(a) The case which is calculated on the basis of the aggregate amount of the income accrued from the management of pension income and the comprehensive store sales business of victims who have been operating a comprehensive store that sells lottery, newspaper, drinking water, miscellaneous goods, etc. at the time of their death with the payment of compensation each month as the person who has rendered distinguished services to the State under the Act on Honorable Treatment, etc. of Persons of Distinguished Services to the State at the time of their death;

(b) Whether a claim for damages equivalent to the amount of pension revenue succeeds to the heir, where a soldier or policeman wounded in action who received a pension under the same Act dies due to a third party's illegal act (affirmative);

(c) In cases where a soldier or policeman who was receiving nursing allowances prescribed by the same Act dies, whether the right to claim compensation for damages is succeeded to the heir due to the failure to receive nursing allowances (negative);

(a) The case which is calculated on the basis of the aggregate of the income from pension income and the income from the management of the integrated store from actual profit-making business of a victim who was engaged in the comprehensive store business that sells lottery tickets, newspapers, drinking water, miscellaneous goods, etc. at the time of his/her death and was wounded in action among persons who have rendered distinguished services to the State under the Act on the Honorable Treatment, etc. of Persons of Distinguished Services to the State at the time

B. The pension prescribed in the same Act is paid in consideration of the standard of living for the purpose of promoting the stabilization of livelihood and the improvement of welfare of soldiers and policemen killed or wounded in action, and also acts as the same in relation to family members who supported their livelihood on the revenues and wounded in action. Thus, it is reasonable to view the above pension as follows: (a) the lost profit damage suffered by a soldier and wounded in action who was receiving the above pension was killed or wounded in action due to a tort committed by others; (b) the pension which would have been entitled to if they were alive should not be paid by the tort; (c)

C. The nursing allowances prescribed in the same Act shall be deemed to be paid to persons who have rendered distinguished services to the State who have difficulty in normal activities without the protection of others in order to guarantee their activities while they are alive. Therefore, in cases where a soldier or policeman wounded in action who received the above nursing allowances has died due to other persons’ unlawful acts, it shall be deemed that there is no room for the right to claim compensation for damages due to the fact that the right to receive the nursing allowances has been extinguished and the right to receive the nursing allowances could not have been received if they were alive, even if the above nursing allowances were dead due to other persons’ unlawful acts.

(b)Article 12(b) of the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, Article 19(c) of the same Act;

B. Supreme Court Decision 91Da5105 delivered on May 10, 1991 (Gong1991, 1608)

Plaintiff 1 and three others

Attorney Park Young-young, Counsel for the defendant-appellant

Seoul High Court Decision 91Na60845 delivered on April 30, 1992

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

2. The defendant's remaining appeal is dismissed.

3. The costs of appeal against the dismissed portion are assessed against the defendant.

1. Determination on the first ground for appeal by the defendant's attorney

In calculating lost losses caused by the deceased's deceased's deceased non-party, who was the deceased's deceased deceased's deceased deceased deceased's deceased deceased's deceased deceased's deceased's deceased's wounded veterans' pension (compensation) under the Enforcement Decree of the Act on Honorable Treatment of Persons, etc. of Distinguished Service to the State at the time of the deceased's death, but at the same time, it recognized that the deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's deceased's 1 (MIP) 1 (MP).

2. Determination on the ground of appeal No. 2

A. In calculating the amount of lost profits of the deceased as to the prescribed amount of compensation, the court below held that the above deceased was 150,00 won per month under the same Act, 321,00 won of additional pension, 192,00 won of nursing allowances, and 663,00 won per month under the same Act, and that the above monthly compensation was 250,000 won of basic pension, 337,000 won of additional pension, 250,000 won of nursing allowances, and 837,000 won of the above amount were 10,000 won per month from the date of the above death of the deceased, 30,000 won which were 10,000 won of the basic pension, 30,000 won of the amount which were 10,500 won of the amount which were 7,000 won of the amount which were 10,000 won of the death of the deceased, 16,0000.

B. The theory that the right to receive compensation under the same Act is not transferable, seized, and cannot be provided as a security (Article 19 of the same Act). According to Articles 22 and 23 of the Enforcement Decree of Article 12 of the same Act, a pension shall be paid to the deceased and wounded in action, such as the above deceased and wounded in action, on a monthly basis, based on the basic pension and additional pension. Such pension shall be paid in consideration of the standard of living (see Articles 1 and 7 of the same Act) for the purpose of promoting the stabilization of livelihood and the improvement of welfare of the deceased and wounded in action (see Articles 1 and 7 of the same Act). Since the same act also acts in relation to the family members whose livelihood depend on the income of the wounded and wounded in action, it is reasonable to view that the lost profit damage suffered due to the death of another person due to the above unlawful act, including the loss caused by the unlawful act that could have been sustained if they were alive, and that claim for compensation for damage shall be succeeded to by inheritance.

However, according to Article 15 of the same Act and Article 26 of the Enforcement Decree of the same Act and Article 15 of the same Act, a person who falls under Class 1 and 2 of the disability rating who finds it difficult to engage in activities without any other person's protection shall be paid a monthly nursing allowance. Such nursing allowance shall be deemed to be paid to guarantee his/her own activities during his/her lifetime who has difficulties in normal activities without any other person's protection. Thus, in cases where a person who has been receiving the above nursing allowance dies in action due to other person's tort, even if he/she died in the case of a pension, it is reasonable to view that there is no room for his/her heir to claim damages due to the death of the deceased and his/her right to receive the nursing allowance is extinguished together with the right to receive the nursing allowance, and the right to claim damages due to the death of the deceased who could not receive the nursing allowance if he/she were alive. Therefore, it is evident that the above nursing allowance among the compensation received before his/her birth cannot be included in calculating lost profits caused by the tort.

C. Nevertheless, the court below calculated loss of lost profits on the basis of the compensation including nursing allowances that the above deceased received before the death, which could not receive compensation under the same Act due to the tort in this case. The judgment below erred in the misapprehension of the legal principles as to the nature of compensation under the same Act or the calculation of loss of lost profits suffered by the deceased who died due to a tort, and it is clear that such illegality affected the conclusion of the judgment. Thus, there is a reason to point this out.

3. Determination on the ground of appeal No. 3

The court below held that the plaintiffs' attorney and the defendant's attorney did not dispute the facts that the living expenses of the above deceased were 1/3 of their revenues. The court below held that 1/3 of the revenues of the above deceased as a general store manager except the wounded veterans' pension until the maximum working age as a general store manager of the above deceased was spent as living expenses, and that there is no dispute over the requirement of 1/3 of the wounded veterans' pension as necessary expenses for life maintenance from that time to life. In light of related evidence and records such as the whole purport of the arguments, the judgment of the court below's above recognition is justified, and therefore it is not acceptable to argue that the above deceased's pension for wounds should be deducted from the time of the tort in this case.

4. The defendant did not submit the appellate brief concerning the part against the defendant as to consolation money in the judgment of the court below, and did not state the reasons for appeal in the appellate brief.

5. Therefore, the part of the judgment of the court below against the defendant as to property damage shall be reversed, and the case shall be remanded to the court below for a new trial and determination. The defendant's remaining appeal shall be dismissed, and the costs of appeal as to the dismissed part shall be borne by the defendant as the losing party, and it is so decided as per Disposition by the assent of

Justices Yoon Jae-ho (Presiding Justice)