A. Whether the monthly average income of workers engaged in the same occupation as the job classification's wage fact-finding report can be used in estimating the income of the individual business operator (negative)

B. Circumstances that should be premised on the recognition of the lost income of a personal business operator by the monthly average income of employees engaged in the same occupational category as the report on the fact-finding survey under paragraph (a) above

C. The meaning of the empirical rule

(d) admitting the maximum working age of an individual business operator;

A. A report on the status quo of wages by occupation is prepared by surveying and compiling the wages of workers engaged in sampled enterprises among "at least 10 full-time workers in all industries except for the fields of agriculture, hunting, forestry and fishery under the Korean Standard Industrial Classification." In principle, it is a basis for estimating the income of a person falling under "worker". Thus, in estimating the income of a personal business operator who is not an employee, it is not possible to use the monthly average income of the employees engaged in the same occupation as the above report on the status quo in preventing such income.

B. In order to recognize the lost income of a personal business operator based on the monthly average income of the employees engaged in the same occupational category as the report on the fact-finding survey referred to in paragraph (a) above, it should be premised on the fact that the actual income at the time of the accident does not exceed the monthly average income of the Do and retailer in the above fact-finding survey even when calculating the replacement employment expenses.

C. The empirical rule is a form of determination based on a common recognition derived from a specific empirical fact, as a rule of determination of facts as to the nature or causal relationship of an object resulting from each individual experience. Thus, in order to establish the existence of a certain empirical rule, the existence of a specific empirical fact based on which the empirical rule is based should be premised.

D. In order to recognize the maximum working age of a person engaged in an individual business based on the empirical rule, the maximum working age ought to be determined by examining all the circumstances, such as the number of employees by age group, employment rate, labor participation rate, working conditions, working conditions, etc. of employees engaged in the same occupation other than the average remaining life of the same person, and examining specific circumstances, such as age, occupation, career, health conditions, etc. of the same person or persons, and examining specific circumstances, such as

(a)(b)Article 763 (Article 393) of the Civil Code;

A. (B) Supreme Court en banc Decision 90Meu24502 Decided November 13, 1990 (Gong1991,89) (Gong1990,2380)/B. Supreme Court Decision 88Meu10906 Decided June 13, 1989 (Gong1989,1059)/Da. Supreme Court Decision 90Meu2427 Decided December 26, 1990 (Gong1991,627)/Da. (Gong1991,627) Decided December 26, 1989 (Gong190,356), Supreme Court en banc Decision 90Da16877 Decided December 26, 199 (Gong1990,356) (Gong1990, 199).

Plaintiff 1, et al., Counsel for the plaintiff-appellant

Dongjin Metal Co., Ltd., Counsel for the defendant-appellant

Daegu High Court Decision 91Na3124 delivered on January 31, 1992

The part of the judgment of the court below concerning actual import damage of the plaintiff shall be reversed, and this part of the case shall be remanded to the Daegu High Court.

The plaintiff and defendant's appeal as to positive damages and consolation money are dismissed, respectively.

The costs of appeal dismissed shall be assessed against each party.

1. We examine the Plaintiff’s grounds of appeal.

A. As to the second ground for appeal

On February 25, 1978, the court below found that the above plaintiff was a male of the above (date of birth omitted) and graduated from the department of △△△ University University on February 25, 197, and had engaged in the Do and retail business of office equipment such as computer, etc. from August 8, 1987 to the accident of this case, the court below presumed that the above plaintiff was the monthly average income of the above plaintiff, from among the workers engaged in the retail and food accommodation business, KRW 781,547, which is the monthly average income of the above plaintiff.

However, a report on the status quo survey by occupation is prepared by surveying and compiling the wages of workers engaged in sampled enterprises among "at least 10 full-time workers in all industries except for the fields of agriculture, hunting, forestry and fishery under the Korea Standard Industrial Classification." Thus, in principle, a person who is a "worker" is not a worker. Thus, in estimating the income of an individual entrepreneur who is not a worker, it is not possible to use the monthly income of the worker engaged in the same occupation as the above report on the status survey in preventing the monthly income of the worker (see Supreme Court Decision 90Meu24502 delivered on November 13, 1990; 91Da14741 delivered on July 9, 191).

According to the records, the above plaintiff's assertion that he is a "general manager" under the Korean Standard Industrial Classification, and the judgment of the court below is also based on the premise that the above plaintiff is an individual business operator who saw a considerable number of employees rather than a simple employee. In order to recognize the plaintiff's actual income based on the monthly average income of Do and retail business employees, the court below should be based on the premise that the above plaintiff's actual income does not exceed the above plaintiff's contribution (or labor value) among the actual income at the time of the above plaintiff's accident, or the amount equivalent to the remuneration when the plaintiff employs a person with the same academic background, career and management ability as the above plaintiff's actual income at the time of the above accident, i.e., the amount equivalent to the remuneration when he employs

Therefore, the court below did not mention the above premise (the testimony of the non-party 1 of the first instance witness adopted by the original court is 10 persons or more, and four computer progs received a monthly wage of 700,000,000 won or more from the above plaintiff among them, and the above plaintiff's monthly income was 3 million won or more) and, without any mentioning, calculated the above plaintiff's monthly income from the above fact-finding report's monthly income by the worker's monthly income from the above fact-finding report, there is an error of law that affected the conclusion of the judgment due to a violation of the rules of evidence or a mistake of facts due to insufficient deliberation. Thus, the argument points out this point is with merit.

2. We examine the defendant's grounds of appeal.

A. On the first ground for appeal

The court below is justified in rejecting the defendant's defense that the non-party 2, who is the defendant's employee, was not negligent in the accident of this case, and there is no error of law such as the theory of lawsuit.

B. On the second ground for appeal

The lower court: (a) based on the premise that a person engaged in the wholesale and retail business of office equipment, such as the Plaintiff, was able to operate until he reaches the age of 65 in light of the empirical rule, the lower court calculated the actual income of the person.

However, the empirical rule is a form of determination based on a common recognition derived from a specific empirical fact as a rule of fact determination as to the nature or causal relationship of an object resulting from each individual experience. Therefore, in order to find the existence of a certain empirical rule, the existence of a specific empirical fact, which is based on which the empirical rule exists, should be premised.

Therefore, in order to recognize the maximum working age of a person engaged in the wholesale and retail business as an empirical rule, the lower court should have determined the maximum working age by examining all the circumstances, such as the number of employees by age of the same occupation, employment rate, labor participation rate, working conditions, etc., other than the average remaining life of the same person, and examining the specific circumstances, such as the Plaintiff’s age, occupation, career, health status, etc., and working environment (see Supreme Court Decisions 88Meu16867, Dec. 26, 1989; 90Meu2397, Jun. 12, 1990; 90Da6248, Feb. 22, 1991).

Nevertheless, the court below's determination that the maximum working age of an employee engaged in the same occupation as the above plaintiff would be until he reaches 65 years in light of the empirical rule without any deliberation as to the above point is erroneous in the misapprehension of the rules of evidence or erroneous determination of facts due to insufficient deliberation, which affected the conclusion of the judgment. Thus, the grounds for appeal pointing this out are with merit.

3. Therefore, without further proceeding to decide on the Plaintiff’s ground of appeal No. 1, the part concerning the Plaintiff’s actual import damage among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining part of the appeal is dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice)