[1] Whether each item of damage, which constitutes the same subject matter of lawsuit, is merely an attack method (affirmative), and the criteria for determining whether to change disadvantage

[2] The standard for determining whether there is a disadvantage change when there is a offsetting of profit and loss

[3] The method of calculating the loss rate of labor ability in the case of a part of a double disability

[1] Where a tortfeasor claims compensation for property damage on the ground that he/she suffered bodily injury due to a tort, the damage which is the subject matter of a lawsuit is divided into positive and passive damages, and where the content is divided into several items of damages, each item is merely an attack with reasons for the claim. Thus, whether to change disadvantage should be determined not by simply comparing the items of individual damages but by the whole amount of damages of the same subject matter of a lawsuit.

[2] In a case where the victim already received compensation for medical expenses, etc. from the perpetrator and deducts the amount equivalent to the ratio of the victim's fault from the amount of property damage, it shall be considered not to be the amount after consideration of negligence, but to be the final amount recognized after the deduction, and whether there is any disadvantage change.

[3] In a case where a part of a double disability has been raised, in order to calculate the degree of the loss of labor ability due to the accident in question, it is reasonable to find out the degree of the loss of labor ability due to the accident in question and to calculate it by reducing the degree of the loss of labor ability due to the accident in question.

[1] Article 750 of the Civil Act, Articles 188 and 385 of the Civil Procedure Act / [2] Article 385 of the Civil Procedure Act / [3] Articles 393 and 763 of the Civil Act

[1] Supreme Court Decision 76Da1313 delivered on October 12, 1976 (Gong1976, 9390), Supreme Court Decision 91Da27624, 27631 delivered on October 13, 1992 (Gong1992, 3123) / [3] Supreme Court Decision 88Da33473 delivered on December 26, 1990 (Gong1991, 604), Supreme Court Decision 94Da20211 delivered on August 12, 1994 (Gong194, 2300), Supreme Court Decision 95Da16738 delivered on July 14, 1995 (Gong195Ha, 2804)

Plaintiff (Attorney Cho Young-soo, Counsel for the plaintiff-appellant)

Kim Hun-han (Attorney So-young, Counsel for the defendant-appellant)

Busan High Court Decision 93Na8986 delivered on March 24, 1994

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first ground for appeal

The gist of the ground of appeal No. 1 is that the court below recognized only the amount less than the amount of the first instance judgment's approval with respect to the plaintiff's property damage, the amount less than the amount of the first instance judgment's approval, and the claim expansion due to the increase in the unit cost of daily wage in the original court, and recognized only the amount less than the amount of the first instance judgment's approval with respect to the medical expenses and future treatment expenses after the omission. The purport is that this constitutes an alteration of the judgment of the first instance judgment against the plaintiff, who is the appellant.

However, in claiming compensation for property damage against the perpetrator because the tortfeasor suffered bodily injury due to the tort, the damage which is the object of the lawsuit is divided into positive and passive damages, and each item is merely an attack which makes the claim reasonable (see Supreme Court Decision 91Da27624, 27631 delivered on October 13, 1992).

Therefore, as well as the claim expansion portion following the increase of daily wage unit cost, among the Plaintiff’s property damages in the instant case, the claim for the medical expenses of the king or the part concerning future medical expenses is merely an attack method (the active damages recognized in the original trial include expenses for nursing and supporting devices in addition to the medical expenses of the king and the future medical expenses). Thus, it is not necessary to consider whether there exists a disadvantage change between the original trial and the first instance trial by simply comparing only the damage items or the remaining damage items separately from the other damage items.

In addition, if the victim is already paid the compensation for damages from the perpetrator and deducts the amount equivalent to the ratio of the victim's property damages from the property damages, it should be judged whether there is any disadvantage change between the appellate court and the first instance court based on the final amount recognized after the deduction rather than the amount after considering the negligence.

In this case, since the first instance court and the lower court fully deducted the amount equivalent to the Plaintiff’s ratio of negligence out of the damages paid by the Defendant to the Plaintiff on behalf of the Defendant as property damages, it should be judged whether there is any disadvantage change in the amount of the final amount recognized to be paid by the Defendant after the completion of the deduction, compared with the amount of property damages. Thus, in comparison with the amount after the completion of each deduction between the first instance court and the lower court, it is clear that the amount of property damages finally recognized by the lower court is more than the amount recognized by the first instance court. Thus, the Plaintiff’s above assertion disputing this is not acceptable, and there is no error of law such as misunderstanding of legal principles, incomplete hearing, or lack of reasoning, as

The ground of appeal on this point is without merit.

2. On the second ground for appeal

In this case, where the plaintiff, who had the king of No. 0.2, suffered an additional disability in the king due to the accident in this case, the degree of the loss of labor ability due to the accident in this case should be calculated considering the disability caused by the king of this case. In addition, in order to calculate the degree of the loss of labor ability by adding other obstacles to the part suffered by the plaintiff, the degree of the loss of labor ability should be determined by combining the obstacles existing in the king and the obstacles caused by the accident in this case, and it is reasonable to calculate the degree of the present loss of labor ability by reducing the degree of the loss of labor ability due to the king of this case (see Supreme Court Decisions 8Da3473, Dec. 26, 1990; 95Da16738, Jul. 14, 1995, etc.). The method employed by the court below in calculating the degree of the loss of labor ability due to the accident in this case is justifiable in accordance with the above opinion, and there is no violation of law as alleged in the grounds for appeal.

The ground of appeal on this point is without merit.

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

Justices Park Jong-ho (Presiding Justice)