simple labor contract and employer liability of the contractor;

In order for a business owner to perform any construction work for a certain business owner, if the business owner directs and supervises the business owner, and if the business owner receives a simple labor contract, the business owner and the business owner are in a relationship with the employer under Article 756 of the Civil Code.

Articles 756 and 757 of the Civil Act

Plaintiff 1 and one other

Defendant

Seoul Central District Court (74Gahap533) in the first instance trial

1. The judgment below is modified as follows.

(1) The defendant shall pay to the plaintiff 1 2,100,000 won, 50,000 won to the plaintiff 2, and 50,000 won with an annual rate of 5% from August 6, 1973 to the full payment.

(2) The plaintiffs' remaining claims are dismissed.

2. The plaintiff 2's appeal and the defendant's remaining appeal are all dismissed.

3. All the costs of the lawsuit shall be divided into three parts: the first and second instances shall be borne by the defendant; the two shall be borne by the remaining plaintiffs.

4. The above paragraph (1) (1) above may be provisionally executed.

The defendant shall pay 2,66,081 won to the plaintiff 1, 100,000 won to the plaintiff 2, and 5% interest per annum from July 29, 1973 to the full payment.

The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution (the plaintiff 1 shall expand the purport of the claim in the first instance).

(2) Plaintiff 2’s appeal

The part of the judgment of the court below against Plaintiff 2 shall be revoked.

The defendant shall pay to the same plaintiff an amount of KRW 30,00 and an amount equivalent to five percent per annum from July 29, 1973 to the full payment.

The costs of lawsuit shall be assessed against the defendant at the expense of both the first and second trials and a declaration of provisional execution.

(Purpose of Defendant’s Appeal)

The part of the judgment against the defendant shall be revoked.

The plaintiffs' claims are dismissed. All the costs of lawsuit are assessed against the plaintiffs in the first and second instances.

1. Of the reasons stated in this decision, (1) the occurrence of liability for damages, recognition of the reasons for offsetting negligence, and (2) the calculation of active damages among property damage, among the property damage, the decision of the court below is based on the following facts: (3) the "19.6.20" in the 7th order from the above 3th order of the court below as the "6.20.6.20"; and (4) the non-party 1's testimony as materials for fact-finding, which are contrary to the court below's fact-finding, are attached to the non-party 1's testimony; and (3) it is decided to accept this in accordance with Article 390 of the Civil Procedure Act.

2. Calculation on the compensation amount;

(1) Property damage

(A) passive damages

The statements in Gap evidence Nos. 1, 12 (each copy of family register) and 3 (Simplified Life Table) without dispute on the establishment are combined with the whole purport of testimony and pleadings of non-party 3 and 4 of the court below's witness, and the deceased non-party 5 was a Korean man who was born on April 19, 1947 and was a healthy Korean man who was left 26 years of age and 3 months of age at the time of the death of the accident in this case, and the average female life expectancy of the same age was 4.71 years, and the above deceased was employed by non-party 1 as piping assistant, and was receiving wages of KRW 10,000 per day as of the time of the accident in this case, and the monthly living expenses was required for approximately KRW 10,000,000 per day, and there is no other counter-proof evidence.

그렇다면 위 망인이 본건 사고로 사망하지 아니 하였더라면 동인은 위 사고 무렵부터 그 여명내인 55세가 끝날 때까지 356개월 남짓되는 기간동안 적어도 배관보조공으로 계속 일하여 매월 수입 금 25,000원(1,000×25일)에서 갑종근로소득세 700원과 월생계비 10,000원을 공제한 금 14,300원씩의 순수익을 얻을 수 있었을 터인데 본건 사고로 사망함으로써 동액상당의 수익 손실을 입었다 할 것인바, 위와 같이 월차적으로 발생할 소극적 손실금을 원고들의 구하는 바에 따라 본건 사고(결과 발생) 당시를 기준으로 하여 월 5/12푼의 중간이자를 공제하는 이른바 "호프만"식 계산법에 따라 그 당시의 현가를 계산하면 금 3,100,181원(14,300원×218.0060≒3,117,485원이 되지만 원고들의 구하는 바에 따름)이 된다.

(B) Therefore, the deceased suffered property loss of KRW 3,100,181, and positive damages of KRW 598,940, and KRW 3,69,121, such as the above passive damages due to the accident in this case. However, in consideration of the deceased's above negligence as the cause of the accident in this case, it is reasonable to determine the property damage to be compensated by the defendant to the plaintiff 1, who is the sole heir of the above deceased, as KRW 2,00,000.

(2) Consolation money

In light of the empirical rule that Nonparty 5 suffered from mental distress by Nonparty 5’s mother or token as a result of the accident above, the Defendant is obligated to pay the Plaintiffs’ above mental distress in money. Thus, the amount of consolation money to be paid by the Defendant should be determined as KRW 100,000 against Plaintiff 1 and KRW 50,000 against Plaintiff 2, taking into account the following circumstances: the background of the accident, the age of the Deceased, his personal relationship with the Plaintiffs, the degree of living, and all other circumstances revealed in the pleading.

3. Accordingly, the defendant is obligated to pay to the plaintiff 1 the sum of the above property damage and consolation money of 2,100,000 won and damages for delay at the rate of 5% per annum, which is the civil legal interest rate, from August 6, 1973 to the full payment rate of 5%, which is the date of the death of the non-party 5 with respect to the above money. Thus, the plaintiffs' claim of the principal lawsuit is justified within the above recognition, and the remaining claims are dismissed without merit. The part of the judgment below which differs from the above conclusion is modified pursuant to Article 386 of the Civil Procedure Act. Since the plaintiff 2's appeal and the defendant's remaining appeal are without merit, they are all dismissed pursuant to Article 384 of the same Act. With respect to the bearing of litigation costs, Articles 89, 92, 93, 95, and 96 of the Provisional Execution Act, and Article 19 of the same Act are applied to the provisional execution.

Judges Noh Byung-gu (Presiding Judge)