[1] Where a victim has already received temporary disability compensation benefits or disability benefits under the Labor Standards Act or the Industrial Accident Compensation Insurance Act, the scope of the amount to be deducted from the amount of compensation for damages

[2] In a case where the rate of loss of labor ability is assessed according to the result of a physical appraisal of multiple appraisal subjects, matters to be cautioned

[3] In a case where Gap et al. claimed compensation for damages under Article 757 of the Civil Act against Eul and his/her spouse Byung corporation for the purpose of assessing the loss rate of labor ability when Gap et al. had been employed by Eul and Eul corporation for the main part while performing the subcontracted work from Eul corporation, the case holding that the court below erred by failing to exhaust all necessary deliberations in finding the loss rate of labor ability based on double disability on the premise that the above physical appraisal is not overlapping with the above appraisal although there is room for duplicate appraisal in light of all the circumstances, and the above appraisal is not overlapping with the other appraisal, and on the premise that the above appraisal is not overlapping with the other appraisal.

[1] Compensation for damages is aimed at compensating for damages, and it is possible to deduct the amount of benefits from actual income in cases where the victim has already received temporary layoff benefits, disability benefits, etc. under the Labor Standards Act or the Industrial Accident Compensation Insurance Act, from the amount of compensation for actual income, only between the same nature of the damage and mutually complementary relations. Therefore, even if the amount of temporary layoff benefits or disability benefits received by the victim exceeds the passive amount of damages recognized by the court, the excess portion is not deducted from the amount of compensation for damages whose nature is different from the period of time. Since temporary layoff benefits are corresponding to the lost income during the period of suspension, it shall be deducted from the

[2] Since the results of a request for physical appraisal of multiple subjects of appraisal can be overlapped or omitted, the court that evaluates the loss rate of labor ability by the result of a request for physical appraisal shall carefully examine whether the appraisal has been overlapped or omitted, and shall correct it through the necessary hearing if it is overlapped or omitted.

[3] The case holding that in case where Gap and his spouse Byung claimed compensation for damages under Article 757 of the Civil Act against Eul company Byung in the course of performing the subcontracted construction work after Eul employed Eul as Eul and Eul company Eul company, and where Gap's physical appraisal of several appraisal subjects was conducted to evaluate Gap's labor disability in order to evaluate Gap's labor disability rate, Gap's physical appraisal of mental health department "compicary and memory disorder" is "compicary and memory disorder, such as reduction of ability, implementation function degradation, etc.," and the physical appraisal of mental health department "psythic, implementation function degradation, change of character, etc." is not an appraisal of different physical parts caused by accident, but an appraisal of both physical parts suffered by Gap and Eul company Byung, the judgment below should have found that the above physical appraisal part overlaps with one another's mental disability, such as mental disability, and it should have been found that the above physical appraisal rate overlaps with one another's mental disability, and it did not overlap with the above appraisal rate, and it should have been found that it did not overlap with the above appraisal rate.

[1] Articles 393, 757, and 763 of the Civil Act; Articles 52 and 57 of the Industrial Accident Compensation Insurance Act / [2] Articles 393, 757, and 763 of the Civil Act; Article 341 of the Civil Procedure Act / [3] Articles 393, 757, and 763 of the Civil Act; Article 341 of the Civil Procedure Act

[1] Supreme Court Decision 90Da11776 Decided July 23, 1991 (Gong1991, 2218), Supreme Court Decision 93Da61703 Decided April 25, 1995 (Gong1995Sang, 1936), Supreme Court Decision 2010Da77293 Decided June 14, 201 / [2] Supreme Court Decision 2004Da17672 Decided June 11, 2004

Plaintiff 1 (Law Firm Hanpool, Attorneys Kim Ho-ho et al., Counsel for plaintiff-appellant)

Plaintiff 2

Comprehensive Construction Co., Ltd. (Law Firm Don, Attorneys Lee Dong-min et al., Counsel for the plaintiff-appellant)

Suwon District Court Decision 2019Na60103 decided February 5, 2020

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

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

1. As to Plaintiff 1’s ground of appeal

A. Based on its stated reasoning, the lower court recognized that Plaintiff 1’s lost income of the instant accident was KRW 311,187,895, 14,068,880, and KRW 27,679,616 for future treatment expenses, and KRW 352,936,391 for the tortfeasor’s total amount of KRW 352,936,391 for the amount of damages suffered from the instant accident, and determined that the tortfeasor’s amount of damages should be deducted from KRW 126,887,50 for the amount of temporary disability compensation benefits, KRW 68,153,050 for the amount of damages to be paid by the Korea Workers’ Compensation and Welfare Service, and determined that the tortfeasor’s total amount of damages should be deducted from KRW 211,761,834 for compensation.

B. However, the lower court’s determination is difficult to accept for the following reasons.

(1) Compensation for damages is aimed at compensating for damages, and it is possible to deduct the amount of benefits from actual income in cases where the victim has already received temporary layoff benefits, disability benefits, etc. under the Labor Standards Act or the Industrial Accident Compensation Insurance Act from the amount of compensation for damages can only be made between the same nature of the damages and mutually complementary relations. Therefore, even if the amount of temporary layoff benefits or disability benefits received by the victim exceeds the passive amount of damages recognized by the court, the excess portion is not deducted from the amount of compensation for damages, which differs from the period of time and nature. Since temporary layoff benefits are corresponding to the lost income during the period of suspension, it shall be deducted from the amount of damages equivalent to the lost income during the period of suspension (see, e.g., Supreme Court Decisions 90Da1176, Jul. 23, 1991; 93Da61703, Apr. 25, 1995; 2010Da7293, Jun. 14, 2012).

(2) If so, the court below should have deducted the above temporary layoff benefits and disability benefits only from the actual income corresponding to passive damages, and after reviewing the period during which the above temporary layoff benefits were paid, and accordingly, should have deducted the amount of temporary layoff benefits the Plaintiff received for the same period from the same amount by specifying the amount corresponding to the lost income during the period during which the temporary layoff benefits were paid out of the lost income of Plaintiff 1. However, the court below, without any examination on it, deducted the total amount of temporary layoff benefits and disability benefits from the total amount of damages, including active damages. In this case, the court below erred by misapprehending the legal principles on temporary layoff benefits and deduction of disability benefits in damages compensation cases, which failed to exhaust all necessary deliberations.

2. As to the Defendant’s first ground of appeal

Based on its stated reasoning, the lower court partially accepted the Plaintiffs’ claim against the Defendant, the contractor, seeking compensation for damages under Article 757 of the Civil Act, based on the following: (a) based on the fact that the Defendant was grossly negligent in subcontracting to the Nonparty, who was not entitled to implement the instant construction work that constitutes a specialized construction business without registering the instant construction business that is highly dangerous and which constitutes a specialized construction business;

Upon examining the records in accordance with the relevant legal principles, the judgment of the court below is just, and the defendant's argument that the contractor's negligence should be recognized in order to recognize the contractor's liability under Article 757 of the Civil Act cannot be accepted as an independent opinion. Therefore, the court below's decision on the premise of this cannot be accepted, and the defendant's ground of appeal that the non-party'

3. As to the Defendant’s third ground of appeal

For reasons indicated in its reasoning, the lower court determined that the Plaintiffs’ damage claim against the Defendant was extinguished by the statute of limitations, on the grounds that: (a) Plaintiff 1’s disability in the instant case unforeseeable at the time of the instant accident was found only to have been diagnosed by Plaintiff 1 on January 10, 2014; and (b) the instant lawsuit was filed on July 25, 2016, before the lapse of three years thereafter; and (c) did not accept the Defendant’s defense of the statute of limitations period.

Examining the record in accordance with the relevant legal principles, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine regarding the starting point of counting extinctive prescription.

4. As to the defendant's second ground for appeal

A. The lower court rejected the Defendant’s assertion that each of the above physical examinations constitutes duplicate examinations, on the basis of the rate of loss of labor ability calculated based on physical examinations conducted by the physical examinations of the department of mental health, the rate of loss of labor ability calculated based on the physical examinations of the department of mental health, and the rate of loss of labor ability calculated based on the rate of double disability calculated based on the calculation of the Plaintiff’s rate of loss of labor ability.

B. However, the lower court’s determination is difficult to accept for the following reasons.

(1) As the result of the commission of physical appraisal for multiple subjects of appraisal may overlap or omission of appraisal, the court that evaluates the loss rate of labor ability by the entrustment of physical appraisal shall carefully examine whether the appraisal has been overlapped or omitted, and shall correct it through necessary deliberation if it is overlapped or omitted (see Supreme Court Decision 2004Da17672 delivered on June 11, 2004).

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

(A) The physical examination of the Plaintiff 1’s aftermath disability, the “competence and memory disorder,” and the physical examination of the mental health department, respectively, refers to the physical examination of the department of mental health, “a fluoral disorder, such as the degradation of ability, the degradation of performance function, etc.,” and “a fluoral desire, the degradation of implementation function, and the change of character, etc.,” and all of the above physical examination reports are calculated by calculating the labor disability ratio of Plaintiff 1 among the two parts, brain, and the number of parts.

(B) Each of the above physical examinations is not an appraisal of different physical parts caused to Plaintiff 1 due to the instant accident, but is an appraisal of both physical parts caused to Plaintiff 1’s injury, and both of them appears to be an assessment of mental disorders, such as cognitive function disorders and personality disorders caused by the instant accident.

(C) On December 28, 2018, 2018, ○○ University Head of △△△ Hospital, which was adopted by the lower court, expressed the opinion that Nonparty and medical specialists, who prepared the said neurologic and physical examination, do not overlap each other’s physical examination. However, there is no specific explanation as to the reasons, and there is also included matters concerning the physical examination of the psychologic and mental health department not deemed to have been involved in the examination.

(3) Examining the above circumstances in light of the aforementioned legal principles, there is room for duplicate appraisal. Thus, the court below should have recognized the loss rate of labor ability by taking account of the overlapping appraisal rather than accepting the inquiry inquiry inquiry inquiry inquiry inquiry as of December 28, 2018, by making an appraisal supplement or additional inquiry, etc. as to the overlapping appraisal, and by rectifying the overlapping appraisal. Nevertheless, the court below failed to exhaust all necessary deliberations, and erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the calculation of the loss rate of labor ability, under the premise that each of the above appraisal is not overlapping appraisal.

5. Conclusion

Therefore, 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.

Justices Min You-sook (Presiding Justice)