[1] The method of calculating the amount of actual import damage of the victim who had obtained certain income at the time of the tort

[2] The standard for calculating the actual income of the victim in a case where objective data to determine the actual income at the time of the victim's accident is discovered

[3] The criteria for calculating the victim's actual income in a case where the victim had obtained certain income at the time of the tort but the evidence of the reliable actual income has not been discovered

[4] The case holding that the actual income should be calculated based on statistical income, in case where objective data on the remainder of the income, other than the benefits paid based on taxi commission, from the actual income, as at the time of the accident of the victim, who is a taxi driver, was not present

[5] Whether a person should be deemed to have lost the entire labor ability during the period of hospitalization due to an accident

[6] The case affirming the judgment of the court below that recognized the loss of 10% of labor ability for three months from the date of the accident during the period of admission of 12 months and 20 months from the date of the accident, considering the degree and degree of injury, the period of hospitalization, the degree of contribution to the symptoms, etc.

[1] The amount of damage from actual income of a victim who had a certain amount of income at the time of tort shall be calculated based on objective and reasonable data by determining the amount of income actually earned by the victim at the time of the accident. In this case, when the victim has a reported income to the tax authority, the amount of reported income shall be deemed the amount of income at the time of the accident. However, if objective and reasonable data exist that the reported amount of income is considerably low in light of the victim's occupation, age, experience, etc., or that there are other income than reported income, only the reported amount of income shall not be deemed the amount of income at the time of the

[2] If objective data that can determine actual income at the time of an accident to the victim is revealed, and thus reasonable and objective expected income can be calculated based on such objective data, the actual income at the time of the accident shall be calculated based on the actual income. Even if statistical income such as a basic statistical survey report on the wage structure is higher than the actual income, the actual income shall be calculated based on such statistical income only in a case where there is a special circumstance that the actual income would have been high than the actual income at the time of the accident.

[3] In a tort compensation case, the victim's actual income may be assessed on the basis of the victim's actual income at the time of the accident, and it may be assessed on the basis of estimated income, including statistical income. If the victim has obtained a certain amount of income, if evidence of reliable actual income is not presented, the victim's actual income shall be assessed on the basis of statistical income for those engaged in the occupational category similar to the occupational category in which the victim had worked.

[4] The case holding that the actual income should be calculated based on statistical income in case where objective data on the remainder of the income, other than the benefits paid based on taxi commission, among actual income, by the taxi company at the time of the accident of the victim, who is a taxi driver, was not present

[5] In general, in cases of receiving hospitalized treatment due to an accident, unless special circumstances exist to deem that all or part of the hospitalized treatment is unreasonable, such as that the period of hospitalization is clearly long, in light of the pertinent accident’s injury, or the part or degree of injury, and the progress of the treatment, etc., even though the treatment is not medically related to the pertinent accident, the entire labor ability should be lost during the period of hospitalization due to the accident.

[6] The case affirming the judgment of the court below that recognized the loss of 10% of the ability to work for three months from the date of the accident during the period of admission of 12 months and 20 months from the date of the accident in consideration of the degree and degree of injury, the period of hospitalization, the degree of contribution to contribution to the development of s

[1] Articles 393 and 763 of the Civil Act / [2] Articles 393 and 763 of the Civil Act / [3] Articles 393 and 763 of the Civil Act / [4] Articles 393 and 763 of the Civil Act / [5] Articles 393 and 763 of the Civil Act / [6] Articles 393 and 763 of the Civil Act

[1] Supreme Court Decision 92Da37642 delivered on February 23, 1993 (Gong1993Sang, 1069), Supreme Court Decision 93Da37885 delivered on September 30, 1994 (Gong1994Ha, 2826), Supreme Court Decision 97Da36507 delivered on December 12, 1997 (Gong1998Sang, 277) / [2] Supreme Court Decision 94Da26134 delivered on September 27, 1994 (Gong1994Ha, 2818), Supreme Court Decision 96Da36524 delivered on December 6, 199 (Gong197, 1997; 209Da365294 delivered on July 29, 2015) / [309Da19794 delivered on July 29, 2017)

[Judgment of the court below]

National Passenger Transport Business Federation (Attorney Shin Jae-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2004Na37715 delivered on January 27, 2005

The part of the judgment below against the plaintiff as to passive damages is reversed, and this part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

A. The measure of the court below

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that since December 1, 1995, the plaintiff's lost income was calculated based on the average monthly income 643,143 won, which is the amount reported to the tax authority by the plaintiff's income in the year 1998, and since the plaintiff raised a lot of income than the reported income at the time of the accident at the time of the accident, the plaintiff's assertion that the daily income should be calculated based on the average monthly income 1,292,767 won of the 3-4 years of experience in the report on the statistical survey of the wage structure as of December 1, 1995, it is insufficient to find that the plaintiff had earned more income than the reported income at the time of the accident at the time of the accident at the time of the accident at the time of the accident at the time of the accident at the time of the accident at the time of the accident at the time of the accident at the time of the accident at the time

B. Judgment of the Supreme Court

However, we cannot accept the judgment of the court below for the following reasons.

The amount of lost income of a victim who has earned a certain amount of income at the time of a tort shall be calculated based on objective and reasonable data after determining the amount of income actually earned by the victim at the time of the accident. In such cases, when the victim has reported to the tax authority, the amount of reported income shall be deemed the amount of income as at the time of the accident. However, if there is objective and reasonable data on the fact that the reported amount of income is determined as a significantly low amount in light of the victim's occupation, age, career, etc. or that there is any other income than reported income, only the reported amount of income shall not be deemed the amount of income at the time of the accident of the victim (see Supreme Court Decisions 92Da37642, Feb. 23, 1993; 93Da37885, Sept. 30, 1994, etc.).

In addition, in a case where the victim had been working for a workplace at the time of the accident, if objective data exists to determine the actual income at the time of the accident, and if it is possible to calculate the actual income that can be reasonably and objectively based on such objective data, the actual income as at the time of the accident should be calculated based on the actual income. Even if the statistical income such as the basic statistical survey report on the wage structure is higher than the actual income, it shall be calculated based on such statistical income only when a special circumstance exists that the victim can obtain the stolen income as much as the statistical income that was actually earned at the time of the accident (see Supreme Court Decisions 94Da26134 delivered on September 27, 1994, 201Da2901 delivered on July 27, 201, 2001, etc.). Meanwhile, if the victim's actual income in the damages compensation case can be calculated based on the statistical income of the victim at the time of the accident, it shall be assessed based on the actual income of the victim, and it shall be assessed to the victim's credibility of the actual income.

(3) According to the lower court’s ruling that the Plaintiff was engaged in the above-mentioned taxi commission for 10 months from March 12, 198 to 200, the monthly wage system of the non-party 1 corporation was operated for 2-3 months on or after April 198. From around 200, the total amount of the daily wage rate of 10 to 3 months was operated by the non-party 1 corporation, and the total amount of the daily wage rate of 10 to 6 months after the above-mentioned taxi commission for 4 months. According to the above fact that the non-party 1 corporation’s monthly wage rate of 10 to 6 months was actually paid to the non-party 1 corporation, the total amount of the daily wage rate of 10 to 9 months was paid to the non-party 1 corporation, and the amount of the monthly wage rate of the non-party 2 corporation’s monthly wage rate of more than 10 to 10 months, and the total amount of the daily wage rate was paid to the company.

Nevertheless, the court below rejected the plaintiff's assertion that the plaintiff's lost income should be calculated based on statistical income, as it raises more profits than the reported income in calculating the reported income, and therefore there is an error of law by misunderstanding facts against the rules of evidence or by misunderstanding the legal principles on calculation of lost income, which affected the conclusion of the judgment (it is obvious that the plaintiff claims mistake of facts due to violation of the rules of evidence, according to the contents of the appellate brief), and there is a ground for the plaintiff's appeal pointing this out.

2. Regarding ground of appeal No. 2

In general, in cases of receiving hospitalized treatment due to an accident, unless special circumstances exist to deem that the whole or part of the hospitalized treatment is unreasonable, such as where the treatment was conducted undermining the injury unrelated to the accident in question or where the treatment is not medically required, or where the treatment was conducted undermining the injury, or where the period of hospitalization is clearly long-term in light of the part or degree of injury, and the progress of treatment, etc., it shall be deemed that the whole labor ability was lost during the period of hospitalization due to the accident (see Supreme Court Decision 2003Da49252, Dec. 12, 2003). Meanwhile, in recognizing and assessing the rate of loss of labor ability of a victim, one of the methods for calculating the lost profit of the victim who suffered from a tort by another, a judge should ultimately determine the rate of loss of labor ability in light of empirical rule by taking into account all the victim’s age, degree of education, nature and physical function, degree of physical handicap, and other social and economic conditions (see Supreme Court Decision 2001Da16763, Feb. 9, 2001).

According to the reasoning of the judgment below, the court below recognized the loss of 100% of labor ability only for 3 months from the date of the accident during the period from March 9, 1999 to March 29, 200 during which 12 months have passed since March 29, 199, taking into account the part of the injury, the degree of the injury, the period of hospitalization, the degree of contribution to the accident, etc., and recognized the loss of 10% of labor ability only for 3 months from the date of the accident. In addition to the circumstances cited by the court below, the plaintiff was injured at least once a year from April 13, 1995 to June 18, 198 prior to the accident of this case. In light of the circumstances where the plaintiff was injured with traffic accident at least once a year from March 13, 199 after the accident of this case and the normal taxi driver had been hospitalized until March 9, 199, it cannot be accepted as the ground for appeal for appeal.

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff as to passive damages is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)