[1] Conditions to calculate the actual income of the victim in a damage compensation case caused by a tort based on statistical income

[2] Whether the statistical income of the self-employed farmer can be calculated based on the statistical income of the "agricultural skilled farmer" in the report on the basic statistical survey of the wage structure issued by the Ministry of Labor (negative in principle)

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

[1] [2] Supreme Court Decision 94Da45586 delivered on January 24, 1995 (Gong1995Sang, 1138) / [1] Supreme Court Decision 90Meu26546 delivered on May 10, 1991 (Gong1991, 1604), Supreme Court Decision 92Da55701 delivered on April 9, 1993 (Gong1993Sang, 1366) / [2] Supreme Court Decision 89Meu35308 delivered on October 23, 1990 (Gong190, 2380), Supreme Court Decision 90Da10612 delivered on August 18, 192 (Gong1992, 2730), Supreme Court Decision 96Da16898 delivered on May 16, 1986)

Plaintiff 1 and two others

National Federation of Bus Transport Business Cooperatives (Attorneys Kim Jin-hee et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2006Na20247 delivered on October 31, 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.

In a damage compensation case due to a tort, the actual income of a victim may be assessed on the basis of the victim's actual income at the time of the accident, and it may be assessed on the basis of estimated income including statistical income. However, in order to calculate the actual income of a victim based on statistical income, it shall be determined carefully by examining the purpose or method of the relevant statistics, the subject and scope of the investigation, the method of sampling design, etc. (see, e.g., Supreme Court Decisions 90Meu26546, May 10, 1991; 92Da5701, Apr. 9, 1993).

The lower court: (a) since around 1978, the victim Nohhoho-ho, who died from the instant traffic accident, obtained income from cultivating rice fields and dry field using agricultural machinery, such as flag, Tracker, compacter, and hymator in his residence from around 1978; (b) however, there were no objective data to determine the deceased’s income; (c) so, the deceased should be deemed to have obtained income equivalent to the statistical income of a male having ten years’ experience as a “agricultural skilled person” in the report on the basic statistical survey of the wage structure issued by the Ministry of Labor; and (d) calculated the deceased’s lost income based on such statistical income.

However, the above investigation report issued by the Ministry of Labor is prepared by surveying and compiling the wages of workers engaged in a sample company among five or more full-time workers, and in principle, it is the basis for estimating the income of a person who is a "worker". Thus, the statistical income of a "agricultural skilled farmer" in the above investigation report cannot be used to estimate the deceased's income immediately (see, e.g., Supreme Court Decisions 89Meu35308, Oct. 23, 1990; 96Da24668, May 15, 198): Provided, That in cases where the work of the deceased is deemed similar to that of a "agricultural skilled farmer" under the above investigation report in terms of its contents and form, the number of farming workers, and the number of farming performance, etc., and it may be deemed that the work of the deceased is similar to that of a male skilled farmer with work experience of not less than 10 years, but it is difficult to recognize the income of dry field with the farming of dry field with the farming machine for over 10 years.

In conclusion, the court below erred by misapprehending the value judgment of evidence or failing to exhaust all necessary deliberations, which is the basis for calculating the actual income, and the ground of appeal pointing this out is with merit.

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. 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)