(영문) 대법원 2018.3.15.선고 2017다223 판결

The part of the judgment of the court below against the defendant concerning the king medical expenses shall be reversed, and this part of the case shall be remanded to the Panel Division of the Cheongju District Court. The remaining appeal shall be dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal No. 1, where the victim was negligent in the occurrence or expansion of damages in a tort compensation case, it should be taken into account as a matter of course in determining the scope of liability for damages. However, the fact-finding or determination of the ratio of comparative negligence constitutes the exclusive authority of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 2002Da43165, Nov. 26, 200

Examining the above legal principles in light of the records, the fact-finding or its determination by the court below which determined the plaintiff's negligence as 15% in consideration of the circumstances as stated in its holding is within the acceptable scope and it is not considerably unreasonable in light of the principle of equity. Thus, the court below did not err by failing to exhaust all necessary deliberations or by misapprehending the legal principles on comparative negligence and limitation of liability, as otherwise

2. As to the ground of appeal No. 2, this part of the ground of appeal is merely disputing the selection of evidence and the legitimacy of finding facts belonging to the lower court’s exclusive jurisdiction, which is a fact-finding court, and cannot be deemed a legitimate ground of appeal. Furthermore, even if external stress disorder is deemed as having a causal relation with the instant accident, the lower court did not exhaust all necessary deliberations and did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the method of

3. Regarding ground of appeal No. 3

A. Part of the expenses for hospitalization and treatment (2,021,610 won) in the department of mental health of the Dental Hospital

1) In a lawsuit seeking damages from an injury caused by another person’s tort, even if the party directly paid expenses for the appraisal in addition to the advance payment according to the court’s order for appraisal, it is included in the costs of the lawsuit. The amount spent as the costs of the lawsuit can be reimbursed through the procedure for determination of the amount of the lawsuit cost after the purchase is finalized, and thus, it cannot be claimed as a separate active damages (see, e.g., Supreme Court Decisions 95Da3572, Nov. 7, 1995; 2010Ma218, Jun. 3, 2010).

2) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) On November 20, 2015, the lower court entrusted the head of the D Hospital with the Plaintiff’s physical examination, and the Plaintiff was hospitalized in the instant hospital from December 17, 2015 to December 24, 2015 and received medical treatment, and the costs of KRW 2,021,610 were treated as non-health insurance and was fully borne by the Plaintiff.

B) On February 29, 2016, the Plaintiff additionally claimed KRW 2,021,610 as stated in the application for the modification of the purport of the claim and cause of the claim, and the Defendant claimed that the above expenses were paid for physical examination, and thus, they constitute litigation expenses and not for the injury of this case. 3) In light of the legal principles as seen earlier, the above expenses paid by the Plaintiff are not spent for the purpose of treating the injury suffered by the Plaintiff due to the instant accident, but for the purpose of physical examination, and there is room to regard them as expenses spent for physical examination. As such, the lower court should have deliberated on whether the above expenses were the physical examination expenses by confirming the date of the physical examination and the content thereof, and should have excluded them from the treatment expenses subject to compensation.

4) Nevertheless, without examining the above, the lower court erred by misapprehending the legal doctrine on medical expenses in proximate causal relation with the tort and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error is with merit.

B. The method of calculating the estimated medical expenses to be paid by the defendant

1) When the victim received an insurance benefit under the National Health Insurance Act due to a third party’s tort, the National Health Insurance Corporation shall, within the scope of the amount of such benefit, subrogate and acquire the victim’s damage claim, and where the victim’s negligence competes with each other in the occurrence of such damage, the National Health Insurance Corporation shall first set off the amount of damages calculated, and then the National Health Insurance Corporation shall subrogate and acquire the victim’s damage claim for the whole amount of the insurance benefit within the scope of the damage claim. Therefore, the victim’s claim for damages against a third party is reduced to the extent of such scope (see, e.g., Supreme Court Decision 2014Da680

2) According to the reasoning of the lower judgment, the Plaintiff received insurance benefits from the NHIS pursuant to the National Health Insurance Act for injury caused by the Defendant’s harmful act, and the Plaintiff’s fault ratio in the instant accident is assessed to 15%, and the Defendant’s liability is limited to 85%.

3) Examining the above facts in light of the legal principles as seen earlier, it should be deemed that the king medical expenses that the Defendant is liable to pay to the Plaintiff are limited to the remaining amount after deducting the Defendant’s charges from the amount equivalent to the Defendant’s ratio of liability

4) Nevertheless, the lower court, without considering the Corporation’s shares paid by the Plaintiff, recognized that the Plaintiff’s share was the Plaintiff’s amount of damages for the Plaintiff’s period of treatment, and calculated the king medical expenses by offsetting the Plaintiff’s negligence. In so determining, the lower court erred by misapprehending the legal doctrine on the right to indemnity under the National Health Insurance Act, and thereby adversely affected the conclusion of the judgment. The allegation contained in the grounds of appeal on

4. Regarding ground of appeal No. 4

Based on its adopted evidence, the lower court acknowledged that the Plaintiff’s future treatment costs incurred in KRW 1,050,000 for Bochidon medical treatment costs for Bochidon injury; ② the injury of Bochidon stress disorder requires KRW 9,360,000 for drugs and mental treatment costs for three years from January 19, 2016. Examining the relevant legal principles and records, the lower court’s determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules; exceeding the bounds of the principle of free evaluation of evidence; or by misapprehending the legal doctrine on the method

5. Regarding ground of appeal No. 5

Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter referred to as the "Litigation Promotion Act") provides that "a case where it is deemed reasonable for an obligor to object to a dispute as to whether he/she has an obligation or to the extent of such obligation" refers to a case where the obligor's assertion in a dispute over whether he/she has an obligation or to the extent of such obligation is deemed to have a reasonable ground. Therefore, whether an obligor is reasonable to object to a dispute as above is a matter of fact-finding and evaluation thereof by the court (see, e.g., Supreme Court Decision 2002Da2539, Jun. 11, 200

Examining the above legal principles in light of the records, the court below is just in holding that with respect to 18,00,000, which was cited in the court of first instance among the plaintiff's claims, the defendant has a duty to resist the existence or scope of the obligation until the court of first instance rendered a judgment; however, considering that there is no reasonable ground from the next day to the next day, the defendant is liable to pay damages for delay at the rate of 5% per annum under the Civil Act from September 21, 2013 to April 15, 2015, which is the date of the harmful act in this case, and 20% per annum under the former Litigation Promotion Act from the next day to the date of full payment. In so doing, the court below did not err by misapprehending the legal principles as to Article 3 (2) of the Litigation Promotion Act

6. As to the ground of appeal No. 6, when a fact-finding court recognizes the maximum working age that serves as the basis for calculating lost earnings, it shall determine the maximum working age by examining all the circumstances such as the average remaining life of the people, economic level, employment conditions, etc., the number of workers by age group, employment rate, labor participation rate, working conditions by occupation, and retirement age limit by occupation as well as other economic conditions, and considering specific circumstances, such as the victim’s age, occupation, career, and health conditions. In particular, with respect to the victim whose age exceeds the maximum working age generally recognized for the pertinent occupation at the time of the accident, the court may recognize the maximum working age by taking into account the victim’s subjective special circumstances such as the victim’s age, career, health status, and working conditions, and surrounding circumstances (see, e.g., Supreme Court Decisions 9Da31667, Sept. 21, 199; 9Da3

Examining the above legal principles in light of the records, the court below is just in holding that the Plaintiff could have engaged in agriculture until September 20, 2015, at least two years from the date of the instant accident, based on the Plaintiff owned farmland 66 years of age at the time of the instant accident, and earned income while engaging in agriculture as a village head, and comprehensively taking account of the aging trend of rural population. In so doing, the court below did not err by misapprehending the legal principles on the standards for recognition of maximum working age of agricultural workers, as otherwise alleged in the grounds of appeal.

7. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal as to the treatment cost portion, the part of the judgment of the court below against the defendant is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.