Whether a person who received a retirement pension under the Military Pension Act should deduct the survivors' pension received due to the death in calculating the amount of damages (affirmative)

In light of Article 1 of the Military Pension Act, a veteran's retirement pension or survivor's pension under the Military Pension Act is deemed to be a benefit with the same purpose and character. Therefore, in case where a person who received a veteran's retirement pension dies due to another person's unlawful act, the bereaved family succeeds to a claim for damages equivalent to the deceased's veteran's retirement pension and, if the deceased was paid at the same time, the bereaved family obtains double benefit for the same purpose. Therefore, in calculating the amount of damages of the inheritor, it is reasonable to deduct

Article 763 of the Civil Act, Articles 1, 21, and 26 of the Military Pension Act

Plaintiff 1 and four plaintiffs, et al., Counsel for the plaintiff-appellant-appellee and one other

Attorney Park Chang-chul, Counsel for the defendant-appellant-appellee

Seoul High Court Decision 88Na3828 delivered on June 23, 1988

The part of the judgment below regarding property damage among the defendant's failure portion is reversed, and that part of the case is remanded to the Seoul High Court.

The defendant's remaining appeals are dismissed.

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

We examine the grounds of appeal.

1. In a case where a person who received a retirement pension under the Military Pension Act dies due to another person's illegal act, the retirement pension received by the person is included in the profit which is the basis for calculating the lost profit, and the judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to calculating the amount of damages such as the theory of lawsuit.

2. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that since the plaintiff 2, who was his wife, received the survivor's pension due to the death of the deceased non-party who was the beneficiary of the retirement pension, the amount of the survivor's pension should be deducted from the lost amount of the deceased's pension in calculating the lost amount of the survivor's pension. The survivor's benefits under the Military Pension Act are only paid based on the social security system for the military personnel, and it does not have any relation to the compensation for damages caused by the accident of

However, inasmuch as a retirement pension or survivor pension under the Military Pension Act is paid by the State in order to contribute to the stabilization of the livelihood and the enhancement of the welfare of the person in question and his/her bereaved family members by paying appropriate benefits when the person in question retires or dies after his/her service for a considerable period of time (Article 1 of the Military Pension Act). Therefore, in cases where a person who received a survivor's pension under the Military Pension Act dies due to another person's tort, his/her survivor succeeds to his/her right to compensation for damages on the deceased's retirement pension, and at the same time he/she received the survivor's pension at the same time, his/her survivor acquires benefits twice for the same purpose. Therefore, in calculating the amount of damages of the heir, it is reasonable to deduct the amount of

On the contrary, the court below erred by misapprehending the legal principles on the calculation of the Military Pension Act and the amount of damages, and thus, it is reasonable to point this out.

3. According to the reasoning of the judgment below, the court below held that, in light of the circumstances that the deceased non-party is engaged in the suspension from office as the head of the vehicle management office of the non-party Seocho Tourism Co., Ltd. at the time of the accident of this case and was paid a relatively high amount of wages each month, the above deceased is sufficient to deduct an amount equivalent to 1/3 of the income as a member of the non-party company as living expenses. In light of the records, the above judgment of the court below is acceptable and there is no error of law by misunderstanding the legal principles concerning

4. Therefore, the part of the judgment of the court below concerning property damage among the defendant's failure portion is reversed, and that part of the case is remanded to the court below for a new trial, and the defendant's remaining appeal is dismissed, and the costs of appeal concerning the dismissal of appeal are assessed against the losing party. It is so decided as per Disposition with the assent of all participating Justices

Justices Yoon So-young (Presiding Justice)