(a) Methods for calculating the lost income of a private business operator;

(b) The case affirming the court below's measure which is calculated on the basis of the average wage of the land transport business operator in accordance with the report on the survey of actual wages by occupation of the injured party's actual income of the injured party who has operated the individual trucking transport business

C. The case holding that the court below's measure of calculating the victim's lost income on the basis of the former is just and there is no error in the exercise of the right to explanation, in the case where the data to calculate the substitute employment expense under Paragraph B as the data for calculating the substitute employment expense under the above "B" and the above report for the year concerned

A. In calculating the lost income of a person operating a private business, it shall be calculated according to the ratio of the profit portion based on the personal contribution of the business owner contained in the actual income, barring special circumstances. However, in the absence of objective data to recognize the total amount of income of a company to measure the individual contribution or labor value to the actual amount of income, necessary expenses, etc., the amount equivalent to the amount of remuneration, i.e., the amount equivalent to the amount of remuneration where a person with the same academic background, career, management ability, etc. as the victim is employed by taking into account the size, management status, the number of employees, management performance, etc.

(b) The case affirming the court below's measure which is calculated on the basis of the average wage of the land transport business operator in accordance with the report on the survey of actual wages by occupation of the injured party's actual income of the injured party who has operated the individual trucking transport business

C. The case holding that the court below's measure of calculating the victim's lost income on the basis of the former is just and there is no error in the exercise of the right to explanation, in the case where the data to calculate the substitute employment expense under Paragraph B as the data for calculating the substitute employment expense under the above "B" and the above report for the year concerned

(b)Article 763 and Article 393(c) of the Civil Procedure Act;

A. Supreme Court Decision 80Da52 delivered on April 22, 1980 (Gong1980, 12785) (Gong1985, 915) decided May 28, 1985 (Gong1985, 915) 88Meu1096 delivered on June 13, 1989 (Gong1989, 1059)

[Plaintiff-Appellant] Daegu General Law Office, Attorney Kim Young-ro, Counsel for plaintiff-appellant-appellant

Suwon concrete Co., Ltd. and one other

Daegu High Court Decision 90Na2384, 2391 delivered on December 7, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

As to the Plaintiff’s ground of appeal

1. Based on its evidence, the court below acknowledged the fact that the plaintiff entered into a contract for the carriage of livestock feed with the non-party Yangyang Development Co., Ltd. by October 14, 1988, which is the time of the accident of this case and operated an individual trucking transport business using his own vehicle (vehicle registration number omitted). The plaintiff's monthly wage of the above land transport business with the career of 3 years in the report on the survey of wages by occupation published by the Ministry of Labor in 1988 is 391,812 won monthly wage, and the annual special wage is 444,852 won (391,812 won + 44,488 won x 1/12), and the plaintiff's allegation that the above monthly average wage of the above non-party company's above annual wage is 428,852 won (39,812 won) and the above monthly average wage of the above non-party company's domestic revenue from October 14, 1988.

In calculating the lost income of a person operating a personal business, it shall be calculated according to the ratio of the profit portion based on the personal contribution of the corporation owner, which is included in the actual income, unless there are special circumstances. However, in the absence of objective data to recognize the total amount of income, necessary expenses, etc. of the company to measure the individual contribution or labor value to the actual amount of income, the amount equivalent to the amount of remuneration where a person with the same academic background, career, management ability, etc. as the victim is employed, i.e., the amount equivalent to the amount of remuneration where a person with the same degree of educational background, management status, number of employees, management performance, etc. is employed, in consideration of the size of the company, management status, and other factors. (See Supreme Court Decision 8Meu1096 delivered on June 13, 1989).

According to the records, it can be known that the objective data to recognize the necessary expenses and capital facilities of an individual cargo transport business entity operated by the plaintiff at the time of the accident was not present. Therefore, it is reasonable for the court below to calculate the plaintiff's lost income. As seen above, the court below's finding that the court below left the plaintiff's work experience for three years refers to the above transport business entity's work experience, and it does not mean merely the work experience as a driving company. Thus, it is not possible to point out that the above transport business entity's work experience was erroneous, but it cannot be said that there was an error of misconception of facts, such as the theory, because it did not recognize ten years of driving experience as a personal transport business entity. The argument is groundless.

2. In a case where calculating the lost profit of the victim who has lost labor ability due to a traffic accident as seen in the instant case, in principle, the profit at the time of the accident (at the time of loss of labor capacity) should be based. However, if there are objective data clearly predicted to increase the lost profit in the future, the profit to be increased in the future should be considered in calculating the lost profit in the future.

However, in calculating the plaintiff's lost income as a substitute employment cost, the materials that can be recognized as the expenses are withdrawn at the time of the closing of argument are limited to a report on the status of wages by occupation in 1988, which is the time of the accident, and the materials in 1990 cannot be found. Therefore, the court below is just in calculating the plaintiff's lost income based on the former, and there is no error of law by misunderstanding the legal principles on the exercise of right of absence of right or assessment of lost income such as the theory of lawsuit

3. Examining the record, the Plaintiff asserted only compensation for lost income according to the labor ability loss ratio among the profit amount accrued from October 14, 1988, the date of the instant accident, such as the written complaint or written application for correction of the complaint, etc., to the maximum working age from October 14, 1988, and cannot be found out that there was any trace of claiming full compensation for lost income during the period of time during which the hospital was hospitalized after the date of the instant accident. Therefore, the argument in the lawsuit is merely a criticism of the lower court based on new facts that were not asserted up to the lower court. Therefore, the lower court calculated the lost income according to the Plaintiff’s assertion up to the point of time, and did not err by misapprehending the legal doctrine on calculation of lost income like the theory

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice)