[손해배상][공1986.4.15.(774),529]
In case where there is no proof of the income at the time of tort, whether the income earned at the previous workplace can be the basis of the lost profit
The victim's lost profit due to a tort should be calculated on the basis of the actual profit that the victim had earned at the time of the tort. However, the victim's paid monthly 265,885 won while working for the smuggling of the non-party company. In February 21, 1983, the victim had only registered the business from March 14 of the same year, and had caused the accident of March 28 of the same year while he was engaged in the retail of the fraud, and there is no evidence to recognize the income that the victim had gained by selling the fraud, and there is no reasonable reason and ground to presume that the amount of the income was paid at the time of the accident as 265,885 won.
Article 763 of the Civil Act
[Judgment of the court below]
[Defendant-Appellee] Defendant 1 and 2 others
Seoul High Court Decision 84Na2824 delivered on June 24, 1985
The part of the judgment below against the defendant as to passive damages shall be reversed, and that part of the case shall be remanded to the Seoul High Court.
The defendant's remaining appeals are dismissed.
The costs of appeal concerning the dismissal of an appeal above shall be borne by the defendant.
The grounds of appeal are examined.
1. As to the first point and second (B) points:
According to the reasoning of the judgment below, the court below found that the plaintiff, based on macroficial evidence, was injured by 265,885 won in monthly average while working for sprinklers for the non-party 2 corporation, and was paid 265,885 won monthly remuneration. The plaintiff only purchased the above workplace with the trade name of 3.14 ○○○○○○, after completing the registration of the business of the fraudulent retail business, and loaded the fraud misunderstanding to the truck, and sold it with his wife and obtained profits from the above 5th of March 28 of the same year. The plaintiff was unable to obtain 80% of the remaining 7th of the total 7th of the revenues of the above 80th of the previous 5th of the 7th of the 7th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 6th of the 7th of the 7th of the 3th of the 7th of the 19.
However, the victim's lost profits due to tort should be calculated on the basis of the actual profits that the victim had earned at the time of the accident. Since the plaintiff had been paid a monthly amount of 265,85 won at the time of the accident, there is no reasonable ground to presume the plaintiff's income at the time of the accident as 265,85 won per month, which was paid at the previous workplace. Thus, the court below should have further deliberated on the amount of the plaintiff's income derived from the above 00 billion won at the time of the accident by urging the plaintiff to prove that the plaintiff had no evidence to recognize the amount of the plaintiff's income at the time of the accident at the time of the accident, but the court below should have determined the amount of the plaintiff's daily profits based on the presumption of the above amount of remuneration received at the workplace prior to the accident at the time of the above accident, since it did not err in the misapprehension of legal principles on the calculation of lost profits or in the misapprehension of legal reasoning without evidence, which affected the plaintiff's previous auction's loss of mental capacity.
(1) The defendant is dissatisfied with the plaintiff's future medical expenses and consolation money portion, but the part of the grounds of appeal is not indicated in the grounds of appeal. Therefore, the part of the appeal shall not be dismissed.
2. Therefore, the part of the judgment of the court below against the defendant as to passive damages is reversed, and that part of the case is remanded to Seoul High Court, which is the court below, and the remaining appeal by the defendant is without merit. The costs of appeal regarding the dismissal of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jong-soo (Presiding Justice)