(영문) 대법원 2018.2.28.선고 2015다254538 판결

The part of the lower judgment against the Plaintiffs regarding lost income damages is reversed, and that part of the case is remanded to the Seoul Western District Court Panel Division. The remaining appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. As to the grounds of appeal on the food expenses and the job activity subsidy

A. The record reveals the following facts.

(1) As a dependent of the Plaintiffs, the Deceased who died due to the instant traffic accident was on his duty in HFF (hereinafter “HFF”) from March 5, 2012 to August 2, 2014.

(2) Article 25(1) of the Staff Benefit Regulations of HFC provides, “The Minister of Health and Welfare may pay heavy food expenses and work activity support expenses to the retired employee (excluding the attendance at office) as prescribed in the attached Table 4-1, as determined by the board of directors: Provided, That the employee who reduces working hours during the period of childcare may pay heavy food expenses only when he/she works for at least four hours a day, and Article 25(4) provides, “When using a vehicle for work during the period of departure or retirement, he/she shall be excluded from the payment of work activity support.”

(3) In addition, the "amount table of food expenses and work activity subsidy" for 4-1 person of the above attached Table 4-1 shall be paid in 200,000 won each, if he/she arrives at work for at least 10 days a month, and one hundred thousand won each, if he/she arrives at work for 5 to 9 days a month, shall be paid in 10,000 won each, and if he/she arrives at work for not more than 4 days a month, he/she shall

B. In light of the above provisions, it is difficult to view the cost of heavy food and work activity support in the instant case, which depends on the number of days of attendance at work changed due to various circumstances, as money and goods payable periodically and uniformly to its employees. Therefore, the lower court is justifiable to have determined that the cost of heavy food and work activity support in the instant case cannot be deemed as the wage income that serves as the basis for calculating the amount of actual income. In so doing, it did not err by misapprehending the legal doctrine on the wage income that serves as the basis for calculating the amount of actual income, thereby failing to exhaust all necessary deliberations

2. As to the grounds of appeal on the regular salary grade and the changed salary grade

A. The record reveals the following facts.

(1) According to the employee benefits regulations of HFC, benefits are classified into basic benefits, performance benefits, and statutory allowances. Among them, performance benefits consisting of regular salary, variable salary, special performance bonus (Article 4(1)), and regular performance bonus is on March, May, September, and November, and changes are made on January’s payment date (Article 5(1)); regular performance bonus is to be paid on January’s payment date (Article 5(1)); regular performance bonus is determined on the basis of the basic salary, work activity bonus, and payment rate determined at the time of payment within 40% per annum based on the monthly payment of the monthly payment of performance bonus.

(Article 16). The change in the performance rating may be paid at differential rates for each branch office or for each employee (Article 17) in accordance with the standards set by the board of directors (Article 16).

(2) On December 20, 2004, HF began to revise the benefit system and pay the existing bonus to its employees at regular performance rate and change rate, and even until September 2015, HF continued to pay periodically and uniformly to its employees regular performance rate (400% per annum) and change rate (the average payment rate may be 300% per annum, but the total average payment rate shall be 30% per annum).

(3) In other words, under the above Employee Benefit Regulations, HF has paid 10% regular performance-based pay to its employees each on the payment date of the salary in March, May, September, September, and November of each year, and the deceased has continued to receive the above regular performance-based pay during the service period.

(4) In addition, in the year 2013, 2014, and 2015, HFF paid a change in performance to its employees by reflecting the results of a comprehensive business evaluation conducted at the end of that previous year for each office (the average payment rate of 300% for each office, the minimum payment rate of 270%). The Deceased continued to receive the change in performance rate during the service period.

B. In light of these circumstances, the average wage or ordinary wage under the Labor Standards Act is not the standard for calculating damages equivalent to the actual income (see, e.g., Supreme Court Decisions 77Da481, Jul. 26, 197; 88Meu16010, May 9, 1989). In light of these circumstances, the periodic performance wage and variable rate in this case can be deemed as the money and valuables continuously paid periodically and uniformly as the subject of work. Thus, barring any special reason, it shall be deemed that there is a considerable probability that the deceased may continue to cause the instant regular performance wage and the cause of payment of the variable rate even after the traffic accident in this case.

C. In addition, the degree of proof as to expected income in the future is more reduced than the degree of proof for past facts, and it is sufficient to prove income with considerable probability to the extent that it does not lose reasonableness and objectivity, rather than the proof of specific and reliable income that the victim can actually obtain (see Supreme Court Decision 90Meu10312, Nov. 27, 1990). Thus, inasmuch as the instant regular performance and salary, which are recognized under the above circumstances, are highly probable, and can be seen as the salary income that serves as the basis for calculating the lost income, the lower court determined that the instant regular performance and salary, the fluctuation, and salary do not constitute the salary that serve as the basis for calculating the lost income, based on its stated reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the wage income that serves as the basis for calculating the lost income, thereby failing to exhaust all necessary deliberation, thereby adversely affecting the conclusion of the judgment.

3. As to the grounds of appeal on in-house welfare pension and welfare expenses in-house name

A. The record reveals the following facts.

(1) According to the employee benefits regulations of HFF, employee welfare pension equivalent to 12% of ordinary wage may be paid on the monthly benefit payment date (Article 25(14) and 15), and other matters concerning employee welfare may be determined by the board of directors (Article 26). According to the basis for the employee welfare program of HFF drafted, 12% of ordinary wage shall be paid on the intra-company welfare pension, and 400,000 won (per 200,000 won) shall be paid on the master-company welfare pension every year.

(2) Under the above provision, HF had regularly paid the intra-company welfare pension to its employees on the monthly benefit payment date, and each year, Qtin and New Year’s Welfare Benefits have been paid. The deceased also received an amount equivalent to 12% of ordinary wages on the monthly benefit payment date continuously during the period of his/her service as the intra-company welfare pension, and each year’s year’s year’s year’s year’s year’s year’s year’s year’s year’s year’s year’s year’s year’s year’s

B. In light of these circumstances, the In-house welfare annuity and life saving welfare expenses in this case can be deemed as money and valuables provided regularly and uniformly as the subject of work. Thus, there is considerable probability that the cause for the payment of the in-house welfare pension and life saving welfare expenses in this case continues to occur even after the traffic accident in this case against the deceased, barring any special reason. Therefore, even though the in-house welfare pension and life saving welfare expenses in this case can be deemed as the benefit income which serves as the basis for the calculation of the in-house income, the lower court determined that the in-house welfare pension in this case and life saving welfare expenses in this case do not constitute the benefit income which serves as the basis for the calculation of the in-house income. In so determining, the lower court erred by misapprehending the legal doctrine on the income that serves as the basis for the calculation of the in-house income

4. Article 7(1) of the Regulations on Employee Retirement Benefits and Accident Compensation (Evidence A) that appears to apply to HFC as to the grounds of appeal on the retirement allowance for the retirement allowance for the first time, provides that "if an employee retires, the amount calculated by subtracting the cumulative payment of converted money of retirement benefits from the national pension from the amount equivalent to the average wage for 30 days per year of the continuous service period less the cumulative payment of converted money of retirement benefits from the national pension shall be paid as retirement allowance." Article 2(1) of the Act provides that "average wage refers to the amount calculated by dividing the total amount of salaries paid to the employee himself for the third

According to the above provision, the regular performance rate, change rate, internal welfare pension, and life saving welfare expenses in this case, which are the basis for calculating the lost income of the deceased, shall be deemed to be included in the average wage for calculating the lost retirement allowances of the deceased. Therefore, the court below erred by misapprehending the legal principles on the amount of the actual retirement income of the deceased, thereby adversely affecting the conclusion of the judgment, by failing to exhaust all necessary deliberations, on the basis of the average wage calculated by excluding the regular performance rate, change rate, company welfare pension, and life saving welfare expenses in this case.

5. As to the amount of consolation money for emotional distress caused by a tort as to the grounds of appeal on consolation money, the fact-finding court may determine the amount at its own discretion, taking into account all the circumstances (see, e.g., Supreme Court Decision 2004Da66001, Jun. 23, 2005). Examining the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below in light of the above legal principles and records, it is just to calculate the amount of consolation money of this case in consideration of the circumstances as stated in its reasoning. In other words, the court below did not err by misapprehending the legal principles as to the calculation of consolation money

6. Conclusion

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