2018Da259732 Compensation (i)

1. A;

2. B

C. (Before the change: D Co., Ltd.)

Seoul Central District Court Decision 2017470924 Decided July 5, 2018

April 3, 2019

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

All remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to the third ground for appeal

A. In Supreme Court en banc Decision 88Meu16867 Decided December 26, 1989 (hereinafter “former en banc Decision”), the Supreme Court discarded the previous view that the maximum working age of a person engaged in general physical labor or a person engaged mainly in physical labor (hereinafter “physical labor”) is 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 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 legal system, the above view became difficult to maintain as circumstances that served as the basis of the foregoing empirical rule at the time of the previous en banc Decision, barring any special circumstance, it would be in accord with the empirical rule to deem that a person is able to operate between 60 and 65 years of age (see 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, working conditions and retirement age limit by occupation, in addition to the social and economic conditions such as average remaining life, economic level, and employment conditions of the people, etc., and derive the presumed maximum working age in light of the empirical rule, or considering specific circumstances, such as the victim’s age, occupation, career, and health conditions (see, e.g., Supreme Court Decision 2009Da10920, May 13, 201).

C. According to the reasoning of the lower judgment, the lower court acknowledged that, in calculating the deceased’s lost income of the deceased who died of the instant accident, the deceased could be engaged in daily work until the age of 60.

However, as seen earlier, the previous empirical rule, which set the maximum working age of physical labor up to 60 years, was difficult to maintain any longer according to changes in empirical facts that served as the basis thereof.

Therefore, the lower court, based on the overall circumstances that serve as the basis of the empirical rule, tried to derive the maximum working age of physical labor presumed to be based on the empirical rule, or to examine whether there exist any special circumstances to recognize the deceased’s maximum working age differently from the newly derived maximum working age in light of the empirical rule, thereby readily setting the deceased’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 misapprehending the legal doctrine on the maximum working age, failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

2. As to the grounds of appeal Nos. 1 and 2

A. In tort, comparative negligence is set in consideration of the victim’s negligence in light of the principle of equity or good faith. Matters to be considered include: (a) the perpetrator and the victim’s intent or negligence; and (b) the occurrence and expansion of damages; and (c) whether there are some causes to a certain extent; and (d) the fact-finding or the determination of the rate of comparative negligence is within the discretionary authority of the fact-finding court unless it is recognized that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2018Da227551, Jul. 26, 2018).

B. The lower court acknowledged the deceased’s fault ratio as 40%, and limited the Defendant’s responsibility to the remainder of 60%, taking into account that the stopping of the Plaintiff’s vehicle and the deceased’s water signal condition provided a considerable cause for the instant accident.

Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on offsetting negligence or limitation of liability, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

3. Conclusion

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

Justices Kim Jong-soo

Justices Kim Jong-il

Chief Justice Lee Ki-taik

Justices Park Il-san