(Sept. 3, 2010) Two recent decisions by the Seoul High Court (an intermediate-level appellate court) ruled that the domiciliary intent of a foreigner who had been wrongfully killed in South Korea must factor into the calculation of his or her lost wages in the awarding of wrongful death compensation to the surviving family. In a decision issued on June 30, 2010, the High Court inferred that a U.S. citizen working as an English instructor in South Korea who was killed in an auto accident there did not intend to reside in South Korea on a long-term or permanent basis. The High Court drew the inference from the fact that the man was a single person; that his employment contract was to expire in seven months, which would have affected his visa status; that his entire family is living in the United States; and that he himself maintained his permanent address in the State of Maryland.
In accordance with the inference drawn as to the man's domiciliary intent, the High Court awarded the decedent's surviving family his lost potential earnings, computed based upon the average salary of elementary school teachers in Maryland and thereby rejected the argument of the defendant, an auto insurance company, that the decedent's income at the time of death should serve as the gauge of computation for the award. (Ah Reum Kang, Court Ruled Lost Wages of an American Killed in Korea to Be Compensated by American Standard [in Korean], HANKOOK ILBO (June 30, 2010), http://news.hankooki.com/lpage/society/201006/h2010063022153022000.htm.)
In a subsequent decision issued on July 8, 2010, the High Court affirmed the inference made by a district court that a citizen of the People's Republic of China who was killed in a car accident in South Korea had intended to continue to live and work as a laborer in South Korea. The district court had drawn this inference from the fact, among others, that the decedent was an ethnic Korean and had few restrictions on her stay and employment in South Korea. Based on the inferred domiciliary intent of the decedent, the district court had awarded the surviving family her lost wages calculated according to the prevailing wage level of laborers in South Korea. However, the High Court made a partial reversal in favor of the defendant, the same auto insurance company as in case described above.
The Court found that ever since the decedent's move to South Korea in 2006, she had typically spent one-third of each year in Liaoning Province, China, and so the Court decided that one-third of the calculated wage attributed to her must be adjusted to the prevailing wage of laborers in Liaoning Province, which is lower than that of South Korea. Accordingly, the High Court awarded a reduced amount of lost wages to the surviving spouse and child. (Ji Seob Chung, Auto Accident Compensations May Differ between Americans and Chinese [in Korean], CHOSUN ILBO (July 10, 2010), http://news.chosun.com/site/data/html_dir/2010/07/10/2010071000070.html.)
Written by Helen Lee, Intern, Law Library of Congress, under the guidance of Sayuri Umeda, Senior Foreign Law Specialist.