[손해배상(자)][공1990.10.15.(882),2012]
Whether measures are appropriate to calculate the lost profit on the basis of the rate of loss of labor ability in the operation before the operation where there is no proof of the possibility of medical treatment or defense even though the victim had not undergone the operation even though he/she had not undergone the operation (affirmative)
In a case where the plaintiff suffered from an upper part of the 4 and 5-H signboard escape certificate, etc., and suffered from the treatment, but remains after the surgery for the treatment of the above symptoms, there is no proof as to the possibility that the medical treatment can be completely cured, or whether the rate of loss of labor ability can be lowered to a certain extent, even if the medical doctor did not completely recover even if he did not complete the operation, there is no error in the misapprehension of legal principles as to calculation of the lost profit in the measures of the court below, which calculated the lost profit on the basis of the rate of loss of labor ability in the previous operation, or in the incomplete deliberation.
Articles 763 and 393 of the Civil Act, Article 261 of the Civil Procedure Act
Park-gu, et al., Counsel for the defendant-appellant-appellee
Busan Container Terminal Operation Corporation, an incorporated association, Attorney Gyeong-jin, Counsel for the defendant-appellant
Busan High Court Decision 87Na379 delivered on October 27, 1988
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The defendant's attorney's grounds of appeal are examined.
1. As to ground of appeal No. 1
According to the reasoning of the judgment below, the court below calculated the plaintiff's lost profit and consolation money based on the premise that the plaintiff Park Jong-gu suffered from a wound, such as the 4, 5th-party signboard escape certificate, etc. due to the accident of this case, and caused symptoms to be treated, but the symptoms have been fixed, but the remaining 36 percent of his work ability remains due to the 36 percent of his work ability.
However, as pointed out by the plaintiff in the lawsuit, even though the plaintiff did not receive a recommendation for the operation for the treatment of the above symptoms and did not perform the operation, the above decision of the court below that calculated the lost profit on the basis of the rate of loss of labor ability before the operation in this case where there is no proof as to the possibility that the medical treatment can be completely cured when the operation was performed, or whether the rate of loss of labor ability can be reduced to a certain extent even if the medical treatment was not completely cured, shall be acceptable, and there is no error of law in the misapprehension of legal principles as to the calculation of lost profit or in the incomplete hearing. The argument is groundless.
2. As to ground of appeal No. 2
The court below was justified in calculating the retirement allowance of Plaintiff Park Young-gu on the basis of the average wage at the time of the instant accident.
The theory of lawsuit is that retirement pay should be calculated on the basis of the average wage as of the date of retirement. Thus, it is unlawful that the court below calculated the amount of retirement allowance for the above plaintiff's actual retirement as of April 29, 1987 on the basis of the average wage as of April 29, 1987 at the time of the above accident, which was 6 months prior to the actual retirement date. However, the loss of retirement allowance for the actual retirement due to an accident, which occurred from early retirement, is equivalent to the difference between the retirement allowance that the victim would actually receive by early retirement due to the accident and the retirement allowance that the victim would actually receive by early retirement due to the accident. Therefore, in this case, the court below did not err in calculating the retirement allowance which the plaintiff Park-gu could have received by the accident in
The issue is groundless.
3. The defendant filed an appeal and appeal against the defendant as to the affirmative damage among the judgment below, but this part of the grounds of appeal is not indicated, and this part of the appeal is not dismissed.
4. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won