(영문) 서울중앙지방법원 2019.1.25. 선고 2017나8066 판결

1) The amount of KRW 35,687,979 among Plaintiff B and KRW 13,877,895 among them shall be the amount equivalent to May 11, 2010 for KRW 539,905; KRW 21,270,179 from November 24, 2016 for KRW 21,270,179; KRW 5% per annum from September 11, 2018 to January 25, 2019; and KRW 15% per annum from the following day to the date of full payment;

2) The amount of KRW 5,00,000 and 15% per annum from May 11, 2010 to January 25, 2019 with respect to the Plaintiff A and 5% per annum from the next day to the day of full payment.

sub-payment.

B. The plaintiffs' remaining claims against the defendants are dismissed.

2. 70% of the total litigation costs are assessed against the Defendants, and the remainder is assessed against the Plaintiffs.

3. Paragraph 1(a) of this Article may be provisionally executed.

Purport of claim, purport of appeal and incidental appeal

1. Purport of claim

The Defendants jointly provided that KRW 46,459,505 and KRW 15,445,00 among the 46,45,505 and among them, KRW 15,460 from May 11, 2010; KRW 1,917,460 from November 24, 2016; KRW 29,097,045 from the date of delivery of the copy of the claim and the application for alteration of cause of this case to the date of each judgment; KRW 5% per annum from the following day to the date of full payment; KRW 5,00,000 per annum from May 11, 201 to January 11, 2017 to the date of full payment; and KRW 15% per annum from the next day to the date of full payment; the Defendants expanded the claims of this case to the Plaintiff in a court (the Plaintiff’s claim of this case to the Plaintiff).

2. Purport of appeal

The judgment of the first instance court is modified as stated in the purport of the claim (the plaintiff extended or reduced the claim in this court as above, and accordingly, extended or reduced the purport of the appeal within the scope of the appeal).

3. Purport of incidental appeal;

The part against the Defendants in the judgment of the first instance is revoked, and each of the plaintiffs' claims corresponding to the revoked part is dismissed in entirety.

Reasons

1. Facts of recognition;

A. The relationship between the parties

1) Plaintiff B (M) and Defendant D are birth-gu who were enrolled in H high schools located in Gangnam-gu Seoul Metropolitan Government G around 2010.

2) Plaintiff A is the mother of Plaintiff B, and Defendant F and E are the parents of Defendant D (parents).

3) On July 30, 2009, Defendant E entered into an insurance contract with Defendant L Co., Ltd. (the trade name before the change: C Co., Ltd.; hereinafter referred to as “Defendant Insurance Company”) and I insurance contract (hereinafter referred to as “instant insurance contract”). Among these terms and conditions, Defendant E stipulates that the relatives living together bear the legal liability for physical disability to others, and the victim may directly claim insurance proceeds from Defendant Insurance Company.

(b) Accidents;

1) On May 11, 2010, Plaintiff B and Defendant D, during the night-time self-learning between 19:30 and 20:00, the night-time hours, set aside the camping hole used by the field of the camping in H high school from around 19:30 to around 20:0.

2) During that period, Defendant D’s contribution to Plaintiff B was shocked with the inside part of the Plaintiff B, and the Plaintiff B suffered injury, such as the pellley, the left part of the snow, and cerebral tyrosis (hereinafter “instant accident”).

3) In addition, around 08:10 on June 2, 2010, Plaintiff B continuously caused liverosis and spawnosis (hereinafter referred to as “liveration”) and continued to cause liveration.

C. Results of the preceding lawsuit

1) On July 23, 2010, the Defendant insurance company filed a lawsuit against the Plaintiff B to confirm the existence of the obligation arising from the instant accident with the Seoul Central District Court (2010Gahap76165), and the said court rendered a judgment dismissing the Defendant insurance company’s claim on March 24, 201.

2) In the above lawsuit, appraiser N judged that there was no symptoms after taking drugs with respect to the liver drugs generated to Plaintiff B, and that it is necessary to conduct a continuous inspection of the psychotropic drugs and the regular brain wave for at least three years in the future.

3) Although the Defendant Insurance Company appealed in Seoul High Court (No. 2011Na32879), the said court rendered a judgment dismissing the appeal on November 16, 201, and the said judgment became final and conclusive since it was not final and conclusive (hereinafter “the first preceding judgment”).

4) On February 16, 2012, the Plaintiffs filed a lawsuit with the Seoul Central District Court (2012DaGa39019) claiming damages against the Defendants arising from the instant accident (hereinafter “instant prior judgment”).

5) In the preceding judgment of the instant case, the physical examination of the Plaintiff B was conducted, and the appraiser appraised as follows.

1. Body appraisal 1. It is hard to view that there is no further possibility that it will be treated in the future through 1,000 ambalone ambals and the left-hand ambals and ambals. 2. ambals and ambals of ambals. ambals and ambals of ambals.3. ambals of ambals and ambals of ambalscirs are being treated frequently. 4. ambalscirs and ambalscirs of ambals in other ambalscirs and ambalscherschers, and there is no possibility that it will be any further treatment for ambalscherschers in the future. ambalscherscirs and ambalscherscherschers for treatment after injury.

6) On September 27, 2012, the above court rendered a judgment of 4,42,094, which is the remainder after deducting 30% of the total amount of 5,716,368 won in the future treatment expenses for three years from September 7, 2012, from the date following the date of closing argument, from which the defendant jointly and severally paid to the plaintiff B a sum of 13,462,094 won (=60,910 won + 5,716,368 won) x 70% of the remaining amount after deducting 30% of the total amount of 5,716,368 won in the future treatment expenses for three years from September 7, 2012, the court rendered a judgment of 20,000 won in the amount of 3,20,000 won in the previous treatment expenses, 3,200,000 won in each of the above annual damages from 10,501,2000.2

D. Plaintiff B’s ground of appeal on the ground of appeal

1) Plaintiff B, before the judgment of the instant case, caused negopathy on June 2, 2010, and gymnasium and gymnasium on October 14, 201.

2) On March 20, 2015, after the judgment of the preceding case became final and conclusive, Plaintiff B continuously caused liverous symptoms, such as Napathy on July 2, 2016, light training on August 1, 2016, light training on August 22, 2016, light training on October 22, 2016, light training on December 8, 2016, and light training on January 17, 2017, which was salvaged in 119, and sent to the emergency room or hospitalized in the hospital.

3) The Plaintiff B continues to receive treatment and take care of the therapy for the treatment and prevention of liveric disease.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 27 (including branch numbers), the purport of whole pleadings

2. The assertion and judgment

A. The assertion of party history

1) The plaintiffs' assertion

Plaintiff B was injured due to the instant accident, and won part of the medical expenses and consolation money for three years in the instant judgment. However, even after three years have elapsed, Plaintiff B continued to receive additional treatment or lost labor ability due to liveration, and resulting in additional damages to the Plaintiffs. Accordingly, the Defendants, as stated in the purport of the claim, have a duty to partially claim for the five-year period from July 1, 2018, to pay the Plaintiff the amount of KRW 46,459,50 (i.e., medical expenses KRW 7,362,460 + KRW 10,000 + KRW 10,000 + KRW 29,000 + KRW 29,097,045) and damages for delay from the following day to the date of appraisal in the instant judgment (However, Plaintiff B had a duty to reduce the amount of damages for delay from the first instance judgment to the damages for delay and the damages for delay from the date of 29,296.36,296).

2) The defendants' assertion

Among the plaintiffs' claims, the consolation money portion is unlawful because it is not limited to the explicit part of the claim, and thus the res judicata effect of the preceding judgment of this case is inconsistent. In addition, the defendants are likely to fall under balutism (e.g., e., e., e., luminous e., e., luminous e., e., luminous e., g., e., e., luminous e., g., e., e., e., g., e., e., e., g., e., e.

B. Occurrence of damages liability

1) Whether it goes against res judicata

In a case where a new affirmative damage occurs after the closing of argument in a previous suit ordering compensation for affirmative damage caused by a tort, and where special circumstances exist, such as where the occurrence of the damage could not have been predicted at the time of the closing of argument in the lawsuit, and where it cannot be deemed that the part of the claim was renounced, even if the claim for such part is not reserved in the previous suit, it does not conflict with the res judicata effect of the previous suit, as it is separate from the subject matter of a lawsuit in the previous suit (see, e.g., Supreme Court Decision 2006Da

We examine the above facts in light of the above facts. On June 2, 2010 and October 14, 201, before the date of the closing of argument in the previous judgment, Plaintiff B suffered constant psychotropic training and food loss, and thereafter received continuous treatment, such as uniforms. After receiving treatment, the first prior judgment of this case did not occur until the date of closing of argument in the previous judgment. Accordingly, the appraiser of the first prior judgment of this case was able to determine the issue of whether to give treatment after three years, based on the results of follow-up examination. The appraiser of the previous judgment of this case was able to see that the first subsequent judgment of this case was no longer able to observe, and that the first prior judgment of this case was no longer able to assess the loss of labor ability, and that the second prior judgment of this case cannot be seen to have been sufficiently worked for workers in rural area/urban area if it was no longer 10 years after the date of closing of argument in the previous judgment of this case. However, even if the first prior judgment of this case had no further aggravated 10 years after the date of oral treatment.

Therefore, the plaintiffs' claims do not conflict with res judicata.

2) Liability for damages caused by a tort

According to the above facts, the accident in this case occurred due to Defendant D’s breach of the duty of care, Defendant F, Defendant F, and E’s breach of the duty of care to protect and supervise Defendant D’s parents, and thus, joint tort liability is established against the Plaintiffs. In addition, Defendant insurance companies are obliged to pay insurance proceeds from the accident in this case to the Plaintiffs in accordance with the insurance contract

C. Calculation of damages

At the partial claim of the plaintiffs, the amount of damages for five years from July 1, 2018 shall be calculated.

(i) Property losses;

(a) Medical expenses: 1,917,460 won;

According to the aforementioned evidence, the following facts are recognized from November 25, 2015 to November 23, 2016, for the future medical expenses recognized in the preceding judgment (from September 6, 2015) due to the instant accident.

A person shall be appointed.

(b) Future treatment costs: 5,539,850 won;

According to the evidence mentioned above and the purport of the court of first instance as a result of the physical examination commission of K Hospital and the entire pleadings, it is recognized that the following facts are necessary for medication of anti-competitive medication (3,000 won per day, 90,000 won per month), outpatients (300,000 won per month), cerebrsy tests, blood tests (300,000 won per year), and other emergency hospitals (300,000 won per year), which are the day following the date of the closing of argument in the court of first instance, within the scope sought by the plaintiff B, and the treatment expenses to be spent from December 15, 2018 to June 30, 2023 are to be disbursed as of the date of the accident in this case (as of May 11, 2010). If the plaintiff calculates the current price as of June 30, 2015 as of the date of the accident in this case (as of May 11, 2010).

(1) 3,216,501 won per month (=3,000 won per month x 30 days)

A person shall be appointed.

(2) Outpatient 357,389 Won (10,000 per month)

A person shall be appointed.

(iv) Emergency Aid Board 982,980 Won (one time 300,000, one year)

A person shall be appointed.

(5) Total amount: 5,539,850 won (=3,216,501 won + 357,389 won + 982,980 won + 982,980 won)

Considering all circumstances, such as the treatment process, future treatment process, frequency of symptoms (7 times from March 20, 2015 to September 18, 2018) and degree (7 times from September 2018) of Plaintiff B, which are recognized in accordance with the purport of the entire pleadings by the evidence revealed earlier, it is reasonable to deem that Plaintiff B has an obvious obstacle to the adjustment to the general social and vocational environment, and the disability rate is reasonable to set at 30%. Accordingly, the Plaintiff B’s lost profit by calculating the interim interest calculated based on the unit price of the ordinary worker’s wage for construction business from July 1, 2018 to June 30, 2023 is KRW 30,385,971 as shown in the attached Table 2.

D) Fruits offsetting

However, there are some negligence, such as gleeping, in a state where the protective equipment was not provided at night, with Plaintiff B’s negligence. Such negligence of Plaintiff B is the cause of the occurrence or expansion of damages caused by the instant accident, and thus, it shall be considered in calculating the amount of damages to be compensated by the Defendants. In addition, considering the preceding judgment and the above facts comprehensively, it is reasonable to deem that the degree of negligence is 30%, and thereby, it is limited to the remaining 70% of the amount of damages to be compensated by the Defendants.

E) Sub-determination: 25,687,979 won (i.e., 539,905 won for the king medical treatment + KRW 3,877,895 for future medical treatment + KRW 21,270,179 for lost profit)

In the case of the previous medical expenses, when a victim who received insurance benefits under the National Health Insurance Act claims for damages against a third party, when the victim's negligence competes with the occurrence of such damage, the amount of the charges paid by the National Health Insurance Corporation within the remaining amount after offsetting the victim's negligence from the total medical expenses (see, e.g., Supreme Court Decision 2002Da50149, Dec. 26, 2002). As such, the amount equivalent to the medical expenses paid by the National Health Insurance Corporation out of the remaining amount after offsetting the victim's negligence shall be deducted from the amount of the previous medical expenses that the Defendant is liable to compensate for to the Plaintiff (i.e., the total amount of KRW 4,591,849, Jan. 17, 200; KRW 2,674,389, Apr. 29, 200; KRW 3959,4979, Jul. 26, 2005).

In the future medical treatment costs, 3,877,895 won (=5,539,850 won x 70%) when the plaintiff B deducts 30% of the negligence in the future medical treatment costs recognized as above.

In the case of lost profit, 21,270,179 won (=30,385,971 won x 70%) when the Plaintiff’s negligence 30% is deducted from the lost profit recognized as above.

2) Mental damage

In light of the empirical rule, it is clear that Plaintiff B had caused serious difficulties in the general, social, and occupation, such as academic achievement, employment, friendship, etc. due to his or her liverment, as well as his or her liverment. In addition, considering the scope of the Plaintiffs’ partial claims and all the circumstances indicated in the argument in this case, it is reasonable to determine the amount of consolation money to Plaintiff B as KRW 10,000,000, and consolation money to Plaintiff A as KRW 5,000,000.

D. Determination as to the defendants' assertion

In addition to the absence of any documentary evidence against Plaintiff B, the use of a computer in a modern society is a general and inevitable act, and there is no evidence that Plaintiff B used the computer excessively beyond the ordinary degree. In light of this, the disability rate arising from the instant accident may not be mitigated, as alleged by the Defendants, solely on the ground that there exists a possibility of neutism in medical science.

E. Sub-decision

Therefore, the Defendants jointly share KRW 35,687,979 (i.e., KRW 539,905 for the amount of damages for the Plaintiff B + KRW 21,270,179 for the future medical expenses + KRW 13,877,89 for the amount of damages for delay + KRW 10,895 for the amount of damages for delay 13,87,895 (i.e., KRW 3,877,895 for future medical expenses + KRW 10,000 for consolation money + KRW 10,000 for the amount of damages for delay 10,539,905 for the amount of damages for delay 25,000 per annum from the date following the last payment date of the medical expenses to the date of 10,500 per annum for the damages for delay 25,000 per annum of the judgment below as to the existence and absence of the Defendants’ respective claims and damages for delay 15,018.

3. Conclusion

Therefore, each of the plaintiffs' claims against the defendants shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance differs in part from the above conclusion, the plaintiffs' appeal is partially accepted, and the defendants' incidental appeal is without merit. Accordingly, the judgment of the court of first instance, including the plaintiffs' reduced and expanded claims, shall be modified as the judgment of the court of first instance.