[2] The case holding that where a third-class student of a high school dies due to satisfaction while smoking in excess of the third floor rail of a school building, defects in construction and maintenance of the above building are not recognized

[2] The case holding that there is no defect in the installation and management of school facilities on the ground that the school manager cannot be deemed to have a duty to install a warning sign informing of entrance prohibition or fall risk in order to prevent the entry of a corridor or toilet window in order to prevent the occurrence of an exceptional accident, in case where the third-class student of high school dies because he passed a rail outside the toilets of the third-class building in order to avoid the control of the teacher's tobacco.

1. According to the reasoning of the lower judgment, the lower court determined that: (a) Nonparty 2 was a student of the third grade high school under Defendant’s control; (b) Nonparty 1 left school books on May 9, 1995 after completion of classes; and (c) opened windows (in the case of high school students, they can easily leave the windows above the windows) at the toilet with a height of 88 cm in order to smoke in tobacco at the bar; (d) Nonparty 2 did not have access to the above 3rd grade high school; and (e) Nonparty 2 did not have access to the above 40cm above, and (e) Nonparty 2 did not have access to the above 20:0 on the same day; and (e) Nonparty 2 did not have access to the above 3rd floor, which is the place of the instant accident, and thus, the Defendant did not have the responsibility to prevent the Plaintiff from being exposed to the above 3rd floor, and thus, the Plaintiff did not have access to the above 20:00 square meters after installing the above gate at each of the instant accident.

2. However, the defect in the construction and preservation of a public structure refers to a state in which the public structure has failed to have safety ordinarily required in accordance with its purpose. In the construction and preservation of a public structure, it cannot be said that there is a defect in the construction or management of the public structure on the ground that it does not have high level of safety to the extent that it always maintains a perfect condition. Therefore, the degree of duty to take protective measures imposed on the installer or manager of the public structure refers to the degree of duty to be generally required by social norms in proportion to the danger of the public structure (see, e.g., Supreme Court Decisions 86Meu2773, May 12, 1987; 91Da37652, Apr. 24, 1992).

According to the records, the outer rail of the third floor of the above school building is about 40 cm wide, height from the floor to the outside of the floor is about 25 cm, and the toilet functions as rainwater drainage method, the window fall down from the wall, and the window fall down down from the window (refer to the records 205 pages). It can be known that the rail is not installed so that people can pass, and there is no evidence to view that there are any defects as long as the rail is used for its original purpose. Accordingly, even if the above third floor toilet door was locked, as alleged in the plaintiffs, it can be acknowledged that the above third floor toilet door was crashed to each floor, and that the above third floor toilet door cannot be installed for the purpose of preventing from entering and leaving the above school facilities in violation of social norms. Thus, it is difficult to view that the above third floor toilet door cannot be installed to the extent that it is not necessary to prevent the above student from entering and leaving the above entrance and exit. Therefore, it is difficult to view that there is no need to install the above apartment door, as well as it does not have any need to control the above.

Nevertheless, the court below found that there was a defect in the installation or management of school facilities because the defendant did not have a device to prohibit access to the above windows, and therefore, it erred in the misapprehension of legal principles as to the defect in the construction or preservation of public facilities, and it is clear that such illegality has influenced the conclusion of the judgment. Therefore, the ground of appeal pointing this out has merit.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the case.

Justices Park Jong-ho (Presiding Justice)