Where the income is less than the urban daily wage at the time of the accident, the basis for calculating the lost loss.

All healthy ordinary people can engage in urban daily work and increase the amount of income. Therefore, even if the plaintiff received less remuneration at the time of the accident, it is difficult to claim future income loss on the premise that the plaintiff will engage in future urban daily work.

Articles 393 and 763 of the Civil Act

en banc Decision 79Da1899 delivered on February 26, 1980

Plaintiff 1 and one other

Defendant Stock Company

Sungdong Branch Court of Seoul District Court (78Gahap518)

1. Alteration of the original judgment shall be made;

2. The defendant shall pay to the plaintiff 1 the amount of 3,933,329 won, 300,000 won and 5% per annum from October 1, 197 to the date of full payment.

3. The plaintiffs' remaining claims are dismissed.

4. The defendant's incidental appeal and motion are all dismissed.

5. Of the costs of lawsuit, the total costs incurred by the plaintiffs' claims are divided into two parts, which are borne by the defendant, the remaining one by the defendant, and the costs incurred by the defendant's request by the defendant.

6. The remaining parts exceeding the sentence of provisional execution by the court below in the above two paragraphs may be provisionally executed.

The plaintiff filed a judgment with the plaintiff 1 to pay 14,01,117 won, 1,00 won to the plaintiff 2, and 1,40,000 won to the plaintiff 2, and 5% of the annual interest rate from October 1, 197 to the date of full payment (the claim was finalized in the trial) (the claim was finalized in the trial). The defendant is an application for the return of provisional payment at the trial, and the plaintiff 1 is the defendant to pay 3,450,624 won and 105,356 won to the plaintiff 2.

The plaintiff shall revoke the part against the plaintiffs in the original judgment.

The defendant sought from the plaintiff 1 to the plaintiff 2,736,090 won, 400,000 won and 5% interest rate per annum from October 1, 197 to the date of full payment, and filed a claim with the plaintiff 2,736,090 won and each of the above amounts, and the defendant extended the claim at the same time, and the defendant revoked the part of the original judgment against the defendant and dismissed the plaintiffs' claim corresponding to this part of the original judgment.

1. We examine the plaintiff's main claim.

(A) On September 30, 1979, at around 21:30, Plaintiff 1 sustained an injury to a freight truck (vehicle number omitted) owned by Nonparty 1, the driver of the Defendant Company, which is the driver of Nonparty 1, the Defendant Company, in front of 124, on September 30, 1979, and there is no dispute between the parties. According to the result of the examination of the criminal records by the lower court, Plaintiff 1 can be recognized as having suffered an injury, such as brain surface, two sides, both sides, anti-gral pathr, both sides, left-hand aggregate, and anti-grhesion, etc., due to the above accident, and there is no other evidence to support the above recognition.

Thus, the defendant is responsible for compensating for all damages suffered by the plaintiff 2, who is his wife, who is the plaintiff 1, who was injured by the above accident that occurred due to the operation of the automobile for himself, and who is not in dispute with the establishment of the above accident, by the statement of the evidence No. 1.

On the other hand, the defendant asserts that the above accident is an accident caused by the suicide of the victim who continued to walk around the road and the gross negligence of the victim, despite the warning of the vehicle behind the plaintiff 1, who is the victim, and therefore, the defendant's liability for damages should be exempted.

However, according to the result of the examination of criminal records by the court below, the road width of the accident site is about 17 meters from both sides of the road, which is 3.5 meters wide from both sides of the road, and the remainder was non-packaged. At the time of the accident, the non-party 1 was driving the above truck belonging to the defendant company and driving the above accident on the road section at approximately 20 meters wide from the right side of the road at the point of the above accident, and found that the plaintiff 1 is walking away from the road section at approximately 2.4 meters long from the center line of the road under the influence of alcohol and was able to find out the above accident without any other reason that the above plaintiff 1 was responsible for damages due to the non-party 1's fault while driving the road at the right side of the road due to the non-party 1's fault. Thus, the non-party 1's fault should not be found to go against the order to avoid the collision between the plaintiff 1 and the employees of the above vehicle.

(B) Next, we examine Plaintiff 1’s property damage.

First of all, the plaintiff 1 is a male born on January 13, 1957 and the age of 20 years is about 41 years and 61 years old. The above plaintiff was treated with injury as seen above due to the accident, but it remains remaining 1, 7-1, 5-2, 5-2, and the non-party 2 who is an appraiser of the court below, and the result of the appraisal and arguments of the non-party 3. The plaintiff 1 is a male born on May 13, 1957, and the average male at this age is about 41 years and 40 years old, and the above plaintiff is 41 years old and over 60 years old. The above plaintiff's age was 30 days old and less than 5 days old. The above plaintiff's age was 50 days old and less than 1,57 days old as of June 30, 197, which is nearest at the time of closing the argument of this case 19-7 days old and there is no other evidence that the plaintiff 1-day's age of urban labor.

At the time of the accident, the defendant argued that the plaintiff 1 had been working as a member of the Slive Industry Co., Ltd. at the time of the accident that he received 70,000 won monthly income, and thus, it should be based on this income in calculating the future revenue loss amount of the above plaintiff. However, if a healthy ordinary person is an ordinary person, anyone can be engaged in urban daily work at least and income can be raised to the extent, so even if the above plaintiff claimed for future revenue loss amount on the premise that he will be engaged in urban daily work, the above plaintiff's claim for future revenue loss amount is groundless.

Furthermore, according to the results of the appraisal by Non-party 4 on the claim for medical expenses in the future, the results of the appraisal by the parties, and the purport of the oral argument, the plaintiff 1 may recognize the fact that the plaintiff 1 was to have fixed the alleys in metal condition while treating both the alleys from among the injuries caused by the accident in this case, the removal operation is necessary, and that the amount of KRW 200,000 is required for medical expenses such as the removal operation expenses, etc. In addition, the part of the appraisal by Non-party 2 of the court below which is contrary to the above recognition is not believed, and there is no other evidence to support the above recognition. Accordingly, the amount of KRW 160,000, the plaintiff 160,000, which is claimed by the above plaintiff, out of the expenses for the above recognition, is the damage suffered by the above plaintiff

Therefore, the amount of damages incurred by Plaintiff 1 due to the accident of this case shall be KRW 6,103,113 (5,943,113 +160,00) as the aggregate amount of damages of the above recognition. However, since the accident of this case conflicts with the above Plaintiff’s negligence as seen above in the accident of this case, it is reasonable to determine the amount of damages to be paid by the Defendant as KRW 4,577,334 (6,103,113 x 75/100). However, according to the evidence Nos. 1 through 6 of evidence No. 1 of this case without dispute, it can be recognized that part of the compensation for damages was received KRW 324,80,00 as part of the compensation for damages after the accident of this case. Accordingly, the deduction of damages from the above amount of damages would remain 4,252,534 won.

In other words, since the defendant spent 3,276,820 won for the plaintiff 1's medical expenses after the accident of this case, the part corresponding to the above plaintiff's negligence ratio among these medical expenses should be borne by the above plaintiff. Thus, there is no dispute between the parties as to the facts that the medical expenses incurred by the defendant in order to treat the above injury of the plaintiff 1 caused by the accident of this case were 3,276,820, and therefore, it should be borne by the above plaintiff 819,205 won (3,276,820 x 25/100) equivalent to the plaintiff's negligence ratio among the above medical expenses. Thus, the damages to be paid by the defendant should be offset by the above damages, which is 3,43,329 won (4,252,534-819,205).

(C) Furthermore, as to the plaintiffs' claim for consolation money, it is obvious in light of the empirical rule that the plaintiffs 1 suffered from injury as seen above and treatment of them, and that the plaintiff 2, his wife, etc. suffered from considerable mental pain. Thus, the defendant is obligated to pay consolation money to the plaintiffs 1, as well as his wife, since it is obvious in light of the circumstances of the accident, the degree of negligence and degree of injury of both parties (which is alleged by the plaintiffs 1 to have been frighten from the aftermath of the accident, but there is no evidence to acknowledge it), and the statement of evidence No. 1 from the above, and the age, family relation, occupation, and income level of the plaintiffs recognized by the testimony of the non-party 5 of the court below and all the circumstances shown in the arguments except for the plaintiffs' age, family relation, occupation, and income level. It is reasonable that the defendant should pay consolation money to the plaintiff 1, 500,000 won and 3 million won to the plaintiff 2.

(D) Thus, the plaintiffs' claim of this case is reasonable to the extent that the plaintiffs 1 sought payment of the total amount of damages of the above recognition 3,933,329 won (3,433,329 +500,000), the consolation money of the above recognition 300,000 won, and damages for delay with the rate of 5% per annum, which is the annual interest rate of the Civil Law, from the date following the date of the tort case to the date of full payment. The remaining claims are groundless.

2. We examine the defendant's application for the return of provisional payments.

In the judgment of the court below on September 28, 1978, the defendant paid 3,275,200 won to the plaintiff 1, 100, 100,000 won to the plaintiff 2, and 5% interest per annum from October 1, 1977 to the date of full payment as to each of the above amounts, it is obvious that the judgment of winning part of the plaintiffs in the provisional execution sentence was sentenced, and the fact that the plaintiff 1 paid 3,450,624 won to the defendant and 105,356 won from the defendant as compulsory execution is not disputed between the parties.

The defendant sought the return of the above money between the plaintiffs on the premise that the judgment of the first instance court of the above provisional execution sentence will be changed in the trial and the provisional execution sentence will become null and void. However, the plaintiffs' claim of this case shall be accepted the amount equivalent to 3,933,329 won in relation to the plaintiff 1, and 300,000 won in relation to the plaintiff 2, and the amount equivalent to 5% per annum from October 1, 197 to the full payment date, since the above provisional execution sentence with the original judgment shall not lose its validity, the above provisional execution sentence with the original judgment shall not lose its validity. Thus, the defendant's claim of this case is groundless.

3. Therefore, since the original judgment with respect to the instant case is partially unfair with the party members and its conclusion are partially different, part of the Plaintiffs’ appeal is accepted, and the Defendant’s incidental appeal is without merit, and thus, the Defendant’s incidental appeal is dismissed. As such, the Defendant’s application for return of provisional payment is without merit, and it is dismissed, and it is so decided as per Disposition by applying Articles 96, 89, 92, 93 of the Civil Procedure Act and Article 199 of the same Act with respect to the declaration of provisional execution.

Judges Jeon Byung-hun (Presiding Judge)