[1] Whether the maximum working age of a person engaged in ordinary physical labor or a person who mainly lives with physical labor should be deemed to be up to 65 years of age in light of the empirical rule (affirmative in principle)

[2] Standard for recognizing the maximum working age of a victim who serves as the basis for calculating lost earnings

[3] Whether the fact-finding or determination of the ratio of comparative negligence constitutes the exclusive authority of the fact-finding court (affirmative in principle)

[1] Articles 393, 750, and 763 of the Civil Act / [2] Articles 393, 750, and 763 of the Civil Act / [3] Articles 396 and 763 of the Civil Act, Articles 202 and 432 of the Civil Procedure Act

[1] Supreme Court en banc Decision 2018Da248909 Decided February 21, 2019 (Gong2019Sang, 781) / [2] Supreme Court Decision 2009Da100920 Decided May 13, 201 (Gong2011Sang, 1142) / [3] Supreme Court Decision 2018Da227551 Decided July 26, 2018 (Gong2018Ha, 1843)

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

Defendant

Suwon District Court Decision 2017Na86491 decided November 1, 2018

The part of the judgment of the court below against the plaintiff as to lost income shall be reversed, and that part of the case shall be remanded to the Suwon District Court Panel Division. The remaining appeals shall be dismissed.

The grounds of appeal are examined.

1. Regarding maximum working age

A. In Supreme Court en banc Decision 88Meu16867 Decided December 26, 1989 (hereinafter “previous en banc Decision”), the Supreme Court discarded the previous view that deemed the maximum working age of a person engaged in ordinary physical labor or a person engaged mainly in physical labor (hereinafter “physical labor”) to be 55 years in light of the empirical rule. From that end, the Supreme Court has maintained the view that the maximum working age of physical labor should be deemed to be 60 years in light of the empirical rule.

However, as Korea’s social and economic structure and living conditions rapidly improve and develop, and the improvement and improvement of legal system, the circumstances that served as the basis of the foregoing empirical rule have been significantly changed at the time of the previous en banc Decision, thereby making it difficult to maintain the above view. Barring special circumstances, deeming that a person is able to operate between the age of 60 and the age of 65 is in accord with the empirical rule (see Supreme Court en banc Decision 2018Da248909, Feb. 21, 2019).

B. When a fact-finding court recognizes the maximum working age that serves as the basis for calculating lost earnings, it may determine the maximum working age by examining all the circumstances, such as the population of workers by age, employment rate or labor participation rate, working conditions and retirement age limit by occupation, in addition to the social and economic conditions such as average remaining life, economic level, employment conditions, etc. of citizens, and other relevant factors, and derive the presumed maximum working age in light of the empirical rule, or taking into account specific circumstances, such as the victim’s age, occupation, career, and health conditions (see Supreme Court Decision 2009Da100920, May 13, 201, etc

C. According to the reasoning of the lower judgment, the lower court rejected the Plaintiff’s assertion that the maximum working age of a person who mainly works in calculating the Plaintiff’s lost income, which is an article partially lost labor ability due to the instant accident, ought to be deemed to be until he reaches the age of 60 in light of the empirical rule, and that there is no special circumstance to deem that the Plaintiff is able to work beyond 60 years, and that there is no special circumstance to deem that the Plaintiff may work beyond

However, as seen earlier, the previous empirical rule, which had set the maximum working age of physical labor up to 60 years, was difficult to continue to serve as a basis of changes in empirical facts. Therefore, the lower court determined the maximum working age of physical labor presumed to be based on the empirical rule by examining all circumstances that serve as the basis of the empirical rule, and examining specific circumstances to derive the maximum working age of physical labor presumed to be based on the empirical rule, or to recognize the Plaintiff’s new maximum working age differently from the maximum working age in light of the empirical rule that led to setting the maximum working age. In so doing, the lower court erred by failing to exhaust all necessary deliberations by misapprehending the legal doctrine on the maximum working age, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. As to comparative negligence and limitation of liability

A. In tort, comparative negligence is set in consideration of the victim’s negligence in light of the principle of equity or good faith. Matters to be considered include the perpetrator’s intent and negligence, degree of the victim’s intentional act, occurrence of illegal act, and expansion of damages. Matters to be considered include the fact-finding or determination of the rate of comparative negligence falls under the exclusive authority of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2018Da227551, Jul. 26, 2018).

B. The lower court acknowledged the Plaintiff’s fault ratio as 40%, and limited the Defendant’s responsibility to the remainder 60%, taking into account the fact that the Plaintiff was installed a signboard to the effect that the Plaintiff restricted access, and the Defendant, who was in the work, did not clearly recognize that the Plaintiff was in the work, was in the work place.

Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles on offsetting negligence or limitation of liability, or by failing to exhaust all necessary deliberations, or by violating the rules of evidence, etc.

3. Conclusion

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

Justices Kim Seon-soo (Presiding Justice)