[2] In a case where Party A, while driving a vehicle while driving a local highway one-lane, obstructed the center line from the main road to go beyond the opposite side of the road and died of Party B, the case holding that the judgment below erred by misapprehending the legal principles on the ground that it is difficult to view that there is a defect in the installation and management of the road, which ordinarily lacks safety to be equipped on the road, although it is difficult to view that there is a defect in the construction and management

[2] The case holding that the judgment below erred in the misapprehension of legal principles, in a case where Gap, while driving a vehicle and driving a local highway one-lane, obstructed the central line from the road to the opposite side of the road and died while getting away from the opposite side of the road, the local government, a road manager, did not install a protective fence for the vehicle, on the ground that the local government, in preparation for the case where the driver of the hond road forced to overtake over the road to the opposite side and pushed down it to the opposite side, did not have any defect in the construction and management of the road that is normally equipped with the road, on the ground that there is no error in the construction and management of the road.

1. “Defects in the construction and management of public structures” under Article 5(1) of the State Compensation Act refers to a state in which the public structures, which have been built for public purposes, have no safety required for ordinary purposes. Whether such safety is satisfied should be determined on the basis of whether the installer or manager of the public structures has fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the risk of the public structures. Moreover, the financial, human, and physical restrictions, etc. of the installer or manager of the public structures should also be taken into account. Therefore, even in the case of roads which are public structures, it cannot be concluded that there is a defect merely because the construction or management of the public structures does not have high level of safety to the extent that they maintain the complete state of construction and management, and it is sufficient that those users have relative safety that expect the method of use of the public structures (see Supreme Court Decision 2002Da9158, Aug. 23, 2002).

2. Comprehensively taking into account the evidence of its employment, the lower court recognized that: (a) an accident occurred in the section of this case where Nonparty 1 driven an accident at around 14:0 on July 9, 200; (b) the 463-lane Do road near the Hanwon-gun, Gangwon-do (hereinafter referred to as the “Seoul-gun”); and (c) the Defendant’s construction of the road gate is not likely to cause the accident to occur in the vicinity of the road due to the high level of depth of 24 meters away from the median road; and (d) the Ministry of Land, Transport and Maritime Affairs’s installation of the road gate and the road gate to the direction of the accident to prevent the accidents; and (d) the installation of the road gate is likely to cause the accident to occur due to the storm of the road gate in the same direction; and (e) the installation of the road gate and the road gate to the extent that it is difficult for the Defendant to take necessary measures to prevent the accidents.

3. However, in light of the above legal principles, it is difficult to accept the above judgment of the court below for the following reasons.

① The instant accident point is a part of the road and farming road access road. At the time of the accident, there was no protective fence for vehicles on the road section above the access road. However, at the time of the accident, the road section was installed on the side below the access road, and the approach road section behind the access road was installed on the road section, and there is no difference between the road and the height, and even if the vehicle normally driven on the opposite side of the vehicle involved in the accident leaves the road without a protective fence, it is unlikely to lead to a big accident.

② A vehicle normally driving a hond road along the hond section of the road is normally difficult to be placed on the side of the opposite lane because of the median line. It is difficult to deem that the installation and management guidelines for road safety facilities stipulate the installation of a protection fence by preparation for such cases.

③ There is a slick-prevention package on the lane in which the instant vehicle driving in the instant accident is obstructed. However, it cannot be said that the vehicle driving the downway is obliged to install a lick-prevention package on the opposite lane in preparation for the case where the vehicle driving the downway is slicking.

④ At the time, the instant accident occurred while overtaking the central line at a speed of 60 km from 60 km to 70 km in the speed of 5 passengers on board the vehicle in which the 5 passengers are aboard. The instant accident is an exceptional accident that occurred by combined action, such as vehicle weight, passive phenomenon, central bed, over-speed, etc.

⑤ In the instant accident site, there was no material to prove that there was an accident similar to the instant accident.

Considering the above, it is difficult to view that there was a defect in the installation and management of the instant accident, on the ground that the Defendant did not install a protective fence for vehicles in preparation for the case where the driver of the instant accident was forced to overtake up the central line by intentionally attempting to overtake the said road, and thus, the Defendant did not install the protective fence for vehicles.

Nevertheless, the court below recognized the defendant's liability for damages on the ground that the accident in this case occurred in the construction and management of the road in which the accident in this case occurred. This is erroneous in the misapprehension of legal principles as to defects in the construction and management of public structures.

4. Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)