[1] The case affirming the judgment of the court below that the deceased can work as a pharmacist until he reaches the age of 65 in calculating the lost income of the pharmacist who died of an aircraft accident

[2] Special factors for calculating consolation money for damage caused by an aircraft accident

[3] The case holding that there was an error of law that deviates from the limits of discretion by failing to properly consider the special circumstances of an aircraft accident in calculating consolation money for damage caused by an aircraft accident

[1] Articles 393 and 763 of the Civil Act / [2] Articles 393, 751, and 763 of the Civil Act / [3] Articles 393, 751, and 763 of the Civil Act

Plaintiff 1 and two others (Law Firm Jeong-dong International Law, Attorneys Seo Dong-hee et al., Counsel for the plaintiff-appellant)

China International Aviation Corporation (Law Firm Squa, Attorneys Kim Jae-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2006Na49217 decided Dec. 4, 2007

The part of the lower judgment against the Plaintiffs regarding consolation money is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals by the Plaintiffs are dismissed.

The grounds of appeal are examined.

1. The court below held that, in light of the deceased non-party 1's occupation, career, age, and health conditions, etc., the deceased non-party 1 could work as a pharmacist until he reaches 65 years of age according to the empirical rule. In light of the records, the judgment of the court below is acceptable and there is no error of law by misunderstanding the legal principles as to the maximum working age as alleged in

2. The court below acknowledged the defendant's duty to pay consolation money to the deceased non-party 1 and 2 (hereinafter "the deceased"), and the plaintiffs' emotional distress caused by the accident of this case where the deceased non-party 1 and 2, who are the passengers of this case, died (hereinafter "the deceased"), as stated in its holding. The court below suggested that consolation money will be paid KRW 100 million upon the completion of consultation after the defendant made advance payment of the damages amount of KRW 50 million. The court below determined that the consolation money should be paid KRW 170 million as special compensation for the deceased, and KRW 221 million as special compensation for the deceased and KRW 150 million as well as KRW 50 million as a result of the plaintiffs' argument that consolation money should be paid to the deceased and the deceased's family relation, the deceased's circumstances and the circumstances of the accident of this case, and each of the above circumstances exceeded KRW 500 million as a result of the plaintiff's pleading.

However, it is difficult to accept the judgment of the court below for the following reasons.

In the case of tort caused by the so-called aircraft accident, the following special circumstances may be considered in the calculation of consolation money, unlike ordinary traffic accidents. First of all, an aircraft accident leads to a large-scale witness who causes death or fatal damage to large passengers. In the course of the crash and collision, passengers have suffered serious fear and pain, and the body of passengers has not been completely recovered due to the accident. In addition, as the accident takes considerable time to deal with the accident management, identification, and understanding damage, the damage compensation for the long time is likely to be delayed, and the damage can be further increased depending on the method or attitude of the aircraft accident management. Meanwhile, an ordinary aircraft accident is caused to the victim without negligence, and the degree of negligence on the part of the perpetrator is more likely to affect the calculation of consolation money. In addition, an aviation accident is to prepare for large risks caused by the aircraft accident, and an aviation accident is to be separated from the area of the victim’s residence, and it is to be included in the same aviation insurance premium rate as the air accident insurance premium, and to be re-scheduled based on the same premise as the two aviation accident insurance premium.

Therefore, in calculating consolation money for an aircraft accident, the fact-finding court shall also consider the special circumstances of the aircraft accident in the pleading, such as the victim's severe fear and pain, the response to the result, the delay in dealing with the accident and compensation for damage, the degree and attitude of the perpetrator's negligence on and after the accident, the sharing of risks through aviation insurance, sanctions against the occurrence of the accident, and the need for prevention, as mentioned above, and determine the amount of consolation money at its discretion.

However, according to the reasoning of the judgment below and the records, the accident in this case occurred due to the significant and total negligence of the crew of the aircraft, and there was no negligence to the passengers, and the result of the accident occurred due to the collision, explosion, and fire of the aircraft that occurred in the course of the accident in this case, the majority of the passengers died and the body severely damaged the body, and the fear and pain of the passengers are expected to have been serious, and the accident in this case, the deceased, who is the couple, died at once due to the accident in this case, and the defendant seems to have sufficiently secured the risk of damages caused by the aircraft accident through the aviation insurance, and the damage of the deceased and the plaintiffs is not compensated for a long period of time. However, in light of the special circumstances as seen above and the legal principles as seen above, the court below, in calculating consolation money, can be deemed to have exceeded the limits of discretion due to considerable violation of the ideology of fair sharing of damages and the principle of equity. The allegation in the grounds of appeal concerning this is with merit.

3. Therefore, the part of the judgment of the court below against the plaintiffs regarding consolation money shall be reversed, and that part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' remaining appeals shall be dismissed. It is so decided as per Disposition by the assent

Justices Kim Nung-hwan (Presiding Justice)