(a) Method of evidentiary evidence against conflicting expert opinions on the same fact;

(b) Method for calculating the profit of a person who has become unable to engage in the previous occupation due to a tort;

(c) Specific criteria for calculating lost profit;

(d) The case holding that the measure that calculated the lost profit according to the loss rate of labor capability is justifiable; and

(e) Trainees and workers under the Labor Standards Act;

A. The result of appraisal requires special knowledge and experience as to fact-finding, and the rate of loss of labor ability applicable to fact-finding is also the rate of medical and physical disability, and the victim's age, degree of education, nature of occupation, career and level of skilled experience, etc. should be determined in accordance with the empirical rule. Thus, if there are several different appraisal results in the same fact, if the judge recognizes facts based on one of them, it is legitimate unless it violates the empirical or logical rules.

B. In a case where a victim who suffered injury due to other person's tort claims that the lost profit would have been the passive loss of the lost profit, namely, the lost profit, the method of calculating the lost profit, first, the method of calculating the difference between the lost profit and the income at the time of the accident and the future income after the accident, and second, the method of assessing the lost value of the lost labor ability by the income or the estimated income at the time of the accident, by deeming the essential nature of the lost labor ability as the lost labor ability, which serves as the basis for income creation. However, it cannot be concluded that only one of the two methods is the only calculation method.

(c) In calculating the lost profit, it is necessary to determine that future income forecasts will be based on a reasonable and objective ground (if it is based on the method of deducting future income in the calculation of the lost profit, the future income forecasts should be based on the reasonable and objective basis (if it is impossible to be engaged in the previous occupation, and then the future income cannot be included only in the income from daily labor). In addition, even in the case of applying the rate of loss of labor ability, the rate of loss of labor ability should be determined in accordance with the empirical rule, taking into account all the medical and physical disability ratio, rather than the rate of loss of medical capacity, the victim's age, degree of education, nature and career and skill of the previous occupation, the degree of occupational experience and skill, the probability and probability of the previous occupation, and other social and economic conditions, and therefore, what method should be adopted in the case in question, on the basis of the evidence and facts specifically present.

(d) The case holding that the measure that calculated the lost profit according to the loss rate of labor capability is justifiable; and

E. Even if the injured party is a high school prospective trainee and the working period is provisionally designated, it cannot be readily concluded that the same person is not a worker subject to the Labor Standards Act on the sole basis of such reasons, and where it is recognized that there is a subordinate relationship with the employer under Article 14 of the Labor Standards Act based on the practical training relationship such as the terms and conditions of employment between the employer and the trainee, the nature of the work, the nature of remuneration, etc., the trainee constitutes a worker subject to the Labor Standards Act

A. Article 187(a)(d) of the Civil Procedure Act; Article 763(e) of the Civil Act; Article 14 of the Labor Standards Act

A. Supreme Court Decision 84Meu1641 Decided August 20, 1985, Supreme Court Decision 86Meu451 Decided September 9, 1987, B. Supreme Court Decision 86Meu331 Decided March 10, 1986

Plaintiff 1 and nine others, Counsel for the plaintiff-appellant-ho

[Defendant-Appellant] M&T Co., Ltd., Counsel for defendant-appellant-appellant

Seoul High Court Decision 86Na1003 Decided November 13, 1986

Of the part of the judgment below against the plaintiff 1, the part that dismissed the claim for payment of 360,000 won and the amount equivalent to 25 percent per annum from October 17, 1984 to the full payment date shall be reversed, and this part of the case shall be remanded to the Seoul High Court.

All of the above plaintiff's appeals and remaining plaintiffs' appeals against the part against the other part of the reversal are dismissed.

The costs of appeal against the dismissal of an appeal shall be assessed against the plaintiffs.

The plaintiffs' grounds of appeal are examined.

1. As to the first ground for appeal:

A. The result of appraisal is merely a judge's use of the special knowledge, experience, and knowledge and experience of the person with experience in finding facts. The labor disability ratio applied to the calculation of lost profits is also a medical and physical disability rate. Various circumstances such as the victim's age, degree of education, nature of occupation, work experience, and degree of learning and skills, etc. should be determined based on the empirical rule. Thus, if there are several different appraisal results as to the same facts, if a judge recognized facts based on one of them, it would be legitimate that the judge did not violate the empirical or logical rules (see, e.g., Supreme Court Decisions 86Meu451, Sept. 9, 1986; 84Meu1641, Aug. 20, 1985).

In light of the records, there is no error in the appraisal method selected by the court below in this case, and the court below adopted the result of the appraiser's re-examination, and rejected the remainder of the appraisal result, it seems that the above circumstances were taken into account, and it is just and there is no error of law such as violation of the rules of evidence, as pointed out by the theory of lawsuit.

B. The calculation method of the lost profit in a case where the victim who suffered injury due to other person’s tort claims the lost profit, namely, the lost profit that would have been gained in the future, as a passive loss, should first be the method of calculating the lost profit. The method of calculating the difference between the lost profit and the income at the time of the accident and the future income after the accident is the method of calculating the difference between the lost profit and the income at the time of the accident. Second, the method of assessing the lost value of the lost labor ability by deeming the nature of the lost profit as the lost labor ability per se, which serves as the basis for income creation.

However, since the recognition of future expected profit, such as lost profit, is predicted of uncertain future fact, it is sufficient to calculate reasonable and objective expected profit based on the specific circumstances present in the case in question, and it cannot be concluded that only one of the above two methods is the only method of calculation.

If a person who has been engaged in a certain occupation at the time of an accident is unable to engage in such occupation any longer due to physical disability caused by an accident, the lost profit can be calculated by deducting future income expected to be obtained by engaging in another occupation with remaining physical function from the previous occupation. However, if expected future income is deducted from the previous occupation, it is necessary to determine that future income forecasts are based on rational and objective grounds (if expected future income can be deducted from the previous occupation, it is not possible to increase future income only from daily work). Furthermore, even in the case of applying the rate of loss of labor ability, the rate of loss of labor ability should be determined by applying the rate of loss of labor ability, not just physical disability but rather by the victim's age, degree of education, nature and skill of the previous occupation, the degree of occupational experience and skill of the previous occupation, the probability of change of occupation, physical function or occupation, the probability of such change in occupation and occupation, and other social and economic conditions, and thus, it is reasonable and objective to determine the rate of loss of labor ability based on the current objective and objective method.

In light of the records, the court below is justified in calculating the lost profit of this case according to the method of applying the lost profit of this case to the same purport, and there is no error of law such as the theory of lawsuit, and the theory of lawsuit does not change from this case and the case is not appropriate.

All the arguments are groundless.

2. On the second ground for appeal:

According to the reasoning of the judgment below, the court below recognized the fact that the plaintiff 1 was involved in the accident of this case in the defendant company Incheon Factory, based on its macroficial evidence, and judged that the above plaintiff's negligence ratio constitutes 60 percent on the basis of the established facts. In light of the records, the above measures of the court below are acceptable and there is no error in the misapprehension of legal principles as to comparative negligence or incomplete deliberation.

The paper is without merit.

3. On the third ground for appeal:

According to the reasoning of the judgment below, the court below confirmed that the defendant provided the plaintiff 1 with assistive devices equivalent to 600,000 won, and then, the above plaintiff was temporarily engaged in an activity at the defendant's factory for the purpose of education, and therefore, it cannot be deemed a worker subject to the Labor Standards Act. Thus, from among the above assistive devices costs, the above amount should be deemed to have been borne by the above plaintiff, the above amount should be deducted from the amount of damages of this case, on the ground that the above plaintiff's negligence should be deemed to have been borne by the above plaintiff.

The purport of the judgment of the court below is that if the above plaintiff was a worker subject to the Labor Standards Act, the above auxiliary equipment costs of 600,000 won can not be offset by negligence, but the above plaintiff is not a worker subject to the Labor Standards Act, and therefore, the negligence should be offset by negligence. However, even if the plaintiff 1 is a trainee who is a high school graduate student, and the working period is temporary, it cannot be readily concluded that the above plaintiff is not a worker subject to the Labor Standards Act just on the ground that the above plaintiff is not a worker subject to the Labor Standards Act. If it is acknowledged that there is a subordinate relationship with the employer under Article 14 of the Labor Standards Act due to the actual labor relationship, such as the terms and conditions of the employment between the employer and the trainee, the nature and content of the work, and the existence of remuneration, the trainee is a worker subject to the Labor Standards Act. According to the records, the above plaintiff can be viewed as a worker subject to the Labor Standards Act.

Ultimately, the judgment of the court below which set off the negligence with respect to the amount of assistive devices for medical care compensation, by concluding that the above plaintiff does not constitute a worker subject to the Labor Standards Act, through further deliberation and disclosure as to whether the business owner and the above plaintiff are subordinate to the employment, is erroneous in the misapprehension of the legal principles as to the concept of workers under the Labor Standards Act, and it is reasonable to

4. The Plaintiffs filed an appeal against the entire judgment of the court below, but there was no ground of appeal as to the consolation money portion. Thus, this part of the appeal shall not be dismissed.

5. Therefore, the part of the judgment of the court below against the plaintiff 1 dismissed the claim for payment of the amount of 360,000 won and 25 percent per annum from October 17, 1984 to the date of full payment, and the case is remanded to the court below for further proceedings consistent with this Opinion. The above plaintiff's appeal against the remaining part of the above reversal and the remaining part of the plaintiffs' appeal against the above reversal are without merit. The costs of appeal against the dismissal of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Man-hee (Presiding Justice)