[1] General factors of calculation of consolation money due to a tort and special factors of calculation of consolation money for damage to an aircraft accident

[2] The case holding that the judgment of the court below which calculated consolation money considering the special circumstances of the aircraft accident in addition to the general factors of calculating consolation money for damage caused by aircraft accident is just, and there is no violation of law that deviates from the scope of discretion in calculating consolation money

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

Plaintiff 1 and 20 others (Law Firm Chungcheong, Attorneys Yellow-gu et al., Counsel for the plaintiff-appellant)

China International Aeronautical Corporation (Law Firm Squa, Attorneys Jeong Jong-hwan et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2007Na6550 decided October 10, 2007

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the assertion that the amount of consolation money exceeds the discretionary scope

The amount of consolation money for mental suffering caused by tort can be determined at the discretion of the fact-finding court in consideration of various circumstances (see, e.g., Supreme Court Decisions 98Da41377, Apr. 23, 1999; 2002Da43165, Nov. 26, 2002).

In calculating consolation money due to a tort, the court shall also take into account circumstances on the part of the perpetrator, such as the victim's age, occupation, social status, property and living conditions, degree of suffering from damage, degree of negligence, motive for harmful act, reason, situation of the perpetrator, social status, age, and attitude of the perpetrator after the accident, etc. in line with the principle of fair liability for damages. In particular, in calculating consolation money for damage caused by an aircraft accident, aircraft accidents are unlikely to intervene by the victim's negligence, and the damage result and degree of suffering are more serious than those on other aircraft accidents such as car accidents; the location and scope of liability for the aircraft accident; the degree of damage caused by the aircraft accident; the difference between the air carrier and the victim's opinion on the amount of compensation; the aircraft accident is internationalized; the balanced compensation for damage between victims of the same accident should be taken into account regardless of nationality of the accident area and the victim; and it is reasonable to take into account the situation of aircraft accident that is similar to the above aircraft accident at fact-finding court's uniform compensation system for damage compensation for aircraft accidents.

In light of the above legal principles, the court below held that the accident of this case occurred by the whole negligence of the flight crew of the aircraft of this case, and it seems that there is no negligence for the victims. The body of the victims who died at the scene of the accident due to fire, explosion, etc. after the crash of the aircraft of this case is severely damaged before and after their death. The bereaved family members suffered considerable difficulty in confirming the body and remains of the deceased while moving over several hospitals, and also there was a gene (DA) performed two times without checking and treating the body and remains, and it still remains more than 00 U.S. dollars for which identity has not been verified and remains than 10 billion won for the victims of the accident of this case, and that there was no significant difference in the position between the victims of this case and the defendant about the damages of this case and 100 million U.S. dollars for the accident of this case as well as 100 million U.S. dollars for the victims of this case to be paid consolation money for 100 million won or more for the victims of this case.

2. As to the remaining grounds of appeal

A. Although there is evidence to prove that Nonparty 1, 2, 3, and 4 of the victim of death was engaged in the mass-wing business, the court below did not consider it as the basis for calculating the lost income, and there is evidence to prove that Nonparty 5 of the victim of death was able to receive retirement benefits by continuously working for not less than one year at the tourr's tour guide if he had not been involved in the accident in this case, the court below's allegation that it was unlawful because it was not based on calculating the lost income is merely an error in the selection of evidence and the fact-finding, which are the exclusive authority of the fact-finding court, and thus, cannot

B. The court below is just in rejecting the Plaintiffs’ assertion that Nonparty 1 and 4 suffered damages equivalent to the amount of the survivors’ pension under the Public Officials Pension Act on the grounds that Nonparty 1 and 3, who were receiving a public official’s retirement pension, died of the accident in this case, and that as long as the Plaintiffs, who were the bereaved families, inherit the right to claim compensation for damages due to the loss of the retirement pension, Nonparty 2 and 4, who were the wife of Nonparty 1 and 3, died at the same time, are not entitled to receive the survivors’ pension separately.

C. Indirect damages, not direct damages, are damages due to special circumstances, and are liable only if the perpetrator knew or could have known such circumstances (see Supreme Court Decision 94Da5472 delivered on January 26, 1996). Thus, the court below is just in holding that the court below did not recognize the above amount as damages on the ground that there is no evidence to find that the perpetrator knew or could have known the above circumstances at the time of the accident, considering the subscription fees and transportation expenses incurred by joining the Victim Family Support Committee as special damages, and there is no error of law by misunderstanding the rules of evidence or the legal principles on the scope of damages as asserted in the Grounds for Appeal.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the plaintiffs. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)