[손해배상][공1980.10.15.(642),13106]
Whether the appraisal on June 1, 1964, which analyzes the frequency of water level generation on the basis of the water level including the nature of the soil representing the shape that flows in a considerable speed at least twice a year as set forth in No. 897 of the Construction Notice, and the level of water shown by flood or other natural phenomena, is legitimate.
According to Article 8-2 of the Enforcement Decree of the River Act and Article 897 of the Construction Part of June 1, 1964 of the Construction Part of the River Act, one of the river areas uses land on which a considerable hot water has been used at least once a year, 1,2 or more times a year, excluding the land that has been temporarily expressed in such a phenomenon due to flood or other natural phenomena. Thus, even in cases where the highest water level, which occurs 1,2 times a year, is used as basic material in order to determine whether there is a considerable flexible flow of the land in this case, the water level temporarily occurring due to flood or other natural phenomena, including the water level occurring due to flood or other abnormal natural phenomena, shall be excluded from the water level. Thus, the results of the appraisal of the water level analysis on the basis of the water level including the water level occurring due to flood or other natural phenomena, shall not be admitted as evidence.
Article 12 of the former River Act (Act No. 892 of Dec. 27, 1961); Article 8-2 of the Enforcement Decree of the same Act (Act No. 897 of Jun. 1, 1964)
Supreme Court Decision 75Da1453 Delivered on May 11, 1976
[Judgment of the court below]
Hyundai Construction Co., Ltd., Counsel for the defendant-appellant
Appellee and Appellant (Attorney Jin-tae, Counsel for the defendant-appellant)
[Judgment of the court below] Defendant 1 and 3 others
Seoul High Court Decision 76Na3049, 3050, 777Na2533 Decided August 24, 1978
The judgment below is reversed and the case is remanded to Seoul High Court.
In the grounds of appeal by the plaintiff and the parties, I first examine the legal principles, the incomplete hearing, and the violation of the rules of evidence.
According to the reasoning of the judgment below, the land level of this case was owned by the non-party 1 and the non-party 1 and the non-party 2 were located in the non-party 1 and the non-party 2 were located in the non-party 1 and the non-party 1 and the non-party 2 were located in the non-party 1 and the non-party 2 were located in the non-party 1 and the non-party 2 were located in the non-party 1 and the non-party 3 were located in the non-party 1 and the non-party 2 were located in the non-party 1 and the non-party 2 were located in the non-party 1 and the non-party 2 were located in the non-party 1 and the non-party 1 and the non-party 2 were located in the non-party 3 and the non-party 1 and the non-party 2's non-party 1 and the non-party 2's non-party 1 and the non-party 2's non-party 1 and the non-party 1.
Therefore, the court below will examine each of the above evidence in accordance with the records.
First, the appraiser 3's testimony is entirely dependent on recognizing the above facts. The above appraiser's testimony is based on the appraisal of the non-party 3's above facts, under the premise that the above appraiser's appraisal of the above construction area constitutes the river area's above construction, the overall provision of the above construction section is applied only to the land representing such phenomenon outside the river's effective water surface, and it is not applicable to public interest for the land within the effective water surface of the river. The above appraisal functions as the effective water level of the Han River as well as the above comprehensive water level of the above appraisal. It is hard to view that the above appraisal of this case's water level of the non-party 3 as evidence and the above appraisal of the non-party 1's present water level of the non-party 4 as evidence, and it is difficult to use the above appraisal of this case's water level of the non-party 1's present water level of the non-party 4 as evidence, and it is also difficult to use the above appraisal of this case's water level of the non-party 1's opinion and the above.
Therefore, in accordance with the above evidence, although it is difficult to readily conclude that the land of this case was a river area of Han River pursuant to Article 897 of the Construction 1964 Public Notice No. 897 of the Construction 1964, the court below rejected the claim of this case by recognizing facts as stated in its reasoning on the ground that the land of this case was not reasonable as above, or that it was not directly consistent with the evidence, and thereby finding the plaintiff or the intervenor of this case unfairly rejected the claim of this case. In light of the above legal principles as to the river area of the River Act, the Enforcement Decree of the River Act, and the Public Notice No. 1 of Construction 1964, the court below did not exhaust all necessary deliberations by misapprehending the legal principles as to the river area of the River Act, the Enforcement Decree of the River Act, and the Construction
Therefore, this appeal is with merit, and it is reversed and remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Min Young-chul (Presiding Justice)
Justices Park Jong-won (Presiding Justice) is unable to sign at his/her retirement. Justice Jeong Tae-won