Plaintiff (Attorney Kim Jin-young, Counsel for the plaintiff-appellant)

Dongbu Fire and Marine Insurance Co., Ltd. (Law Firm Inn & Law, Attorney Kim Il-ri, Counsel for defendant-appellant)

November 5, 2015

Seoul Central District Court Decision 2014Gahap546365 Decided June 5, 2015

1. The part of the judgment of the court of first instance against the plaintiff, which orders additional payment, shall be revoked.

The defendant shall pay to the plaintiff 125,802 won with 6% interest per annum from October 13, 2015 to January 7, 2016, and 20% interest per annum from the next day to the day of full payment.

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

3. The total costs of the lawsuit shall be ten minutes, which shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff the amount of KRW 71,771,528 as well as 6% per annum from September 14, 2012 to June 5, 2015, and 20% per annum from the next day to the day of complete payment (the plaintiff claimed KRW 61,771,528 as property damage by reducing the purport of the claim from the trial to the day of full payment). (The plaintiff claimed KRW 61,771,528 as property damage, respectively)

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

3. Purport of incidental appeal;

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 6,203,986 won with 20% interest per annum from the day following the service of the complaint of this case to the day of complete payment.

1. As to the part on the occurrence of insurance money and the part on the occurrence of insurance money, this court’s explanation is identical to the corresponding part of the judgment of the court of first instance, and thus, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act

3. Scope of liability for damages

In principle, the period of the calculation shall be calculated on a monthly basis, but less than the last month and less than won shall be discarded. The current price calculation at the time of the accident of the amount of damages shall be in accordance with the fractional interest reduction method that deducts intermediary interest at the rate of 5/12 per month, and it shall be excluded that the parties' arguments are not separately stated.

(a) Actual income:

(i) the facts of recognition and evaluation;

(a) Gender: Male;

(b) Date of birth: (Date of birth omitted)

C) Name of lease: until January 9, 2065, 52.36

(d) Income: based on the daily wage of ordinary workers engaged in daily work in the city, and the number of working days shall be deemed to be the 22th day of each month.

(e) Ratio of the loss of labour capacity: The period of hospitalization and rehabilitation treatment from September 13, 2012 to February 13, 2013 recognize the loss of labor capacity of 100 per cent, and 35 per cent due to the cirical damage from that time to that time.

(f) Operating period: the operating age reaches the age of 60 years of age, until June 21, 2046.

[Ground of recognition] The non-contentious facts, Gap evidence 5, Nos. 8-1, 2, 9, 10, and 12 of the evidence, the result of the court of first instance’s commission of physical examination to the Tolian Hospital, the purport of the whole pleadings

(ii)Calculation;

The Plaintiff’s lost income due to the instant accident shall be calculated at the present price at the time of the instant accident (the period shall be calculated on a monthly basis, and the amount below the month shall be discarded) in accordance with the discount method that deducts intermediary interest calculated at the rate of 5/12% among the revenues during the operating period based on the above recognized facts and the details of the assessment, as shown in the attached table of damages calculation, 168,032,854 won.

(b) Expenses for medical treatment;

According to the evidence Nos. 8-1, 2, and 13-1, 13-4, the Plaintiff paid KRW 47,001,974 in total from September 13, 2012 to November 28, 2014 (the Defendant’s assertion that the total treatment costs of the Plaintiff and the Plaintiff’s principal charges are KRW 66,628,957 in total, and the liability is limited to 20% of the charges of the National Health Insurance Corporation and the Plaintiff’s principal charges, which is less than KRW 13,325,79 in total, and the amount is less than KRW 22,53,569 in the amount of the charge of the National Health Insurance Corporation. Accordingly, the Defendant’s assertion that there is no ground to acknowledge this law, but it is difficult to accept the Defendant’s assertion since the Plaintiff’s claim was filed with the Defendant).

(c) Expenses for future treatment;

According to the result of the physical examination entrusted by the court of the first instance on January 10, 2015 to Tol, the Plaintiff is expected to continuously undergo various tests and drug treatment for up to three years, and the physical treatment for three years is also concurrently conducted. At its expense for the next three years, it is expected that the cost will be KRW 7,609,817 each year for the next three years, and KRW 1) 3,725,417 each year for the next three years.

Meanwhile, there is no assertion or proof as to the fact that the Plaintiff actually received the above treatment and spent the equivalent expenses until the closing of the argument in the trial, and the above treatment costs are 7,609,817 won per annum from November 6, 2015 to January 9, 2018, which is the day following the date of the closing of argument in the trial, and 3,725,417 won per annum from the next day to the end of the life of 3,725,417 won, and it is 88,431,895 won when calculating the current price at the time of the instant accident, as shown in the corresponding column for calculating the amount of damages.

D. Limitation on liability

As seen earlier, if the responsibility of the ○ University is limited to 20%, the Defendant’s liability for the Plaintiff’s property damage is 60,693,344 won (=303,466,729 won (i.e., daily income of KRW 168,032,854 + 47,001,974 won + 88,431,895 won) x 20%).

(e) consolation money;

The amount of consolation money shall be determined at KRW 5 million in consideration of all the circumstances shown in the pleadings of the instant case, such as the background of the instant accident, the Plaintiff’s age, the part, degree, and progress of treatment of the injury and the aftermath disability.

F. Sub-decision

Therefore, with respect to the Plaintiff’s property damage + KRW 60,693,344 as insurance money + KRW 60,693,344 as well as KRW 65,567,542 as cited in the judgment of the first instance court, after the occurrence of the instant accident, the Defendant is liable for dispute as to the existence and scope of the Defendant’s performance obligation from September 14, 2012 to June 5, 2015, which is the date of adjudication of the first instance court, which is deemed reasonable to dispute over the existence and scope of the Defendant’s performance obligation; KRW 60% per annum from the following day to the date of full payment; KRW 125,802 as additionally recognized by the court of first instance from the next day to the date of full payment; KRW 65,693,344-65,542 as well as damages for delay from the next day to the date of final adjudication of the first instance court; and KRW 125,802 as to the scope of the Defendant’s performance obligation.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the part against the plaintiff as to the money additionally accepted in the judgment of the court of first instance is unfair with different conclusion, it is revoked and the defendant is ordered to pay the money, and all incidental appeal of the plaintiff and appeal of the defendant are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Lee Young-young (Presiding Judge) (Presiding Judge)

Note 1) If the treatment costs of KRW 3,884,40 necessary for the three-year period out of KRW 7,609,817 are collected, the subsequent treatment costs of KRW 3,725,417 are deemed to have been written in writing, 3,728,417.