[Plaintiff, Appellant]
[Defendant, Appellee] Pohang Transportation Co., Ltd. and 3 others
[Judgment Below] Daegu High Court Decision 94Na1747 delivered on January 12, 1995
[Order]
The part of the judgment below concerning the Plaintiffs' losing portion as to passive damages is reversed, and the case is remanded to the Daegu High Court.
All remaining appeals by the Plaintiffs are dismissed.
The costs of the appeal concerning the dismissed portion shall be borne by the Plaintiffs.
[Reasoning]
We examine the grounds of appeal.
1. On the point of comparative negligence (過失相計)
Upon examining the relevant evidence in the record, the court below's factual findings and judgment, which recognized that the victim in this case was also at fault for failing to wear a seatbelt and that this fault was one of the causes contributing to the expansion of damages, are justified and acceptable, and there is no illegality of violating the rules of evidence as argued in the grounds of appeal.
This ground of appeal is without merit.
2. On the point of summer vacation allowance, winter allowance, and lunch allowance
The court below recognized the fact that the summer vacation allowance, winter allowance, and lunch allowance were increased after the accident in this case, but on the ground that these were all damages arising from special circumstances and there was no evidence that the Defendants knew or could have known of this at the time of the accident, excluded the increased amounts from the calculation of lost income.
However, it is the established position of this Court that while the lost profits of a salaried employee who has lost working capacity due to a tort shall in principle be calculated based on the wage income at the time of the loss of working capacity, where there is objective material from which it can be predicted with a considerable degree of certainty that such wage income will increase in the future, the wage income to be increased in the future must also be considered in calculating the lost profits; and that damages corresponding to lost profits calculated on the basis of such future increased wage income constitute ordinary damages arising from the relevant tort in terms of social norms, and the scope of compensation does not vary depending on whether the tortfeasor knew or could have known of the circumstance that the victim's wage income would increase in the future (see this Court's En Banc Decision 88Daka6761 delivered on December 26, 1989; Decision 90Daka3130 delivered on June 12, 1990; Decision 89Daka14639 delivered on July 24, 1990, etc.).
Moreover, according to the record, the wages under each of the above items had already been increased before the conclusion of the pleadings in the court below, and since the court below itself accepted each of the above wage items as part of the wage income for calculating lost profits, to regard only the increased amounts thereof as damages arising from special circumstances, as the court below did, constitutes a misapprehension of the legal principles concerning the scope of damages, which affected the judgment. Therefore, this ground of appeal pointing this out is with merit.
3. On the point of other bonuses
As noted above, the court below's determination that the other bonuses constituted damages arising from special circumstances constitutes a misapprehension of the legal principles concerning the scope of damages. However, according to the reasoning of the first instance judgment as cited by the court below, the "other bonuses" argued in the grounds of appeal were not provided for in the wage regulations, and were paid in 1991 under such names as New Year's holiday encouragement money, productivity enhancement encouragement money, commemorative encouragement money for the conclusion of the collective agreement, and management performance bonus, and in 1992 under such names as New Year's holiday encouragement money, management performance bonus, and completion commemoration encouragement money. As such, it is difficult to regard these as consideration for labor, and even assuming they were consideration for labor, since the timing of their payment was irregular and the amounts were not fixed, it cannot be concluded that such income would continue to exist in the future. On this basis, the court below excluded these from the calculation of lost income, and such measure by the court below is acceptable. Accordingly, the ground of appeal criticizing this is without merit.
4. On the point of deduction of benefits (損益公除)
Upon examination of the record, it is clear from the description of Evidence Eul No. 2 (claim for insurance payment) that the KRW 2,000,000 paid to the Plaintiffs' side by non-party Lucky Fire & Marine Insurance Co., Ltd. was paid as part of the insurance proceeds, and as for the KRW 4,000,000 paid by Defendant ○○○ as a settlement amount in the course of the criminal proceedings, there was no indication at the time of payment that it was paid in the name of consolation money. Therefore, it is reasonable to view each of the above amounts as having been paid as part of the compensation for pecuniary damages (see this Court's Decision 87Daka3133 delivered on May 24, 1988; Decision 91Da18712 delivered on August 13, 1991, etc.).
Accordingly, the court below's determination to this effect is justified, and there is no illegality as argued in the grounds of appeal.
This ground of appeal is without merit.
Therefore, the part of the judgment below concerning the Plaintiffs' losing portion as to passive damages is reversed, and the case is remanded to the court below; all remaining appeals by the Plaintiffs are dismissed; and the costs of the appeal concerning the dismissed portion are to be borne by the Plaintiffs. The opinions of the participating Justices are unanimous, and it is so decided as set forth in the Order.
Justice Kim Seok-su (Presiding Justice), Jeong Gwi-ho, Lee Don-hee (Justice in Charge), Lee Im-su