2018Gahap26624 (Counterclaim)

Law Firm Doz.

Attorney Park Jae-soo

2. The defendant-Counterclaim plaintiff's counterclaim is dismissed.

3. The costs of lawsuit are assessed against the Defendant-Counterclaim Plaintiff by aggregating the principal lawsuit and counterclaims.

The text of paragraph (1) is as follows.

2. Counterclaim;

The Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) pays to the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) 51,00,000 won with interest of 51% per annum from October 31, 2017 to the date of this judgment and 5% per annum from the next day to the date of full payment.

1. Basic facts

A. The Plaintiff is a person who provides passenger transport services in the name of "H sea tourism excursion ship at the Nam-gu, Ulsan-gu, Ulsan-gu."

B. On October 31, 2017, at around 6:18, the Defendant: (a) used a vessel installed by the Plaintiff to board “H301” (hereinafter “instant vessel”) owned by the Plaintiff at the arrival of the vessel located in the Nam-gu, Ulsan-gu, Ulsan-gu; (b) on October 31, 2017; (c) the string of the Ambbbling room, which was being loaded on the shoulder of the said vessel using the “H301” vessel (hereinafter “instant vessel”). The Defendant suffered from the instant accident, such as the closure of the Ambring-gu, the outer half of the left side mane, knene-free mane, and kne-free kne in the left-hand side of the vessel (hereinafter “instant accident”).

[Reasons for Recognition] Unsatisfy, each of the images of Gap evidence 5 through 8, Eul evidence 1 to 6, and 33 (including a branch number), and the purport of the whole pleadings

2. The parties' assertion

A. There is no defect in the establishment and preservation of the Plaintiff’s instant vessel and the instant lecture, and the instant accident occurred due to the Defendant’s negligence. Therefore, there is no liability for damages against the Defendant in relation to the instant accident.

(b) A defendant;

1) Since the instant accident occurred due to the defect in the establishment and preservation of the instant vessel and the boarding bridge, the Plaintiff is liable to compensate the Defendant for damages pursuant to Article 758(1) of the Civil Act. 2) Although the Plaintiff, who provides passenger transport services, has been negligent in performing the above duty of care, such as installation of sufficient safety facilities to ensure the safe boarding of the instant vessel by the Plaintiff, the instant accident occurred due to the Plaintiff’s negligence. Accordingly, the Plaintiff is liable to compensate the Defendant for the nonperformance of obligations or the liability for damages pursuant to Article 1

3) Therefore, the Plaintiff is liable to the Defendant for damages caused by the instant accident.

A person shall be appointed.

60,351,013 won (i.e., daily income of KRW 26,741,283 + treatment expenses of KRW 6,362,670 + future treatment expenses of KRW 6,682,280 + nursing expenses of KRW 74,780 + 20,000 + damages for delay) and damages for delay.

3. Determination

A. Whether the Plaintiff is liable for damages to the Defendant pursuant to Article 758(1) of the Civil Act

1) Legal principles

Defect in the installation and preservation of a structure under Article 758(1) of the Civil Act means that a structure fails to meet the safety requirements ordinarily required depending on its intended purpose. Determination as to whether such safety is satisfied ought to be made on the basis of whether the installer and custodian of the structure fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure (see Supreme Court Decision 2013Da1921, May 23, 2013).

2) Determination

Examining the above basic facts and the following circumstances revealed through the evidence as above in light of the aforementioned legal principles, it is difficult to find that the Plaintiff failed to perform its duty to take protective measures to the extent generally required by social norms in installing or preserving a boarding bridge with the instant vessel, and there is no evidence to prove otherwise that there is a defect in the installation and preservation of a boarding bridge with the instant vessel. Therefore, the Plaintiff is not liable for damages under Article 758(1) of the Civil Act. ① The Plaintiff ordinarily installed the instant boarding bridge used at the place of a regular arrival for the safe boarding of the instant vessel.

(2) The handbags of the instant entrance cannot be deemed to be obstacles to boarding the instant vessel, so that passengers can safely board the instant vessel. The handbags of the instant entrance cannot be deemed to be obstacles to boarding the vessel. There are no protruding parts that may obstruct boarding the vessel, such as the body or body of passengers, on the handbags of the instant entrance.

③ The Defendant fells on the floor of a landing place, which is not sea, with the strings of the instant landing place, which was sealed on the shoulder. At the time of the instant accident, it cannot be deemed that the gap between the landing place and the instant vessel was broad, and there is any defect in the installation of the instant landing place.

(4) The evidence presented by the Defendant alone is insufficient to recognize that there was a difference between the distance and the height of the instant vessel at the time of the instant accident, or that the instant vessel and the instant vessel need to take the Plaintiff’s additional measures for the safe boarding of passengers by seriously harming the instant vessel, and there is no other evidence to acknowledge that there was no other evidence. In light of the circumstances of the instant accident, the instant accident appears to have occurred due to the negligence that the Defendant, who was on board the instant vessel using the instant boarding bridge, did not properly examine the surrounding area, and did not properly arrange the string of the string, which was carried on the shoulder.

B. The defendant's assertion that the plaintiff is liable to compensate the defendant as a non-performance of obligation or as a passenger transport service provider under the Commercial Act is premised on the fact that the ship of this case and the passenger transport service have failed to meet the safety ordinarily required according to its purpose. However, as seen in the above paragraph (a) above, it is difficult to recognize that the plaintiff failed to fulfill the duty of protection to the extent generally required by social norms in the installation or preservation of the ship of this case, and there is no other evidence to prove that there is a defect in the installation and preservation of the ship of this case and the passenger transport service provider under the Commercial Act, the plaintiff cannot be deemed to bear the defendant'

C. Sub-committee

1) Ultimately, the Plaintiff’s liability for damages against the Defendant was established due to the instant accident. As such, the Plaintiff’s liability to the Defendant in relation to the instant accident ought to be deemed nonexistent. Moreover, insofar as the Defendant contests this, there is a legal interest to seek confirmation against the Plaintiff.

2) The Plaintiff is not liable to the Defendant for damages due to the instant accident, and the Defendant’s counterclaim on a different premise is without merit without further examining.

4. Conclusion

Therefore, the plaintiff's claim of main lawsuit is justified, and the defendant's counterclaim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yellowia

Judges Lee Dong-young