[2] The case affirming the judgment below that even if Gap obtained diving equipment on the sea and went missing without being injured, it cannot be viewed as "any danger that may cause death"

[2] The case affirming the judgment of the court below that even if Gap obtained diving equipment on the sea and went missing without being injured, it cannot be viewed as "any danger that may cause death"

1. The claimant asserted as follows as the grounds for the instant application.

Around 18:00 on March 14, 2008, the principal of the case was departing from the port for collecting goods after boarding with an applicant for an engine-driven water leisure craft (1.26 tons, 115 EM) at the arrival of the sea-driven water-driven water leisure business in the vicinity of the tidal leisure business place in Musan-si trial. At around 22:00 on the same day, the principal of the case was obtained by wearing diving equipment at the sea around 100 meters prior to the naval death in front of the above trial but did not have been injured. Accordingly, the principal of the case was searched around the sea, but one year has passed since it did not discover the principal of the case. Accordingly, the principal of the case sought adjudication of disappearance due to the disappearance of danger.

2. The lower court determined as follows by citing the first instance court’s decision.

In general, where the survival or death of an absentee is not obvious for five years, a petition for adjudication of disappearance may be filed with a court (ordinary disappearance), exceptionally, where the life or death of the absentee is unknown, (i) a person who was on a wall, (ii) a person who was on a sunken ship, (iii) a person who was on a sunken aircraft, or (iv) a person who was in a peril that may cause death, is unknown for one year after the termination of war or the sinking of a ship, the crash of an aircraft, or the end of any other peril (Article 27 of the Civil Act). However, the grounds asserted by the claimant cannot be seen as “a person who was in danger that may cause death” as referred to in this context.

Therefore, in the case of the principal of the case, the requirements for adjudication of disappearance due to the disappearance of danger were not satisfied, and furthermore, the requirements for adjudication of disappearance due to ordinary disappearance are not satisfied because five years have not passed since the death or death of the principal of the case was unknown. Therefore, the adjudication request is dismissed.

3. In light of the language and text, purport, etc. of Article 27 of the Civil Act, “any danger that may cause death” as stipulated in Article 27(2) of the Civil Act refers to an external situation or situation where the risk of death is significantly high, as it causes apparent danger to human life in general and objective terms, such as fire, flood, earthquake, and volcanic explosion.

Examining the record in light of the above legal principles, the judgment of the court below is just in holding that the act of wearing diving equipment and collecting dissolution upon entering the sea does not constitute "any danger that may cause death" even if the claimant goes missing as the claimant's assertion, and there is no error of law such as misunderstanding of legal principles as alleged in the grounds for re-appeal. The Supreme Court precedents of the Supreme Court that the re-appellant takes are inappropriate in this case.

4. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)