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(영문) 대법원 1969. 2. 4. 선고 68다2178 전원합의체 판결

[손해배상등][집17(1)민,167]

Main Issues

(a)in the calculation of the lost profit to be earned by an employee, such amount of income tax, etc. to be withheld among the substantial profits shall not be included;

(b) In case where the compensation for survivors’ compensation is received under the Labor Standards Act, the remaining property inheritor shall inherit the property successor after deducting the compensation for survivors’ compensation already received from the lost profits.

Summary of Judgment

(a) In cases where bereaved family compensation is paid under this Act, the bereaved family compensation which has already been paid out of the lost profit which a person who received such bereaved family compensation is able to receive in the order of compensation for survivors, shall be deducted from the amount of compensation which has already been paid to him/her, and the successors of property shall inherit the remainder to him/her

B. Since the purpose of the damage compensation system is to fairly share the actual damage inflicted on the victim, it is sufficient to promote the progress of the victim's actual profit in calculating a part of the profit. Therefore, it should be interpreted that the amount of income tax withheld from the actual profit is not included in the amount of income tax withheld from the income tax. Moreover, in the case of a worker, the amount of income tax withheld from the income tax under the provisions of the Income Tax Act should be deemed as the economic profit that the worker actually receives from the worker's monthly income, and therefore, the court below is justified in holding that the remainder after deducting the income tax, etc. from the deceased's monthly income

[Reference Provisions]

Articles 82 and 87 of the Labor Standards Act

Plaintiff-Appellant-Appellee

Plaintiff 1 and five others (Attorneys Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Defendant-Appellant-Appellee

Korea Coal Corporation (Attorney Cho Young-chul et al., Counsel for the defendant-appellant)

original decision

Seoul High Court Decision 68Na366 delivered on October 10, 1968

Text

The part against the defendant among the original judgment and the part against the plaintiff 6 shall be reversed, and the case shall be remanded to Seoul High Court.

The plaintiffs' appeals except the plaintiffs 6 are dismissed.

The costs of appeal by the plaintiffs except the plaintiff 6 are assessed against the same plaintiffs.

Reasons

First, we examine the plaintiffs' two grounds of appeal No. 1.

In light of the records and the reasoning of the judgment below, there is no illegality in the court below's finding that the court below was able to engage in the above occupation by the age of 53 until the age of 53, the agreement pursuant to subparagraph 1 and the contents of the agreement as machinery operator of the defendant company, unless there are special circumstances. The court below's explanation as to the third ground of appeal by the defendant is correct.

We examine the second ground for appeal.

According to the records, there is no error of law in the process that the court below acknowledged that the deceased non-party 3 was engaged in a job with the testimony of the non-party 2 and consumed the amount of 4,000 won as monthly living expenses.

The ground of appeal No. 3 is examined.

The purpose of the damage compensation system is to fairly share the actual damage inflicted on the victim. Therefore, in calculating the actual profit, it is sufficient to promote the recovery of the actual profit of the victim. Thus, the actual profit should be interpreted as not including the amount of income tax withheld from the actual profit. Moreover, in the case of workers, the amount of income tax withheld from the actual profit is the economic profit that the worker actually receives from the work. Thus, the court below's decision that the amount of the worker actually receives from the net profit is just and the court below's decision that the remaining amount of the worker who deducts the income tax, etc. from the monthly income of the deceased non-party 3 is the actual profit, and this decision contrary to this purpose is to abolish the previous decision, and this conclusion cannot be viewed as the profit of the deducted income tax, etc., and it cannot be viewed as a violation of Article 33 of the Constitution of the Republic of Korea.

The ground of appeal No. 4 is examined.

According to the reasoning of the judgment below, the court below confirmed the lost profits of the deceased non-party 3 as 471,571 won and jointly inherited them, but the plaintiff 1,314 won, 2, and 3 respectively, 4,314 won, 47,157 won, respectively, and 47,157 won. Since the deceased died due to the accident of this case, the court below accepted 264,420 won from the defendant's bereaved family's compensation under the Labor Standards Act. According to the legal principles of Article 87 of the same Act, it is clear that the defendant would be exempted from liability for compensation to the same plaintiff within the extent of compensation for survivors' compensation already paid to the same plaintiff. Thus, it is reasonable that the plaintiff would have received compensation for survivors' compensation for the same reason as that of the deceased's compensation for survivors' compensation for survivors' compensation for the same reason, and that the remaining part of compensation for survivors' compensation for survivors' compensation for the same reason should not be viewed as being paid to the plaintiff's compensation for the same reason.

Next, we examine the grounds of appeal Nos. 1 and 2 by Defendant’s attorney.

According to the records and the reasoning of the lower judgment, the lower court determined that the Defendant’s repair function was defective, and the cause of the death of the deceased Nonparty 3 was the defect in the construction of the above structure, and the Defendant did not prepare any substitute facilities near the transferee base, and thus, did not err in the process of determining that the Defendant was negligent because it was unable to demand evacuation from the deceased because it was not possible to demand evacuation from the deceased. Therefore

The ground of appeal No. 3 is examined.

According to the reasoning of the judgment below, the court below held that the deceased non-party 3 was engaged in labor in the defendant mine by the age of 53 pursuant to the evidence No. 1 (collective agreement) and it is clear that the deceased, who was born on May 28, 1927, was engaged in labor for a more than 194 months. However, according to the evidence No. 1, the age of 53 is clear that the deceased was the retirement age, and therefore, he retired at the retirement age of May 28, 199, which was calculated on the basis that the deceased's age of 53 years was the retirement age of 54 years before the deceased reaches the age of 54 is justified.

The ground of appeal No. 4 is examined.

As to the plaintiffs' ground of appeal No. 4, the court below erred by misapprehending the legal principles of Articles 82 and 87 of the Labor Standards Act, and therefore, it is reasonable to discuss this point.

For the above reasons, the defendant's appeal and the appeal by the plaintiff 6 are with merit, and the remaining appeals by the plaintiffs are without merit, and it is so decided as per Disposition by the assent of all participating Justices by applying Articles 406 (1), 400, and 89 of the Civil Procedure Act.

Justices of the Supreme Court (Presiding Judge) Dok-dong (Presiding Judge) Dok Kim-dong, Kim Jong-dong, Kim Jong-dong, Kim Jong-sung, Kim Jong-won, Kim Jong-won, Lee Ho-won, Lee Ho-song, Lee Ho

심급 사건
-서울고등법원 1968.10.10.선고 68나366
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