(a) Method for calculating the profit of a person who is unable to engage in previous occupation due to an injury caused by a tort;

(b) If there is insufficient evidence to prove the amount of damages, a tiny statement;

(c) The burden of proof and degree of proof on future income;

(d) The court's action in case where it is impossible to forecast future income.

E. Appropriateness of the presumption of the victim’s future income as the amount equivalent to the urban daily wage is uniformly estimated.

A. When a person who has been engaged in a certain occupation at the time of an accident is unable to engage in such occupation any longer due to physical disability from an accident, the lost profit can be calculated by deducting future income which is expected to be earned by engaging in another occupation with remaining physical function from the previous occupation, from the previous occupation, and by multiplying the victim's loss rate of labor ability. However, if expected income is deducted from the method of deducting future income, it is necessary to determine that future income forecasts are based on reasonable and objective grounds, and even in the case of applying the loss rate of labor ability, the rate of loss of labor ability should be determined based on reasonable, objective, and objective methods that reflect the victim's age, degree of education, nature and skill of the previous occupation, the degree of occupational experience and skill of the previous occupation, the degree of occupational ability and skills, the probability of change in occupation and occupation, the probability of such change in occupation and occupation, and other social and economic conditions, and thus, the current rate of loss of labor ability should be determined based on reasonable, objective and objective methods that are determined based on evidence of a judge.

B. As long as the cause of damage is recognized, even if the allegations and evidence by the parties as to the amount of damages are insufficient, the court should actively exercise the right to request explanation and urge the verification, and accordingly, it is necessary to ex officio examine and determine the amount

C. In the event that the lost profit is calculated by deducting future income from the previous occupation income, the burden of proof for future income is borne by the victim. Therefore, if the victim fails to prove it, the disadvantage should be returned to the victim. However, it is sufficient to reduce the degree of proof for future income, rather than the proof for future income, to prove specific and reliable income that the victim can gain, but rather within the scope that it does not lose reasonableness and objectivity.

(d) If it is impracticable to forecast future income in spite of the exercise of the right to know and the efforts to promote the proof of future income, the court shall calculate the lost income by applying it ex officio as possible, and shall not reject the victim's claim on the ground that it is impossible to forecast future income in the future.

E. Even if the victim was unable to engage in the previous occupation due to the aftermath of the accident, such fact alone cannot be presumed to be the amount equivalent to the urban daily wage, and only if there are special circumstances that the victim is unlikely to engage in the occupation or occupation which has larger income than the urban daily wage, his/her future income can be presumed to be the amount equivalent to the daily wage, only if it is predicted that he/she would not have any choice but to engage in the daily work.

Article 763 of the Civil Act

A. D. E. Supreme Court Decision 85Meu538 Decided Mar. 25, 1986. E. Supreme Court Decision 85Da1024 Decided Mar. 10, 1987 (Dong District Court Decision 87Da1024 Decided Sept. 26, 1967). Supreme Court Decision 81Da1045 Decided April 13, 1982 (Dong District Court Decision 85Meu604 Decided Mar. 10, 1987). Supreme Court Decision 85Da449 Decided Sep. 24, 1985 (Dong District Court Decision 85Meu595 Decided Nov. 26, 1985).

[Judgment of the court below]

[Defendant-Appellee] Attorney Kim Jong-sik, Song-sik, Park Jong-soo, and Choi Jong-chul, Counsel for defendant-appellee

Seoul High Court Decision 85Na1692 delivered on December 19, 1985

The part of the judgment below against the defendant as to the loss of expected profits is reversed, and that part of the case is remanded to the Seoul High Court.

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

The calculation method of the lost profit is the first way to consider the loss of individual income that could have been gained if the victim suffered loss due to other person's tort, namely, the loss of lost profit, as the passive loss in the case of the loss of lost profit if the victim had not been injured, as the first way to calculate the difference between the income at the time of the accident and the future income after the accident, and the second way to assess the value of the lost labor ability by the loss of labor ability, which is the basis for income creation, by itself, can be considered as the method of assessing the lost labor ability by the income at the time of the accident or the estimated income

However, since the recognition of future expected profit, such as lost profit, is predicted to be an uncertain fact, if it is possible to calculate reasonable and objective expected profit based on the specific circumstances present in the case in question, it is sufficient as such, and it cannot be concluded that only one of the two methods mentioned above is the only method of calculation.

If a person who has been engaged in a certain occupation at the time of an accident is unable to engage in such occupation any longer due to physical disability caused by an accident, the lost profit can be calculated by deducting future income expected to be earned by engaging in another occupation with remaining physical function from previous occupation income, and can be calculated by multiplying the loss rate of labor ability of the victim from previous occupation income. However, if expected future income is deducted from the method of deduction of future income, it is necessary to determine that future income forecasts are based on reasonable and objective grounds, and even in the case of applying the loss rate of labor ability, the rate of loss of labor ability should be determined based on reasonable, objective and objective methods which should reflect the facts determined by a judge based on the above-mentioned rate of income in consideration of the victim's age, degree of education, nature and degree of education of the previous occupation, nature and skill of the previous occupation, degree of occupational experience and skill of the previous occupation, degree of occupational ability, and probability and probability of change in occupation and occupation, and other social and economic conditions.

If the lost profit is calculated by the method of deducting future income from the income of the previous occupation, the burden of proof for future income and the victim are not only the burden of proof, and if the victim fails to prove it, the disadvantage should be returned to the victim.

However, even though the fact of the cause of damage is recognized and therefore the perpetrator is liable for damages, it cannot be said that the victim's claim for damages was rejected due to the absence of the burden of proof in the form of the burden of proof. It is against the concept of fairness and justice. Thus, even if the party's assertion and proof are insufficient as to the amount of damages are recognized, the court must actively exercise the right of explanation and urge the party to verify the amount of damages, and accordingly, it is necessary to determine the amount of damages ex officio. (See Supreme Court Decision 4293Da853 delivered on December 7, 1961; Supreme Court Decision 4294Da1259 delivered on March 22, 1962; Supreme Court Decision 65Da15778 delivered on September 28, 1965; Supreme Court Decision 67Da12975 delivered on September 16, 197; Supreme Court Decision 2007Da129775 delivered on September 16, 1967; Supreme Court Decision 207Da16725207.2.

In calculating the lost profit, if the previous trial practice recognized the future income with the daily wage in urban or rural areas, it seems that the original purpose was to alleviate the difficulty of the victim in proving the income in the future by having the victim bear the burden of proof as a proof of such minimum general wage.

However, in light of the victim's age, level of education, nature of the previous occupation, career and level of skill training, physical degree and degree of skill skill, and possibility and probability of occupational occupation in similar occupational categories and similar occupation, and other social, economic conditions, and experience, only if the victim is anticipated to be engaged in daily work in the future city or rural community, it can be recognized as future income with the above daily wage, and it cannot be said that it is unfair to recognize the future income as future income, even if not, for lack of rationality and objectivity (see Supreme Court Decision 85Meu449 delivered on September 24, 1985).

In such a case, even if a party fails to prove any future income other than the daily wage in the city or rural community, the court shall actively exercise the right of explanation and urge the parties to verify the future income, and examine the occupation and income that the future victim is deemed capable of working in light of various circumstances, such as the victim's age and the level of education, etc. In such a case, the degree of proof in proving the future income shall be deemed sufficient as a proof of income with considerable probability within the extent that it does not lose the reasonableness and objectivity, rather than a proof of specific and reliable income that can be actually gained by the victim through mitigation of the degree of proof in proving the past facts.

If it is impossible to predict future income in spite of the exercise of the right to know and the efforts to promote evidence as above, the court shall calculate the lost income even by applying it ex officio, as long as it can lead to a reasonable and objective rate of loss of labor ability (income loss rate), and shall not immediately dismiss the plaintiff's claim on the ground that it is impossible to predict future income (see Supreme Court Decision 85Meu538, Mar. 25, 1986).

According to the reasoning of the judgment below, the court below determined that the plaintiff was unable to engage in the above types of work more than 3 years from March 12, 1979 to May 5 of the accident, and that he was unable to engage in the above 47 percent of the work ability at the time of the accident, and that the plaintiff was unable to engage in the above 256,153 won of monthly salary and 428,141 won of salary and 250,000 won of salary per year, while he was engaged in 25,000 won of salary and 25,000 won of salary for 30,000 won of salary for 196,000 won of salary for 196,000 won of salary for 25,000 won of salary for 19,000 won of salary for 25,000 won of salary for the remaining 9,000 won of salary for 20,000 won of ordinary city since the accident occurred.

However, even if the plaintiff was unable to engage in the previous original work due to the original work after the original work, such fact alone cannot be presumed to be the amount equivalent to the urban daily work wage. The plaintiff can presume his future income as the amount equivalent to the daily work wage (see Supreme Court Decision 85Meu449, Sept. 24, 1985; Supreme Court Decision 85Meu5595, Nov. 26, 1985) only when there are special circumstances that it is difficult for the plaintiff to engage in the future work or occupation with more income than the urban daily work wage and it is anticipated that he will be engaged in the daily work work (see Supreme Court Decision 85Meu595, Nov. 26, 1985).

The court below did not examine whether there are special circumstances that the plaintiff can not engage in a job or occupation which has more income than the daily wage for urban workers and can only be engaged in an urban work, and the decision that his future income is the amount equivalent to the daily wage for urban workers and that his lost income is in accordance with its decision is erroneous in the misapprehension of legal principles as to the daily wage calculation, incomplete deliberation, and violation of the rules of evidence, and this constitutes a ground for reversal as provided in Article 12 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. Therefore, there is a reason to point this out.

Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Seoul High Court, which is the court below, for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Dal-sik (Presiding Justice)