[1] Whether the fact-finding or the calculation of the rate of comparative negligence or the grounds for limitation of liability in a tort compensation case constitutes the exclusive authority of the fact-finding court (affirmative in principle)

[2] Requirements to allow offsetting of profits and losses in calculating damages

[3] In calculating the amount of damages, the scope of damages for which the victim can deduct from disability pension, etc. paid under the National Pension Act, and whether the disability pension under the National Pension Act has the function of compensating for lost income caused by disability (affirmative)

[1] Articles 393, 396, 750, and 763 of the Civil Act / [2] Articles 393, 750, and 763 of the Civil Act / [3] Articles 393, 750, and 763 of the Civil Act; Articles 49 subparagraph 2, and 67 of the National Pension Act

[1] Supreme Court Decision 2002Da43165 Decided November 26, 2002 (Gong2003Sang, 211), Supreme Court Decision 2010Da7947 Decided January 12, 2012 (Gong2012Sang, 259), Supreme Court Decision 2013Da66911 Decided February 27, 2014 / [2] Supreme Court Decision 2003Da69638 Decided October 28, 2005 (Gong2005Ha, 1847), Supreme Court Decision 2006Da1828 Decided September 25, 208 (Gong208Ha, 1428), Supreme Court Decision 209Da36949 Decided April 29, 2014 (Gong20937, Apr. 29, 2015)

Plaintiff (Attorney Jeon Byung-nam et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Dong-gu, Counsel for defendant-appellant)

Seoul High Court Decision 2015Na2051522 decided July 14, 2016

The part of the lower judgment against the Defendant regarding property damage is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 2, and 4

A. In a tort compensation case, if the victim was negligent in causing or expanding damages or there is a ground to limit the perpetrator’s liability, it must be taken into account as a matter of course in determining the scope of liability for damages. However, finding facts or determining the rate of such finding as to comparative negligence or the grounds for limiting liability is within the discretionary authority of the fact-finding court unless it is deemed that it is clearly unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 2013Da66911, Feb. 27, 2

The lower court partially cited the reasoning of the first instance judgment or limited the Plaintiff’s liability for damages to 20% by taking into account all the circumstances, including the fact that the Defendant, in light of the circumstances set out in its reasoning, committed suicide by selling neck by using the electric power line, and such mistake also caused the occurrence of damages.

Examining the reasoning of the lower judgment in light of relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

B. Meanwhile, according to the records, if the defendant's legal representative fails to arrive at the result of the fact-finding inquiry from the fourth day of pleading of the court below to the next day of pleading, it can be known that all of the request for fact-finding to ○○ Hospital and △△△△△△△△△△△ was withdrawn from the fifth day of pleading of the court below. Thus, even if the court below concluded the pleading before the arrival of the above fact-finding reply, it cannot be said that the court below erred by infringing the defendant's

2. As to the third ground for appeal

A. The lower court: (a) recognized the reasoning of the first instance judgment as partially citing the reasoning of the judgment or on the grounds stated in its reasoning that the Plaintiff’s property damage to be compensated to the Defendant is KRW 190,185,67 [Around November 30, 2011: (i) KRW 416,288,335 won + KRW 70,437,418 for future treatment expenses + + KRW 444,927,052 for future care expenses + KRW 19,275,580 for future care expenses) + 20%]; (ii) determined that the National Pension Service ought to fully deduct the amount from the above property damage on the grounds that the Plaintiff paid the Defendant KRW 30,344,580 due to a disability pension arising from the instant accident from November 30, 201 to January 22, 2016.

B. However, we cannot accept the above determination by the court below for the following reasons.

In order to allow offsetting profits and losses in calculating the amount of damages, the victim's new profits and such profits must be commensurate with the scope of damages that the person liable to compensate for (see, e.g., Supreme Court Decision 2009Da98652, Apr. 28, 2011). Where a victim has already received disability pension, etc. under the National Pension Act for the purpose of compensating for damages, the deduction of the amount of benefits from the amount of compensation for damages can be limited to cases where the nature and occurrence period of such damages are the same as those of mutually complementary relationship (see, e.g., Supreme Court Decisions 2013Da95360, Apr. 10, 2014; 2013Da953777, Apr. 10, 2014). Meanwhile, disability pension under the National Pension Act has the function of compensating actual income of the victim of disability pension for the same period of compensation for losses (see, e.g., Supreme Court Decision 2002Da1309, May 13, 209).

Therefore, the court below should have deliberated on the period for which the disability pension was paid by the defendant from the National Pension Service, and accordingly specified the amount corresponding to the period for which the disability pension was paid among the defendant's lost income, and deducted only the amount of the disability pension paid by the defendant for the same period.

C. Nevertheless, the lower court, without any deliberation, deducted the full amount of the disability pension from the Defendant’s property damage. In so doing, the lower court erred by misapprehending the legal doctrine on the deduction of profit and loss in damages, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

D. Moreover, in a claim for reimbursement filed by the National Pension Service against the Plaintiff in relation to the above disability pension (Seoul Central District Court Decision 2015Da5326962), it is clear in the record that the principal of the right to reimbursement that the National Pension Service subrogatedly acquired was determined as KRW 19,308,299. Therefore, barring any special circumstance, the principal of the disability pension that may be deducted in this case shall not exceed KRW 19,308,299.

3. Scope of reversal

The part of the judgment of the court below against the defendant as to property damage should be reversed on the ground of the above reversal, and as to the remaining consolation money, it is difficult to view that there are specific grounds for appeal in the petition of appeal or the appellate brief, and further, even if examining, the court below did not err in its judgment as to this part.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the Defendant regarding property damage among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)