(영문) 대법원 2016.7.27.선고 2016다214599 판결

The part of the judgment of the court below against the Defendants shall be reversed, and that part of the case shall be remanded to the Daejeon District Court Panel Division.

Reasons

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 2, and 3

A. In a case where a company where the victim was employed was closed after the accident, barring special circumstances, such as the victim’s discontinuance of business due to the injury caused by the accident, the amount of future income with considerable probability to the extent that it does not lose rationality and objectivity after investigating and examining the victim’s age, level of education, the victim’s previous occupation, career, skills and skill training, and the possibility and probability of occupational change in similar occupation or other occupation, and other social and economic conditions, and the income therefrom, and the future income amount should be recognized to the extent that it does not lose rationality and objectivity (see, e.g., Supreme Court Decisions 2005Da2575, Sept. 29, 2005; 97Da5367, Apr. 25, 1997).

In addition, the principle of free evaluation of evidence declared by Article 202 of the Civil Procedure Act means that it does not need to be linked to the formal and legal evidence rules, and does not allow a judge’s arbitrary judgment. Thus, the fact finding shall be in accordance with logical and empirical rules based on the principle of justice and equity, based on the admissible evidence that has undergone lawful evidence examination procedures, and even if fact finding belongs to the discretion of a fact-finding court, it shall not exceed the limits thereof (see, e.g., Supreme Court Decisions 2012Da2228, Sept. 10, 2015; 2009Da7198, 77204, Apr. 13, 2012).

B. The lower court: (a) acknowledged that the Plaintiff, with the certificate of qualification as a special-purpose technician, was engaged in the business related to G at the time of the instant accident, and was retired from G, 200,000 monthly; (b) on the part of the Plaintiff’s claim against the Defendants; (c) determined that the Plaintiff was 3,349,943 won a monthly average while engaging in the business related to G, 30 months from January 1, 2015 to the date of closing the argument of the lower court (hereinafter “SD”); and (d) recognized that the Plaintiff, with the certificate of qualification as a special-purpose technician at the time of the instant accident, was 0,00 won or more after the date of the instant accident (i.e.,,, the Plaintiff was 10,000 won or more after the date of the instant accident; (b) recognized that the Plaintiff was 30,000 won or more after the date of the instant accident; and (c) recognized that the Plaintiff was 9, more likely to have been on an average amount of work.

C. However, we cannot agree with the above determination by the court below for the following reasons.

The lower court recognized the fact that the Plaintiff received an average of KRW 3,349,943 per month while engaging in e-mail-related work from January 1, 2015 to the date of closing argument in the lower court. However, such fact-finding by the lower court is unlawful based on the salary list and bank transaction statement, which is a material that did not undergo legitimate investigation of evidence submitted after the closing of argument in the lower court.

In determining the Plaintiff’s income after the closure of business, the court below found the facts and circumstances that were found to be the basis of the above illegality among the facts and circumstances, and the remaining facts and circumstances, excluding the circumstances, were found to be based on the above facts and circumstances, and the Plaintiff, who is qualified as a special entertainment technician, was paid the amount of KRW 4,200,000 per month while engaging in entertainment-related business in G at the time of the instant accident. However, G was discontinued, and the Plaintiff was only at a high risk of changing occupation to a similar workplace after the closure of business. In light of the above legal principles, the remaining facts and circumstances cannot be deemed to have accrued income equivalent to KRW 4,200,00 which the Plaintiff received from G after the closure of business and up to the end of operation.

Nevertheless, the lower court determined that the Plaintiff may obtain income of KRW 4,200,000 per month even after G’s cessation of business. In so doing, the lower court erred by misapprehending the legal principles on actual income or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

2. As to the fourth ground for appeal

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court is justifiable to have rejected the Defendant’s defense of comparative negligence on the grounds stated in its reasoning, and contrary to what is alleged in the grounds of appeal, there were no

3. The ground of appeal No. 5 does not indicate a specific and direct judgment on the matters alleged by the parties to the judgment in the court, but if it is possible to find out that the assertion was cited or rejected in light of the overall purport of the reasoning of the judgment, it cannot be deemed an omission of judgment. Even if a court did not make a decision, if it is obvious that such assertion was rejected, it cannot be said that there was an omission of judgment, since it does not affect the outcome of the judgment, (see, e.g., Supreme Court Decisions 201Da51434, Dec. 12, 2013; 2009Da8631, Apr. 29, 2010).

Of the reasoning of the judgment below, although there is no specific and direct determination on the claim that the compensation for damages should be mitigated in light of the fact that the Defendants’ above Defendants except Defendant B were living in an inferior place, and that the compensation for damages may have a significant impact on their livelihood, the court below rejected the above Defendants’ assertion in light of the purport of the judgment below, and in addition, it cannot be deemed that the above Defendants’ assertion should be mitigated in light of the fairness and equity of the burden of damages and the good faith principle. Thus, the judgment of the court below did not err by omitting judgment, contrary to what is alleged in the grounds of appeal, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.