[Plaintiff, Appellant and Appellee] Government Employees Pension Corporation (공무원연금관리공단) (Attorney Shin Tae-gyu, Counsel for the Plaintiff)
[Defendant, Appellee and Appellant] Dongbu Fire & Marine Insurance Co., Ltd. (동부화재해상보험 주식회사) (Attorney Song Yeong-sik, Counsel for the Defendant)
[Judgment Below] Seoul High Court Judgment 98Na24879, rendered October 20, 1998
[Order]
The part of the judgment below concerning the loss of retirement pension, among the portions in which the Defendant lost, is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff's appeal and the remainder of the Defendant's appeal are all dismissed.
[Reasoning]
The grounds of appeal are examined.
1. As to the Plaintiff's grounds of appeal
According to the reasoning of the judgment below, the court below, comprehensively considering the evidence it adopted, found the following facts: that Nonparty 1, a police officer, was struck and killed by a cargo truck (vehicle registration number omitted) owned by the insured of the Defendant and driven by Nonparty 2, on the road in front of Dongmyeon Health Center, Jangdong-ri, Dong-myeon, Hwasun-gun, Jeollanam-do, at around 22:10 on November 14, 1996; that the Plaintiff paid to Nonparty 3, the wife of the deceased, a survivors' compensation benefit of KRW 58,928,400 (equivalent to 36 months of the deceased's monthly salary of KRW 1,636,900) pursuant to Article 42, Item 3, Subitem (sa), and Article 61 of the Public Officials Pension Act (공무원연금법); that the total amount of the deceased's lost income damages for which the Defendant is liable is KRW 152,452,306, and the funeral expense damages incurred by Nonparty 3 amount to KRW 4,000,000; and that the deceased's surviving family, in addition to Nonparty 3, includes his children, Nonparty 4, Nonparty 5, Nonparty 6, and Nonparty 7, all of whom are 18 years of age or older. The court below found no evidence that the deceased's children were in a state of disability as defined by the Enforcement Decree of the Public Officials Pension Act. Based on these findings, the court below determined that the Plaintiff acquired, through the payment of the above survivors' compensation benefit, a right to damages in the amount of KRW 45,577,901, consisting of KRW 41,577,901 (corresponding to Nonparty 3's 3/11 inheritance share of the deceased's lost income damages of KRW 152,452,306) plus Nonparty 3's own funeral expense damages of KRW 4,000,000, out of the damages claim that Nonparty 3 held against the Defendant arising from this accident.
As to the Plaintiff's argument that the Plaintiff also acquired, within the scope of the survivors' compensation benefit paid, the damages claims of the deceased's children against the Defendant and Nonparty 3's claim for consolation money, the court below rejected this argument on the following grounds: on the premise that the right which the Plaintiff may subrogate pursuant to Article 33, Paragraph 2 of the Public Officials Pension Act (hereinafter referred to as the "Act") by paying the survivors' compensation benefit is limited to the damages claim of the beneficiary, i.e., the person entitled to receive the survivors' compensation benefit, the deceased's children, all being 18 years of age or older, do not fall within the definition of "bereaved family" under Article 3, Paragraph 1, Item 2 of the Act and thus cannot be regarded as beneficiaries; even though Nonparty 3 submitted to the Plaintiff, at the time of receiving the survivors' compensation benefit, a certificate of designation to the effect that she and the deceased's children designated Nonparty 3 as the representative of the bereaved family, this does not make the deceased's children, who are not legally beneficiaries of the survivors' compensation benefit, into beneficiaries; therefore the Plaintiff cannot acquire the damages claims held by the deceased's children against the Defendant; and furthermore, the claim for consolation money, among the damages claims held by the beneficiary against a third party, is excluded from the scope of the damages claim acquired by the Plaintiff pursuant to Article 33, Paragraph 2 of the Act.
The "damages claim held by the beneficiary against a third party," which the Government Employees Pension Corporation acquires pursuant to Article 33, Paragraph 2 of the Act by paying survivors' compensation benefits under Article 42, Item 3, Subitem (sa), and Article 61 of the Act to the bereaved family of a public official who died in the line of duty due to the act of a third party, includes only the damages claim of the beneficiary, that is, the person entitled to receive the benefits provided under the Act, as stipulated in the above provisions of the Act; and pursuant to Article 3, Paragraph 1, Item 2 and Paragraph 2 of the same Article of the Act, a child who is 18 years of age or older and who is not in a state of disability as prescribed by the Enforcement Decree of the same Act does not fall within the category of bereaved family who is a beneficiary of benefits under the Act.
Furthermore, the damages claim subrogated and acquired by the said Corporation, etc. pursuant to Article 33, Paragraph 2 of the Act pertains to the portion of the damages arising from the act of a third party that has the same purpose and nature as the benefits paid by the said Corporation, etc. Among the survivors' benefits provided under Article 42, Item 3 of the Act, the survivors' compensation benefit, unlike other survivors' benefits such as the survivors' pension under the same item which is paid for the livelihood security of the bereaved family regardless of whether the death was caused by a work-related illness or injury, is a benefit intended to compensate the public official who died due to a work-related illness or injury, or his or her bereaved family, for the loss, and is paid to compensate for the loss or damage caused by the work-related illness or injury. In this respect, it is reasonable to regard it as a benefit of the same kind as compensation for passive damages caused by a tort (see Supreme Court en banc Decision 97Da36873, delivered November 19, 1998). Therefore, the said Corporation, etc. cannot acquire the beneficiary's claim for consolation money, which is legally different in nature, merely on the ground that it paid the survivors' compensation benefit.
The above fact-finding and determination by the court below are correct, and there is no error of misunderstanding the legal principles concerning Article 3, Paragraph 1, Item 2, and Article 33, Paragraph 2 of the Act, as alleged in the grounds of appeal.
The judgment cited by the Plaintiff in the grounds of appeal concerns a case with different facts from the present case and is not appropriate to invoke in this case.
Therefore, the Plaintiff's grounds of appeal are without merit.
2. As to the Defendant's grounds of appeal
A. As to comparative negligence
In light of the record, the court below's fact-finding regarding the circumstances of this accident, and its determination that the deceased's negligence cannot be considered to have contributed to the occurrence of this accident, are justified, and there is no error of misunderstanding the legal principles concerning comparative negligence.
The Defendant's grounds of appeal on this point are without merit.
B. As to the calculation of urban daily wages
According to the record, there is no error in the court below's measure of recognizing the urban daily wage, which serves as the basis for calculating the deceased's lost income, as KRW 34,947 per day.
The Defendant's grounds of appeal on this point are without merit.
C. As to the deduction of the survivors' pension, etc. from the lost retirement pension
According to the reasoning of the judgment below, the court below, in calculating the amount of damages payable by the Defendant, determined, based on the evidence it adopted and undisputed facts, that the lost income damages suffered by the deceased due to this accident should be calculated as the remaining amount after deducting one-third of each amount as living expenses from: (i) the salary income as a police officer for the period from the date of the accident to the expected date of mandatory retirement; (ii) the income as an urban daily worker for the period from thereafter to the working age limit; and (iii) the retirement pension for the remaining life expectancy period after the expected date of mandatory retirement as a police officer. The court below rejected the Defendant's argument that the survivors' pension and the survivors' pension special additional benefit received by the deceased's wife should be deducted from the deceased's retirement pension loss amount.
Where a public official who could have received a retirement pension under the Public Officials Pension Act died during his term of service due to the tortious act of another person, and the deceased's wife, who is the pension beneficiary, claims as lost income damages the loss suffered from not being able to receive the retirement pension during the life expectancy period after the expected date of mandatory retirement, while at the same time receiving the survivors' pension, the bereaved family thereby doubly acquires benefits of the same purpose. Therefore, in calculating the amount of damages payable to the bereaved family, the amount of the survivors' pension must be deducted from the deceased's lost retirement pension amount, and in this case, the amount of the survivors' pension to be deducted is the amount equivalent to 70/100 of the retirement pension amount as provided by the Act (see Supreme Court Decision 93Da57346, delivered May 10, 1994, etc.). As the court below lawfully found that the deceased spent one-third of his retirement pension as living expenses, the deceased would have suffered damages equivalent to two-thirds of the monthly retirement pension he would have received; and it is clear from the calculation that the survivors' pension to be received by the deceased's wife exceeds the amount of damages suffered by the deceased due to the loss of the retirement pension. Consequently, the deceased's wife's claim for damages equivalent to the lost retirement pension cannot be recognized.
The court below erred in the law regarding the deduction of the survivors' pension in cases where the lost retirement pension is included in lost income, by treating the deceased's loss equivalent to the lost retirement pension as passive damage and granting the claim for compensation therefor without deducting the survivors' pension, etc. from the amount of damages equivalent to the retirement pension, and it is clear that this error affected the judgment.
Therefore, the Defendant's grounds of appeal pointing out this issue are with merit.
3. Therefore, the part of the judgment below concerning the loss of retirement pension, among the portions in which the Defendant lost, is reversed by accepting the Defendant's appeal, and that part of the case is remanded to the court below; and the Plaintiff's appeal and the remainder of the Defendant's appeal are all without merit and are hereby dismissed. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Yoon Jae-sik (Presiding Justice), Lee Don-hee, Lee Im-su (Justice in Charge), Song Jin-hun