[2] In a case where a river, which is beyond the planned flood level, has failed to secure an extra space of time as set forth in the "river facility standards" established to be used as a standard for the installation of a new river facility after the bank’s construction of a new river facility, the nature and peculiarity of the river management as a natural public structure, whether there is a defect that lacks safety (negative with qualification)

[3] The case holding that the river inundations in excess of the planned flood level set on the basis of the rainfalls of 100 years or in excess of the planned flood level set on the basis of the frequency of occurrence in 100 years may not be held liable to the management agency of the public structure because of force majeure without predictability and possibility of avoidance

[2] There is no choice as to whether a river as a natural structure is to be installed originally, and there is a lot of natural situation where it is difficult to remove danger conditions in a simple manner. It is difficult to predict natural phenomenon, which is the source of flowing water, such as the size and scope of rainfall, time of outbreak, etc., or the occurrence of flood. In fact, there is little special circumstance that a river management agency is bound to manage a river based on past flood experience and it is inevitable to grasp it by actual flood. In addition, it is necessary for the State or the river management agency to complete the repair work of a river with its goal. Since the flood control method is set by the characteristics of the river basin, it is necessary to have long experience and it is difficult to remove danger conditions in a simple manner, and it is difficult to predict natural phenomenon, such as the scale and scope of rainfall, time of occurrence, etc., which is the source of flowing water, and it is difficult to predict the river installation of a river due to the change of weather, and it is not necessary to establish a new plan for the safety of a river.

[3] The case holding that the river inundation in excess of the planned flood level set on the basis of the rainfall frequency of 100 years or in excess of the planned flood level set on the basis of the rainfall frequency of 100 years may not be held liable to the management agency of the public structure because it is force majeureless disaster with no predictability and possibility of avoidance

1. Summary of the judgment of the court below

A. According to the reasoning of the first instance judgment cited by the lower court, the lower court acknowledged the following facts by comprehensively taking account of the adopted evidence.

(a) Construction of a road;

(A) In order to solve traffic congestion in the above area while developing the housing site area set-off and relay in Seoul Special Metropolitan City, Nowon-gu, Seoul Special Metropolitan City (hereinafter referred to as the "Defendant Seoul Special Metropolitan City"), Defendant Seoul Special Metropolitan City planning to construct the roads for the 14.5 km section from the monthly 1st century to the erogate, which the Seoul Special Metropolitan City is under its control, and applied for the approval of occupation and use of the roads to the head of the Seoul Special Metropolitan City Construction and Transportation under the Ministry of Construction and Transportation, which is the managing agency of the mid-gu, Seoul Special Metropolitan City Special Metropolitan City Construction and Transportation. On March 30, 1989, the Seoul Special Metropolitan City Construction and Management (hereinafter referred to as the "Defendant Special Metropolitan City") prohibited Defendant Seoul Special Metropolitan City from doing any act impeding the flow flow due to the occupation and use of the values and banks under the conditions of approval for the implementation plan, it is necessary to submit a plan for the installation and operation of the flood forecast system through the repair model, it is necessary to clarify that it is a temporary road construction model on the following construction plan.

(B) According to the construction plan for the road construction plan for the road at the original stage, the temporary road for the 6th line from the 1989 to the 1991, which is set by the 3rd line of the 6th line from the 1991 to the 1991. The construction of the 6th line from the 2nd line to the 1992 to the 197nd line in the river site is extended to the 10th parallel of the 10th line from the 3rd unit of the 2000 to the 10th unit of the 10th unit of the 10th line. According to the above plan, the 1nd line of the 4th line of the road

(C) On July 9, 190, the Defendant Seoul Regional Land Management Office approved the river occupancy implementation plan from the Seoul Regional Land Management Office on July 9, 1990 and completed the construction of the road and the river maintenance work on the 14.5 km section between 14.5 km from the monthly 1st century as a 3rd line of February 1994. The construction of the road and the road maintenance work was completed on the 3rd line of February 194. The construction of the road was completed on the 196nd line of the road, which was directly installed on the west or down at the lower surface of the road. The construction of the road was completed on the west (under the upper, river floor) with the lower level of the soil set up on the west (under the upper, river floor). The vicinity of the Hancheon River was built on the ridge section where the river is heavily plucked, and thus, the road is substantially plucked, and the construction of the road was completed.

(D) Defendant Seoul Special Metropolitan City established a water level observation station and a water level observation remote control system at the first curriculum of the mid-Franch, 1997. However, the mobile repair model test was not implemented, and the two-stage and the three-stage construction program of the East-west Road was not implemented.

(2) Area where the flood disaster of this case occurred

(A) The area where the flood of this case occurred is the Gong1, 3-dong area in the Yellow River (hereinafter referred to as the "waterside area of this case"), and the plaintiffs live in the waterside area of this case. The part adjacent to the waterside area of this case (hereinafter referred to as the "accident area of this case") is located in the middleside area of the Yellow River, which is the area adjacent to the waterside area of this case, and the government area of the northwest, the Dobongsan area, the Dosan area of the northwest, and the water of the Eastwest, the acceptance area of the northwest, and the area of the river of this case flow. The waterside area of this case is not a habitual flood area, but there is no record that the water was flooded in the waterside area of this case before the flood of this case.

(B) There exists a natural bank on the left side of the instant part of the accident, and the Hancheon-do connects the winter and the Gongung-dong, which is the area (in the area protected by the bank) located within both banks (in the area protected by the bank), with the immediately lower part of the instant part of the accident. The left between both banks of the instant part of the accident, the road, which is an exclusive road, is constructed and operated by the dong branch line. The floodside area in the instant case is adjacent to the natural bank on the left side of the instant part of the accident at the time when seen from the upstream upstream of the ditch River.

(3) The rainfall at the time of the flood disaster of this case

(A) From July 31, 1998 to August 18, 1998, in our country, the instability of the atmosphere due to the elurology and the strong airing from the poper’s poperical erogens throughout the country. The strong rain that occurred during the above period was recorded the maximum value of our country’s strong history for each sustainable period.

(B) The government of the Dong-gu, the upper region of the Jungrancheoncheon-gu, gave 340m secret for six hours from August 6, 82:0 to 08:00, and 190m secret only for two hours from 04:00 to 06:00 on the same day. The strong 190m secret recorded for two hours is likely to be made at one time for 600 years, and the strong 340m secret for 6 hours is one time for 1,000 and one time for 340m secret, which is likely to be made at one time for 1,0000, and this is the maximum value in the history of the strong friendly observation of our country for each sustainable period. In Dobong-gu, 05:0 to 08:00,000, 168m for three hours from the same day, 134m for the same time in the north-gu, and 14m for the same time during the same period.

(C) On August 6, 1998, the water level of China-China 1:00, around 16.22m on August 6, 1998, around 04:00, around 05:0, around 18.30m on around 06:0, around 06:00, around 07:18.67m (the highest measured water level, 21.0m in marks) on around 08:0, around 18.6m, around 08:0, around 18.6m, around 09:0, around 18.63m, around 10:00, around 11:00, around 17.74m around 11:0.

(D) The flood frequency of 100 cubic meters in the location south 1,148 meters between Hancheon-do and the point where Yancheon-do flows together. At the time of the instant accident, the flood volume at the time of the instant accident was 2070 cubic meters/st.

(E) The hours during which rainwater in the area of the Do Government reaches the river basin near the floodside area of this case suffers approximately two hours in large volume.

(4) Topographical features, planned flood discharge and planned flood discharge near the bank of this case

(A) According to the survey conducted on 192. The shape of the river from the 1st of the month to the 160m north of the Hancheon-do, the north of the instant accident site, is gradually expanding the distance between both banks and the water width (the part at which water flows at all times during the river basin). Each 160m and 98m in the natural embankment are lowered, and the height of the natural embankment is lower than 18.8m in the left side, and the distance between both banks is 145m in the north of the Hancheon-do, and the water width is narrow to 85m in the north of the instant accident site, and the height of the natural embankment is lower than 18.4m in the middle of the Hancheon-do, the two banks are lower than 18.6m in the natural embankment, notwithstanding the corresponding part of the part of the so-called Byung.

(B) According to the report of the master plan for the examination of the bank safety map and the establishment of the comprehensive plan for flood control (No. 29-1 and No. 2) prepared by the Defendant Seoul Metropolitan Government on December 12, 1992, the planned flood level of the instant accident location on the basis of the frequency of 100 years before the maintenance of the river floor and the frequency of 1,330 cubic meters of the planned flood level is 18.16 meters before the maintenance of the river floor, and the difference between the planned flood level and the planned flood level is 30 cm (18.46m - 18.16m).

(5) River facility standards

The standards for river facilities established and implemented by the Ministry of Construction and Transportation under the jurisdiction of the defendant Republic of Korea shall be as follows:

(a) The height of the bank shall be above the height calculated by adding surplus height to the planned flood.

(B) Surplus is to mean the elevation of the volume of the river given to the safety value of various uncertain factors, etc. that may arise from the river in order to ensure the safe flow of planned flood discharge. In the case of a river with a planned flood volume of more than 500 but less than 2,000 cubic meters, such as China, there is a surplus of not less than 1.0 meters.

(C) Such surplusion is the minimum level in the general river section. In the bank, bridge upstreams, etc. of the only valleys, the rise in water level should be considered, rather than by accurate calculation. This value is not determined by experience, so that adequate time and securing can be made by taking into account such matters as uncertainty of the water flow capacity, earth sediment, ground subsidence, and wave changes in water surface within the river.

(6) Occurrence of flood damage;

(A) From around 04:30 on August 6, 1998, the sewage of the duct river that passed the flood control area of this case began to flow into a heavy ditches and the flood control area of this case began to flow into the flood control area of this case. On the same day, around 07:00 on the same day, the water was flown into the flood control area of this case with the flow of water from the bank of the accident section of this case. The flood control area of this case was flooded to the extent of 1.5m of the highest water level of 10m from 10m to 12m from 10m to 12m from 12m.

(B) The water of Heavy Tran has been concentrated above the site of the instant accident, and the water flows into the bank, and the earth and sand above the bank of this case was cut off as a cleaning agent. In order to prevent the water again from passing away, he he he he he he he he he he he he he he he he he he he he he he he he he he he he he he he he he he he he he he he he he stored on the bank

(C) There was no difference in the height of the bank before and after the occurrence of the flood disaster.

B. The court below, along with the above fact-finding, found it clear in light of the empirical rule that there was an increase in the risk of flood damage due to the narrow width and a decrease in the size of the river, and determined that the Plaintiffs’ existing planning flood level calculation of the point of accident in this case on the ground that, as the point of accident in this case was naturally formed, the level of the bank is lower than that of the other sections, and that it falls under the only part of the bridge of the Hancheon River constructed at the downstream, and that the level of the accident in this case on the ground that it falls under the upper part of the bridge of the Hancheon River constructed at the downstream River, and that there was an increase in the risk of flood damage due to the decrease in the size of the road construction, it was not erroneous for the court below to carefully examine whether the existing plan flood level calculation of the road in this case on the ground of the road in this case is still appropriate after the construction of the road in this case, and even if the river in this case is naturally formed, it did not immediately apply the river facilities in this case on the construction of the road in this case, it did not meet the safety criteria.

Then, the court below rejected the Defendants’ assertion that there was no causal link between the unsatisfying and the Plaintiffs’ damages, on the ground that it is reasonable to deem that the Defendant extended the Plaintiffs’ damages by failing to have sufficient time in light of the empirical rule that, even if the Defendant was equipped with sufficient time at the point of accident in light of the fact that the monthly water level of 19.4m (19.6m) near the point of accident due to the flood in this case exceeds the planned flood level of 19.6m (1.6m).

2. The judgment of this Court

However, the judgment of the court below is not acceptable in the following respect.

A. First, the lower court, on the grounds of recognizing the Defendants’ responsibility, cited that the risk of flood damage was increased due to the construction of the topography (such as the bottled status, the valley, the bridge upstream, etc.) in the instant accident area and the bridged road, but did not review the existing planned flood level 18.16 meters.

However, according to the records, if, even at the time of December 192, 192, the land size of the accident point was determined as 18.16 meters of the planned flood level of the accident point at the time of the flood of this case, and it was determined to be erroneous at that time, the land size of the accident point at the time is the same as that of the flood of this case, it cannot be a ground for review solely for the reasons as stated in the judgment of the court below, and there is no evidence to find that the land size was determined erroneously without considering the topography of 18.16 meters originally set at the time of the

In addition, the court below determined the planned flood level in consideration of the construction of the road as well as the construction of the road, since it is obvious in light of the empirical rule that the construction of the road as the construction of the road as the building of the road as the building of the road as the road is likely to increase the danger of flood due to the decline in the size of the road. However, since the construction of the road as the river as the planned flood level of the road as of December 12, 1992, which was at the time of the time of the decision on the planned flood level of the ditch, there was a significant progress in the construction of the road as of November 15, 1990 (the construction of the road as of November 15, 1990 and completed as of February 2, 1994), there is a possibility that the defendants argued that the planned flood level has the effect of lowering the planned flood level because the construction of the road is maintained and flowed by the road as the construction of the road is reduced, it cannot be said that it is clear in light of the empirical rule.

Therefore, without examining these matters, we cannot agree with the judgment of the court below that the defendants did not review the planned flood level.

B. Next, the lower court determined that, in any case, securing the surplus of the embankment set forth in the standards for river facilities of the Ministry of Construction and Transportation, the failure of the embankment at the site of the instant accident to secure this is a defect that does not meet the ordinary safety of the river as a river.

In addition, there is no choice as to whether a river as a natural structure is originally installed or not, and there is many natural cases where it is impossible to remove danger conditions in a simple manner, and there is a lot of natural phenomenon that is the source of flowing water, and it is difficult to predict the scale and scope of rainfall, time of occurrence, etc., or the effect of flood outbreak, etc., which is the source of flowing water. In fact, there is little difficulty in identifying the river due to experiments where floods are operating, and it is inevitable to grasp it by actual flood, and ultimately, it is inevitable to manage a river based on the past flood experience. Furthermore, it requires a enormous budget for completing the repair work of a river aimed at by the State or a river management agency. Since a large-scale construction work and its completion is determined by the characteristics of a river basin, it is necessary to have a long experience, and it is difficult to find a method suitable for such nature based on the characteristics of the river basin, and there is no special circumstance that the river management agency established a new plan to install river facilities in accordance with such special circumstances.

However, according to the records, the bank at the point of the accident in this case was higher than 30 cm above the planned flood level set on the basis of the frequency of 100 years. The strong rain at the point of the accident in this case at the time of the accident in 600 or 1,000 is presumed to have reached the river flow exceeding 1.6 meters above the planned flood level in the case of the point of the accident in this case, and the fact that there was no river inundation at the point of the accident in this case before the accident in this case is acknowledged. According to the above facts, unless there is any special circumstance to raise it after the planned flood level is set, it cannot be deemed that there is any defect in the above point of the accident with a bank higher than the planned flood level, and as such, it cannot be said that there is no possibility of predictability and avoidance of any flow flow exceeding the planned flood level, the management agency may not be held responsible for the water.

C. Nevertheless, the lower court recognized the Defendants’ liability solely on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the defects of rivers, which are natural public structures, thereby adversely affecting the conclusion of the judgment. Accordingly, the lower court cannot maintain the remainder of the grounds of appeal, such as the legitimacy of the lower judgment on causation, without any need to

3. Conclusion

Therefore, the part of the lower judgment against the Defendants is reversed, and that part of 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 Jae- Jae (Presiding Justice)