2018Da290504 Damages (i.e., losses)

-Supplementary Appellee

A

Law Firm Han-han, Counsel for the plaintiff-appellant

Attorney Hong-chul, Man-il, Man-ho, Lee Ho-ho

person

1. C:

Law Firm Han-deok, Counsel for the plaintiff-appellant

Attorney Jeon Chang-he, Attorneys Jeon Chang-heon, Min Han-han, Park Jung-op

Appellant

2. Korea;

Seoul Central District Court Decision 2018Na26061 Decided November 2, 2018

January 30, 2020

The part of the judgment of the court below against the plaintiff on lost income shall be reversed, and that part of the case shall be remanded to the Panel Division of the Seoul Central District Court.

The remaining appeals by the plaintiff, the appeal by defendant C and the incidental appeal by defendant C are all dismissed.

The grounds of appeal by both parties and the grounds of incidental appeal are examined.

1. Regarding the maximum working age [No. 1 of the Plaintiff’s grounds of appeal, No. 3 of the Defendant C Co., Ltd. (hereinafter “Defendant C”), and the grounds of incidental appeal by the Defendant Republic of Korea]

A. In Supreme Court en banc Decision 88Meu16867 Decided December 26, 1989 (hereinafter “previous en banc Decision”), the Supreme Court discarded its previous position that deemed the maximum working age of a person engaged in ordinary physical labor or a person engaged mainly in physical labor (hereinafter “physical labor”) as 55 years in light of the empirical rule. From that end, the Supreme Court has maintained the view that the maximum working age of physical labor should be deemed as 60 years in light of the empirical rule.

However, as Korea’s social and economic structure and living conditions rapidly improve and develop, and the improvement and improvement of the legal system, the circumstances that served as the basis for the foregoing empirical rule at the time of the previous en banc Decision, etc., became difficult to maintain the above view. Barring special circumstances, deeming that a person is able to operate between the age of 60 and the age of 65 is in accord with the empirical rule (see, e.g., Supreme Court en banc Decision 2018Da248909, Feb. 21, 2019).

B. On the grounds indicated in its reasoning, the lower court determined that it was difficult to readily conclude that the Plaintiff, at the time of the instant accident, obtained, or could have obtained, income equivalent to statistical income of those experienced in real estate business with five or more years and less than ten years of work experience in the real estate industry at the time of the instant accident. In light of relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine regarding the calculation of lost income, or by misleading facts, etc., contrary to what is alleged in the Plaintiff’s grounds of appeal. However, the lower court rejected the Plaintiff’s assertion that the maximum working age ought to be deemed to be until the age of 65, and it is difficult to accept the part of the lower judgment that determined that the Plaintiff may obtain income equivalent to the daily wage of ordinary workers in the urban area by August 7, 2018 (61 or 9

As seen earlier, the previous empirical rule, which deemed the maximum working age of physical labor as up to 60 years, became difficult to maintain as a result of changes in empirical facts that served as the basis of the empirical rule. Therefore, the lower court determined the Plaintiff’s maximum working age under the previous empirical rule as up August 7, 2018, when setting the maximum working age, even if having determined the maximum working age, by examining all circumstances that serve as the basis of the empirical rule, and examining specific circumstances that would lead to finding the Plaintiff’s maximum working age differently from the empirical rule-based maximum working age newly derived therefrom. In so doing, the lower court erred by failing to exhaust all necessary deliberations by misapprehending the legal doctrine on the maximum working age, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment. On the other hand, the Plaintiff’s ground of appeal pointing this out is with merit. On the premise that the Plaintiff’s maximum working age ought to be deemed as 60 years, both Defendant C’s ground of appeal and the grounds of incidental appeal by the lower court cannot be accepted.

2. Examining the calculation of opening costs in light of the relevant legal principles and records as to the calculation of opening costs (No. 2 of the Plaintiff and Defendant C’s respective grounds of appeal, and No. 3 of the grounds of incidental appeal by Defendant Korea), the lower court did not err by misapprehending the legal principles as to the calculation of opening costs, failing to exhaust all necessary deliberations, or by failing to exhaust all necessary deliberations, as alleged in the grounds of appeal by the Plaintiff and Defendant C, and in violation of the rules of evidence.

3. Regarding comparative negligence (Defendant C’s ground of appeal Nos. 1 and ground of incidental appeal No. 1)

Contributory negligence in tort is set in consideration of the victim’s negligence in light of the principle of equity or good faith. Matters to be considered include: (a) the perpetrator and the victim’s degree of intentional or negligent act; and (b) the occurrence of illegal act and the expansion of damages. The fact-finding or determination of the rate of comparative negligence is within the exclusive authority of the fact-finding court, unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2018Da227551, Jul. 26, 2018).

For the reasons indicated in its holding, the lower court rejected the Defendants’ assertion that the Plaintiff’s error of failing to wear the safety level at the time of the instant accident contributed to the expansion of damages caused by the instant accident, and thus, should be taken into account in calculating the amount of damages to be compensated by the Defendants. In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on offsetting negligence or limitation of liability, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal by Defendant C

4. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff regarding lost income shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff, defendant C's appeal, and incidental appeal by the defendant Republic of Korea shall be dismissed in its entirety as it is without merit. It is so decided as per Disposition by the assent

Justices Cho Jae-won

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan