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(영문) 대법원 1985. 8. 20. 선고 84다카928 판결

[손해배상][집33(2)민,167;공1985.10.1.(761)1241]

Main Issues

Damages arising out of the opening costs

Summary of Judgment

If there is a need to obtain the assistance of a nursing due to the freedom of the body, the opening person shall continue to require one year and 365 days in light of the empirical rule, barring any special circumstance. Therefore, it is reasonable to calculate the opening cost based on the amount of wages equivalent to the number of days before the period during which the opening is required.

[Reference Provisions]

Article 763 of the Civil Act

Plaintiff-Appellant

[Defendant-Appellee] Plaintiff 1 et al.

Defendant-Appellee

Treatment of Stock Companies

Judgment of the lower court

Seoul High Court Decision 83Na1548 delivered on March 14, 1984

Text

The part of the judgment of the court below against the plaintiff regarding property damage (gold 20,000,000) shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The plaintiff's remaining appeals are dismissed.

The costs of appeal against the dismissal of an appeal shall be borne by the plaintiff.

Reasons

The grounds of appeal by the Plaintiff’s attorney are examined.

1. As to comparative negligence:

According to the facts established by the court below, we affirm the decision of the court below that the plaintiff's negligence ratio as the injured party corresponds to 50%, and there is no error of law by misunderstanding the legal principles of comparative negligence, and even after examining the evidence cooking process which has undergone the confirmation of the above facts by the records, there is no error of law of incomplete deliberation

2. As to the operating age of overseas employees:

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the plaintiff engaged in an overseas construction site as a molding hole until the end of 45 years of age, and at least he had been able to obtain profits from the average wage at the time of the accident, and that all of the accidents in this case occurred. According to the records, the court below's above measures are just and acceptable, and even if the contract renewal age for a technician with experience in overseas employment as a technician is up to 45 years of age, it is possible for him to be employed overseas until 45 years of age, and this does not mean that the plaintiff would continue to work overseas construction site until 45 years of age. Thus, in calculating the plaintiff's passive damages, the court below is justified in calculating the plaintiff's passive damages, and it is not reasonable that the court below made the basis of the domestic moldal wage from the expiration date of the contract between the defendant to the expiration of 5 years of age

3. As to the assessment of damages:

According to the court below's decision, the court below acknowledged the fact that the plaintiff's claim for damages on the plaintiff's property is not possible to freely move freely due to the aftermath of the injury suffered by the accident in this case, and after the conclusion of pleadings in the court below, the plaintiff's damage assessment amount due to the opening costs shall be calculated based on the amount equivalent to 4,000,000 won per day of female city wage of 1,000 won, which is 25,000 won near at the end of June 1983.

However, if there is a need to receive assistance from a guardian due to the freedom of the body like the plaintiff in this case, it is clear in light of the empirical rule that the guardian needs continuous assistance on 365 days a year and 365 days, barring any special circumstances. Thus, it is reasonable to compute the opening cost based on the amount of wages equivalent to the number of days prior to the period required for opening, and the judgment below, which is calculated based on the daily wage of 25 days a month for the plaintiff's opening costs without any special circumstance, without supporting any evidence, has committed an unlawful act of misunderstanding the legal principles for the operating period of the opening, unless it is recognized without evidence or it does not meet the reasons for the judgment, and the court below, based on the judgment below, recognized that the medical treatment costs incurred by the plaintiff in this case and subsequent emergency treatment damages for the future 11,308,140 won as well as the total amount of damages for the plaintiff's property after the closing of argument, and therefore, it is clear that the court below erred in calculating the total amount of damages for the plaintiff's property.

4. As to consolation money:

Considering the various circumstances as stated in its reasoning, the lower court recognized that it is reasonable for the Defendant to pay KRW 1,00,000 to the Plaintiff as consolation money for the Plaintiff’s mental suffering. The lower court’s above determination appears to be justifiable on the record, and therefore, the argument is groundless.

5. Therefore, the part against the plaintiff as to the part of the judgment of the court below against the property damage shall not be reversed without the necessity of judgment as to the remaining grounds of appeal. Since the plaintiff is dissatisfied with the part against the above 20,000,000 won among the part against which the plaintiff lost, it shall be reversed and remanded to the Seoul High Court which is the court below, and the remaining appeal of the plaintiff shall be dismissed. The costs of appeal as to the dismissal of the appeal shall be assessed against the plaintiff at the

Justices Lee Jong-soo (Presiding Justice)