[1] The case affirming the judgment of the court below that, in calculating the lost income of a dentist who died of an aircraft accident, the deceased can work as a dentist until he reaches the age of 65 and one-third of his income will be required as living expenses

[2] Special factors for calculating consolation money for an aircraft accident

[3] The case holding that there was an error of law that deviates from the limits of discretion by failing to properly consider the special circumstances of an aircraft accident in calculating consolation money for damage caused by an aircraft accident

[1] The case affirming the judgment of the court below that, in calculating the lost income of a dentist who died of an aircraft accident, the deceased can work as a dentist until he reaches the age of 65, and one-third of the amount of his income will be required as living expenses.

[2] In calculating consolation money for an aircraft accident, in addition to general factors of consolation money, special circumstances of the aircraft accident, such as the victim's severe fear and pain, the response of the result, delay in dealing with the accident and compensation for damage, the degree of fault on the part of the perpetrator and attitude after the accident, allocation of risks through aviation insurance, sanctions against the accident and necessity for prevention, etc., shall also be considered and determined at a discretion belonging to its own authority.

[3] The case holding that the calculation of consolation money for damage caused by an aircraft accident does not properly take into account the special circumstances of the aircraft accident, and thus, there is an error of law that deviates from the limits of discretion by significantly violating the ideology of fair sharing of damage and the principle of equity

[1] Articles 393 and 763 of the Civil Act / [2] Articles 393, 751, and 763 of the Civil Act / [3] Articles 393, 751, and 763 of the Civil Act

Plaintiff (Law Firm Gyeong & Yang, Attorneys Yang Jong-soo et al., Counsel for the plaintiff-appellant)

China International Aviation Corporation (Law Firm Squa, Attorneys Kim Jae-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2006Na112603 decided Dec. 4, 2007

The part of the lower judgment against the Plaintiff regarding consolation money is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the Plaintiff’s appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

On April 15, 2002, the court below rejected the judgment of the court below that there was no method to verify the credibility of the monthly income of the non-party 1 who died of the accident in this case on April 15, 2002 as a dentist, or that the monthly income of the non-party 1 should be calculated on the basis of income in 2001, among the corresponding evidence, the part of the evidence No. 4 and No. 6 was reported to the tax office of the deceased non-party 1 after the death of the deceased non-party 1, and the amount of income of the non-party 1 reported to the tax office of the deceased non-party 201, based on the amount of the income reported before the death of the deceased non-party 1. The evidence No. 26 evidence No. 1, No. 2, and No. 3 was found to have been found to have been inconsistent with the legal principles as to the appraisal of income in this case, and there was no difference between the report of the tax office's income and the evidence No. 20.

2. Regarding ground of appeal No. 2

The judgment of the court below that the deceased non-party 1 can work as a dentist until he reaches 65 years of age is acceptable in light of the age, occupation, career, and health conditions of the deceased non-party 1 as shown in the records, and the period of operation cannot be viewed as up to 70 years of age solely on the basis of the circumstances alleged in the grounds of appeal. The ground of appeal on this part is without merit.

As seen earlier, the lower court determined that 1/3 of the net non-party 1’s monthly income will be required as living expenses in light of the net non-party 1’s level of monthly income and the empirical rule. Such determination by the lower court is justifiable, and there is no error of law by misapprehending the legal doctrine on the recognition of living expenses,

3. As to the third ground for appeal

The court below acknowledged the defendant's duty to pay consolation money to the deceased, who is an airline, for mental distress caused by the accident of this case where the deceased non-party 1, non-party 3, and non-party 4 who was aboard his aircraft with the fall of the aircraft and the deceased non-party 1, the non-party 3, and the non-party 4 (hereinafter "the deceased"), and the deceased non-party 1's mother. The court below determined that the plaintiff's assertion that consolation money to the deceased's deceased non-party 1 is not reasonable in consideration of the following facts: the deceased's family members died of the accident of this case; the deceased's family members suffered a serious shock; the accident accompanied by a large accident requires strict liability different from other traffic accidents in order to ensure aviation safety; the defendant as a large airline and purchased an insurance policy in England; the defendant did not suffer economic loss due to the accident of this case; the compensation money to the deceased is paid to the deceased in excess of KRW 300 million per capita; the plaintiff's assertion that the deceased's assertion about the deceased and non-party 2000 million.

However, it is difficult to accept the judgment of the court below for the following reasons.

In the case of tort caused by the so-called aircraft accident, the following special circumstances may be considered in the calculation of consolation money, unlike ordinary traffic accidents. First of all, an aircraft accident leads to a large-scale witness who causes death or fatal damage to large passengers. In the course of the crash and collision, passengers have suffered serious fear and pain, and the body of passengers has not been completely recovered due to the accident. In addition, as the accident takes considerable time to deal with the accident management, identification, and understanding damage, the damage compensation for the long time is likely to be delayed, and the damage can be further increased depending on the method or attitude of the aircraft accident management. Meanwhile, an ordinary aircraft accident is caused to the victim without negligence, and the degree of negligence on the part of the perpetrator is more likely to affect the calculation of consolation money. In addition, an aviation accident is to prepare for large risks caused by the aircraft accident, and an aviation accident is to be separated from the area of the victim’s residence, and it is to be included in the same aviation insurance premium rate as the air accident insurance premium, and to be re-scheduled based on the same premise as the two aviation accident insurance premium.

Therefore, in calculating consolation money for an aircraft accident, a fact-finding court shall also consider the special circumstances of the aircraft accident in the pleading, such as the victim's severe fear and pain, the response to the result, the delay in dealing with the accident and compensation for damage, the degree and attitude of the perpetrator's negligence, the allocation of risks through aviation insurance, sanctions against the occurrence of the accident, and the need for prevention, as mentioned above, and determine the amount of consolation money at its discretion.

However, according to the reasoning of the judgment below and the records, the accident in this case occurred due to the significant and total negligence of the crew of the aircraft, and there was no negligence to the passengers, and the result of the accident occurred due to the collision, explosion, and fire of the aircraft that occurred in the course of the accident in this case, the majority of the passengers died and the body severely damaged the body, and the fear and pain of the passengers are expected to have been serious, and the accident in this case occurred, and three of the families on board together with the deceased died at once due to the accident in this case, and the defendant seems to have sufficiently secured the risk of damages caused by the aircraft accident through the aviation insurance, and the damage of the deceased and the plaintiff is not entirely compensated for a long time. However, in light of the special circumstances as seen above and the legal principles as seen above, in calculating consolation money, the court below can be deemed to have deviates from the limitation of discretion due to the idea of fair sharing of damages and the principle of equity. The allegation in the grounds of appeal on this is with merit.

4. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff regarding consolation money shall be reversed, and that part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal by the plaintiff shall be dismissed. It is so decided as per Disposition

Justices Kim Nung-hwan (Presiding Justice)