[1] The method of calculating the lost profit of an individual entrepreneur

[2] At the time of using statistical data in calculating alternative employment expenses based on statistical income of a person engaged in a job similar to a victim's personal business

[3] Whether statistical income under the statistical survey report on the basic statistical survey of the wage structure can be based on the calculation of the replacement employment expenses for self-employed farmers (affirmative with qualification)

[1] Where objective data exists to recognize the actual income of an individual entrepreneur who is the victim in a tort compensation case, the amount equivalent to the amount of remuneration, i.e., the amount equivalent to the actual income where a person who has the same academic background, career, management ability, etc. as the victim is employed, taking into account the scale, management status, the number of employees, management performance, etc. of the victim, may be calculated based on the replacement employment

[2] The calculation of alternative employment cost based on statistical income of a person engaged in a job similar to a victim's individual entrepreneur shall be deemed to have obtained income equivalent to the amount of his/her own performance and the amount of remuneration to be paid in employing a person who performs a similar work in terms of the content or the hours of providing labor. Thus, in order to calculate the alternative employment cost based on statistical income, it shall be carefully determined whether the purpose or method of the relevant statistics, the object and scope of the survey, the method of sample design, etc. are appropriate.

[3] The basic statistical survey report on the structure of wages is prepared by surveying and compiling the wages of the workers engaged in the sampled business among five or more full-time workers, and in principle, it is the basis for estimating the income of the person corresponding to the "worker". As such, the statistical income of the "farmer" in the above survey report cannot be acknowledged as the substitute employment expense for the self-employed farmer immediately after raising the statistical income of the worker. However, if a self-employed farmer has engaged in farming for at least ten years, considering the scale and type of the farming, the number of workers engaged in the farming, the number of workers engaged in the farming, and the record of the farming, etc., the contents of the duties performed by the self-employed farmer, or if it is acknowledged that the duties performed by the self-employed farmer are similar to those of the male farmer who has been engaged in farming for at least ten

[1] Articles 393, 750, and 763 of the Civil Act / [2] Articles 393, 750, and 763 of the Civil Act / [3] Articles 393, 750, and 763 of the Civil Act

[1] Supreme Court Decision 88Da10906 delivered on June 13, 1989 (Gong1989, 1059), Supreme Court Decision 90Da24427 delivered on December 26, 1990 (Gong1991, 627) / [2] Supreme Court Decision 92Da55701 delivered on April 9, 1993 (Gong1993Sang, 1366), Supreme Court Decision 95Da10471 delivered on June 29, 1995 (Gong195Ha, 2530) / [3] Supreme Court Decision 89Da35308 delivered on October 23, 190 (Gong190, 2380), Supreme Court Decision 96Da16879 delivered on May 16, 198 (Gong1968, May 16, 1998)

Plaintiff (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

Hyundai Marine Fire Insurance Co., Ltd. (Attorneys Han Han-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na88478 delivered on July 6, 2006

The part of the lower judgment against the Defendant regarding lost income is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s remaining appeal is dismissed.

We examine the grounds of appeal.

1. As to the plaintiff's assertion on monthly income

In a tort compensation case where objective data to recognize the actual income of an individual entrepreneur who is a victim does not exist, the amount equivalent to remuneration, i.e., remuneration, if an individual entrepreneur employs a person having the same academic background, career, management ability, etc. as that of the victim, taking into account the scale of his/her company, management status, the number of his/her employees, management performance, etc. (see, e.g., Supreme Court Decisions 88Meu10906, Jun. 13, 1989; 90Meu2427, Dec. 26, 1990). Such legal principle can also be applied as it is to a case of a self-employed farmer. On the other hand, an alternative employment fee may be calculated based on the statistical income of a person engaged in a job similar to that of an individual entrepreneur who is the victim. However, it shall be deemed that the individual entrepreneur has obtained the income equivalent to the remuneration to be paid in the same manner as the victim’s performance and the content thereof, and that it shall be determined based on the purpose or method of use of statistics 97.

In this case, the court below acknowledged that the plaintiff graduated from the four-year university and engaged in farming for more than 10 years while cultivating ginseng, ancients, rice plants, etc. with various agricultural machinery equipment, and was also designated as the farmer's successor in 194. The court below assessed the plaintiff's actual income based on this, considering the average monthly income of a male skilled man who has served for more than 10 years as an agricultural skilled man in the basic statistical survey report on the wage structure issued by the Ministry of Labor, and calculated the plaintiff's average monthly income as a substitute employment cost for the plaintiff.

However, the above investigation report is prepared by surveying the wages of workers engaged in sample business among five or more full-time workers, and in principle, it is the basis for estimating the income of a person falling under the "worker". Thus, the statistical income of a "agricultural skilled worker" in the above investigation report cannot be acknowledged as the replacement employment expense for the plaintiff who is a self-employed farmer immediately (see Supreme Court Decisions 89Meu35308, Oct. 23, 1990; 96Da24668, May 15, 198, etc.): Provided, That in cases where the business performed by the plaintiff is recognized as similar to that of a male skilled farmer with ten or more years of experience as defined in the above investigation report, taking into account the size and farming form of the plaintiff, the number of farming workers, and the farming performance, etc., if it is acknowledged that the business performed by the plaintiff is conducted by the plaintiff, or it is difficult to see the facts acknowledged by the court below alone.

In conclusion, the judgment of the court below is erroneous in the misapprehension of law as to the value judgment of evidence as the basis for calculating the actual income, or failing to exhaust all deliberations, which affected the conclusion of the judgment, and the ground of appeal pointing this out

On the other hand, in light of the records, the court below's rejection of the defendant's assertion on the premise that it is difficult for the plaintiff to recognize the fact that the defendant decided to operate a singing room no longer than before the traffic accident in this case. There is no violation of the rules of evidence as alleged in the grounds of appeal.

2. As to the assertion on the loss rate of labor ability

In light of the records, the judgment of the court below is just and acceptable to determine that the plaintiff lost labor ability due to the traffic accident in this case, based on the result of physical appraisal as stated in its judgment against the plaintiff, and there is no violation of the rules of evidence or incomplete deliberation, as alleged in the grounds of appeal.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant regarding lost income is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)