[2] The case holding that the court below erred in the misapprehension of legal principles in holding that there was a defect in the installation or management of bank roads and excellent earth rooms, in case where Gap fell from the bank roads installed and managed by the State, which were installed and managed by the local government, and cut away from the bank roads installed and managed by the local government

1. According to the reasoning of the judgment below, the court below erred in failing to take measures, despite the duty of care to prevent pedestrians from falling, etc., in the Republic of Korea, as the Defendant, who installed and manage the instant bank road, was at the risk of falling under the bank, and the pedestrians, bicycles, and vehicles using the bank road, who installed and manage the instant bank road, were at the risk of falling under the bank, and the pedestrians using the bank road fall under the bank and fall under the excellent earth room in this case with the permission from the Defendant Republic of Korea, and thus, there is a risk of falling into the excellent earth room in this case, and thus, the Defendant Hah-gun, who installed and managed the excellent earth room in this case and the waterway in this case with the permission of the Defendant Republic of Korea, was jointly and severally responsible for the installation and management of the instant bank room in the excellent earth room in this case, and thus, the Plaintiffs were jointly and severally responsible for preventing damages to the Defendant 1’s excellent earth and sand due to the defect in the installation and management of the instant bank room in this case.

2. However, we cannot agree with the above determination by the court below for the following reasons.

A. "Defect in the construction or management of a public structure" under Article 5 (1) of the State Compensation Act refers to a state in which the public structure has failed to have safety ordinarily required for its use. Thus, it cannot be deemed that there is a defect in the construction or management of a public structure merely because the public structure has a defect in its function without having been completely in a state. It should be determined on the basis of whether the construction or management authority has fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the danger of the public structure, by comprehensively taking into account all circumstances such as the purpose of use of the public structure in question and the situation of its use and the purpose of its installation (see Supreme Court Decision 2007Da88903, Sept. 25, 2008, etc.).

B. According to the records, if the accident occurred, ① is a down-to-date road behind the conventional boom-Eup market, which is installed with a water level below five meters from the bank, ② is installed at the edge of the waterway of the bank, depending on the bank, with a height of about 42§¯, and the width of the bank rail is uncertain, but it appears to have been 50cm on the photograph, and the slope of the road was set up outside the bank with a width of about 1m. ③ the slope of the road was formed from the horizontal edge of the road to the horizontal width of the road, and the slope was installed at the top of the road, and the road was installed at the top of the road to the nearest 6m of the road, and the road was installed at the top of the road to the near 5m of the road to the near 8m of the road. However, if the road was installed at the bottom of the road to the near 5m of the road, it appears that the road was installed at the top of the road to the near 200m of the disaster.

C. Nevertheless, the court below recognized the defendants' liability for damages on the ground that there was a defect in the construction or management of the bank road and the excellent soil room. This is erroneous in the misapprehension of legal principles as to the defect liability in the construction or management of public structures.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)