[Plaintiffs, Incidental Appellants and Appellees] Plaintiff 1 and 2 others, Attorney Choi Sang-eun, counsel for the plaintiffs
[Plaintiffs, Appellees] Plaintiff 2 and 1 other
[Defendant, Incidental Appellee and Appellant] Ajin Passenger Bus Co., Ltd., Attorney Lee Chun-hee, counsel for the defendant
[Judgment Below] Busan High Court Decision 92Na2592 rendered on October 14, 1993
[Order]
The appeal and the incidental appeal are all dismissed.
The costs of the appeal shall be borne by the Defendant, and the costs of the incidental appeal shall be borne by Plaintiff 1.
[Reasoning]
1. As to the Defendant's grounds of appeal
Upon examination of the record, the lower court's determination that the deceased Nonparty 1, who at the time of this accident was working as the assistant principal member of the Busan Municipal Symphony Orchestra while also operating a violin tutoring studio, could have continued to serve as a member of the orchestra until reaching the mandatory retirement age of 61, and could simultaneously have earned approximately KRW 240,000 per month from private tutoring during the same period, is acceptable. It cannot be said that there was an error of misapprehending the facts in violation of the rules of experience, or an error of misunderstanding the legal principles regarding the mandatory retirement age of orchestra members and the working period as a private tutoring instructor, as argued in the grounds of appeal. This ground of appeal is without merit.
2. As to Plaintiff 1's grounds of incidental appeal (including the grounds of appeal stated in the supplementary brief on grounds of incidental appeal)
(1) As to the first point
Upon examination of the record, the lower court's finding that Plaintiff 1, the driver of the victim's vehicle in this case, also bore the negligence as stated in the judgment, is acceptable, and it cannot be said that there was an error therein as argued in the grounds of appeal. This ground of appeal is without merit.
(2) As to the second and third points
According to the record, the Plaintiffs admitted at the first instance oral argument date that one-third of the deceased Nonparty 2's income would have been expended as living expenses, but subsequently withdrew this admission at the oral argument date before the lower court. Regarding this, the lower court determined that since the income of the said deceased Nonparty 2, who was 65 years and over 5 months old at the time of this accident, consisted only of the retirement pension under the Public Officials Pension Act (공무원연금법) and lecture fees, and the lecture fees amounted to only KRW 136,000 or KRW 160,000 per month, it is clear under the rules of experience that one-third of such lecture fees alone could not sustain a livelihood; therefore, it would be reasonable to interpret the purport of the above admission as meaning that one-third of the total income including the retirement pension would be expended as living expenses. The lower court further determined that, since there was no evidence to find that the above admission was contrary to the truth or was made due to mistake, the withdrawal of the above admission was ineffective. This determination by the lower court is acceptable, and it cannot be said that there was an error of misunderstanding the legal principles regarding admission and withdrawal thereof, failure to exercise the right of clarification, or insufficient deliberation, as argued in the grounds of appeal.
If the deceased Nonparty 2, who had retired from a position as an educational public official upon reaching mandatory retirement age and was receiving a retirement pension under the Public Officials Pension Act, could only have earned, in addition to the retirement pension, a monthly income of KRW 136,000 or KRW 160,000 by working as a part-time lecturer for two years from the date of the accident, then the lower court's determination — in calculating the said deceased's lost retirement pension and lecture fees, deducting the portion equivalent to one-third thereof which the Plaintiffs had admitted as the necessary living expenses — is proper, and it cannot be said that there was an error of misunderstanding the legal principles regarding the nature of retirement pensions under the Public Officials Pension Act and living expenses, as argued in the grounds of appeal. The argument that living expenses should never be deducted in calculating lost retirement pension in any case is nothing more than an idiosyncratic view.
This ground of appeal is without merit in its entirety.
(3) As to the fourth point
Where a person who was receiving a retirement pension under the Public Officials Pension Act dies due to another person's tortious act, and the bereaved family inherits the right to claim damages arising from the deceased's loss of the retirement pension while simultaneously receiving a survivor's pension, the bereaved family thereby doubly obtains benefits serving the same purpose; therefore, in calculating the amount of damages to be paid to the heirs, the amount of the survivor's pension must be deducted from the deceased's lost retirement pension amount (see this Court's Decision 93Da29372 rendered on October 22, 1993). In such a case, the amount of the survivor's pension to be deducted shall be the amount equivalent to 70/100 of the retirement pension amount pursuant to the provisions of the Public Officials Pension Act. Furthermore, even in cases where only some of the deceased's heirs qualify as beneficiaries entitled to the survivor's pension under the Public Officials Pension Act, such that the scope of the beneficiaries of the survivor's pension does not coincide with the scope of those who inherited the right to claim damages equivalent to the lost retirement pension, the deceased's heirs shall jointly inherit, in accordance with the provisions of the Civil Act (민법), the remainder after deducting the survivor's pension amount from the lost retirement pension amount (see this Court's Decisions 86Daka2581 rendered on June 9, 1987, and 75Da1098 rendered on December 27, 1977). As lawfully found by the lower court, if the living expenses of the deceased Nonparty 2 amounted to one-third of his income consisting of the retirement pension and lecture fees, then even though the deceased suffered damage equivalent to two-thirds of the monthly retirement pension amount and his heirs inherited the right to claim such damages, it is arithmetically clear that, due to the deceased's death, the survivor's pension amounting to 70/100 of the retirement pension would be paid, and the amount of the survivor's pension to be received by the bereaved family would exceed the amount of the lost retirement pension damages to be inherited; consequently, the heirs' claim regarding damages equivalent to the lost retirement pension is, in the end, without merit (see this Court's Decision 92Da7269 rendered on July 28, 1992). The lower court's determination to the same effect is proper, and it cannot be said that there was an error therein as argued in the grounds of appeal. This ground of appeal is without merit.
(4) As to the fifth and sixth points
Even granting that, as argued in the grounds of appeal, Plaintiff 1 is simultaneously the son of the deceased Nonparty 2 and the husband of the deceased Nonparty 1, it cannot be said that there was an error of insufficient reasoning merely because the lower court, in calculating the amount of consolation money for Plaintiff 1, did not separately calculate the consolation money arising from the death of each of the said deceased persons but calculated it as a total combined amount. Furthermore, it is not necessarily contrary to the rules of experience or logic that the lower court, having taken into account the various circumstances appearing in the record, recognized the amounts of consolation money for the deceased Nonparty 2 and the deceased Nonparty 1 herself as being the same amount. This ground of appeal is without merit in its entirety.
3. Accordingly, the Defendant's appeal and Plaintiff 1's incidental appeal are all dismissed, and the costs of the appeal shall be borne by the Defendant, the appellant, and the costs of the incidental appeal shall be borne by Plaintiff 1, the incidental appellant. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the decision.
Justice Bae Man-woon (Presiding Justice), Kim Ju-han, Kim Seok-su (Justice in Charge), Jeong Gwi-ho