(a) Whether the increased wage can be used as the basis for calculating lost earnings after the accident occurred;

(b) Whether a victim who has lost part of his/her labor ability has lost his/her income if he/she receives wages in an amount larger than the previous wage income;

(c) An unmarried woman who has no provision of the retirement age under the rules of employment, but who is entitled to receive documents in case where he manages personnel at the retirement age; and

(d) The range of retirement allowances for a worker who has lost part of his/her labor ability and has retired from the previous workplace can be employed by another workplace;

A. The profit of the victim of tort caused the loss of his/her labor ability shall be calculated based on the income actually earned at the time of the accident, barring special circumstances. Thus, even if the victim raised uniformly the salary for the previous employees after the victim was involved in the accident, unless there are special circumstances, if the increase in the above salary was not ordinarily foreseeable at the time of the accident, the damage caused by the loss of the above increased salary portion cannot be claimed as compensation for the special damage.

B. If the victim of tort lost part of his/her labor ability due to an accident, it is reasonable to view that the victim suffered loss of his/her labor capacity due to the loss of his/her labor capacity, barring special circumstances, the part corresponding to the degree of loss of labor among the income that he/she had earned at the time of the accident, barring special circumstances. Even if the victim retired from the previous workplace after the accident and temporarily employed in another workplace and received wages in the previous workplace, it is reasonable to deem that the victim was due to the fact that he/she had been unable to obtain employment opportunities to exercise his/her labor capacity in the previous workplace. Therefore, it cannot be concluded that there was no loss of income even if the victim lost part of his/her labor capacity

C. If a company in which the victim had been employed does not have a provision regarding the employee's retirement age under the rules of employment, but has maintained personnel management by setting the age of 55 according to the common sense, the victim may work for the company until the age of 55, in the absence of an accident, even if he/she has operated simple auxiliary business, such as receipt of documents, with unmarried women.

D. In a case where the victim injured by a tort lost part of his/her labor ability and it is recognized that he/she could be employed by another workplace with similar occupation within the limit of his/her remaining labor ability even if he/she was retired from the previous workplace, it shall be deemed that he/she could receive a retirement allowance corresponding to his/her remaining labor ability at the time of his/her retirement. Therefore, it shall not be deemed that the total retirement allowance which the victim could have been employed by his/her previous workplace until his/her retirement age was lost, and it shall not be deemed that the part corresponding

[Destruction of the Supreme Court en banc Decision 89.12.26∑ 6761]

Article 763 of the Civil Act

Attorney Cho Young-young, Counsel for the plaintiff-appellant

Defendant Kim Jong-sik et al., Counsel for the defendant-appellant

Seoul High Court Decision 85Na1683 delivered on March 4, 1986

The part of the lower judgment against the Defendant regarding property damage shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The plaintiff's appeal is dismissed.

The costs of appeal against the above dismissal are assessed against the plaintiff.

1. Judgment on the ground of appeal No. 1 by the Plaintiff’s attorney

According to the reasoning of the judgment below, the court below, after compiling the evidences, found that the plaintiff was at the time of the accident at the time of the accident at the time of the accident at issue that the plaintiff was at the basic salary of KRW 109,000 per month and the annual average salary of KRW 118,083 as an ombudsman by receiving bonuses corresponding to the basic salary of KRW 100 per year, and that the plaintiff was at the time of the above basic salary every year at the time of the accident at the time of the accident at the time of the accident at issue, rejected all of the evidences consistent with the plaintiff's attorney's arguments that the plaintiff was at the time of receiving bonuses and annual paid leave allowances corresponding to the above basic salary of KRW 400,00 per year. However, in comparison with the records, the court below's above evidence preparation and fact-finding are justified, and there is no error of law in the

2. Judgment on the ground of appeal No. 2 by the Plaintiff’s attorney

The profit that the victim of tort lost his/her labor ability should be calculated on the basis of the income actually earned at the time of the accident, unless there are special circumstances. Even if the victim had been employed in the company that had uniformly raised the salary for all employees after the victim was involved in the accident, the damages caused by the loss of the above increased salary portion, unless the increase in the salary was ordinarily foreseeable at the time of the accident, constitute special damages, and thus, cannot be claimed for compensation.

The issue is that the court below's rejection of all the evidences that correspond to the facts to the fact that the former employee after the accident in this case was employed by the non-party company is against the rules of evidence, and even if not, it is not sufficient to provide a more reliable opportunity to present evidence to prove it. However, as alleged by the plaintiff, even if the former employee in the non-party company raised the salary in a uniform manner from January 1, 1985 to 19,200 cent cents each of the wages after the accident in this case, it cannot be said that such increase in wages could have been ordinarily predicted at the time of the accident, and therefore, it is unnecessary to examine the issue further.

3. Determination on the first ground for appeal by the defendant's attorney

If the victim of a tort has lost part of his/her labor ability due to an accident, it is reasonable to deem that the victim suffered from the loss of his/her labor ability due to the loss of his/her labor ability, barring special circumstances. Even if the victim retired from the previous workplace after the accident and temporarily employed in another workplace after the accident and received wages in the previous workplace, it is reasonable to deem that the victim was due to the fact that he/she had been unable to obtain employment opportunities to exercise his/her labor force in the previous workplace. Therefore, even though the victim has lost part of his/her labor ability, it cannot be concluded that there was no loss of income from the tort even though the victim has lost part of his/her labor ability.

Therefore, even though the court below acknowledged the fact that the plaintiff was employed in a temporary different place after the accident of this case and received a higher amount of wages than those received from the non-party company that had been employed at the time of the accident, it cannot be said that the plaintiff was found to have lost income from the retirement of the labor ability.

In addition, the precedents cited as arguments (Supreme Court Decision 80Da3256 delivered on September 22, 1981) are related to the case in which it is difficult to deem that the degree of the victim's after-sales disability was caused by the reduction of the ability to work that may substantially affect the income, and it is not appropriate for this case. The arguments are groundless.

4. Determination on the second ground of appeal by the defendant's attorney

According to the reasoning of the judgment below, the court below acknowledged the fact that the non-party company, who was employed by the plaintiff at the time of the accident of this case, did not have any provision on the retirement age of employees under the rules of employment, but did personnel management by setting the age of 55 according to the common example, and judged that even if the plaintiff was an unmarried woman and operated simple auxiliary business, such as document delivery, etc., the plaintiff could have worked for the non-party company until the age of 55, without the accident of this case. Thus, the above judgment of the court below is just and it is not erroneous in the misapprehension of legal principles

5. Determination on the third ground of appeal by the defendant's attorney

Although a victim injured by a tort lost part of his/her labor ability, where it is recognized that he/she could be employed by another workplace with similar occupation within the limit of his/her remaining labor ability even if he/she was retired from his/her previous workplace, the retirement allowance corresponding to his/her remaining labor ability shall be deemed to be able to receive it. Therefore, it cannot be deemed that the total amount of retirement allowance that the victim could have been employed by his/her previous workplace until his/her retirement age was lost, and only the part corresponding to the degree of his/her labor ability among the retirement allowances

However, according to the reasoning of the judgment below, the court below held that the plaintiff's injury caused by the accident of this case and was re-employed to another workplace in similar occupational category with the injury of this case and was paid a considerable amount of pay, even if recognized, the plaintiff's retirement was no longer available at the previous workplace, and the plaintiff's retirement did not lose in full the difference after deducting the retirement allowance actually received from the retirement allowance which he could have been continuously employed at the retirement age from the previous workplace. Thus, the judgment of the court below is erroneous in the misapprehension of legal principles as to the calculation of the amount of damages for the temporary retirement allowance, and such illegality constitutes a ground for reversal under Article 12 (2) of the Act on Special Cases concerning

6. Therefore, the part of the judgment of the court below against the defendant regarding property damage is reversed, and that part of the case is remanded to the court below. The plaintiff's appeal is without merit, and the costs of appeal against the above dismissed appeal are assessed against the plaintiff, who is the losing party. It is so decided as per Disposition by the assent

Justices Lee B-soo (Presiding Justice)