[Plaintiffs, Appellees] Plaintiff 1 and 1 other (Attorneys of Law Firm Samhyeon, Seo Jung-seok and 1 other, of counsel)
[Defendant, Appellant] DB Insurance Co., Ltd. (Attorney Heo Geum-tak and 1 other, of counsel)
[Judgment Below] Seoul Central District Court Judgment 2021Na885, decided June 25, 2021
[Order]
All appeals are dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning] The grounds of appeal (to the extent supplemented by the brief submitted after the deadline for submission of the grounds of appeal brief) are examined as follows.
1. As to Grounds of Appeal Nos. 1 and 2
The court below, taking into account the circumstances stated in its reasoning, determined the deceased Non-Party (hereinafter “the Deceased”)’s earned income of KRW 83,248,790, as reported to the competent authority for the year 2017, the year immediately preceding the accident in this case, as the basis for calculating lost income, and treated the amount obtained by dividing this by 12 months, i.e., KRW 6,937,399, as the average monthly wage. However, applying the wage peak system, the court below calculated the average monthly wage from the month following the Deceased’s attainment of age 55 until age 60, the retirement age, by successively reducing it by 5% each year, and thereafter, until age 65, calculated income based on the amount equivalent to the income of a regular employee with a university degree, i.e., KRW 4,014,000 per month, as indicated in the Report on the Survey of Working Conditions by Employment Type published by the Ministry of Employment and Labor. After deducting living expenses, the court below calculated the total lost income of the Deceased as KRW 938,487,302.
Examining this in light of the relevant legal principles and the record, the above determination by the court below does not, as argued in the grounds of appeal, exceed the limits of the principle of free evaluation of evidence in violation of the rules of logic and experience, nor did the court below fail to conduct necessary examination or misapprehend the legal principles concerning the scope of income serving as the basis for calculating lost income, thereby affecting the judgment.
2. As to Grounds of Appeal Nos. 3 and 4
The court below, as stated in its reasoning, did not accept the Defendant’s argument that the wage peak system should also be applied in calculating lost retirement benefits, on the grounds that the wage peak system presupposes that wages have reached their maximum amount, but at the time of the accident in this case, the Deceased was only 35 years and 4 months old, with a considerable period remaining until retirement age, such that applying the wage peak system to modify the average wage amount at the time of the accident would result in an unjustly reduced average wage amount for the Deceased. Accordingly, the court below calculated the Deceased’s lost retirement benefits based on the average wage amount at the time of the accident.
Examining this in light of the relevant legal principles and the record, this determination by the court below does not, as argued in the grounds of appeal, exceed the limits of the principle of free evaluation of evidence in violation of the rules of logic and experience, nor did the court below fail to conduct necessary examination or misapprehend the legal principles concerning lost retirement benefits and the wage peak system, thereby affecting the judgment.
3. As to Grounds of Appeal Nos. 5 and 6
A. Article 87(1) of the Industrial Accident Compensation Insurance Act (산업재해보상보험법, hereinafter “the Industrial Accident Insurance Act”) provides: “Where the Service has paid insurance benefits for an accident caused by the act of a third party, the Service shall be subrogated to the right to claim damages against the third party held by the person who received the benefits, within the limit of the amount of such benefits.” By its terms, this provision merely sets the limit of the right to claim damages that the Korea Workers’ Compensation and Welfare Service (hereinafter “the Service”) may subrogate, without specifically defining the scope of subrogation. Likewise, Article 87(2) of the same Act merely provides: “Where a beneficiary receives compensation for damages equivalent to insurance benefits from a third party for the same cause, the Service shall not pay insurance benefits under this Act within the limit of the amount converted from such compensation according to the method prescribed by Presidential Decree,” without specifically defining the scope of the amount for which the Service may withhold payment of insurance benefits. In particular, where the injured worker’s right to claim damages against the tortfeasor is limited due to comparative negligence or other causes, it is not clear, even under the above provisions, whether the insured employer’s liability for damages under the Civil Act (민법) and other laws is extinguished by the full amount of insurance benefits paid by the Service, and whether the Service may subrogate the injured worker’s right to claim damages for the full amount of insurance benefits, or withhold the corresponding insurance benefits.
The standard by which to calculate the scope of the tortfeasor’s liability for damages extinguished by the Service’s payment of insurance benefits under the above provisions, and the amount which the Service may subrogate or be relieved of future liability for within the limit of the insurance benefits paid, must be reasonably determined by the court, comprehensively considering the above provisions and other provisions of the Industrial Accident Insurance Act, the legislative purpose of the Industrial Accident Insurance Act, the legal nature and function of the industrial accident compensation insurance system, the nature of the right to receive insurance benefits, and the harmony with the legal order as a whole and considerations of equity.
Considering comprehensively the language and legislative intent of Article 87 of the Industrial Accident Insurance Act, the purpose and social security nature of the industrial accident compensation insurance system, and the balancing of interests among the injured worker (including bereaved family members and other beneficiaries of insurance benefits), the Service, and the tortfeasor, the scope within which the Service, having paid insurance benefits to an injured worker due to a tort committed by a third party, may subrogate the injured worker’s right to claim damages against the third party pursuant to Article 87(1) of the Industrial Accident Insurance Act is limited to the amount corresponding to the third party’s ratio of liability among the insurance benefits, subject to the limit of the third party’s amount of damages. Accordingly, the Service may not subrogate the amount corresponding to the injured worker’s ratio of negligence among the insurance benefits, and this amount must be regarded as ultimately borne by the Service for the benefit of the injured worker, who remains uncompensated for such loss even after the payment of insurance benefits. Under this approach, where an injured worker who has received insurance benefits under the Industrial Accident Insurance Act claims damages against a third party, and the injured worker’s own negligence has contributed to the occurrence of the damage, the amount of the injured worker’s claim for damages must be calculated by the “comparative negligence after deduction” method, whereby the insurance benefits are first deducted from the amount of damages of the same nature as the insurance benefits, and comparative negligence is then applied (see Supreme Court en banc Decision 2021Da241618, decided March 24, 2022).
B. The court below, on the premise that, due to the Plaintiffs’ incidental appeal, the portion of the first instance judgment in which the Plaintiffs lost also became subject to review by the court below, calculated the amount of passive damages as follows: pursuant to the “comparative negligence after deduction” method as stated in its reasoning, the court below deducted the total survivor benefits of KRW 187,295,340 received by the Plaintiffs from the Service from the amount equivalent to the Deceased’s lost income of KRW 938,487,302, and then limited the Defendant’s ratio of liability to 65%.
Examining this in light of the legal principles set forth above and the record, this determination by the court below does not, as argued in the grounds of appeal, violate the principle of party disposition or the principle of party presentation in a manner affecting the judgment.
4. Conclusion
Therefore, all appeals are dismissed, and the costs of the appeal are to be borne by the losing party. This Decision is rendered as set forth in the Order, with the unanimous consent of the participating Justices.
Justice Park Jung-hwa (Presiding Justice), Kim Seon-su, Noh Tae-ak (Justice in charge), Oh Kyung-mi