[손해배상(기)][공1995.9.1.(999),2962]
(a) A case recognizing liability for damages by a local government on the grounds that a public official under his/her control neglected to take measures to prevent damage in the execution of an order to remove and a disposition to dismiss the removal;
B. In the case of damage to a building due to a tort, whether the cost of demolition of the building is included in ordinary damages
(a) The case recognizing the liability of a local government for damages on the ground that a public official under his/her jurisdiction neglected to take measures to prevent damage in the execution of an order to remove and a disposition to dismiss the removal;
B. Where a building is damaged due to a tort, the cost of its repair, if it is possible to repair it, and if it is impossible to repair it, the exchange value (market price) is ordinary damages, and where it is not possible to use and repair it, the market price of the building that forms the basis for the amount of damages due to the tort does not include
A. Article 2(1) of the State Compensation Act; Article 393, Article 750, and Article 763 of the Civil Act
B. Supreme Court Decision 88Meu25861 delivered on June 27, 1989 (Gong1989,157) (Gong1989, 1157) 88Meu28518 delivered on January 12, 1990 (Gong1990, 460) 91Da25628 delivered on December 10, 1991 (Gong192,485)
[Judgment of the court below]
Law Firm Dong-dong Law Office, Attorney Ahn-soo, Counsel for defendant-appellant-appellant
Seoul High Court Decision 92Na63803 delivered on February 15, 1994
Each appeal shall be dismissed.
The costs of appeal shall be assessed against each party.
1. Of the grounds of appeal by the defendant attorney, the part as to the existence of causation between damages
Determinations shall be made.
According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its judgment, and judged that the head of the Gu among the defendant's affiliates is liable to compensate the plaintiff for damages caused by the negligence of the head of the Gu who is a public official under his jurisdiction, unless there are any special circumstances, since the head of the Si/Gun/Gu caused damage to the plaintiff by taking measures to prevent damage from causing damage to legitimate building parts not subject to removal, and neglecting the duty of care to direct and supervise the removal free execution by using a construction method with a shocking low level of shock, in executing vicarious execution, including not only the unauthorized building parts but also the building parts legally permitted. In light of the records, the court below's fact-finding and determination are reasonable, and there is no error of law by misconceptioning the facts contrary to the rules of evidence, or by incomplete deliberation or misapprehension of legal principles as to the existence of the causation of compensation for damage under Article 750 of the Civil Act, as alleged in the grounds of appeal.
2. The grounds of appeal Nos. 1 and 3 of the Plaintiff’s attorney (to the extent of supplement in case of supplemental appellate brief submitted after the lapse of the submission period) and the part concerning the scope of damages among the grounds of appeal by the Defendant’s attorney are examined together
In a case where a building is damaged due to a tort, if it is possible to repair it, its repair cost, and if it is impossible to repair it, its exchange value shall be deemed ordinary damages (see, e.g., Supreme Court Decisions 91Da25628, Dec. 10, 191; 88Meu28528, Jan. 12, 190).
According to the reasoning of the judgment below, the court below recognized that the building of this case can not be used in its present condition and its repair was impossible, and calculated at KRW 501,306,413, which is the market price at the time of the tort of the building of this case according to the appraiser's appraisal in determining the scope of compensation for damages to be compensated by the defendant. Since the market price of the building which is the basis of compensation for damages due to illegal acts is not included in the cost of removal of the building, and there is no evidence to prove that the lessee, etc. suffered damages at the time of the above removal substitute execution, the court below rejected all of the plaintiff's assertion of the cost of removal and the claim against the above lessee. In light of the records, such recognition and determination of the court below are reasonable, and there is no error of law by misapprehending the legal principles on illegal acts in violation of the rules of evidence
3. The ground of appeal No. 2 by the Plaintiff’s attorney and the part concerning offsetting negligence by the Defendant’s grounds of appeal are also examined.
The court below also held that the plaintiff was negligent in the occurrence of the above damages, and that the ratio of negligence is 50%. In light of the records, the evaluation by the court below is not deemed considerably unreasonable, and there is no error of law in the misapprehension of legal principles as to comparative negligence, as alleged in the grounds of appeal.
4. Therefore, each appeal shall be dismissed, and all costs of appeal shall be assessed against each party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-ho (Presiding Justice)