[1] Criteria for determining the loss rate of labor ability

[2] The case holding that the court below erred by misapprehending the legal principles where Gap's labor disability loss rate is considerably lower than the expert's appraisal result without presenting reasonable and objective grounds, in a case where Gap suffered symptoms that are not easily satisfying after receiving internal sewage correction, and the labor disability rate of Gap due to the above symptoms was at issue

[1] Article 202 of the Civil Procedure Act / [2] Article 202 of the Civil Procedure Act, Article 2 (1) [Attachment 2] of the Enforcement Decree of the State Compensation Act

[1] Supreme Court Decision 97Da58491 Decided April 24, 1998 (Gong1998Sang, 1465) Supreme Court Decision 2019Da293654 Decided April 9, 2020

Plaintiff (Attorney Shin-ho et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Rate, Attorneys Kang Jong-ho et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2019Na14512 Decided February 6, 2020

The part of the judgment of the court below against the plaintiff concerning lost income shall be reversed, and that part of the case shall be remanded to the Suwon High Court. The remaining appeal shall be dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. When calculating the lost profit through the method of applying the rate of loss of labor ability, the said rate of loss of labor ability shall be based on the content of the remaining disability revealed through the expert appraisal by a judge in light of the empirical rule, taking into account all the victim’s age, degree of education, nature of labor, degree of physical disability, and other social and economic conditions (see, e.g., Supreme Court Decision 97Da58491, Apr. 24, 1998). Meanwhile, setting the rate of loss of labor ability is, in principle, within the discretionary power of the fact-finding court, since it does not grant the judge free discretion to determine the rate of loss of labor ability, the court shall faithfully and carefully deliberate all specific circumstances, such as the victim’s age, occupation, content and degree of disability, etc., so that such evaluation does not constitute objectivity (see Supreme Court Decision 2019Da293654, Apr. 9, 202).

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

1) The appraiser in the instant case is an opinion that the Plaintiff’s Saturdays does not constitute physical disability according to the Mabrid and the AMA evaluation criteria, but it is recognized that the labor disability rate of 10% under the Enforcement Decree of the State Compensation Act is recognized.

2) As to this, the lower court determined that the rate of loss of labor ability of the person who suffered a loss in part of the snow eye, or who suffered a loss in the eye eyebrow, is 10% under Article 2(1) [Attachment 2] and Article 13(3) of the Enforcement Decree of the State Compensation Act, but it is difficult to view that the Plaintiff’s Saturday itself directly suffered a direct loss in the eye eye or inner eyebrow. However, the lower court recognized the labor ability loss rate of 5% corresponding to the half of the disability caused by the appearance of the Plaintiff’s business activity.

3) Considering the aesthetic elements of a person’s eye due to the phenomenon in which snow is not completely visible, there is a significant impact on the appearance of a woman. Considering the fact that the Plaintiff is a woman of 31 years old at the time of the instant primary surgery, who is qualified for a beauty artist from October 13, 2003, etc., it is difficult to view that the trend remaining in the appearance due to the instant surgery and re-operation causes trouble to the Plaintiff’s future business activities and that the degree is small.

4) Furthermore, according to Article 2(1) [Attachment 2] 12(1) [Attachment 2] 12(13) of the Enforcement Decree of the State Compensation Act, the labor disability ratio of the “person who remains after the person’s wound in an external mother” is 15%, and the general labor disability ratio due to the drilling arising from the external appearance is set higher.

C. We examine these circumstances in light of the legal principles as seen earlier.

In determining the Plaintiff’s rate of loss of labor ability, the court below should carefully deliberate and determine all specific circumstances of the victim so as not to be remarkably unreasonable in violation of the principle of equity. Nevertheless, on the premise that the criteria per se under Article 2(1) [Attachment 2] of the Enforcement Decree of the State Compensation Act is to determine the degree of compensation based on mutually advantageous benefits, the court below acknowledged that the Plaintiff’s rate of loss of labor ability was considerably lower than the result of the expert’s appraisal without presenting reasonable and objective grounds. This goes beyond the bounds of the discretion of the fact-finding court. The lower court erred by misapprehending the legal doctrine on the rate of loss of labor ability, failing to exhaust all necessary deliberations, thereby adversely

D. Meanwhile, the lower court did not err by failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, in determining that the Plaintiff caused depression due to the instant surgery and re-operation, and that the damages incurred therefrom were not acknowledged.

2. As to the third ground for appeal

In calculating the debtor's amount of damages for tort, the debtor's liability may be limited in order to ensure the fairness in burden of damages (see, e.g., Supreme Court Decision 2012Da107662, Mar. 20, 2015). Determination of fact-finding on the grounds for limitation of liability or the rate thereof is an exclusive right of fact-finding court, unless it is manifestly unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 2016Da249557, Jun. 8, 2017).

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s fact-finding or its determination on the grounds for limitation of liability cannot be considerably unreasonable in light of the principle of equity. Accordingly, this part of the

3. As to the Plaintiff’s appeal of consolation money

The plaintiff filed an appeal as to the claim for consolation money in the judgment below, but the petition of appeal or the appellate brief did not indicate the grounds for objection.

4. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)