(a) Criteria for calculating the amount of damages for the deceased;

(b) A claim for consolation money due to the mental pain of the fetus;

(a)see Article 762(1) of the same Act, see, e.g., Decision 1313

(b)if it can be reasonably expected that the fetus will take the future pain even if the fetus does not have the risk of mental pain at the time of damage, the claim may be filed immediately;

(c)the loss benefit may not be computed on the basis of the income at the time of death unless it is demonstrated that there is a special circumstance to increase or decrease in the future.

Articles 750, 751, and 752 of the Civil Act

Plaintiff 1 and four others

Korea

Daegu High Court Decision 4294No41 delivered on May 25, 1961

The appeal shall be dismissed.

The costs of appeal shall be borne by the defendant.

Defendant Litigation Performers stated in the attached Table 1

The first ground for appeal No. 1

However, in calculating the amount of damages for the benefit lost due to death, it is not possible to calculate the amount based on the income at the time of death unless it is asserted by the parties because special circumstances have been predicted that if the victim would have left or reduced if he had not died, the future revenue would have been increased. In this case, unless the defendant proves that the victim would have left the oil in the future and suspended or discontinued the business in the future, the reason for the original judgment is just and there is no error in law, and therefore, the argument is without merit.

As to the second ground for appeal

However, it is interpreted that the fetus is already born with respect to the claim for damages, and the consolation money is interpreted that the claimant can immediately claim if it can reasonably expect that the claimant will accept the claim in the future even if the claimant does not have the risk of mental suffering at the time of damage. Therefore, there is no misunderstanding of legal principles in the original judgment, and there is no ground for appeal No. 3.

However, in this case to be tried by the principle of pleading, since it cannot be recognized that there is a duty of explanation such as the theory of lawsuit in the court below, the argument is without merit.

Therefore, it is so decided as per Disposition by all participating judges in accordance with Articles 400, 89, and 95 of the Civil Procedure Act.

Justices Cho Jin-man (Presiding Judge) of the Supreme Court