(a) The calculation method of the amount of damage equivalent to retirement allowances due to the death of a victim can be based on the profits to be increased in the future, or the calculation method of the amount of damage;

A. In a case where a loss is expected to be sustained due to a decrease in profits due to a tort, the amount of damages for the lost profits shall be, in principle, based on the victim's profits at the time of the tort: Provided, That if there are special circumstances that make the victim's profits increase after the tort, the amount of damages may be based only on the increased profits if the perpetrator knew or could have known such circumstances.

나. 피해자가 입은 퇴직금 상당의 손해를 산정함에 있어서는 피해자가 이미 퇴직금 일부를 수령하였거나 또는 퇴직금의 수령에 관하여 사망으로 인하여 지급을 면하게 된 부분이 있으면 그 전액을 공제하여야 함이 실손해의 전보라는 손해배상제도의 이념에 부합할 것인바, 일실퇴직금의 산정에 있어서는 위 퇴직연금 일시금 총 현가액에서 피해자가 사망으로 인하여 그 지급을 면한 기여금의 현가액뿐만 아니라 미납된 소급기여금까지도 이를 공제한 다음 망인의 상속인들이 이미 수령한 퇴직금원을 공제하여야 한다.

[Destruction of the Supreme Court en banc Decision 89.12.26∑ 6761]

Article 763 of the Civil Act

A. Supreme Court Decision 83Da191 delivered on June 28, 1983

Plaintiff 1 and two others

Defendant Kim In-bok, Counsel for the defendant-appellant

Daegu High Court Decision 86Na694 delivered on July 22, 1986

The part of the lower judgment against the Defendant regarding passive property damage shall be reversed, and that part of the case shall be remanded to the Daegu High Court.

The defendant's attorney's grounds of appeal are examined.

1. As to the first ground for appeal:

In the event that a loss is expected to be sustained due to an originally reduced profit due to an illegal act, the amount of damages shall be calculated based on the victim's profit at the time of the illegal act. However, if there are special circumstances to increase the victim's profit after the illegal act, the amount of damages can be calculated based on the increased profit only when the actor knew or could have known such circumstances.

According to the reasoning of the judgment below, the court below determined that the non-party, who is a teacher of a private secondary school, was killed at the site due to the negligence of the truck driver of a truck owned by the defendant while getting on and off a car on May 18, 1985. In calculating the lost profit, it is recognized that the remuneration of the teacher was increased from January 1, 1986, after the above accident, and as to whether the defendant knew or could have known of the special circumstances of the above remuneration, the court below calculated it based on the increased remuneration based on the opinion that the above increase caused damage to the increased remuneration from the above increase time without the statement of load.

Therefore, the court below should calculate the lost earnings based on the increased remuneration in cases where it is found that the defendant knew or could have known the above circumstances, but the court below calculated the lost earnings of this case based on the increased remuneration from the above increase time without failing to exhaust all such a deliberation. Thus, the court below erred in the misapprehension of legal principles as to the calculation of lost earnings or in the misapprehension of legal principles as to damages due to special circumstances. Thus, the court below erred in the misapprehension of legal principles.

2. On the second ground for appeal:

According to the reasoning of the judgment below, in calculating the retirement allowance for the deceased as of June 1, 1985 in accordance with the calculation method of the retirement allowance for the deceased as of June 1, 1985, the current value of the lump-sum retirement pension for the deceased who could have been received if the deceased had not died due to the accident in this case shall be KRW 33,371,51, and the unpaid contribution by May 31, 1985 shall be KRW 5,514,350, and thereafter, the total amount of the contribution exempted from payment due to the above death shall be KRW 3,409,455, and the remaining value as of June 1, 1985 as of May 31, 1985, the amount of the retirement allowance for the deceased shall be KRW 35,514,350,000 as of June 1, 1985, the amount of the retirement allowance for the deceased's bereaved family members shall be deducted to KRW 36136,364,3629,3650,29.

살피건대 위 망인이 입은 퇴직금 상당의 손해를 산정함에 있어서는 위 망인이 이미 퇴직금 일부를 수령하였거나 또는 퇴직금의 수령에 관하여 위 사망으로 인하여 지급을 면하게 된 부분이 있으면 그 전액을 공제하여야 함이 실손해의 전보라는 손해배상제도의 이념에 부합할 것인바, 이 사건 일실퇴직금의 산정에 있어서는 위 퇴직연금일시금 총 현가액 33,371,511원에서 위 사망으로 인하여 망인이 그 지급을 면한 기여금의 현가액뿐만 아니라 1985.5.31 당시 미납된 소급기여금까지도 이를 공제한 다음 원고들이 퇴직금에 관하여 수령한 금원을 공제하여야 할 것 인데 원심이 위 미납된 소급기여금 부분을 공제하지 아니한 채 위 일실퇴직금을 산정하였음은 결국 일실퇴직금 계산을 잘못한 위법을 저질렀다고 할 것이므로 이 점을 탓하는 논지 역시 이유있다.

3. Accordingly, the part against the defendant regarding passive property damage is reversed, and the corresponding part is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Man-hee (Presiding Justice)