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(영문) 대구고법 1985. 3. 5. 선고 84나1122 제2민사부판결 : 상고

[손해배상청구사건][하집1985(1),146]

Main Issues

If the direct possessor of a structure is the victim, whether the indirect possessor who is the owner of the structure is liable for damages (affirmative)

Summary of Judgment

If the direct possessor of a structure is the victim of another person under Article 758(1) of the so-called Civil Act at the same time, the indirect possessor who is the owner is liable for the damages suffered by the direct possessor due to the defect in the installation and preservation of the structure.

[Reference Provisions]

Article 758 of the Civil Act

Plaintiff, Appellant

Plaintiff 1 and eight others

Defendant, appellant and appellant

Defendant

The first instance

Busan District Court Decision 83 Gohap642

Text

From November 20, 1983 to June 28, 1984, the part of the original judgment against the defendant ordering the defendant to pay 5,700,000 won in each of the money to the plaintiff 1, 2, etc. and the amount equivalent to 5 percent per annum from November 20, 1983 to June 29, 1984, and the amount equivalent to 25 percent per annum from June 29, 1984 to the date of full payment, shall be revoked, and the plaintiff's claim against that part shall be dismissed.

The defendant's remaining appeals against the plaintiff 1 and 2 and all appeals against the other plaintiffs are dismissed.

The costs of lawsuit incurred between the plaintiffs 1 and 2 shall be divided into two parts of the costs of lawsuit between the plaintiffs 1 and 1 and the defendant, and the remainder shall be borne by the plaintiffs 1 and the defendant, and the costs of appeal against the remaining plaintiffs shall be borne by the defendant.

Purport of claim

The defendant shall pay to the plaintiffs 1, 2, etc. 18,618,412, 3, 4, 5, 6, 7, 8, and 9 each amount, 400,000 won per annum from November 20, 1983 to the date on which the duplicate of this case is served on the defendant, and 25 percent per annum from the next day to the date on which the copy of this case is served on the defendant.

The judgment that the lawsuit costs shall be borne by the defendant and provisional execution declaration

Purport of appeal

The original judgment shall be revoked.

All of the plaintiffs' claims are dismissed.

All the costs of lawsuit are assessed against the plaintiffs in the first and second instances.

Reasons

1. Occurrence of liability for damages;

The above-mentioned evidence Nos. 1, 2, and 6-2 through 9 (the evidence Nos. 6-2) of the deceased's 1-3 and Nos. 6-5 shall be installed in the above-mentioned 5-year-long 5-year-long 7 and Nos. 6-3 shall be the same as the evidence Nos. 1-6 and the court below's testimony Nos. 1-6 and the whole purport of the plaintiff's oral argument is as follows: The defendant constructed the above 5-year-long 7-year-long 72-long 72-year-long 72-long 1983 and constructed the above 5-year-long 2-meter-long 27-meter-long 27 meters-long 27-meter-long 27 meters-long 27-meter-long 1983 to ensure that the above 5-year-long 4 meters-long 30-year-long 27 meters-long 27.

On the other hand, in light of the above facts, if a person who resides in the house as well as the above deceased non-party 3 is anticipated to avoid the smoke in the kitchen of the kitchen which is under the above structure, he can easily look at whether the kitchen of the kitchen and the radiation in the above kitchen have a gap in the kitchen, and has taken measures such as repairing the difference in advance, and requested the defendant to repair the difference in the above, and take measures to prevent the difference in the entrance, and then demand the defendant to take measures to repair it so that he can not receive the difference, and then discharge the smoke gas by opening the smoke or the ventilation room, and then he must pay attention not to cause damage by himself. However, even though he does not reach this point, he should be able to take into account the degree of exemption from liability for damages by the victim, who is the victim. However, the victim's negligence should not be considered to be exempted from liability for damages.

The defendant's direct occupant of the above kitchen is the deceased, the above deceased, the above deceased, and the above accident is caused by a defect in the management of the above visit that he occupies. Thus, the defendant who is the owner or the indirect owner of the above accident is not responsible for the defect in the installation and preservation of the above kitchen. Thus, according to the evidence as seen above, the defendant is an indirect occupant of the above kitchen, and the above deceased and the above deceased, the above deceased, the above deceased, and the above deceased, the above deceased, and the five, etc., can be acknowledged as being the direct occupant of the above kitchen, but if the direct occupant of the above kitchen is the so-called other person under Article 758 (1) of the Civil Code, the owner and the indirect occupant cannot be exempted from the liability for such defect. Thus, the defendant's above assertion is groundless.

2. Scope of damages.

A. The deceased non-party 3's lost profit

The above evidence Nos. 1 and 3-1, 2, and 1-2 of the above witness Gap evidence Nos. 5-1 and 2 of the above witness Gap's evidence Nos. 5-1 and the above witness's testimony are acknowledged to be genuine, comprehensively taking account of the whole purport of the witness's testimony, the deceased non-party Nos. 3 is a physically healthy male who remains 24 years and 2-1 years old at the time of the accident, and the average remaining life life of the South Korean people aged 46.21 years at the time of the accident. The above deceased's 1-4 of the above evidence Nos. 3-1, 3-4 of the above witness Gap's evidence Nos. 40, 100 won per month at the time of the accident, and there is no other evidence to acknowledge that the above profits were paid to the deceased's monthly living expenses 60-7,900 won per month at the time of the above accident, and there was no dispute between the above parties and no other evidence No. 50-2 of the accident.

(b) consolation money;

In light of the empirical rule that the above deceased's death as a result of the accident in the accident in this case, the plaintiffs who are related to the above plaintiffs suffered a lot of mental suffering as seen earlier, and the defendant is obligated to give monetary compensation. As such, the defendant is obligated to do so. As such, the amount of consolation money shall be determined as KRW 700,000, KRW 3,5,6,67,8, and KRW 200,000 for each of the plaintiffs 1 and 2, etc., and KRW 100,000 for each of the plaintiffs 4 and 100,000,000 won, considering the circumstance and result of the accident in this case, the degree of their properties, and all other circumstances appearing in the pleading, such as personal relationship, etc

(c) Inheritance relationship;

The damages suffered by the above deceased due to the accident of this case are KRW 10,00,000,00 for the above recognition, and the above damage claim was jointly inherited by the plaintiff 1,2, etc., his parent, who is an unmarried deceased's parent, due to the death of the above deceased. However, if the damages claim is divided according to his share of inheritance in the Civil Code, the above plaintiffs' share of inheritance shall be KRW 5,00,000 for each money (10,000,000 x 1/2).

3. Conclusion

Therefore, the defendant is obligated to pay 5,70,000 won for each of the plaintiffs 1 and 2, etc. (5,000 + 700,000 + 700,000), 20,000 won for each of the plaintiffs 3, 5, 6, 7, 8, and 9, 100,000 won for each of the plaintiffs' claims against the plaintiffs 4 from November 20, 1983 to June 28, 1984, which is the date of the original decision, 5% per annum for the Civil Procedure Act, and 25% per annum for the plaintiffs' damages from the next day to the full payment date under Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc. (the plaintiffs' claims for damages from the plaintiff 9 to the defendant's delivery of a copy of the original decision to the defendant are dismissed for the remainder of the plaintiffs' claims for damages from the defendant 2 to the extent of the above decision.

Judges Lee Dong-sung (Presiding Judge)