(영문) 서울고등법원 2018.11.22. 선고 2017나2070305 판결

A. It is confirmed that the Plaintiff’s obligation related to the Defendant’s accident that occurred on May 29, 2010 does not exist in excess of 5% per annum from May 29, 2010 to the date of complete payment.

B. The plaintiff's remaining claims are dismissed.

2. (a) Pursuant to the application for the return of provisional payments, the Defendant shall pay to the Plaintiff 11,284,151 won and the amount calculated by applying 5% per annum from August 29, 2015 to November 22, 2018, and 15% per annum from the next day to the date of full payment.

B. The plaintiff's remaining provisional payment claim is dismissed.

C. The above paragraph (a) can be provisionally executed.

3. 50% of the total litigation cost (including the application cost for the return of provisional payments) shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The purport of the appeal, incidental appeal, and the purport of the application for the return of provisional payments

1. Purport of claim and incidental appeal

The judgment of the first instance court is modified as follows. The plaintiff confirms that no obligation exists with respect to the defendant's accident that occurred on May 29, 2010.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the above revocation is dismissed.

3. The purport of the plaintiff's request for the return of provisional payments

The defendant shall pay to the plaintiff 12,642,083 won with 5% per annum from August 29, 2015 to the date of this judgment, and 15% per annum from the next day to the date of full payment.

Reasons

1. Quotation of the first instance judgment

The reasoning of this Court’s reasoning is as follows, except for the following parts among the grounds of the judgment of the court of first instance, and therefore, it is identical to the reasoning of the judgment of the court of first instance.

2. Parts to be dried;

A. Part 5 of Paragraph 18 of the fifth page "It is reasonable to see that the accident of this case occurred by reducing the title of ... by itself, ..." shall be deemed to have occurred by the accident of this case by reducing the title of this case (the evidence additionally submitted by the defendant at the trial and without any ground to see otherwise)."

(b) eliminate the part of the 8th page 5 and 6 lines.

“The Defendant asserts that there is a tort liability due to the defect in the installation and preservation of structures, as well as the tort liability against the Plaintiff. As such, since the Plaintiff’s tort liability ratio was limited to 20%, it is necessary to consider the remainder of the Plaintiff’s tort liability asserted by the Defendant. However, the Plaintiff’s employer liability as claimed by the Defendant is not different from the tort liability as seen earlier, and the liability ratio does not exceed the above 20%, and ② the tort liability due to the defect in the installation and preservation of structures claimed by the Defendant is not determined further, since there is no evidence to acknowledge it.

(d) by cutting not more than 17 parallels with the following:

d. Scope of damages.

The scope of the Plaintiff’s liability for damages against the Defendant shall be calculated on the basis of the following facts recognized by comprehensively considering the purport of the entire arguments as a result of the physical commission to the head of the first instance hospital and the following facts. The calculation of the period for the convenience of calculation shall be calculated on a monthly basis, and the amount less than a month shall be included in the side where the appraised is less than the month, and the amount less than the last month and less than a won shall be discarded, respectively, and the calculation of the present price at the time of the instant accident shall be based on the simple discount method which deducts the intermediary interest at the

(i) lost earnings;

(A) the facts of recognition and evaluation;

○ Gender: Male

○ Date of birth: H students

○ The date of the accident and the age when the accident occurred: May 29, 2010 ( November 1, 2010)

○ Name of lease (shortage): 12 years (til May 28, 2022)

The maximum working age and the expiration date of operation of ○○ Workers: June 27, 2038.

○ The ratio of post-grade disability and labor capacity loss: 10% of the Mabrid Labor Capacity Evaluation Table, two parts, brain, and high-level chron II-B-5, 100% of the Mabrid Labor Capacity Evaluation Table.

○ Cost of living: Credit from May 29, 202 to 1/3

B) Calculation: When calculating the daily income based on the urban daily wage of an ordinary worker from May 29, 2010, which was the date of the instant accident, to June 27, 2038, which was the maximum working age, as of June 27, 2038, the daily income is KRW 402,797,767 as indicated below in the following calculation table.

A person shall be appointed.

2) Positive damages

A) Future treatment costs

(1) Expenses: 16,670,000 unit price per year, including medical examination fees:

A person shall be appointed.

(2) Calculation: there is no evidence to prove that the Defendant received the above future medical treatment or spent the above expenses by the date of the closing of argument in the instant case. For the convenience of calculation, the above expenses were first disbursed on October 12, 2018, which is the day following the date of the closing of argument in the instant case, and on May 28, 202, which is 12 years after the date of the closing of argument in the instant case (12 years from the date of the accident), and thus, the above expenses were to be disbursed on a yearly basis from May 28, 202, which is 4,760,617 as indicated below

A person shall be appointed.

B) Nursing expenses

As the defendant needs to open 12 hours a day for an adult woman to open the defendant in a state where it is impossible to maintain his/her life without opening a family in a state equivalent to that of plant, it shall be 486,068,954 won as stated in the following calculation table.

A person shall be appointed.

C) future auxiliary payments;

If it is calculated that the Plaintiff paid the following expenses for the future auxiliary equipment from October 12, 2018 to May 28, 202, 202, the following day, from October 12, 2018 to May 28, 202, the date following the date of the closure of the argument in this case, the Plaintiff’s current expenditure is KRW 11,244,010 (special wheelchairs 1,41,600 + 705,800 + 352,90 won for the prevention of wheeling rooms for the treatment of wheel chairs + KRW 8,773,710) as follows:

(a) Special wheelchairs: 2 million won per unit price, and 5 years; and

A person shall be appointed.

(b) Special bed: One million won per unit price, and several permanently;

A person shall be appointed.

(d) Consumable items for urine treatment: 300,000 won per month;

A person shall be appointed.

3) Limitation on liability

(A) Liability ratio: 20%

B) Calculation of property damages: KRW 188,974,269 [The actual income of KRW 402,797,767 + the future treatment expenses of KRW 44,760,617 + the nursing expenses of KRW 486,06,068,954 + the nursing expenses of KRW 11,24,010 + X 20% of the future support area of KRW 11,24,010].

4) Mutual aid

Comprehensively taking account of the overall purport of the arguments in evidence Nos. 13, 15, and 17, the National Pension Service paid the Defendant KRW 30,344,580 in total as disability pension from June 1, 201 to January 22, 2016 due to the instant accident, and thus, KRW 17,000,679, which is recognized as liable for the Plaintiff’s damages out of the Defendant’s actual income during the period for which the said disability pension was paid (i.e., the Defendant’s lost income from June 1, 201 to January 22, 2016) ought to be deducted from the Defendant’s actual income from KRW 85,03,397, X200.

A person shall be appointed.

Therefore, the Defendant’s property damage remaining after deducting the above KRW 17,00,679 from the amount of disability pension payment is KRW 171.973,590 (i.e., the above KRW 188,974,269 (i.e., the above KRW 17,00,679).

5) Consolation money

A) Reasons for consideration: Circumstances and results of the instant accident, degree of negligence of the Plaintiff, age of the Defendant, and other various circumstances revealed in the instant argument.

(b) Amount determined: 20,000,000 won;

6) Sub-decisions

Therefore, the Plaintiff’s obligation related to the instant accident is KRW 191,973,590 (i.e., KRW 171,973,590 + 20,000,000 + damages for delay at the rate of 5% per annum as stipulated in the Civil Act from the date of the instant accident to the date of full payment, and there is no interest in confirmation as long as the Defendant is disputing the Plaintiff’s liability for damages in relation to the instant accident.”

3. Conclusion

A. Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. The judgment of the court of first instance is unfair as it is in part of the conclusion, and it is so decided as per Disposition by changing the judgment of the court of first instance.

B. Determination as to the Plaintiff’s application for return of provisional payment

As seen earlier, since the judgment of the court of first instance partially revoked this court, the sentence of provisional execution of the court of first instance is partially invalidated due to this judgment. Comprehensively taking account of the purport of evidence No. 16, Gap's evidence No. 16, the plaintiff paid 253,670,531 won to the defendant on August 28, 2015 based on the judgment of the court of first instance (i.e., the principal amount of the judgment of first instance + KRW 200,889,008 + the annual interest rate of KRW 52,781,523 won per annum from 205,000 to August 28, 2015). Thus, the plaintiff's claim for damages related to the accident of this case from 191,973,590 won per annum No. 250,971,90 per annum 281,500 won per annum, 2015.25% per annum from the court of first instance.