Open Decision Ledger · Civil obligations & remedies
Working life at 65 and the scope of medical negligence damages
Supreme Court, Dec. 30, 2021, 2017Da212316 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 손해배상
Official text on the National Law Information Center
Question
Must the working life of a person doing general manual labour, or of a person for whom manual labour is their main livelihood, be taken as an experience-based rule up to age 65 when lost income is calculated, and does a doctor's duty to instruct and explain reach the risk of a residual disorder arising from the procedure or during the aftercare that follows?
Holding
In principle, yes. Following the en banc decision, the working life of a person doing manual labour may, absent special circumstances, extend to age 65; a court fixing lost income must investigate the circumstances underlying the experience-based rule, or consider the victim's age, occupation, career and health, instead of simply holding to age 60. A doctor's duty to instruct and explain does not end when an invasive procedure ends but extends to the guidance needed to avoid a foreseeable residual disorder during aftercare, and where that breach is adequately causally connected to loss of life or body, liability cannot be avoided.
Points at issue, verbatim
일반육체노동을 하는 사람 또는 육체노동을 주로 생계활동으로 하는 사람의 가동연한을 경험칙상 만 65세까지로 보아야 하는지 여부(원칙적 적극)
Unofficial English translation
Whether the working life expectancy of a person who performs general physical labor or whose principal means of livelihood is physical labor must be regarded, as a matter of empirical rule, as extending to age 65 (affirmative in principle)
Disposition
Partly reversed and remanded Stated in the decision
원심판결의 피고 1에 대한 부분 중 일실수입에 관한 원고들 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 원고들의 나머지 상고와 피고 1의 상고를 모두 기각한다.
Unofficial English translation
The portion of the judgment of the court below concerning Defendant 1 that dismissed the plaintiffs' claims with respect to lost income is reversed, and this portion of the case is remanded to the Seoul High Court. All of the plaintiffs' remaining final appeals and Defendant 1's final appeal are dismissed.
Form of the test
Elements stated Stated in the decision
이제는 특별한 사정이 없는 한 만 60세를 넘어 만 65세까지도 가동할 수 있다고 보는 것이 경험칙에 합당하다
Unofficial English translation
Now, absent special circumstances, it accords with the empirical rule to regard it possible to work beyond age 60 up to age 65
Factors
- 일반육체노동을 하는 사람 또는 육체노동을 주로 생계활동으로 하는 사람의 가동연한을 경험칙상 만 65세까지로 보아야 하는지 여부(원칙적 적극)
- 일실수입 산정의 기초가 되는 피해자의 가동연한을 인정하는 기준
- 수술 등의 당해 의료행위의 결과로 후유 질환이 발생하거나 그 후의 요양과정에서 후유 질환이 발생할 가능성이 있는 경우, 의사가 부담하는 지도설명의무의 내용
- 지도설명의무 위반과 생명·신체상의 손해 사이에 상당인과관계가 인정되는 경우, 손해배상책임이 있는지 여부(적극)
- 손해배상의 범위를 정하는 방법 및 책임감경사유에 관한 사실인정이나 비율을 정하는 것이 사실심의 전권사항인지 여부(원칙적 적극)
Unofficial English translation
• Whether the working life expectancy of a person who performs general physical labor or whose principal means of livelihood is physical labor must be regarded, as a matter of empirical rule, as extending to age 65 (affirmative in principle)
• The criteria for recognizing the victim's working life expectancy, which serves as the basis for the calculation of lost income
• Where, as a result of the medical treatment in question, such as surgery, a sequela arises, or where there is a possibility that a sequela may arise during the course of subsequent convalescence, the content of the physician's duty to provide guidance and explanation
• Where adequate causation is recognized between a breach of the duty to provide guidance and explanation and damage to life or body, whether liability for damages exists (affirmative)
• Whether the determination of facts or the setting of ratios as to the method of determining the scope of damages and the grounds for reduction of liability falls within the exclusive province of the court of fact (affirmative in principle)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2019. 2. 21. 선고 2018다248909 전원합의체 판결(공2019상, 781)
Unofficial English translation
Supreme Court en banc Decision 2018Da248909 decided February 21, 2019 (Gong 2019 Sang, 781)
Decisions referred to
[1] 대법원 2010. 10. 14. 선고 2007다3162 판결(공2010하, 2055) / [2] 대법원 2019. 2. 21. 선고 2018다248909 전원합의체 판결(공2019상, 781) / [3] 대법원 2011. 5. 13. 선고 2009다100920 판결(공2011상, 1142) / [4] 대법원 2005. 4. 29. 선고 2004다64067 판결(공2005상, 819), 대법원 2010. 7. 22. 선고 2007다70445 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
After the remand, what findings on the deceased's age, occupation, career and health would allow a working life different from the presumption of up to age 65?
The remand judgment of the Seoul High Court will show how the presumption is worked out in practice. A further en banc decision setting a different working age, or an amendment to the statutory framework of Articles 393, 396 and 763 of the Civil Code, would require this entry to be read again.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 12 January 2017 (2015Na2036783), held that Defendant 1 was not negligent in failing to prevent or diagnose a urinary tract infection after the lithotripsy, and that the medical staff of Defendant 2's hospital were not negligent in transferring the deceased from intensive care to a general ward or in delaying intubation. It found that Defendant 1 owed and breached a duty to instruct and explain on urinary tract infection, that the breach was adequately causally connected to the death, and limited the liability to 30 per cent, calculating lost income on the basis that the deceased could have worked in urban daily-wage housework until age 60.
Supreme Court standard: The Supreme Court found no error in the findings on the failure to prevent or diagnose the infection, on the transfer to a general ward, on the delayed intubation, in the 30 per cent limitation of liability, or in the finding of a breach of the duty to instruct and explain with adequate causation. On the working life alone it reversed: the court below had simply fixed age 60 under the former experience-based rule without investigating the circumstances underlying the presumption or any special concrete circumstances justifying a different working life, which misstated the law and left the necessary inquiry undone. That part was reversed and remanded to the Seoul High Court, and the remaining appeals of the plaintiffs and Defendant 1 were dismissed.
Distinguishing conditions
- A case in which the victim's age, occupation, career or health amount to special concrete circumstances warranting a working life other than the presumption.
- A medical case in which no residual disorder was foreseeable, either as a result of the procedure itself or during the subsequent aftercare, so that the duty to instruct and explain never arose.
- A case in which the limitation of liability is not manifestly unreasonable in the light of equity, so that the finding of the grounds and their ratio belongs to the province of the court of fact.
Record verification notes
Keep the working life point apart from the guidance and explanation point, since the Court reversed only the former. For the former, gather the victim's actual age, occupation, career and health, together with the statistical and employment material the Court listed, and ask whether they depart from the presumption. For the latter, confirm that the instruction was owed at all on the specific procedure and that the breach is linked to the loss.
From the official text
Points at issue
[1] 의사 등이 진료상 과실 또는 설명의무를 위반함으로써 환자에게 손해를 배상할 책임이 있는 경우, 손해배상의 범위를 정하는 방법 및 책임감경사유에 관한 사실인정이나 비율을 정하는 것이 사실심의 전권사항인지 여부(원칙적 적극) [2] 일반육체노동을 하는 사람 또는 육체노동을 주로 생계활동으로 하는 사람의 가동연한을 경험칙상 만 65세까지로 보아야 하는지 여부(원칙적 적극) [3] 일실수입 산정의 기초가 되는 피해자의 가동연한을 인정하는 기준 [4] 수술 등의 당해 의료행위의 결과로 후유 질환이 발생하거나 그 후의 요양과정에서 후유 질환이 발생할 가능성이 있는 경우, 의사가 부담하는 지도설명의무의 내용 / 지도설명의무 위반과 생명·신체상의 손해 사이에 상당인과관계가 인정되는 경우, 손해배상책임이 있는지 여부(적극)
Unofficial English translation
[1] Whether, where a physician or other medical professional is liable for damages to a patient by reason of negligence in medical treatment or breach of the duty of explanation, the determination of facts or the setting of ratios as to the method of determining the scope of damages and the grounds for reduction of liability falls within the exclusive province of the court of fact (affirmative in principle) [2] Whether the working life expectancy of a person who performs general physical labor or whose principal means of livelihood is physical labor must be regarded, as a matter of empirical rule, as extending to age 65 (affirmative in principle) [3] The criteria for recognizing the victim's working life expectancy, which serves as the basis for the calculation of lost income [4] Where, as a result of the medical treatment in question, such as surgery, a sequela arises, or where there is a possibility that a sequela may arise during the course of subsequent convalescence, the content of the physician's duty to provide guidance and explanation / Where adequate causation is recognized between a breach of the duty to provide guidance and explanation and damage to life or body, whether liability for damages exists (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결의 피고 1에 대한 부분 중 일실수입에 관한 원고들 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 원고들의 나머지 상고와 피고 1의 상고를 모두 기각한다. 원고들과 피고 학교법인 연세대학교 사이에 생긴 상고비용은 원고들이 부담한다.
Unofficial English translation
The portion of the judgment of the court below concerning Defendant 1 that dismissed the plaintiffs' claims with respect to lost income is reversed, and this portion of the case is remanded to the Seoul High Court. All of the plaintiffs' remaining final appeals and Defendant 1's final appeal are dismissed. The costs of the final appeal incurred between the plaintiffs and the defendant school corporation Yonsei University shall be borne by the plaintiffs.
Provisions referred to
[1] 민법 제393조, 제396조, 제763조, 민사소송법 제202조, 제432조 [2] 민법 제393조, 제396조, 제763조 [3] 민법 제393조, 제396조, 제763조 [4] 민법 제750조, 의료법 제24조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
Back to the ledger