CONTENTS
- 1. Lawsuit for Damages | Definition
- - Types of Damages
- - Scope of Damages
- 2. Lawsuit for Damages | Conditions for Filing
- - Method of Calculating the Amount Claimed in Damages
- 3. Lawsuit for Damages | Procedure Guide
- 4. Lawsuit for Damages | Reviewing Precedents
- 5. Lawsuit for Damages | How to Respond by Position
- 6. Damages Litigation | Key Issues and Points to Note
1. Lawsuit for Damages | Definition
A lawsuit for damages is a civil lawsuit filed to hold a party legally responsible for harm caused by another's tort or negligence and to be compensated for the resulting loss.
It is filed on the basis of the provisions on torts under Article 750 and the following articles of the Civil Act, or on the basis of nonperformance of obligation under Article 390 and the following articles, and it is one of the most frequently occurring types of civil litigation.
If an obligor fails to perform in accordance with the substance of the obligation, the obligee may claim damages. However, this shall not apply where performance has become impossible without any intent or negligence on the part of the obligor.
∙Article 750 of the Civil Act (Contents of Tort):
A person who causes harm to another by an unlawful act, whether intentional or negligent, is liable to compensate for that harm.
Types of Damages
The "harm" referred to in damages means a state in which a disadvantage has arisen because a legally protected interest has been infringed.
Harm is classified as follows.
▶Financial harm
This is harm that can be converted into monetary terms, such as a decrease in property, loss of income, or the incurring of costs.
For example, repair costs for damage to a vehicle and loss of income arising from being unable to work due to an accident fall under this category.
▶Non-financial harm
This is harm that is difficult to convert into monetary value, with mental suffering or defamation being representative examples.
In such cases, the harm can be compensated in the form of consolation money.
▶Physical harm
This refers to harm that occurs directly to a person's body, such as injury or after-effect disability.
A claim for damages is possible for items such as treatment costs, nursing costs, and loss of earning capacity.
In this way, whether the harm is to property, the body, or mental in nature, it can become the subject of a claim for damages if it is recognized as having value worthy of legal protection.
Scope of Damages
The scope of damages is limited to the "actual harm" that has actually occurred.
The basic principle is to restore the victim to the state the victim would have been in had the harm not occurred.
However, not all harm becomes the subject of compensation.
The law recognizes only harm with "proximate causation" as the subject of compensation.
That is, compensation is made only within the scope in which the wrongdoer's act is recognized as ordinarily capable of causing such harm.
In addition, where a benefit arises along with the harm, the amount of compensation is adjusted by taking this into account, which is called offsetting of profit and loss.
For example, where transportation costs or storage fees are saved because delivery of goods was not received, the saved costs are deducted from the amount of harm to that extent.
In this way, damages focus on appropriately making up for the actual harm in accordance with the principle of fairness.
2. Lawsuit for Damages | Conditions for Filing
Because a lawsuit for damages is a civil claim for damages that is separate from criminal proceedings, it can proceed independently of the outcome of the criminal case.
However, it can be recognized by the court only if it is accurately proven that the harm that occurred resulted from the other party's negligence or tort.
To file a lawsuit for damages, several conditions must be met.
1. The existence of a tort or nonperformance of obligation
The wrongdoer's act must be an unlawful act and must be the result of negligence or intent.
In the case of nonperformance of obligation, it must be proven that a contractual obligation was not performed.
2. The occurrence of harm
It must be proven that the victim's physical, mental, or financial harm actually occurred.
This can be proven through items such as a medical certificate, an itemized statement of treatment costs, a repair cost invoice, and records of reduced wages.
3. Causation
Causation must exist between the wrongdoer's act and the victim's harm.
The causation may be direct or may be proximate causation, and the court judges this objectively and reasonably.
4. Capacity for responsibility and unlawfulness
Whether the wrongdoer committed the unlawful act while possessing the capacity for responsibility is also an important factor in the judgment.
In the case of a minor or a person of weak mind, there are cases in which limited responsibility is borne.
Method of Calculating the Amount Claimed in Damages
One of the most important parts of a lawsuit for damages is claiming an appropriate amount of compensation.
The amount claimed varies depending on the type and scale of the harm, and it must be calculated by considering treatment costs, after-effects, property damage, and all other factors.
At this time, unlawful income is excluded from the subject of a lawsuit for damages.
Because the filing of a lawsuit for damages with respect to unlawful income is in principle denied, a claim for damages with respect to the proceeds of crime is not possible.
However, because the matter is judged individually after comprehensively reviewing factors such as the degree of unlawfulness and the blameworthiness, it is most accurate to obtain legal counsel regarding one's own situation.
3. Lawsuit for Damages | Procedure Guide
A lawsuit for damages begins when the victim submits a complaint to the court, and it goes through several procedures until the litigation concludes.
The procedure of a typical civil lawsuit for damages will be explained in order.
1. Submission of the complaint
The litigation begins when the plaintiff (the victim) prepares a complaint and submits it to the court with jurisdiction.
The complaint must specifically state the content of the claim and its reasons, and it is good to prepare supporting materials together.
2. Service of the complaint and submission of the defendant's answer
The court sends the received complaint to the defendant, which is called the "service of a duplicate of the complaint."
The defendant must submit an answer to the plaintiff's claim within 30 days from the date of receiving the complaint.
If the defendant does not submit an answer, or answers with content admitting the facts, the court may render a judgment immediately without separate pleadings.
3. Preparatory pleading procedure
Prior to the trial in earnest, the court operates a "preparatory pleading procedure" in order to conduct the pleadings efficiently.
At this stage, the parties organize their arguments and evidence and, where necessary, submit preparatory documents or related papers.
If the court judges it necessary, it is also possible to separately open a preparatory pleading date and have the parties appear.
Through this procedure, both sides' arguments become clear, and the issues necessary for the trial are organized.
4. Pleading date
When the preparatory pleading procedure ends, a "pleading date" is opened and the trial begins in earnest.
At this time, the parties state in court the arguments and evidence they have prepared.
The court conducts an examination of evidence immediately where necessary, and when there is nothing more to argue, it concludes the pleadings.
5. Pronouncement of judgment
When all pleadings and examination of evidence are complete, the court pronounces the judgment.
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4. Lawsuit for Damages | Reviewing Precedents
The precedents on lawsuits for damages will be reviewed.
| Case 1. A ruling that defamation damages do not arise where there is a substantial reason to believe a statement is true This case is one in which a claim for defamation damages concerning an article on a historical factual background was dismissed. Former Assemblyman S filed a lawsuit for damages against a media company and its reporters, claiming that they had published false facts about his student-movement days in the past, but a judgment for the plaintiff's loss was confirmed from the first instance through the Supreme Court. The court judged that even if some false facts were included in the article, the media company's liability for damages does not arise if the report is based on historical facts and there are circumstances giving substantial reason to believe it to be true. Issues: -Whether unlawfulness is precluded in defamatory media reporting where there is a "substantial reason to believe the statement is true" -The standard for judging the unlawfulness of an entire article when some false facts are included |
| Case 2. A case in which a claim for damages over the raising of suspicions about a public official's investigation was dismissed Assemblyman H lost on appeal in a lawsuit for damages of 100 million won that he filed against a former reporter who had raised suspicions that, during his time as a prosecutor, he had conducted the investigation of B inadequately. The first instance recognized liability for compensation of 10 million won, but the appellate court dismissed the plaintiff's claim, holding that "the raising of suspicions by the media regarding matters of public concern must be permitted, and a public official should respond with rebuttal and explanation." Issues: -The permissible scope of critical remarks regarding the investigation of a public official -The limits of a claim for damages against media criticism and concerns about its abuse |
5. Lawsuit for Damages | How to Respond by Position
How to respond to a lawsuit for damages according to each position will be reviewed.
▶How the plaintiff's side should respond
Accurate calculation and proof of the amount of harm is the key, and it is necessary to develop a strategy, with the help of a professional, so as to maximize the amount of damages.
Because proof becomes difficult if the preservation of evidence is neglected, items such as medical certificates, photographs, and witness statements must be secured from the early stage of the incident.
▶How the defendant's side should respond
A strategy proving that there was no negligence or that the harm was exaggerated is necessary.
One may assert joint tort, comparative negligence, and the like so that only partial liability is recognized.
Where the case proceeds in parallel with a criminal case, one should actively use the criminal records to develop the defense logic.
6. Damages Litigation | Key Issues and Points to Note
The following reviews key issues and points to note in conducting damages litigation.
▶Whether causation is recognized
If the court does not recognize that the accident or conduct was the cause of the loss, the claim for damages may be dismissed.
▶Accuracy in calculating the amount of damages
If an excessive amount of damages is claimed, credibility may instead decline, and a judgment reducing the amount may be rendered.
▶Restrictions on claims for unlawful income
Case law generally does not protect losses relating to unlawful income (for example, proceeds from prostitution or gambling), so such losses are excluded from the scope of a claim for damages.
▶Limitation issues
An extinctive prescription of three years from the date the injured party became aware of the loss and the perpetrator, and ten years from the date the tort occurred, applies. Whether the prescription period has lapsed should always be checked.
Damages litigation is not a simple procedure, and it requires expertise in organizing the facts, reviewing the applicable legal principles, and gathering and using evidence.
In particular, the assistance of an attorney can be advantageous in the following cases.
-Where the amount of loss is large or the case is complex
-Where there are multiple joint tortfeasors
-Damages litigation joined with a criminal case
-Litigation against a corporation
This firm has attorneys experienced in numerous damages litigation cases who collaborate with attorneys specializing in the criminal and administrative fields to develop litigation strategies according to the characteristics of each case.
In addition, when a party intends to bring damages litigation, the burden of proof rests with the party making the claim, so thorough organization of the facts, securing of evidence, and calculation of the amount of damages are necessary.
This firm collaborates with its in-house evidence investigation center to provide a one-stop legal service covering everything from gathering the evidence needed for litigation to preservative measures before suit (such as provisional attachment), mediation procedures during litigation, and post-judgment procedures such as compulsory execution.
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