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(영문) 대법원 1980. 3. 25. 선고 80다5 판결

[손해배상][공1980.5.15.(632),12739]

Main Issues

An incomplete hearing to determine the maximum working age of a driver as 60 years;

Summary of Judgment

A driver’s testimony that a driver may work until the age of 60 does not mean the maximum working age of a general driver, but appears to mean the maximum working age in special cases. Therefore, the above testimony alone without examining whether the Plaintiff falls under the foregoing special health conditions, such as the eyesight, constitutes an incomplete hearing to determine the lost profit until the date when the Plaintiff ends 60 years of age.

[Reference Provisions]

Article 393 of the Civil Procedure Act, Article 750 of the Civil Act

Plaintiff-Appellee

Plaintiff 1 and five others

Defendant-Appellant

[Defendant-Appellee] Plaintiff 1 and 2 others

original decision

Gwangju High Court Decision 79Na131 delivered on December 14, 1979

Text

The part of the judgment of the court below against the defendant against the plaintiff 1 concerning the property damage amounting to 12,00,000 won excluding the consolation money amounting to 1,00,000 won is reversed, and this part of the case is remanded to the Gwangju High Court.

The defendant's appeal against the plaintiff 1 against the plaintiff 2, 3, 4, 5, and 6 is dismissed, and the costs of appeal against the plaintiff 1 are assessed against the defendant.

Reasons

The defendant's attorney's grounds of appeal are examined.

1. First of all, the part of the judgment of the court below concerning the calculation of the lost profit of Plaintiff 1 in the health unit, and the court below acknowledged that a physically healthy male can normally be engaged in passenger drivers until the age of 60, and based on this, calculated the lost profit of Plaintiff 1 as a driver until the end of the age of 60.

As above, it is clear in the record that the court below recognized that a physically healthy male can work as a driver until the age of 60 in the case of ordinary male is due to the testimony of the non-party to the witness of the first instance trial among the evidence in its holding.

However, according to his testimony, a driver can work until the age of 60 if he has good health such as vision. In particular, in light of the fact that he is under health conditions such as vision, this testimony seems not to speak the maximum working age of a general driver, but to speak the maximum working age in special cases.

Therefore, the court below acknowledged the maximum working age of general driving engineer as only the above testimony as up to 60 years, and without examining whether Plaintiff 1 falls under the above special health conditions, such as the vision, etc., and calculated the lost profit of Plaintiff 1 as a driving engineer until the end of 60 years of age, it should be deemed that Plaintiff 1 left the ground for illegality recognizing facts without any evidence or not. Since Plaintiff 1 was working in the former passenger company, the above Plaintiff 1 was in the former passenger company. Thus, it was found that it was necessary to have judged the instant case by examining whether or not the system on retirement age, etc. as a driving engineer in the company or similar company was established or not.

2. Next, we examine the consolation money part of the Defendant’s appeal against Plaintiffs 2, 3, 4, 5, and 6.

Considering the various circumstances as indicated in its reasoning, the lower court recognized that it is reasonable for the Defendant to pay 1,00,000 won to the Plaintiff 1, and 500,000 won to the Plaintiff 2, and 3, 4, 5, and 6 respectively, as consolation money for the Plaintiffs’ emotional distress. The lower court’s aforementioned determination appears to be justifiable in the records and cannot be said to have been erroneous.

3. Therefore, the part of the defendant's appeal against the defendant against the plaintiff 1 in the judgment of the court below, excluding the consolation money of 12,000,000 won, shall be reversed, and this part of the case shall be remanded to the court below. The consolation money part against the plaintiff 1 and the defendant's appeal against the other plaintiffs shall be dismissed, and this part of the appeal shall be decided as per Disposition by the assent of all participating judges with the assent of all participating judges.

Justices Dra-ro (Presiding Justice)