[1] The scope of damage compensation and the method of determining the degree of contribution of the victim to the legacy in a case where the victim's after-the-counter legacy was caused by a traffic accident and the king symptoms of the victim

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

[3] Where a ground for the payment of pension arises due to the competition between a third party's illegal act and the beneficiary's increase, the scope of the right to claim damages against the third party of the beneficiary who acquired by subrogation

[4] Whether the scope of the right to claim damages by subrogation, which the National Pension Service pays a third party's unlawful disability pension and acquired by subrogation, is limited to lost income damage falling under the payment period of a disability pension (affirmative)

[5] In a case where the National Pension Service rendered a judgment that the portion of the maximum working age for calculating the lost income of a contractor was deducted from the amount of a contributory portion out of the pension payment, while the contractor’s maximum working age was up to the time prior to the payment period of a disability pension, and only the above Corporation appealed, the case holding that the judgment below erred in the misapprehension of legal principles that the subrogation is recognized only for the remaining portion of the pension payment, but did not affect the conclusion of the judgment, although the court below erred in the misapprehension of legal principles that determined that the portion of the pension payment less the contributory portion out of the amount of a retirement pension payment, which affected the conclusion of the judgment

[1] If the victim's after-the-counter legacy due to a traffic accident conflicts between the accident and the victim's after-the-counter symptoms, it is reasonable to charge the corresponding amount of compensation according to the degree deemed to have contributed to the occurrence of the accident as a result of the after-the-counter legacy from the perspective of fair burden of damages. When the court determines the degree of contribution to the whole after-the-counter legacy, it is not necessarily necessarily to be medically accurate and medically determined, but can be determined reasonably in consideration of all the circumstances such as the cause and degree of the king evidence in the pleading, the correlation between the king and the post-

[2] When the 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 social and economic conditions, such as average remaining life, economic level, employment conditions, etc. of the citizens, and the relevant victim’s age, occupation, career, health conditions, etc.

[3] In a case where the National Pension Service paid a pension due to a third party's unlawful cause of payment of a disability pension or survivor pension, it is necessary to avoid illegality for a beneficiary of a pension to be compensated for twice due to the same cause and illegality that a third party who is liable for compensation is exempted from compensation due to the pension payment. Thus, in a case where a third party's unlawful act and a beneficiary's spathy of the pension occur, the National Pension Service's right to claim compensation for the subrogated beneficiary is the total amount of pension payment within the scope of the remaining amount of the compensation for damages after deducting the contribution of the spathy, and it cannot be limited to the amount excluding the spathn's contributory portion from the pension payment.

[4] Where the National Pension Service pays a pension due to a third party's unlawful cause of payment of a disability pension or survivor pension, the right to claim for subrogated acquisition is limited to the amount of damages that the beneficiary may claim against a third party for the same cause as that of the payment of a disability pension or survivor pension. Therefore, the right to claim for subrogated acquisition shall not only have the same nature as that of the payment of pension but also coincide with the subject period. The disability pension under the National Pension Act is paid according to the degree of disability during the continuance of the disability suffered by a pension holder (Article 67 (1) of the National Pension Act). As such, the right to claim for damages acquired by subrogation after paying a disability pension for a third party's unlawful act is limited to the amount of actual income damage corresponding

[5] In a case where the National Pension Service determined that, upon the occurrence of a cause for the payment of a disability pension due to the competition between a third party's illegal act and a beneficiary's king, a beneficiary's claim for damages was subrogated to the beneficiary's claim for the payment of a disability pension, although the maximum working age for calculating the lost income of the contractor was up to the time prior to the payment period of the disability pension, and only the National Pension Service appealed the remainder after deducting the contributory portion out of the amount of the pension benefits paid to the beneficiary, the court held that the court below erred in the misapprehension of legal principles as to the scope of subrogation of the National Pension Service, which determined that only the remainder after deducting the king portion out of the amount of the above pension benefits paid by the National Pension Service as the third party's act is limited to the amount of the pension benefits paid to the beneficiary, and that subrogation is recognized only to the remainder after deducting the king portion out of the amount of the above pension benefits paid by the National Pension Service to the beneficiary, and thus, it does not affect the judgment of the court below's judgment on the scope of subrogation.

[1] Articles 393, 750, and 763 of the Civil Act / [2] Articles 393, 750, and 763 of the Civil Act / [3] Article 114 of the National Pension Act, Articles 393, 750, and 763 of the Civil Act / [4] Articles 67(1) and 114 of the National Pension Act, Articles 393, 750, and 763 of the Civil Act / [5] Articles 67(1) and 114 of the National Pension Act, Articles 393, 750, and 763 of the Civil Act

[1] Supreme Court Decision 91Da39320 delivered on May 22, 1992 (Gong1992, 1965) Supreme Court Decision 94Da5967 delivered on September 10, 1996 (Gong1996Ha, 292) Supreme Court Decision 96Da2468 delivered on May 15, 1998 (Gong1998Sang, 1617) / [2] Supreme Court Decision 93Da31917 delivered on November 26, 1993 (Gong1994, 197), Supreme Court Decision 96Da37091 delivered on November 29, 196 (Gong197, 197) / [2] Supreme Court Decision 94Da94989 delivered on September 16, 199 (Gong94, 194, 197) / [3709Da949899 delivered on September 195, 1994)

Counterclaim Plaintiff (Attorney Gangseo-chul et al., Counsel for plaintiff-appellant)

National Pension Service

Han Fire & Marine Insurance Co., Ltd. (Law Firm Law, Attorneys Choi Ho-hoon et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2008Na7795 decided October 28, 2009

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff and the Intervenor succeeding to the Plaintiff.

The grounds of appeal are examined.

1. Judgment on the grounds of appeal by the Counterclaim Plaintiff

A. As to the assertion about the degree of contribution and comparative negligence ratio

If the aftermath of the victim caused by a traffic accident conflicts between the accident and the victim's pathy, it is reasonable from the perspective of fair burden of damage to bear the equivalent amount of compensation according to the degree that the accident contributed to the occurrence of the aftermathy. In determining the degree of contribution to the whole aftermathy, the court is not necessarily and medically correct in determining the degree of contribution to the aftermathy, but it is reasonable to reasonably determine the amount by taking into account all the circumstances such as the cause and degree of the pathy, the correlation between the pathy and the aftermathy, the victim's age, occupation, health conditions, etc. (see Supreme Court Decision 96Da24668 delivered on May 15, 1998). Also, determination of the fact-finding or its ratio in liability for damages due to a tort belongs to the exclusive authority of the fact-finding court unless it is deemed remarkably unreasonable in light of the principle of equity (see Supreme Court Decision 2001Da2129 delivered on January 24, 2003).

In light of the above legal principles and the facts duly admitted by the court below, it is just that the court below held that the court below's apportionment ratio of physical factors that can be viewed as 90% of the non-resident's contribution to the damage incurred by the non-resident due to cerebral blood was 10%, and that the court below assessed the non-resident's negligence as 30% on the ground that the non-resident's contribution to the accident of this case was the remainder of 10%, and there was no error in the misapprehension of legal principles as to the contribution of king's contribution to and comparative negligence as argued in the Grounds for Appeal.

B. As to the assertion on maximum working age

In recognizing the maximum working age that serves as the basis for calculating lost earnings, the fact-finding court may set 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 (see Supreme Court Decision 9Da31667, Sept. 21, 199).

For reasons indicated in its holding, the lower court’s determination of the maximum working age for calculating the lost income of the Lessee by July 7, 2006 is justifiable in light of the aforementioned legal doctrine. In so doing, the lower court did not err by misapprehending the legal doctrine on the maximum working age, as otherwise alleged in the ground of appeal.

C. As to the assertion regarding the amount of medical expenses related to cerebrovascular from the medical expenses paid by the counter defendant

The ground of appeal pointing this out is without merit, and it is not acceptable to the purport that the court below erred by selecting evidence and finding facts which belong to the exclusive jurisdiction of the court below.

2. Judgment on the grounds of appeal by the Plaintiff-Counterclaim Intervenor

A. The measure of the court below

The court below held that, based on its adopted evidence, the Plaintiff paid 14,798,460 won to the Lessee as disability pension from July 31, 2007 to December 31, 2008, which was paid by the Lessee to the Lessee, and held that the Plaintiff’s subrogation claim amounting to the whole disability pension out of the claim for damages arising from the instant traffic accident against the Counterclaim Defendant by the Lessee was limited to the portion for which the ground for the payment of pension occurred due to the act of a third party in the payment of pension, and that the scope of subrogation by the National Pension Service is limited to the portion for which the ground for the payment of pension occurred due to the act of a third party in the payment of pension benefits, as recognized earlier by the Intervenor.

B. First, we cannot accept the judgment of the court below that the scope of subrogation by the National Pension Service is limited to the part in which the ground for pension payment occurred due to the third party's act among the paid pension benefits in case where an accident falling under the ground for pension payment occurred due to competition between the third party's act and the beneficiary'

In cases where the National Pension Service paid a pension due to a third party’s unlawful act as a ground for payment of a disability pension or survivor pension, it is necessary to subrogate the beneficiary’s right to claim damages against a third party within the scope of the benefits (Article 114 of the National Pension Act) and to deduct the subrogated amount from the damages to be paid by a third party (Article 114 of the National Pension Act). Since the National Pension Service’s right to claim damages against a third party who is liable for double compensation for the same cause is aimed at avoiding illegality that the beneficiary is exempted from the liability for damages due to the same cause (see Supreme Court Decision 88Meu5041, Apr. 25, 1989). Therefore, in cases where a third party’s unlawful act and the beneficiary’s salpers conflict with each other, the right to claim damages against a third party, which the National Pension Service acquired by subrogation, within the scope of the remaining right to claim damages after deducting the contribution of the salpers and thus, it cannot be limited to the amount remaining after the payment of the pension.

C. Next, we examine ex officio whether the above error of the court below affected the conclusion of the judgment.

Where the National Pension Service pays a pension due to a third party’s unlawful act, the right to claim compensation for subrogated acquisition is limited to the amount of compensation that a beneficiary may claim against a third party for the same cause as that of the grounds for payment of a disability pension or survivor pension. Therefore, the right to claim compensation for subrogated acquisition shall have the same nature as the grounds for payment of a disability pension and shall coincide with the subject period (see Supreme Court Decision 93Da34091 delivered on December 21, 1993). The disability pension under the National Pension Act has a function to compensate for lost income damage due to a disability that is paid according to the degree of disability while the disability of a pension holder continues to exist (Article 67(1) of the National Pension Act). Thus, the right to claim compensation for damages by subrogation after paying a disability pension for a third party’s unlawful act is limited to lost income damage corresponding to the period of payment of a disability pension.

However, as seen earlier, the intervenor filed the instant subrogation claim on the ground that he paid the disability pension to the Lessee from July 31, 2007 to December 31, 2008. On the other hand, the lower court determined that the maximum working age for calculating the lost income of the Lessee was up to July 7, 2006. As such, the lower court did not have a claim for damages equivalent to the lost income recognized by the lower court regarding the same period as the disability pension paid by the Lessee to the Lessee. Nevertheless, the lower court’s decision that recognized the subrogation as to the right to claim damages equivalent to the remainder other than the contributory portion out of the amount of the disability pension paid by the Lessee was unlawful against the aforementioned legal doctrine that the right to claim damages by subrogation has the same nature as the grounds for payment of pension and that the period should coincide with the period subject

However, since only the intervenor cannot make a judgment unfavorable to the appellant with respect to this part of the claim filed by the appellant, the lower court’s error in violation of the legal doctrine on the scope of subrogation by the National Pension Service shall not affect the conclusion of the judgment in the event the ground for the payment of pension as seen earlier conflicts between the third party’s tort and the contractor’s king evidence. Ultimately, the Intervenor’s ground for appeal

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)