[1] In a case where a business item is entirely destroyed by a tort, whether a business suspension loss equivalent to a business loss should be compensated separately from the exchange value (affirmative)

[2] The case reversing the judgment of the court below as to the calculation of business losses caused by the crick's total loss in case where the ship, at the end of the wharf by the negligence of the pilot who loaded the ship adjacent to the wharf, collisions for container loading and unloading at the end of the wharf and loaded the ship

[1] Articles 393, 750, and 763 of the Civil Act / [2] Articles 393, 750, and 763 of the Civil Act

[1] Supreme Court en banc Decision 2001Da82507 decided Mar. 18, 2004 (Gong2004Sang, 627)

Busan Container Terminal Operation Corporation, an incorporated association

Hyundai Commercial Ship Co., Ltd. (Law Firm Samyang, Attorneys Yu-soo et al., Counsel for the plaintiff-appellant)

Blort Port S. (Law Firm Cheonghae Sea, Attorneys Yu Dong-dong et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 98Na12539 delivered on August 31, 2001

The judgment below is reversed, and the case is remanded to Busan High Court.

1. As to Defendant 1’s ground of appeal

A. Summary of the judgment of the court below on the corresponding part

(1) Fact finding

(A) The Plaintiff is a nonprofit incorporated association under the Civil Act that runs the business of loading, unloading, storing, transporting, etc. of container cargo that is located within the port of Busan. Around December 1995, the Plaintiff is liable to preserve and manage all property of the instant wharf and to return the sub-lease property to the decent manager when the sub-lease contract is terminated or terminated, and the Plaintiff is liable to take measures under the direction of the Busan Regional Maritime Port Authority or the Korea Maritime Port Authority.

(B) The Defendant owns 30,65 tons of lushes lushes, which are container-only vessels, and is a corporation of Pakistan, which is engaged in maritime transport business (hereinafter “instant vessel”). The Defendant owns approximately 22 years of age, 1,554 TEU, 30,00 tons of lushes lushes, 219, 219, 36,000 lushes, diesel engine, 32 years of age, 1,554 TEU, and hereinafter “instant vessel”).

(C) On February 11, 1996, the vessel of this case loaded 453TEU containers at the port of Busan, around 14:35 on February 12, 1996, at the port of Busan, at the port of 14:5, the vessel of this case, at the port of Busan, at the port of 1:40 m3 m3 m3 m3 m3 m3 m3 m3 m3 m3 m3 m3 m3 m4 m3 m3 m3 m3 m3 m3 m4 m3 m3 m3 m4 m3 m3 m3 m3 m3 m3 m3 m4 m3 m3 m3 m3 m3 m3 m3 m3 m4 m4 m3 m3 m3 m3 m3 m4 m3 m4 m3 m3 m m m3 m3 m3 m.

(D) In the instant accident, the part under which the fore part of the player of the instant vessel conflicts with the inner wall of the wharf, and the part on the fore part of the player and the fore part of the instant vessel was installed at the wharf 112, and the part on the fore part of the instant vessel was destroyed by the owner, Busan Regional Transportation and Port Authority, 487t, 30.5t, human capacity 30.5t, disposal capacity 25-35 TEU/hours, manufacturing time 1978, hereinafter referred to as “the fore” in this case), and the part on the fore part of the instant vessel was destroyed by the fore part of the port at the fore part and the fore part of the instant vessel, and the fore part was destroyed by 40 feet containers owned by the Plaintiff at the fore part while the fore part exceeded the fore part and 40 feet containers at the fore part to load the instant vessel.

(E) At the time of the instant accident, the said 1st line (320 meters in length) had two straws, including the instant straws, but, at the right end of the said 1 line, around 160 meters from the left end of the said 1 line, the instant straws were located at a point of approximately 230 meters in each of the instant straws at the point. The instant vessel (219 meters in length) was planned to be anchored along the right side from the center of the 1 line to the left side on the basis of the center of the 1st line, but at the point of 70 meters away from the center of the said 1 line, the instant 40 degrees of the straws of the instant straws, and conflict with the players, coming to the right side of the instant straws.

(2) The judgment of the court below

(A) The accident of this case, as a pilot, refers to a large-scale vessel like the vessel of this case, to a wharf No. 1,600 meters, which is a mandatory pilotage area, is about the distance from the port breakwater in Busan to the wharf. In addition, in consideration of the risk of collision with the vessel within the port, the main engine shall stop from the port breakwater to the wharf, and shall enter the wharf at least 15∑ 15 degrees old power alone, with the left side of the wharf and approach the wharf. After completely stopping the course of the vessel before the wharf, the fleet and the hull were able to maintain normal speed, while leaving the wharf at a speed of not more than 10cc per hour, with the vessel being pushed the wharf to the wharf at a speed of not more than 10cc per hour, and it was extremely rapid, approaching the vessel of this case to the wharf, close to the wharf, and make an excessive stop to the port, thereby reducing the vessel's ability to enter the port of this case to the left side of the port of this case.

(B) From 190 to 190, the Busan Pilot Association, to which the above river-head belongs, requested that the ship be located at the center of the tin by avoiding the edge of the tin first approach at the time of the ship's landing, to prevent damage to cricks that might occur at the time of the ship's landing. The plaintiff's crick equipment operation guidelines also can be recognized as similar to this. However, at the time of the accident, the ship of this case entered the right side of the above 1st tin in front of the left side in the direction. Thus, if the crick was located at the right side of the 1st tin, the ship of this case was located near the center of the tin or the left side of the center of the crick, even if it cannot be deemed that the crick contributed to the occurrence of the collision. The accident of this case did not establish the crick's position in the direction of the crick, but did not change its position to the left side of the ship of this case.

B. The judgment of this Court

According to the records, the central part of the landing location of the ship of this case can be seen as the central part of the wharf 1, and according to the facts recognized by the court below, at the time of the accident of this case, the cwr of this case had been mooring far above the fore part of the ship rather than the central part of the landing location of the ship of this case, considering the fact that the length of the ship of this case is 219 meters. Although the accident of this case occurred due to the pilot's negligence, the accident of this case occurred due to the collision between the fore part of the ship of this case and the fore part of the wharf by entering the fore part of the 40∑ 40 degrees of the fore part of the fore part of the fore part of the vessel of this case and the fore part of the fore part of the vessel of this case, which led to the maintenance of the fore part of the fore part of the vessel of this case to the fore part of the central part of the vessel of this case, the plaintiff's fault and the fore part of this case did not err.

2. As to Defendant 2’s ground of appeal

The fact-finding and decision of the court below that recognized the amount of damages equivalent to the expenses incurred in the wharf building construction due to the accident of this case as KRW 935,836,702 is justifiable and there is no error of law such as misconception of facts

3. As to Defendant 3’s ground of appeal No. 3 and the ground of incidental appeal by the succeeding intervenor

The decision of the court below is just in calculating the exchange price of the instant lele, which cannot be deemed to have been set at the market price at the time of the accident, taking into account the structure, size, form, material, performance, and production year, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles as

4. As to the grounds of appeal Nos. 4 and 2 by the succeeding intervenor

A. Summary of the judgment of the court below on the corresponding part

(1) The successor intervenor's assertion

① Damage caused by the loss of the cream in this case is KRW 9,946,70,700, which could have been accrued if the cream in this case continued to have been operated without any accident, at KRW 4,561,942,00,00, after subtracting KRW 5,384,763,00, which was accrued from the operation of the cream in this case’s possession due to the damage of the cream in this case, and KRW 4,561,942,00,00, which was paid by the Plaintiff as rent for the cream in aggregate, KRW 7,750,284,271 ( KRW 4,561,942,00 + KRW 2,750,284,271). ② Even if the assertion in this case is not acknowledged, the cream in this case’s possession is a 7,312,2626,271,271.

(2) Fact-finding by the court below

(A) On February 15, 1996, the Plaintiff leased and used a Haberle on behalf of the Plaintiff, the International Co., Ltd. on behalf of the Plaintiff, in order to handle the scheduled container quantities.

(B) At the time of the instant accident, the Plaintiff and the Busan Regional Transportation and Port Authority already agreed to install a new 4th (2nd and second 2th cm) in order to resolve the chronic physical phenomenon due to the lack of container disposal facilities of the instant wharf. When the instant accident occurred, the Plaintiff and the Busan Regional Transportation and Port Authority decided to manufacture a string to be replaced by the determination that it is impossible and impossible to repair the said string immediately and to dismantle it, and changed the existing 2th th th th th th th th th 2th th th th th 1, 196 through the necessary internal and external process on April 4, 1996. The manufacture and installation of the 2nd th th th 2th st st st st st son was completed on October 31, 196, and the manufacture and installation of the 3th th th st st st st st st st st st st st c.

(C) Until August 31, 1997, the Plaintiff continued to lease and use the Habercle until the completion of the replacement. From February 15, 1996 to August 31, 1997, the Plaintiff paid rent of KRW 2,750,284,271, which is the total rental period of the Habercle, from February 15, 1996 to August 31, 197.

(3) The judgment of the court below

(1) The allegation in the above paragraph is based on the appraisal result of Leewon- Accounting Corporation's business losses. The sales revenue of the cr.e., machinery and facilities within the wharf of this case, real estate within the wharf of this case, occupied waters, and human resources employed at the wharf of this case, and the calculation result of an organic combination of tangible and intangible property within the wharf of this case. Thus, in calculating the sales revenue of the cr.e., the cr., direct business expenses such as personnel expenses, power expenses, equipment maintenance expenses, insurance premium, etc., shall not be deducted from the sales revenue, and the cost of the cr.e., port facilities, other indirect business expenses, sales expenses, and management expenses shall be taken into account into account. The above appraisal entrustment provides that if the cr.e., the cr., sales revenue of the cr. can be calculated by deducting the above direct business expenses other than the sales revenue of the cr.e., the cr., sales revenue of the cr.

Meanwhile, in the event that business equipment, such as the instant crane, is destroyed by a tort and becomes unusable for a long time, in addition to compensating for the exchange price, the tortfeasor is obligated to compensate for the business loss equivalent to the business loss incurred by failure to conduct the business for the ordinary period required to replace the said equipment. Under the above circumstances, the business loss incurred by failure to conduct the business during the ordinary period required to replace the instant crane, i.e., the amount obtained by deducting various expenses incurred by the use of the instant lifts from the business income of the instant crane during the same period, and the rent is ordinary damages within the reasonable period, and the above two losses are selective in a selective relationship, and the amount may be claimed for the subsequent damage in lieu of the former, and the total amount of the amount of the damages to be paid to the Plaintiff and the amount of the damages to be paid to the Plaintiff during the period of 7th of the instant crane to determine whether the lease was acceptable after the instant accident, and the total amount of the damages to be paid to the Plaintiff during the period of 20th of the instant period of the said 3rd.

B. The judgment of this Court

In a case where a business object is entirely damaged due to a tort, as long as it is possible to prove such damage, the business loss equivalent to the amount of business loss caused by the failure to conduct the business by using the object for a reasonable period necessary to prepare another substitute for it shall be compensated as ordinary damages, which are separate from the exchange value, as long as it is possible to prove such damage. This shall be deemed the same as temporary closure damage for a reasonable period necessary for repair in a case where a business object is partially damaged (see Supreme Court en banc Decision 2001Da82507, Mar. 18, 2004).

The lower court deemed that the Plaintiff’s rent equivalent to the business losses incurred by the Plaintiff on behalf of the Plaintiff during the period required for the manufacture of the instant cranes as suspension of business. In order to recognize such business losses due to the destruction of all of the instant cranes, it is impossible to newly manufacture and install the instant cranes as substitute for the same kind of cranes, and the period required for the manufacture and installation period of the new cranes produced and installed by the Plaintiff at its request is the same as the manufacturing and installation period of the instant cranes, and it is not possible for the Plaintiff to rent the same kind of cranes for the said period of 0 years, and it is also difficult to conclude that the Plaintiff was the most appropriate method for the Plaintiff to rent the instant cranes on behalf of the Plaintiff. According to the records, it is difficult to view the Plaintiff’s new manufacturer and the Plaintiff’s new scrap on behalf of the Plaintiff at the same time as the instant cranes at the time of its manufacture and installation, and thus, it is difficult to find the difference between the Plaintiff’s new scraps on the same scale of 1 and the instant scraps on the same scale of 1.

At the time of the instant accident, the lower court should have deliberated on whether it was possible to purchase, and to what extent, the period required to purchase, and install, the second class of the said Crec in terms of size as substitute goods of the instant Crecers, and should have compared the costs to be incurred in leasing the instant Crecers, which are the same as the instant Crecers, with the costs incurred by the Plaintiff in comparison with the rent paid by the Plaintiff. In so doing, without any deliberation on the aforementioned circumstances, the lower court recognized the amount equivalent to the rent paid by the Plaintiff during the period required for the actual production of the new Crecers whose size is different from the instant Crecers, as business damage caused by the transfer of the instant Crecers. In so determining, the lower court erred by misapprehending the legal doctrine as to the calculation of business damage, as otherwise

The ground of incidental appeal by the Plaintiff is based on the premise that the business damage equivalent to the rent of the Habercle, recognized by the lower court, is reasonable, and it is based upon the Defendant’s assertion in the grounds of appeal regarding the above business damage. Therefore, the Plaintiff’s ground of incidental appeal does not separately

5. As to Defendant 5’s ground of appeal

The court below recognized 31,00,000 won paid as service fees to the plaintiff for the assessment of damages as damages caused by the accident of this case. According to the records, the service fees are requested by the plaintiff to assess damages caused by the accident of this case after the accident of this case and paid in consideration thereof. However, it is recognized that the service fees are merely for the presumption of damages at the pre-litigation stage rather than for the data to clarify the situation of the accident of this case or the degree of damages. Thus, the above service fees cannot be viewed as losses with proximate causal relation arising from the accident of this case. In conclusion, the above judgment of the court below is erroneous in the misapprehension of legal principles as to the scope of damages as alleged in the ground of appeal (According to the records, the succeeding intervenor applied for withdrawal from the lawsuit by the court below, and the defendant consented, and the litigation relation between the plaintiff and the defendant is terminated by changing the order of the court of first instance and the defendant, and the court below ordered the succeeding intervenor to pay additional damages and dismissed all the remaining appeals and errors of the defendant.)

6. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-won (Presiding Justice)