부양의무불이행으로 발생한 정신적 손해

Mental damages that have arisen through non-performance of ‘Obligation to Support’ ― Supreme Court Decision 81Meu78 Delivered on September 13, 1983 ―

Supreme Court maintained a stance that mental suffering is generally deemed as compensable for damages for the loss of property where a person’s property right is invaded by a tort or non-performance of obligation. Thus, where mental suffering occurs, which cannot be compensated by recovery of property losses, the situation must be a special circumstance and the injured could claim consolation money for such losses only if the offender knew or would have known of such special circumstances(Supreme Court Decision 96Da31574 delivered on Nov, 26, 1996, etc.). That is to say, Supreme Court regards mental suffering through person’s property right invaded by a tort as damages that have arisen through special circumstances. According to Civil law article 393 (2), the injured could claim consolation money for such losses only if only if the offender had foreseen or could have foreseen such circumstances. As a matter of law, in Supreme Court Decision 81Meu78 Delivered on September 13, 1983, plaintiffs must show such special circumstances that the defendant knew or would have known in order for plaintiffs to be awarded with consolation money for the mental harm suffered by father due to non-performance of affiliation of this case. But, I do not think Supreme Court’s statement stacks up at all in that non-performance of affiliation is different from general non-performance of obligation. In other words, invasion of affiliation can be infringement of property rights but the violation of children’s human rights. Therefore, mental suffering in this case is not deemed as compensable for damages for the loss of property where a person’s property right is invaded by a tort or non-performance of obligation. And because mental harm suffered by father due to non-performance of affiliation is not damages that have arisen through special circumstances[article 393 (2)] but ordinary damages[article 393 (1)], the court should have awarded damages for children’s mental harm under the rationale set out in the above regardless of foreseeability of special circumstances. Furthermore, even if it is damages that have arisen through special circumstances, I think that the defendant(father) had foreseen or could have foreseen such circumstances.