[손해배상(자)][공1991.7.1,(899),1604]
In calculating the lost profit of the victim who cultivated 1,500 frans, while raising 12 mil cattle and managing the stock farm, whether the average wage of the "persons engaged in agriculture and livestock industry that are not classified as a pedal" (No. 629) can be used as the data for such estimated income in the report on the survey of actual wages by occupation issued by the Ministry of Labor (negative)
In a damage compensation case due to a tort, the victim's lost profit can be calculated on the basis of the income actually earned by the victim at the time of the accident, and it may be assessed on the basis of estimated income such as the entry of the occupational wage survey report issued by the Ministry of Labor. However, according to the revised Korean Standard Occupational Classification No. 629 issued by the Ministry of Trade, Industry and Energy, the duty of "the person engaged in agriculture and livestock industry not classified monthly" in the above investigation report No. 629 is different from the duty of the victim who raises 12 head of milchine while cultivating 1,500 square meters in total, and operates the farm farm, so it is inevitable to conclude that calculating the lost profit of the victim based on the average wage is calculated on the estimation income based on the false data. In addition, since the above investigation report excludes agriculture and self-employed farmers from the industry and occupation subject to the investigation, it cannot be considered as data to calculate the negligent profit of the victim who is a self-employed farmer.
Articles 763 and 393 of the Civil Act
[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)
Kim Jin-si et al.
[Defendant-Appellant] Park Domin, Counsel for defendant-appellant
Seoul High Court Decision 90Na14852 delivered on July 5, 1990
The defendant's losing part of the original judgment against the claim for damages against lost profits shall be reversed, and the case shall be remanded to the Seoul High Court.
The defendant's remaining appeals are dismissed.
The costs of appeal for the part dismissed shall be borne by the defendant.
As to the Grounds of Appeal
1. According to the reasoning of the judgment of the court of first instance cited by the original judgment, the court of first instance acknowledged the fact that the court of first instance raised about 1,500 square meters prior to the death of the accident in this case and collected and sold milk for three months from January 1, 1989, and collected and sold milk for five months from March 3, 1989, and invested approximately KRW 50 million as capital for the above stock farm management in KRW 60,000 - the amount of capital for the above stock farm management, based on the job-based wage status survey report (Evidence 16-1, 2) issued by the Ministry of Labor in 1988, on the basis of the career number of male and livestock engaged in agriculture and livestock engaged in not being classified as 10 years prior to the death of the above deceased in this case.
In a damage compensation case due to a tort, the victim's lost profit may be calculated on the basis of the income actually earned by the victim at the time of the accident, and may be assessed on the basis of the presumption income, such as the entry of the report on the survey of actual wages by occupation above, but the court below's calculation basis cannot be said to be correct for the following reasons.
In other words, according to the revised Korean Standard Employment Classification, which is the basis for the classification of occupational categories in the above job classification report, the job contents of the "agricultural and livestock workers who are not classified on the basis of the classification number 629" in the classification number 629 are as follows: "(1) the installation and management of a punishment pool, the collection or leakage of alteration, and other insect and spawn breeding and breeding of insects and spawn. (2) The tree coats shall be cut up and extracted. (3) The above deceased's work contents are sold in farmland. (4) The court below's calculation of the lost profit of the above deceased based on the average wage cannot be concluded as the calculation of estimated income based on the wrong data, because it cannot be concluded that the above job-based wage status survey report cannot be calculated as the data for non-party 2, the deceased's self-employed farmer, except for the agricultural industry and the farmer. (3) The above job-based wage survey report can not be calculated as the data for the survey and industry.
Therefore, since the original judgment contains an error of law by misunderstanding the legal principles on calculation of lost profit or by misunderstanding the value judgment of evidence, which affected the conclusion of the judgment, the issue of this point is with merit.
2. Meanwhile, since the defendant did not assert any ground of appeal as to this part of the judgment against the defendant regarding affirmative damage and consolation money among the original judgment, it cannot be deemed that there was a submission of the appellate brief.
3. Therefore, the part against the defendant regarding the claim for damages from lost profits in the original judgment shall be reversed, and remanded to the court below for further proceedings consistent with this Opinion. The defendant's remaining appeal shall be dismissed and it is so decided as per Disposition by the assent of all participating Justices
Justices Yoon Young-young (Presiding Justice)