The case holding that in calculating the deceased's lost earnings, the judgment of the court below that deemed the business income from the business of cutting off and lending the so-called cathing machine as part of the base income of the deceased's claim

In calculating the deceased's lost earnings, there is an error in violation of the principle of pleading in the judgment of the court below which takes the business income of the business of cutting off and lending the so-called dump in withdrawal as part

The case at issue

Article 763 (Article 393 of the Civil Act), Article 188 of the Civil Procedure Act

Plaintiff et al., Counsel for the plaintiff-appellant-appellee

[Defendant-Appellee] Defendant 1 and 3 others

Busan High Court Decision 91Na11322 delivered on June 4, 1992

The part of the judgment of the court below against the defendant as to passive damages shall be reversed, and this part of the case shall be remanded to Busan High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below found the deceased's wages of KRW 741,66 per month while working as a manager in charge of daily work at the middle school construction site as at the time of the accident in this case. The above Corporation terminated around December 1990. The government wages of the head of the working group similar to the occupation of the above deceased were KRW 23,00 per day in 191, and KRW 29,800 in 192. The above deceased's net income was 3,730,650 annually from the day following the day of the accident in this case, while working as a manager in charge of daily work at the middle school construction site as at the time of the accident in this case (hereinafter referred to as the "non-party company"). The above deceased's net income of the deceased's above 116,666 won per month from the day after the day of the accident in this case was calculated as at the time of the above 1st of the above 1st of the above 1920th of the work site.

However, according to the records, in calculating the lost profit of the above deceased, the plaintiff asserted the sum of the net income that the above deceased had obtained while working as the manager of the above construction site or as the representative of the working group, such as the original adjudication, in the complaint of this case and the application for reduction of claim claim and correction of claim cause of the above construction site as of July 5, 191. The above deceased claimed the sum of the net income that the deceased had obtained while working as the manager of the above construction site, and in the legal brief of March 5, 192, such as the application for correction of claim and cause of the above construction site manager, the above deceased claimed the sum of the wages that the above deceased could receive while working as the retirement age as the above construction site manager of another construction site manager of the construction site, or the wages that the above construction works completed as the above construction site manager of another construction site manager of the construction site manager of the construction site of the construction site of this case, or the compensation for its passive property damage, and the plaintiff's assertion that the above construction site was withdrawn from the above retirement business.

Nevertheless, in calculating the lost profit of the deceased, the court below ruled that the business income of the mid-term rental business was a part of the base income without the plaintiffs' assertion, based on the facts that the parties did not assert, and affected the conclusion of the judgment in violation of the principle of pleading.

The argument pointing this out is with merit.

Therefore, the part of the judgment of the court below against the defendant regarding passive damages is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all Justices

Justices Kim Yong-sung (Presiding Justice)