(영문) 대법원 2019.5.10.선고 2019다206179 판결

The part of the judgment of the court below against the plaintiff as to lost income shall be reversed, and that part of the case shall be remanded to Seoul Southern District Court Panel Division.

All remaining appeals by the plaintiff and the defendant are dismissed.

Reasons

The grounds of appeal are examined.

1. As to the Plaintiff’s ground of appeal on maximum working age

A. In Supreme Court en banc Decision 88Meu16867 Decided December 26, 1989 (hereinafter “previous en banc Decision”), the Supreme Court discarded its previous position that deemed the maximum working age of a person engaged in ordinary physical labor or a person engaged mainly in physical labor (hereinafter “physical labor”) as 55 years in light of the empirical rule. From that end, the Supreme Court has maintained the view that the maximum working age of physical labor should be deemed as 60 years in light of the empirical rule.

However, as Korea’s social and economic structure and living conditions rapidly improve and develop, and the improvement and improvement of the legal system, the circumstances that served as the basis for the foregoing empirical rule at the time of the previous en banc Decision, etc., became difficult to maintain the above view. Barring special circumstances, deeming that a person is able to operate between the age of 60 and the age of 65 is in accord with the empirical rule (see, e.g., Supreme Court en banc Decision 2018Da248909, Feb. 21, 2019).

B. When a 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, labor participation rate, and working conditions and retirement age limit by occupation, in addition to the social and economic conditions such as the average remaining life, economic level, and employment conditions of the citizens, etc., and derive the presumed maximum working age in light of the empirical rule, or taking into account specific circumstances, such as the victim’s age, occupation, career, and health conditions (see, e.g., Supreme Court Decision 2009Da100920, May 13,

C. According to the reasoning of the judgment below, in calculating the actual income of the Plaintiff who partially lost his work ability due to the instant accident, the lower court recognized that the Plaintiff could engage in daily work until the age of 60, which is the maximum working age of ordinary urban daily workers.

However, as seen earlier, the previous empirical rule, which had set the maximum working age of physical labor up to 60 years, was difficult to maintain as a result of changes in empirical facts that served as the basis of the empirical rule. Therefore, the lower court determined the maximum working age of physical labor presumed to be based on the empirical rule by examining all circumstances that serve as the basis of the empirical rule, and examining specific circumstances to derive the maximum working age of physical labor presumed to be based on the empirical rule, or to recognize the same differently from the Plaintiff’s newly derived maximum working age in light of the empirical rule. However, even if having determined the maximum working age, the lower court determined the Plaintiff’s maximum working age according to the previous empirical rule until he/she reaches the age of 60. In so doing, the lower court erred by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending legal doctrine

2. As to the Defendant’s grounds of appeal on elements for establishing liability for damages, burden of causation, and limitation of liability

A. As for the reasons in a written judgment, the judgment on the parties’ allegations and other means of offence and defense shall be indicated to the extent that it can be recognized that the text is justifiable, and it is not necessary to determine all parties’ allegations or methods of offence and defense (see Article 208 of the Civil Procedure Act). Accordingly, the court

Even if there is no specific and direct determination on the matters alleged by the parties in the judgment, if it is possible to find out that the parties accepted or rejected such claims in light of the overall purport of the reasons for the judgment, it cannot be deemed an omission of judgment (see, e.g., Supreme Court Decision 2011Da87174, Apr. 26, 2012).

B. On the grounds stated in its reasoning, the lower court determined that the Defendant is liable for compensating the Plaintiff for damages caused by the instant accident pursuant to Article 3 of the Guarantee of Automobile Accident Compensation Act as the operator of a village bus, and further did not explicitly determine the liability limitation ratio on the premise that the Defendant’s assertion of comparative negligence is rejected.

Examining the aforementioned legal principles and records in light of the relevant legal principles and records, the lower court did not exhaust all necessary deliberations, as otherwise alleged in the grounds of appeal, and did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to elements for establishing liability for damages, burden

3. As to the amount of consolation money for emotional distress suffered by tort as to the grounds of appeal by both parties on consolation money, a fact-finding court may determine the amount at its own discretion, taking into account all the circumstances (see, e.g., Supreme Court Decision 98Da41377, Apr. 23, 1999).

For reasons indicated in its holding, the lower court determined consolation money to the Defendant at KRW 25 million. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, by misapprehending the rules of logic and experience or by misapprehending the legal doctrine on the calculation

4. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff as to lost income is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals by the plaintiff and the defendant are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.