The defendant's appeal is dismissed. The costs of appeal are assessed against the defendant.

1. The lower court erred by misapprehending the legal principles on the retirement age of public educational officials, thereby adversely affecting the conclusion of the judgment. In other words, the lower court determined that Plaintiff 1’s serious defect was 39,120 won per month from March 1, 1973 to May 25, 2006, while the lower court was able to obtain a net profit of KRW 39,120,00 for 398, which can be employed as a public educational official due to the instant accident, and that the Plaintiff 1 lost the expected profit for 398 months.

However, Article 52 (1) of the Public Educational Officials Act provides that the retirement age of public educational officials shall be sixty-five, and Article 52 (2) of the same Act provides that the public educational officials shall naturally retire on the date they reach the retirement age: Provided, That in the case of teachers, the school semester shall be divided into the following two semesters as follows. The first semester shall be from March 1 to August 31, 194, and the second semester shall be from May 26, 1941 to the end of February of the following year. In this case, the absence of the Plaintiff’s conviction shall be a teacher of May 26, 2006, a clerk’s retirement age shall be retired on August 31, 2006, Article 61 of the Enforcement Decree of the Education Act, and the proviso of Article 52 (2) of the Public Educational Officials Act shall be dismissed on August 31, 2006.

2. The court below erred by misunderstanding the legal principles on the calculation of lost income, which affected the conclusion of the judgment. The court below calculated the amount of damages based on the profits of the month following the retirement due to the accident. However, according to Article 10 of the Education Rules (Presidential Decree No. 6743) of the Public Officials Remuneration Regulations (Presidential Decree No. 6743), the period of service required for the promotion of a public educational official’s salary class shall be governed by attached Table 5 unless there are any special provisions. (The above provision provides that even though the period of service required for the promotion of a public educational official’s salary class is reduced above the period of service before the previous amendment, the plaintiff is claiming for the promotion of a salary class after the period of service was reduced above the period of service of the public educational official’s salary class). In general, where the income earner such as the plaintiff’s heart defect is expected to make a future promotion such as the state public official, the court below erred by misapprehending the legal principles on the calculation of actual income of the plaintiff(s salary class).

3. The court below erred in the omission of judgment. In other words, the court below claimed the amount of damages on the basis of the elevation of salary class according to the above Rules on the Remuneration of Public Officials. In this regard, the court below erred in the omission of judgment and the incomplete hearing.

First of all, the first ground for appeal is that the court below's retirement date of the plaintiff's heart defect, such as the plaintiff's theory, is not May 26, 2006 and must be August 31, 2006 under Article 61 of the Enforcement Decree of the Educational Officials Act, and it is clear that the court below made a judgment disadvantageous to the plaintiff as a result of the erroneous interpretation of the above plaintiff's retirement date of the plaintiff's heart defect, which is lower than the facts of the above plaintiff's loss amount caused by the above plaintiff's injury. Thus, the plaintiff's appeal on this point is with merit.

The Plaintiff’s grounds of appeal Nos. 2 and 3

In light of Article 33 of the Public Educational Officials Act and Article 10 of the Public Educational Officials Remuneration Regulations, the plaintiff's assertion that the plaintiff's assertion that it would naturally and absolutely be expected to raise the salary in the same manner as the attached Table would continue to exist until the late 30 years old and the late 65 years old at the time of the accident (Article 10 above) is that the period of service required to raise the salary grade of the public educational official is based on the attached Table unless there is any special provision (Article 10 above). However, even though the first instance court of this case has prided the above assertion, the court of the first instance has asserted that the defects of the plaintiff's conviction in the first instance (see Supreme Court Decision 73Da502 delivered on March 26, 74, 204), although it was obvious that the original judgment was not directly determined (it is clear that the original judgment or the second instance judgment indirectly is groundless). Thus, the plaintiff's appeal on this ground also affected the plaintiff's appeal.

The Defendant’s ground of appeal:

원심은 법리를 오해하여 피고에게 손해배상책임이 있다고 판단한 위법이 있는바, 본건 가해자는 강원도 춘천시 소재 미육군 제4유도탄기지 사령부의 정문(영문)을 수위하는 한국헌병(카츄샤)상병 소외인으로서 동 가해자의 임무는 동 사령부의 지시에 따라 정문에서 영내에 출입하는 사람을 통제하고 필요에 따라 검문하여서 동 사령부의 보안을 담당하고 위병은 본시 상부의 지시없이는 위병소나 감시초소 등에서 이탈할 수 없는 것이므로 이를 이탈한 행위는 위법이라 아니할 수 없고, 갑제7호증의 내용에 의하면 동 가해자는 사고당시 같은 조에 근무하는 미국 헌병 DESK.S.G.T.로부터 자동차 사용의 허락을 받고 본건 짚차를 춘천시내에 타고 나가다가 사고가 발생하였다고 주장하나, 설사 그것이 사실이라 하더라도 위 자동차 사용승락은 상관의 직무수행의 지시로 볼 수 없을 뿐만 아니라 미국헌병은 동료간으로서 그로부터 비공식적인 동의에 의하여 헌병대 소속이 아닌 다른 부대소속 차량을 사용하였음은 상관의 직무명령이라고 할 수 없으므로 동 가해자가 위 동의에 따라 영문안에 있는 짚차를 타고 운행타가 원고 심성흠을 치었음은 동인이 상관의 지시에 따라 임무를 수행타가 저지른 불법행위라고 인정할 수 없다. 따라서 원심이 피고에게 손해배상의 책임이 있다고 판단하였음은 법리와 판례를 위배한 위법이 있다라는데 있다.

However, since the court below recognized the fact that the non-party injured by the perpetrator of this case committed the accident during the execution of military service by lawful evidence, the part of the defendant's appeal premised on the fact that it goes against the recognition is without merit. Even if the non-party's act violates the procedure of execution of duty, if it actually committed a tort during the execution of duty, the court below held that the defendant is liable to compensate for damages. Thus, there is no ground to bring a lawsuit on this point.

Therefore, it is so decided as per Disposition by the assent of all participating judges.

Justices Lee Young-young (Presiding Justice)