(a) The unit wage which serves as the basis for calculating the lost income of an unemployed person who resides in an urban area as at the time the accident occurred or a minor before employment;

(b) In calculating the net income referred to in paragraph (a) above, where the revenue to the extent that an ordinary part of the unit price of government wages can be obtained can be used as the base revenue.

(c) The case holding that the court below's measure was erroneous in calculating the lost income of urban daily workers on the basis of the ground that the unit price of urban wage cannot be proven to be objectivity and universality;

(d) Method of recognizing the amount required for specific living expenses;

(e) In cases where the original or the defendant stated that the living expenses of a victim (the deceased and the beneficiary of a retirement pension under the Military Pension Act) would be required by 1/3 of his/her income, whether the income would be the purpose other than the retirement pension, or not;

(f) Where, in calculating the lost profits of a deceased person, the living expenses from the expiration of the operating period to the life of a deceased person may be deducted;

G. Whether the living expenses should be deducted from the retirement pension in calculating the lost income of the deceased as referred to in the above "Ma"

A. In calculating the lost income of a victim of a tort, if the victim did not obtain a certain amount of income because he/she was unemployed, minor, student, or family register residing in an urban area at the time of the accident, the amount of daily wages may be calculated on the basis of the income as a worker of an ordinary person who is at least the lowest income presumed to be able to obtain by gender and the operating age. In such cases, the unit price of the wages shall not necessarily depend on the unit price of government wages, and if it is acknowledged that the victim has objectivity and universality, the amount of daily wages may be calculated on the basis of other data.

B. In the case of the above "A", barring any special circumstance so far, the court presumed that the income can be obtained to the extent that an ordinary worker can obtain the same out of the unit price of government wages, and calculated the lost income based on it is a long-term practice in practice. Thus, in order to calculate the lost income with the price different from the base price as the standard income of urban daily workers, the court may consider whether the survey institution, the object and scope of the survey, the method of the survey, and the basis of calculation for the calculation of the lost income, etc. are objectivity and universality, and thus, if it is deemed that there are circumstances that can be said to be the standard income of urban daily workers, it may be deemed the standard income.

(c) The case holding that the court below's measure was erroneous in calculating the lost income of urban daily workers on the basis of the ground that the unit price of urban wage cannot be proven to be objectivity and universality;

(d) The specific cost of living must be determined by evidence as a matter of fact-finding.

E. The purport of this case is that if the plaintiff stated that the living expenses of the victim (the deceased and the beneficiary of a retirement year under the Military Pension Act) on the date of pleading would require 1/3 of the revenue, it would be reasonable to view that the defendant does not dispute that 1/3 of the average monthly income except the retirement pension will be required as living expenses, unless there are special circumstances.

F. In calculating the lost profit of a deceased person, the cost of living up to the life expectancy after the expiration of the operating period is not of the nature to deduct it. The cost of living that the victim would spend after the expiration of the operating period is not directly related to the previous income, and it cannot be viewed that the cost of living would have been appropriated for the cost of living after the expiration of the operating period. However, if there are certain benefits even after the expiration of the operating period, it is reasonable to view that the cost of living after the expiration of the operating period would have been appropriated here.

G. As a kind of benefit under the Military Pension Act, a retirement pension under the Military Pension Act is a kind of benefit, which has the nature of remuneration for service in the past or wages in the future, and is exempted from consideration for contributions made at the time of his/her employment. Even though the living cost after his/her retirement (out of the same period) is not necessary expenses to obtain the entitlement to a retirement pension, it cannot be denied that the living cost after his/her retirement is necessary expenses for the maintenance of life. Therefore, if there is no other income even after the expiration of the operating period, it is reasonable to view that the living cost is paid from the retirement pension that he/she receives. Accordingly, in calculating the lost income of the deceased under the above "Ma", it is also consistent with the principle

(a)Article 763 and Article 393(e) of the Civil Code, Section 261(g) of the Civil Code, Section 1 and Article 6 of the Military Pension Act;

A.B. (C) Supreme Court Decision 91Da9602 delivered on June 25, 1991 (Gong1991,209) (Gong199,209). Supreme Court Decision 80Da3258 delivered on February 24, 1981 (Gong1986,1383). Supreme Court Decision 89Meu19580 delivered on February 27, 1990 (Gong190,766). Supreme Court Decision 71Da1566 delivered on April 25, 1972

Plaintiff 1 and two others

Attorney Yoon Jae-sik, Counsel for the defendant-appellant

Seoul High Court Decision 90Na47517 delivered on January 24, 1991

Of the part against the Defendant regarding the lost income and the lost pension of the deceased Nonparty, the part ordering the payment of KRW 36,000,000 and delay damages therefor shall be reversed, and this part of the case shall be remanded to the Seoul High Court.

1. We examine the grounds of appeal.

On the first ground for appeal

In light of the facts acknowledged by the court below, the degree of comparative negligence set-off by the court below cannot be deemed unlawful, and there is no reason for the argument.

On the second ground for appeal

A. According to the reasoning of the judgment below, the court below recognized the fact that the deceased non-party (hereinafter referred to as the "the deceased") was a male living in the urban area remaining between 48 and 10 years old at the time of the accident in this case, and recognized the ordinary urban daily wage of the deceased male in the urban area as KRW 15,790 per day, and KRW 17,510 per day on June, 190 near the date of the closing of argument in the court below, pursuant to the evidence No. 9-1 and No. 4 (the monthly transaction price mark and content) of the deceased's total daily income, and it seems that the above fact-finding was made by adopting the unit daily wage of the time wage in this case.

B. In calculating the lost income of a victim of a tort, if the victim did not obtain a certain amount of income because he/she was unemployed, minor, student, or family register residing in the urban area at the time of the accident, any person may calculate the amount based on his/her income as a daily worker of an ordinary person, who is at least the minimum income presumed to be able to obtain by gender and the operating age. In such cases, the unit wage does not necessarily need to be dependent on the government wage, and if it is acknowledged that the victim has objectivity and universality, it can be calculated based on other data, so it cannot be said that the court below calculated the lost income of the deceased on the basis of the unit wage of the above quarterly wage, not on the basis of the government wage, but on the basis that the court below calculated the lost income of the deceased on the basis of the unit wage of the above quarterly wage.

C. However, in such cases, barring any special circumstances so far, the court presumed that the income can be obtained to the extent that an ordinary part of the unit price of government wages can be obtained, and thus, it is a long-term practice in practice to calculate the lost income. Therefore, in order to calculate the lost income with a price different from the base price as the standard income of urban daily workers, it shall be examined whether the survey institution, the object and scope of the survey, the method of the survey, and the basis of calculation of the method of the survey, etc. are objectivity and universality, and thus, it may be deemed as the standard income in a case where it is recognized that there are circumstances that can be deemed as the standard income of urban daily workers (see Supreme Court Decision 91Da9602, Jun. 25, 191).

D. However, according to the record, the magazine "transaction price" issued by the Korea Construction Association in this case was presented as evidence, and the unit price of government wages was published in February 1990 (No. 6-1, 2). The unit price of government wages in each quarter is only published in November 1, 1990 and December (No. 9-1, 4). Unlike the unit price of government wages in each quarter, it cannot be known whether the standard application method, its survey institution, the object and scope of the survey, the basis for calculation, or the basis for calculation of the survey is not indicated. Thus, it cannot be said that there is evidence that the unit price of government wages in this case is objective and universal programming, and it is reasonable to view that the court below calculated the lost income of the deceased based on this as long as it is reasonable to this extent.

On the third ground for appeal

A. According to the records, each attorney of the plaintiff and the defendant stated on the second day for pleading of the court of first instance that the cost of living of the deceased would be required by 1/3 of its revenue, and the specific cost of living should be acknowledged by evidence as a matter of fact-finding (see Supreme Court Decision 86Meu565, Sept. 9, 1986). However, if the parties make a statement at the pleading of this case as above, it is reasonable to view that the purport of the statement is not to dispute that the monthly average income of the deceased would be required by 1/3 of the retirement pension except for the retirement pension is required as living expenses (see Supreme Court Decision 89Meu19580, Feb. 27, 1990). Therefore, it is justifiable to view that the court below, in this case, deducted 1/3 of the living expenses from the urban daily labor wages that the deceased could have obtained during the operation period, and that the deceased would have not received at the time of the retirement pension was not deducted.

B. In addition, in calculating the lost profit of the deceased, the cost of living from the expiration of the operating period to the life of the deceased (see Supreme Court Decision 71Da1156, Apr. 25, 1972) is not of the nature to deduct it (see Supreme Court Decision 71Da1156, Apr. 25, 1972). This is because the living cost to be disbursed by the victim after the expiration of the operating period is not directly related to the previous income, and it cannot be viewed that it has been appropriated for the living

However, if there are certain benefits even after the expiration of the operating period, it would be reasonable to deduct the cost of living after the expiration of the operating period, because it would be reasonable to regard the cost of living after the expiration of the operating period.

C. A retirement pension under the Military Pension Act is a kind of benefit paid by a soldier for the purpose of contributing to his/her stabilization of livelihood and improvement of the welfare by providing appropriate benefits to him/her when he/she retires after serving a considerable period of time (Articles 1 and 6 of the Military Pension Act). Even though this is a kind of benefit with the nature of compensation for service in the past and the nature of the contribution paid at the time of his/her employment, and the cost of living after his/her retirement is not necessary expenses to obtain the entitlement to a retirement pension, it is reasonable to view that the cost of living is paid from the retirement pension if the retirement pension has the nature of the benefits paid for such purpose long as the retirement pension has the nature of the benefits paid

As above, the retirement pension under the Military Pension Act is paid for the purpose of the beneficiary's livelihood security, and there shall be no other income after the operation period expires, and the support by a third party shall be deemed to be made when the beneficiary is unable to maintain his/her livelihood, and it shall not be denied that the living expenses after the operation period is the necessary expenses for the maintenance of his/her life even though the beneficiary's right to receive the retirement pension is not the necessary expenses for the maintenance of his/her life. Therefore, in this case, in calculating the lost income of the deceased, the deduction of the living expenses from the retirement pension he/she receives shall be in accord with the principle of equity. Thus, the judgment of the court below which did not do so is erroneous in the misapprehension of legal principles as to the calculation of the lost income in cases where the benefits are paid after the operation period expires, and this point is with merit.

2. According to the petition of appeal submitted by the defendant's attorney, the defendant is dissatisfied with only KRW 36,00,000 of the deceased's lost income and the lost pension portion among the part against the defendant in the judgment of the court below.

3. Therefore, the part of the judgment of the court below against the defendant as to the lost income and the lost pension of the deceased as to the amount of KRW 36,00,000 and damages for delay thereof shall be reversed, and this part of the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-chul (Presiding Justice)