[1] The case holding that there is a proximate causal relation between the illegal stopping of towing driver and the traffic accident after the towing vehicle in the event that there is no inevitable reason to stop the vehicle at the point where the previous traffic accident occurred, by leaving the towing vehicle in the form of half of the two-lanes and the side of the road, although there is no inevitable reason to stop at the point where

[2] Whether the loss equivalent to the lost profit calculated on the basis of the wage profit to be increased in the future is ordinary loss (affirmative)

[3] Method of determining the rate of loss of labor ability in calculating lost profit

[4] Criteria for recognition of comparative negligence ratio

[1] The case holding that the driver of the towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's towing vehicle's instruction in half of the two-lanes of the side road's parking vehicle's towing vehicle's driving vehicle's driving vehicle's driving vehicle's driving vehicle's towing vehicle's warning vehicle's driving vehicle's driving vehicle's driving vehicle's driving vehicle's driving vehicle's towing vehicle's warning vehicle's driving vehicle's driving vehicle's driving vehicle's driving vehicle's towing vehicle's driver's driving vehicle's driving vehicle's towing vehicle's towing vehicle's.

[2] In principle, the lost profit of a wage income earner who has lost his/her ability to work due to a tort shall be calculated on the basis of the profit at the time of loss of his/her ability to work. However, if there are objective data which can clearly predict the increase of the profit from the future, the profit from the future shall also be considered in calculating the profit from the future. As such, the loss equivalent to the lost profit calculated on the basis of the profit from the future increase shall be considered as an ordinary loss recognized as ordinary loss in light of social concept. Thus, it shall be included in the scope of compensation as a matter of course, and the scope of compensation shall not vary depending on whether the perpetrator knew or could have known the situation that the profit from the victim would have been excessively increased.

[3] When calculating the lost profit by applying the rate of loss of labor ability, the rate of loss of labor ability shall not be merely a simple rate of physical disability but be a rate of victim's age, educational degree, nature and career of the previous occupation, degree of skill skill, degree of occupational experience, degree of physical disability, possibility of occupational expertise in similar occupation or other occupation, and its probability, and other social and economic conditions. The result of appraiser's appraisal of the rate of loss of medical physical disability, which is one of supporting materials to determine the rate of loss of labor ability, is merely a judge's use of special knowledge and experience in finding facts where special knowledge and experience are required, and ultimately, the result of appraiser's appraisal of the rate of loss of medical physical disability, which is one of the supporting materials to determine the rate of loss of labor ability, shall be determined in accordance with the above

[4] If the victim was negligent with regard to the occurrence or expansion of damage caused by a tort, such reason must be considered as a matter of course in determining the scope of the tortfeasor's compensation. When calculating the ratio of negligence between the two parties, all circumstances related to the occurrence of the accident should be sufficiently considered in light of the purpose of the system of fair burden of damages. The fact-finding or determination of the ratio of negligence should not be considerably unreasonable in light of the principle of equity even if it is the exclusive authority of fact-finding.

[1] Article 750 of the Civil Code, Article 61 of the Road Traffic Act, Article 23 of the Enforcement Rule of the Road Traffic Act / [2] Articles 393 and 763 of the Civil Code / [3] Articles 393 and 763 of the Civil Code / [4] Articles 396 and 763 of the Civil Code

[2] Supreme Court en banc Decision 88Da6761 Decided December 26, 1989 (No. 37-4, 227, 1990, 350), Supreme Court Decision 94Da2039 Decided May 24, 1994 (Gong1994Ha, 1809), Supreme Court Decision 94Da60257 Decided September 29, 1995 (Gong1995Ha, 3609) / [3] Supreme Court Decision 91Da39320 Decided May 22, 1992 (Gong1992, 1965), Supreme Court Decision 94Da53426 decided Oct. 13, 195 (Gong1995, 379Ha, 294, 297Da84979 decided Oct. 29, 209)

Plaintiff 1 and four others (Attorney Ma-ju, Counsel for the plaintiff-appellant)

Korea Fire Marine Insurance Corporation (Attorney Ansan-do et al., Counsel for defendant-appellee)

Samsung Fire and Marine Insurance Co., Ltd. (Law Firm C & C, Attorneys White-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na27424 delivered on December 26, 2002

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Judgment on the plaintiffs' grounds of appeal

A. As to the first ground for appeal

(1) According to the evidence of employment, the non-party 1 was found to have been at the time of the above 200-round 30-round 1:00-round 1:00-round 1:30-round 2:00-round 1:00-round 1:00-round 2:00-round 2:00-round 2:00-round 1:00-round 2:00-round 1:00-round 2:00-round 3:00-round 1:00-round 1:00-round 2:00-round 2:00-round 1:00-round 2:00-round 2:00-round 2:00-round 3:00-round 1:00-round 2:00-round 3:00-round 3:00-round 2:00-round 3:00-round 3:00.

(2) The above determination by the court below is without merit.

In full view of Articles 56(1) and 59 of the Road Traffic Act, a motor vehicle shall not pass along the side (Article 2 of the Regulations on the Structure and Facility Standards of the Road) unless there are special circumstances on the expressway or motorway, and it may only pass through the side (Article 2 of the Regulations on the Structure and Facility Standards of the Road) where there are other unavoidable reasons, such as breakdowns in the road on the side, and "other inevitable reasons" as referred to in Article 59 subparagraph 2 of the Road Traffic Act means an imminent reason that it cannot park or stop on the side to the extent that it is equivalent to breakdowns. Meanwhile, according to Article 61 of the Road Traffic Act, Article 23 of the Enforcement Rule of the Road Traffic Act and Article 23 of the Road Traffic Act, if the driver of the motor vehicle is unable to drive the motor vehicle on the expressway or motorway due to breakdown or other reasons, the driver of the motor vehicle shall color the road after more than 100 meters of the road on the side, and in particular, install the signal at least 50 meters after the above at night or on the road.

According to the facts acknowledged by the court below, since Kim Jong-ray had already arrived at the point where the accident occurred, it cannot be deemed that there is an inevitable reason to stop the towing vehicle at the point where the accident occurred due to prior traffic accidents caused by another towing vehicle, and thus, it cannot be said that there is an inevitable reason to stop the towing vehicle at the point where the accident occurred. Moreover, the stop point merely turns on light lights and emergency lights, and it has neglected to stop the vehicle at the point where the accident occurred, so it can be said that there is a reasonable proximate causal relation between the above stop and the road in this case, and it can be said that there was a collision between the above stop and the road.

Nevertheless, the court below's determination that there is no proximate causal relation between the illegal stopping and the first accident of Kim Jong-ray, and that the occurrence of the first accident was solely caused by Plaintiff 1's total negligence is deemed to have committed an error of misapprehending the legal principles as to proximate causal relation. Therefore, the ground of appeal pointing this out has merit.

B. Regarding ground of appeal No. 2

(1) In principle, the lost profit of a wage income earner who has lost his/her ability to work due to a tort shall be calculated on the basis of the profit at the time of the loss of his/her ability to work. However, if there are objective materials which can be predicted to a considerable degree, the profit from the future increase should also be considered in calculating the profit from the future. As such, the loss equivalent to the lost profit calculated on the basis of the profit from the future increase is considered to be an ordinary loss recognized as ordinary loss under the concept of society by the pertinent tort. Thus, the scope of compensation should be included in the scope of compensation as a matter of course, and the extent of compensation should not vary depending on whether the perpetrator knew or could have known the situation that the profit from the future increase (see Supreme Court en banc Decision 88Meu6761, Dec. 26, 1989).

(2) According to the records of this case, Hyundai Motor Co., Ltd., which the plaintiff 1 had worked at the time of the accident of this case, had negotiations with the trade union every year and applied the result of such negotiations retroactively as of April 1 of this year. The court below omitted the above retroactively applied part of the increased basic salary in determining the basic salary for calculating lost income of the plaintiff 1. The ground of appeal pointing this out is with merit.

(3) On the other hand, the court below rejected the claim that the above amount should be included in the daily income calculation because the plaintiff 1 received 10,000 won per month as an integrated allowance from April 2001, which was after the date of the accident in this case from Hyundai Automobile Co., Ltd. as an integrated allowance and 3,750 won per month under the pretext of adjustment allowances, on the ground that there is no evidence to deem that the above amount constitutes losses due to special circumstances as an allowance newly established after the date of the accident in this case, and that the defendant Samsung Fire Marine Insurance Co., Ltd. was aware or could have known of such circumstances at the time of the accident in this case. The records of this case do not have objective evidence which could have been clearly predicted that the nature of each of the above allowances and each of the above allowances should be continuously paid in the future, so the judgment of the court below is somewhat insufficient in its reasoning, but it is just, and it cannot be said that there was any error of misconceptioning the facts contrary to the rules of evidence, as alleged in the grounds for appeal.

C. Regarding ground of appeal No. 3

When calculating the lost profit through the method of applying the rate of loss of labor ability, the rate of loss of labor ability shall not be a simple rate of physical disability but be a victim’s age, educational degree, nature of the previous occupation, career, skill experience, degree of skill disorder, possibility of occupational expertise in similar occupational categories or other occupational categories, degree of physical disability and possibility of occupational expertise in similar occupational categories and other social and economic conditions, which are reasonable and objectivity based on the empirical rule. The result of appraisal by an appraiser on the rate of medical physical disability as one of assistive materials to determine the rate of loss of labor ability is merely a judge’s use of special knowledge and experience in finding facts, and ultimately, it shall be determined in light of the above victim’s legislative condition and empirical rule (see, e.g., Supreme Court Decisions 91Da39320, May 22, 1992; 2001Da8078, Sept. 4, 2002).

The court below did not adopt the result of the physical commission by the head of the Geongsung-si Hospital by applying the rate of the loss of labor ability to 30% to the plaintiff 1's abstract disability on the evaluation table of the injury of the Keongsung-si Science Council, and applied the "the person who left the posture" under the attached Table 12 subparagraph 13 of the Enforcement Decree of the State Compensation Act, and recognized the rate of the loss of labor ability as 15%. In full view of the adopted evidence by the court below, considering the results of the above physical commission as a supporting material, the above evaluation rate of labor ability recognized as above does not violate the rules of experience and logic. Thus, the above determination of the court below is just and there is no error of incomplete deliberation or violation of the rules of evidence, contrary to the allegations in the grounds of appeal. The ground of appeal on this part is not acceptable.

2. Determination on the grounds of appeal by Defendant Samsung Fire Insurance Co., Ltd.

A. As to the first ground for appeal

The court below rejected the Defendant Samsung Fire Maritime Co., Ltd.’s discharge defense based on the judgment that the Defendant Samsung Fire Maritime Co., Ltd.’s second accident occurred due to the negligence of neglecting the duty of Jeonju and not securing the safety distance in advance. Such judgment of the court below is just and it cannot be said that there were errors as alleged in the grounds of appeal. The allegation in the grounds of appeal

B. Regarding ground of appeal No. 2

If the victim was negligent with regard to the occurrence or expansion of damages caused by a tort, such reasons must be considered as a matter of course in determining the scope of compensation for damages by the perpetrator. In relation to the deduction of the ratio of negligence between the two parties, all circumstances related to the occurrence of the accident should be sufficiently taken into account in light of the purpose of the system of fair burden of damages. The fact-finding or determination of the ratio of negligence should not be considerably unreasonable in light of the principle of equity (see Supreme Court Decisions 96Da54560, Feb. 28, 1997; 99Da21264, Aug. 24, 199).

The court below held that it is reasonable to consider the amount of damages that Defendant Samsung Fire Marine Insurance Co., Ltd. should compensate for, on the ground that the plaintiff Samsung Fire Marine Insurance Co., Ltd. should take this into account in calculating the amount of damages that the plaintiff Samsung Fire Marine Co., Ltd. should compensate for, on the basis of the above facts.

However, according to the facts acknowledged by the court below, Plaintiff 1 neglected to boom the road at the time of the instant accident, and neglected to boom the road at the time of the instant accident, and found the said towing vehicle late and rapid due to the mispercing of the snow, and caused the first accident to stop on the two-lanes of the said road, causing the first accident, and interfere with the course of the vehicle between the vehicle of the driver of the vehicle of the blickwon, and the second accident was caused by the second accident. On the other hand, Plaintiff 1 caused the second two-lanes at the front of the said accident at a speed not higher than the driving speed of Plaintiff 1 without any safety signs while driving the two-lanes at a speed not higher than the driving speed of Plaintiff 1. Thus, the second accident was caused by the second accident due to the plaintiff 1's negligence, it cannot be said that there was any negligence compared to the negligence of Plaintiff 1.

Nevertheless, the court below's finding the plaintiff 1's fault ratio of the second accident as 10% and offsetting the negligence as 10% cannot be remarkably unreasonable. Thus, the ground of appeal pointing this out has merit.

C. Regarding ground of appeal No. 3

As seen above, since the first and second accidents caused by Kim Jong-man and the Klungwon are objectively deemed to have a common nature related to such acts, Kim Jong-man and the Klungwon shall be jointly and severally liable for all the damages of this case caused by the first and second accidents in relation to the plaintiffs as joint tortfeasors. In such a case, it is not necessary to separately determine the degree of injury of the second accident of the plaintiff 1 among the second injury of the plaintiff 1. Thus, the ground of appeal on this part is without merit.

3. Therefore, the plaintiffs' grounds of appeal Nos. 1 and 2 against the defendants and No. 2 are with merit, and the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)