If the mine area of the mine has been reduced due to a mining accident, but the mine area of the mine area has been able to work for the mine area, and the person has retired as such, then the claim for damages equivalent to retirement allowances based on the degree of lowering the labor ability (affirmative)

The retirement allowance loss incurred by the Plaintiff, who had been employed by the mining department located in the mine of the Korea Coal Corporation for the Defendant, due to the decline in the ability to work due to the mine accident, to work as the lower average wage. The amount of retirement allowance corresponding to the difference shall be deemed as the loss that occurred without relation as to whether the Plaintiff actually retired before the retirement age. Therefore, the Plaintiff cannot claim compensation for the retirement allowance that the Plaintiff retired from the Defendant Corporation.

Articles 750 and 763 of the Civil Act

Supreme Court Decision 80Da1499 Delivered on June 9, 1981

[Judgment of the court below]

Korea Coal Corporation's attorney-at-law incorporation

Seoul High Court Decision 79Na2723,80Na1346 decided August 18, 1980 (Incidental Appeal)

The part of the lower judgment against the Defendant regarding property damage shall be reversed, and this part of the case shall be remanded to the Seoul High Court.

All remaining appeals by the defendant and the plaintiff are dismissed.

The costs of appeal on the appeal dismissed above are assessed against each appellant.

1. The plaintiff's attorney's grounds of appeal are examined.

According to the reasoning of the judgment of the court below, the court below recognized that the plaintiff's rescue work on the optical parts that are in the form of poisonous gas was caused by negligence in the rescue work without using oxygen masck, and without making preparation for easily escape from danger such as the spread of poisonous gas by itself. In light of the records, such fact-finding by the court below is just, and there is no error of law by misunderstanding the legal principles of comparative negligence, and therefore there is no ground for appeal.

2. The defendant's attorney's grounds of appeal are examined.

With respect to No. 1:

In case where the loss of the labor force is caused by the original tort and the loss is expected due to the reduction of the profit, the amount shall be calculated on the basis of the profit at the time of the loss of the labor force, as stated in the theory of lawsuit. However, in case where there are objective data which can clearly predict the increase of the profit in the future, the profit to be increased in the future should be considered in calculating the profit in the future (see Supreme Court Decision 79Da579 delivered on May 22, 1979). According to the records, the court below's measure which calculated the amount of the profit in the future on the basis of the increased profit in the light of the purport that it is clear that the possibility of the increase of the average wage of the plaintiff at the time of the accident is likely to be increased, is recognized as legitimate, and there is no reason for the court

In addition, the judgment of the court below, which held from July 17, 1978, that the period calculated based on the average wage adjusted in July 1979, as stated in the judgment of the court below, is clear that it is a clerical error from July 17, 1979, considering the context before and after the decision, and there is no error in the misapprehension of the application date of average wage in the judgment of the court below. In addition, the court below is just in the theory that the court below ordered the payment of damages for the amount of damages recognized, calculated from July 17, 197, before the date of the accident, to the extent that it is obvious that it is a clerical error from November 17, 1977, when compared with the reasoning of the judgment of the court below, and this is not a reason to reverse the judgment of the court below, which is not a reason for the correction

Meanwhile, according to the reasoning of the court below, as of November 17, 1977, the plaintiff's average wage was 5,877 won as of the time of the accident, and based on this, the court below calculated the actual profit amount for 17 months from the accident occurred to April 16, 1979 (the statement "the court below's judgment of April 16, 1978") but upon examining the evidence cited by the court below in the records, the evidence No. 9 (written confirmation) stated "No. 9 of the defendant's average wage at the time of the accident (7.12: 7.12.), it is difficult to view it as evidence to acknowledge the amount of average wage at the time of the accident as of November 17, 197, and there is no other evidence to acknowledge that the average wage at the time of the accident was 5,877 won as of November 17, 197 at the time of the accident, and therefore, it is reasonable to discuss this point.

With respect to the second ground:

The plaintiff's loss of retirement allowance as cited by the court below is a loss caused by the plaintiff's change of his occupational category to the lower average wage due to the accident of this case, and the plaintiff could not receive retirement allowance equivalent to the difference. Thus, this accident is not a loss caused without relation to whether or not the plaintiff actually retired before the retirement age. Therefore, it is justifiable for the court below to acknowledge the plaintiff's loss of retirement allowance. In this case, it is necessary for the plaintiff to continue to work as an employee of the defendant corporation after changing his occupational category to the lower average wage, and it cannot be said that the plaintiff was employed as an employee of the defendant corporation after changing his employment category to the lower average wage. Thus, it cannot be said that the plaintiff's retirement allowance becomes a retirement allowance for the first time after his retirement age from the retirement allowance for the defendant corporation to the retirement allowance for the first time. Thus, the plaintiff's remaining amount of retirement allowance for the defendant corporation should be deducted from the retirement allowance for the retirement period for the first time after his retirement.

Nevertheless, the court below calculated the retirement allowance to be received as a mining unit outside the pit on the premise that the plaintiff retired once from office as a mining unit in the pit, but newly employed as a mining unit outside the pit, from March 3, 1980 to the miscellaneous station, based on the prescribed number of payment days applied in that case, and calculated the retirement allowance lost by the method of deducting this amount from the retirement allowance to be received in the case of continuous service as a mining unit in the pit. In so doing, the court below erred by misapprehending the legal principles on the calculation of the damages of the retirement allowance. This error is clearly affected by the judgment in this case where the retirement allowance payment criteria for the 1 year in the continuous service as long as the continuous service period is high.

Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Seoul High Court which is the court below. The defendant's remaining appeal and the plaintiff's appeal are without merit. The costs of appeal as to each dismissed appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-tae (Presiding Justice) Kim Jong-young (Presiding Justice)