(영문) 대법원 2018.5.15.선고 2017다294158 판결

Of the judgment of the court below, the part against the defendant regarding the lost income and the lost retirement allowance shall be reversed, and this part of the case shall be remanded to the Gangnam District Court of Chuncheon. The remaining appeal shall be dismissed.

Reasons

The grounds of appeal are examined.

1. Judgment on ground of appeal No. 1

A. Although the lost income of a victim who lost labor ability due to a tort shall be calculated based on the income at the time of occurrence of the damage, if the income which forms the basis of lost profit was increased between the time of closing argument in the fact-finding court, then the lost income loss thereafter shall be calculated based on the income nearest at the time of closing argument in the fact-finding court, and such loss constitutes ordinary damages due to the tort (see, e.g., Supreme Court Decision 2002Da30275, Sept. 24, 2002).

B. In calculating the lost income of the deceased who died due to a traffic accident on December 19, 2012, the lower court calculated the lost income in accordance with the salary table of kindergartens, kindergartens, elementary schools, middle schools, and high school teachers, etc. under Articles 5, 13 and 2 of the former Public Officials Remuneration Regulations (Amended by Presidential Decree No. 24299, Jan. 19, 2013) from the date of the accident until February 28, 2017; and Articles 5, 13 and 2 of the former Public Officials Remuneration Regulations (Amended by Presidential Decree No. 28211, Jul. 26, 2017) from March 1, 2017 to the deceased’s retirement age. In light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on salary and salary grade, or by failing to exhaust all necessary deliberations.

2. Judgment on ground of appeal No. 2

After compiling the adopted evidence, the lower court recognized the facts as indicated in its reasoning, and acknowledged the following: ① the performance bonus paid to B who is the lowest grade in the work guidelines for the remuneration of public officials, ② the class allowance paid to the teacher in charge of the teacher in charge of the teacher in charge of the teacher in public middle school belonging to the Gangwon-do Office of Education included the amount calculated by multiplying the ratio of the teacher in charge of the teacher in charge of the teacher in public middle school

In light of the records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to performance bonus, class allowance, etc.

3. Judgment on the third ground for appeal

In full view of the adopted evidence, the lower court acknowledged the fact that the Plaintiffs, a lineal ascendant of the Deceased, were living together with the Deceased and included family allowances in the wage income, which serves as the basis for calculating the lost income. The grounds of appeal on this part of the grounds of appeal are not legitimate grounds of appeal, as it did not err in the deliberation of evidence and fact-finding, which belong to the exclusive

4. Judgment on the fourth ground for appeal

A. The contributions under the Public Officials Pension Act should be paid by public officials in order to receive retirement allowances, etc. in its nature. Accordingly, in calculating the deceased’s lost earnings, the retirement allowance contribution ought to be deducted from the total revenue prior to the cost of living (see, e.g., Supreme Court Decision 89Meu14639, Jul. 24, 190).

B. The lower court calculated the deceased’s income without deducting the retirement allowance portion contribution, and then deducted one-third of the deceased’s income from his living expenses, and deducted the contributions pursuant to the Public Officials Pension Act from his retirement allowance. In addition, when deducting the total amount of contributions from his retirement allowance, the lower court unjustly deducted the total amount of contributions calculated by deducting only the amount calculated by deducting only the amount calculated by deducting the amount calculated by the method of the “amount of contributions to be deducted for every month” (an amount equivalent to 900/10,000 based on the standard monthly income at the time of retirement at the Plaintiff’s request) X 12 months x 36 years (based on the standard monthly income at the time of retirement at the time of retirement at the Plaintiff’s request) from the amount of contributions to be deducted by deducting only the amount calculated by the method of “X36 years (based on the amount of contributions to be deducted).

5. Judgment on the fifth ground for appeal

A. The loss of retirement benefits incurred by a wage income earner whose retirement age is guaranteed due to a tort committed during his/her service should be calculated by deducting the retirement benefits, etc. equivalent to the total continuous service period from the total retirement allowances for the total continuous service period until the retirement age payable if he/she did not die (see, e.g., Supreme Court Decision 98Da50340, Sept. 26, 2000).

B. However, in calculating the lost retirement allowance, the lower court did not deduct the Plaintiffs’ retirement allowance received due to the death of the deceased. In so determining, the lower court erred by misapprehending the legal doctrine on the lost retirement allowance, thereby failing to exhaust all necessary deliberations on the already received retirement allowance, thereby affecting the conclusion of the judgment

6. Conclusion

Therefore, among the judgment below, the part against the defendant regarding lost earnings and retirement allowances shall be reversed, and this part of the case shall be remanded to the court below, and the remaining appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.