[1] The case affirming the judgment of the court below that in calculating the lost income of an insurance solicitor who died of an aircraft accident, the deceased may work as an insurance solicitor until he reaches the age of 60

[2] The case affirming the judgment of the court below that recognized the monthly income of the insurance solicitor who died of the aircraft accident as average monthly income during the 8-month immediately preceding the accident in consideration of the fact that there is a large difference of income in the case of the insurance solicitor

[3] Special factors for calculating consolation money for damage caused by an aircraft accident

[4] The case holding that there was an error of law that deviates from the limits of discretion by failing to properly consider the special circumstances of an aircraft accident in calculating consolation money for damage caused by an aircraft accident

[1] Articles 393 and 763 of the Civil Act / [2] Articles 393 and 763 of the Civil Act / [3] Articles 393, 751, and 763 of the Civil Act / [4] Articles 393, 751, and 763 of the Civil Act

Plaintiff 1 and 10 others (Law Firm Dong-dong International Law, Attorneys Seo Dong-hee et al., Counsel for the plaintiff-appellant)

National Pension Management Corporation

China International Aviation Corporation (Law Firm Squa, Attorneys Kim Jae-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2006Na76141 Decided December 4, 2007

The part of the lower judgment against the Plaintiffs regarding consolation money is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals by the Plaintiffs are dismissed.

The grounds of appeal are examined.

1. As to the operating period

The lower court determined that the deceased non-party 1 and 2 could work as an insurance solicitor until he/she reaches 60 years of age. In light of the age, career, health status, etc. of the deceased as shown in the record, the lower court’s determination is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on

2. As to the monthly income

The court below recognized the monthly income of the deceased non-party 2 who worked as an insurance solicitor in consideration of the fact that there is a large difference of income based on the result of the insurance solicitor's performance as the monthly average income for the 8 months immediately preceding the accident. In light of the records, the judgment of the court below is acceptable, and contrary to the allegations in the grounds of appeal, the court below did not err by violating the experience rules.

3. As to the wage increase rate

The court below rejected the claim that the annual average wage increase rate for three years prior to the death of the company in which the deceased non-party 3 worked was 6.96%, and that the above wage increase rate should be reflected in the calculation of the daily wages after the death of 2007, on the ground that the evidence in its holding alone is insufficient to deem that the wages increase by 6.96% each year after the death of 2007. In light of the records, the judgment of the court below is acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the rules of experience.

4. As to consolation money

The court below held that the plaintiffs' assertion that the amount of consolation money should be determined as KRW 150 million each, considering the characteristics of the aircraft accident, etc. where most passengers are forced to die at once, and that the amount of consolation money should be determined as KRW 150 million in consideration of the deceased and the plaintiffs' age, family relationship, accident circumstance and result of the accident, and other various circumstances shown in the argument, the consolation money of the deceased is determined as KRW 80 million each, and the consolation money of the plaintiffs is determined as KRW 5 million each, since it is reasonable for the plaintiffs to pay consolation money of KRW 1,20,000,000 for the deceased and KRW 80,000 for consolation money of the deceased and KRW 5,000 for consolation money of the plaintiffs in excess of the above recognition scope.

However, it is difficult to accept the judgment of the court below for the following reasons.

In the case of tort caused by the so-called aircraft accident, the following special circumstances may be considered in the calculation of consolation money, unlike ordinary traffic accidents. First of all, an aircraft accident leads to a large-scale witness who causes death or fatal damage to large passengers. In the course of the crash and collision, passengers have suffered serious fear and pain, and the body of passengers has not been completely recovered due to the accident. In addition, as the accident takes considerable time to deal with the accident management, identification, and understanding damage, the damage compensation for the long time is likely to be delayed, and the damage can be further increased depending on the method or attitude of the aircraft accident management. Meanwhile, an ordinary aircraft accident is caused to the victim without negligence, and the degree of negligence on the part of the perpetrator is more likely to affect the calculation of consolation money. In addition, an aviation accident is to prepare for large risks caused by the aircraft accident, and an aviation accident is to be separated from the area of the victim’s residence, and it is to be included in the same aviation insurance premium rate as the air accident insurance premium, and to be re-scheduled based on the same premise as the two aviation accident insurance premium.

Therefore, in calculating consolation money for an aircraft accident, the fact-finding court shall also consider the special circumstances of the aircraft accident in the pleading, such as the victim's severe fear and pain, the response to the result, the delay in dealing with the accident and compensation for damage, the degree and attitude of the perpetrator's negligence on and after the accident, the sharing of risks through aviation insurance, sanctions against the occurrence of the accident, and the need for prevention, as mentioned above, and determine the amount of consolation money at its discretion.

However, according to the reasoning of the judgment below and the record, the accident in this case occurred due to the significant and total negligence of the crew of the aircraft, and there was no negligence to the passengers, and the result of the accident occurred due to the collision, explosion, and fire of the aircraft that occurred in the course of the accident in this case, the majority of the passengers died and the body severely damaged, and the fear and pain of the passengers seems to have been serious, and the defendant seems to have sufficiently secured the risk of damage caused by the aircraft accident through aviation insurance, and the damage between the deceased and the plaintiffs is not compensated for for a long time. However, in light of the special circumstances as an aircraft accident and the legal principles as seen earlier, the court below can be deemed to have exceeded the limitation of discretion by failing to take into account the special circumstances of the aircraft accident in this case as indicated in the argument in this case, and by seriously violating the ideology of fair sharing of damage and the principle of equity. The allegation in the grounds of appeal concerning this is with merit.

5. Conclusion

Therefore, the part of the judgment of the court below against the plaintiffs regarding consolation money shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and the remaining appeals by the plaintiffs shall be dismissed, and it is so decided as per Disposition

Justices Kim Nung-hwan (Presiding Justice)