[1] The method of calculating the lost income in the event of a king certificate and determining the loss rate of labor ability

[2] The case reversing the judgment of the court below which rejected the victim's claim for damages equivalent to the lost income on the ground that the victim's failure to comply with the court's request for physical appraisal in calculating the lost income of the victim who was proved to have been lost

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

[1] Supreme Court Decision 94Da20730 delivered on August 23, 1996 (Gong1996Ha, 2795) Supreme Court Decision 99Da2171 delivered on May 11, 199 (Gong1999Sang, 1135) Supreme Court Decision 2001Da80778 delivered on September 4, 2002 (Gong2002Ha, 2321)

Plaintiff

National Federation of Bus Transport Business Cooperatives (Attorney Jeong Jae-ho, Counsel for defendant-appellant)

Busan High Court Decision 2007Na18515 decided September 18, 2008

The part of the judgment of the court below concerning lost income is reversed, and that part of the case is remanded to Busan High Court. The plaintiff's remaining appeal is dismissed.

The grounds of appeal are examined.

1. As to the appropriateness of comparative negligence

The fact-finding or determination of the ratio of comparative negligence in a damage compensation case due to a tort belongs to the exclusive authority of a fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2003Da54599, Jan. 13, 2006, etc.). In light of the records, the fact-finding or the determination of the ratio of comparative negligence cannot be considerably unreasonable in light of the principle of equity. Thus, the allegation in the grounds of appeal on this point is not acceptable.

2. As to the computation of lost income

After compiling the adopted evidence, the court below found the facts as stated in its decision. To clarify the degree of the plaintiff's loss of labor ability due to the accident in this case, the court below found it necessary to find out the degree of the loss of labor ability due to the king's defect and the disability caused by the accident in this case, and found the degree of the loss of labor ability due to the king's defect, etc., and rejected the plaintiff's request for physical appraisal of the 1st court on September 15, 2005. The court below rejected the first instance court's request for physical appraisal of the 1nd instance court's request for physical appraisal of the 1st instance court's East University Hospital's physical examination of the 1st instance court's physical examination of the 1st instance court's mental and Ethical part on July 11, 2006. On May 18, 2007, the plaintiff's request for physical appraisal of the above 1st instance court's loss of labor ability due to the accident in this case's accident.

However, such a measure by the court below is hard to accept for the following reasons.

In order to calculate the degree of loss of labor ability where the victim already lost part of his ability to work due to the accident in question, the degree of loss of labor ability should be determined by the method of identifying the degree of the present loss of labor ability by aggregating the disabilities in question and the disabilities in question caused by the accident in question (see, e.g., Supreme Court Decision 94Da20730, Aug. 23, 1996). In addition, in calculating the loss of labor ability by applying the rate of loss of labor ability, the rate of loss of labor ability should be determined not by the rate of physical disability but by the victim’s age, degree of education, nature and career of the previous occupation, degree of skill and skill, degree of occupational experience, degree of physical disability, and degree of probability of occupational disability or other occupation, and its probability, and the degree of loss of labor ability should be determined by the empirical rule in consideration of all other social and economic conditions, and ultimately, by the judge of the Supreme Court as to the medical knowledge and experience of the victim (see, e.g., Supreme Court Decision 2008Da700.

According to the facts duly admitted by the court below and the records of this case, the plaintiff was a female child of 7 years of age and 10 months of age at the time of the accident in this case, who suffered from red station around February 7, 1994, for which six months of age and six months of age have passed after birth, and both ear's hearing ability has been deteriorated. The plaintiff was found as a result of the Cheongsung Hospital's test at around August 1995, and the plaintiff's speech development delayed was determined as due to Cheongdong-si School's Cheongdong-gu 200, and the plaintiff was given a speech treatment for overcoming hearing and cooking disability at Busan-gu 200, and around November 22 of the same year, 200, Cheongdong-si was registered as Grade 2 of Cheongdong-si's Cheongdong-si disability, and the plaintiff was disqualified as a result of the plaintiff's physical examination at 10% of the accident in this case's Cheongdong-si 2nd.

Therefore, the court below should have determined the degree of loss of the Plaintiff’s labor ability due to the above king’s disability in light of the Plaintiff’s overall conditions, such as the Plaintiff’s age, educational degree, and degree of physical disability, or, if the Plaintiff did not sufficiently examine such determination, the degree of loss of the Plaintiff’s labor ability due to the above king’s disability after further examination, and determined the degree of loss of the Plaintiff’s labor ability due to the above king’s disability, and should have determined the degree of loss of the Plaintiff’s labor ability due to the instant accident by reducing the degree of loss of the Plaintiff’s labor ability due to the king’s disability.

Nevertheless, the court below rejected the Plaintiff’s claim for damages equivalent to the Plaintiff’s lost income solely on the ground that the Plaintiff failed to comply with the demand for physical appraisal as indicated in its reasoning. The court below erred by misapprehending the legal principles on calculating lost income in the event of kinglives, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below regarding actual income shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The plaintiff's remaining appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)