[1] The evaluation method of the rate of loss of labor ability and whether the court's determination on the rate of loss of labor ability by taking account of the result of physical appraisal conducted at the treatment stage conducted before the fixed rate of loss of labor ability is unlawful (negative)

[2] Where part of the amount cited by the judgment of the court of first instance is revoked in the appellate court and its claim is dismissed, the scope of application of statutory interest rate under Article 3(1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (=from the day after the

[1] As a result of the appraiser's appraisal of the rate of medical physical disability, one of supporting materials for determining the rate of loss of labor ability, where a special knowledge and experience is required for fact-finding, the judge is bound to use such special knowledge and experience. Ultimately, the judge must determine the rate of loss of labor ability in light of the empirical rule by taking into account all the victim's age, degree of education, nature of labor, degree of physical disability, and other social and economic conditions. Thus, even if the symptoms showing the victim's physical disability were conducted in the treatment phase prior to the fixed period of symptoms of the victim's physical disability, the determination of the rate of loss of labor ability is not unlawful.

[2] If part of the amount cited by the judgment of the court of first instance was revoked at the appellate court and its claim was dismissed, barring special circumstances, the defendant's defense as to the existence or scope of the monetary obligation in the appellate court is deemed to have considerable grounds. Thus, the appellate court's judgment ordering the payment of damages for delay at the rate of 25 percent per annum from the day after the complaint was served to the day of full payment, which ordered the payment of damages for delay at the rate of 25 percent per annum, is erroneous in the law

[1] Articles 393 and 763 of the Civil Act, Article 187 of the Civil Procedure Act / [2] Article 3 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings

[1] Supreme Court Decision 92Da5330 delivered on June 11, 1993 (Gong1992, 1965), Supreme Court Decision 93Da62348 delivered on April 26, 1994 (Gong1994Sang, 1471), Supreme Court Decision 89Da27574 delivered on April 10, 1990 (Gong190, 1055), Supreme Court Decision 90Da1548 delivered on July 26, 1991 (Gong1991, 2237), Supreme Court Decision 90Da62348 delivered on July 25, 194 (Gong1994, 205)

Plaintiff

Samsung Fire Marine Insurance Co., Ltd. (Attorney Kang Chang-chul, Counsel for defendant-appellant)

Suwon District Court Decision 98Na5248 delivered on November 18, 1998

Of the part against the defendant in the judgment of the court below, the part of damages for delay against the plaintiff shall be reversed and decided as follows. Of the part against the defendant against the plaintiff in the judgment of the court of first instance, the part against the plaintiff shall be revoked with an annual interest rate of 136,305,629 won and its amount from May 18, 1997 to November 18, 1998, and with an annual interest rate of 25 percent from the next day to the full payment date, and the corresponding part shall be dismissed. The plaintiff's claim shall be dismissed. 2/5 of the total litigation cost shall be borne by the plaintiff and the remainder by the defendant respectively.

We examine the grounds of appeal.

The First Ground for Appeal

The result of the appraiser's appraisal of the rate of medical physical disability, one of the supporting materials for determining the rate of loss of labor ability, requires special knowledge and experience in fact-finding, and ultimately, the judge must determine the rate of loss of labor ability in light of the empirical rule by taking into account all the victim's age, degree of education, nature and physical function degree of labor, degree of disability, and other social and economic conditions. Thus, even if the victim's physical disability was conducted in the treatment stage before the symptoms that seem to be the remaining disability, the determination on the rate of loss of labor ability of the court taking into account the result of the appraisal cannot be deemed unlawful.

The court below found that the plaintiff who is hospitalized due to physical diversology was entrusted with physical appraisal at the time of five months after the water was awarded for the plaintiff in the hospital due to physical diversology, and based on the results of such appraisal, the court below assessed the plaintiff's labor ability loss rate of 42% as follows: (i) the left siversary diversosis (underway), (ii) the left siversary diversosis in half the left siversosis, (iii) the left siversosis in half the left siversosis, (iv) the right sivers sivers, and (v) the right sivers sives in the right sivers, and there are no errors in the judgment of evidence such as the procedure of physical appraisal and the judgment of evidence

The Second Ground of Appeal

According to the judgment of the court below, while the court below rendered a decision to revoke part of the amount cited by the judgment of the court of first instance by citing part of the defendant's appeal in this case where the plaintiff seeks to order the performance of monetary obligation, the court below held that the amount of damages for delay shall be paid at the rate of five percent per annum from May 18, 1997, which is the date of establishment of the tort of this case until April 30, 1998, and twenty-five percent per annum from the next day to the date of full payment.

However, if part of the amount cited by the judgment of the court of first instance was revoked at the appellate court and its claim was dismissed, barring special circumstances, the defendant's defense as to the existence or scope of the damages liability of this case at the appellate court may be deemed to have considerable grounds (see, e.g., Supreme Court Decision 89Meu27574, Apr. 10, 190). However, the judgment below ordering the payment of damages for delay at the rate of 25% per annum from the day following the day when the complaint of this case was served to the day when the complaint of this case was fully paid, and there is an error of law as to scenarios under Article 3 (1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings

Therefore, among the part against the defendant in the judgment of the court below, the part of damages for delay against the plaintiff shall be reversed, and since this case is sufficient to be judged directly by the members, it shall be cut down pursuant to Article 407 of the Civil Procedure Act. Of the part against the defendant against the plaintiffs in the judgment of the court of first instance, the part of the judgment ordering payment exceeding the amount of 136,305,629 won and the amount of 5% per annum from May 18, 1997 to November 18, 1998 and the amount of 25% per annum from the next day to the full payment date shall be revoked, and the plaintiff's claim corresponding thereto shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench to apply Articles 89, 92, and 96 of the Civil Procedure Act with respect to the

Justices Lee Jae-soo (Presiding Justice)