in driving the vehicle as a driver and did not cause an accident only once again, and it is recognized that the accident occurred due to continuous operation with 35 knife due to the accident to the victim, despite being able to avoid the accident, it cannot be accepted without any defense as alleged by the defendant.

Then, the defendant asserts that the work income tax should be deducted in calculating the lost amount of income of the deceased non-party 2. However, in this case, since the daily wages earned by the above deceased who was employed in the urban daily work in the Gun shall be the expected future profit of the Dong, it is reasonable to not deduct the income tax. Thus, the above assertion is also rejected, since it is difficult for the withholding agent to withhold the income tax, it is reasonable not to deduct it from the future profit of the above non-party deceased. In addition, the defendant argued that the above claim should be deducted from the expectation of the above non-party deceased's future profit. However, the above claim is without merit since the State has the nature of consolation money paid in accordance with the Military Relief Compensation Act or the provisions on the death benefits of the deceased for the purpose of providing compensation for the sacrifice of the deceased and the bereaved family members, it is not possible to deduct the compensation paid by the State under the special law on his status from the amount of damages to the defendant of this case.

(3) Consolation money

Since the non-party 2 died due to the accident of this case, it is clear in light of the empirical rule that the plaintiffs who are his parents suffered mental suffering, the defendant is obligated to do so. Thus, if all of the circumstances revealed by the plaintiff's statement in the family register, the age and living level of the plaintiffs who can be known by the non-party 1's testimony of the court below, and all of the circumstances revealed in the arguments above, it is reasonable to pay 70,000 won to the plaintiffs as consolation money.

(4) Conclusion

Therefore, the plaintiffs' claims for this case are justified to the extent that they seek an amount equivalent to five percent per annum from January 18, 1969 to the date of occurrence of an accident of this case against plaintiffs 1, 956,329 won (including the above materials), 513,164 won (including the above materials), and 50 percent per annum from January 18, 1969 to the date of full payment. The remaining claims are dismissed. Thus, the plaintiffs 1, who are the difference between the above recognized amount and the original judgment, with the amount for 406,329 won, and 213,164 won from January 18, 1969 to the full payment of the above amount, and the part against the plaintiffs 2 is justifiable. Accordingly, the plaintiffs' appeals against the above part is revoked pursuant to Article 386 of the Civil Procedure Act, and Article 389 of the Civil Execution Act and Article 389 of the same Act shall be dismissed as to the remainder of the costs of appeal.

Judges Lee Tae-sung (Presiding Judge)