[2] The case holding that the judgment below erred by misapprehending legal principles, in case where Gap entrusted the automobile maintenance business to repair the automobile, and thereafter Gap entrusted the automobile maintenance business to repair the automobile, and thereby, the vehicle gets a fire from Gap's vehicle under the custody of the said business, and part of the facilities of the said business was destroyed by fire, although the said business was entrusted to Gap's vehicle, and the vehicle's electrical equipment was aware that the front part of the vehicle was considerably damaged with inflammable substances, and there was a ground to view that there was a fire while keeping the vehicle without taking measures necessary for the possibility and prevention of any particular inspection or fire, and there was a possibility that the fire was caused by Gap, while taking protective measures required by social norms in proportion to the risk of the said vehicle

1. The defect in the installation and preservation of a structure as referred to in Article 758(1) of the Civil Act refers to a state in which a structure fails to meet safety requirements ordinarily required for its use. In determining whether such safety requirements are met, the determination shall be based on whether the installer and custodian of the structure has fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure (see, e.g., Supreme Court Decisions 94Da16328, Oct. 28, 1994; 2008Da61615, Feb. 11, 2010).

2. The lower court determined as follows: (a) caused an electrical defect due to a sudden damage to the machinery parts, such as the engine, etc. of the Defendant’s vehicle due to a sudden accident; and (b) determined that the instant fire was caused by the defect of the Defendant’s vehicle; and (c) determined that the Defendant, the owner of the Defendant’s vehicle, on the ground of such defect, is liable for the damages incurred by the instant fire to the owner of the automobile maintenance business

3. However, the lower court’s determination is difficult to accept for the following reasons.

Since the Defendant’s vehicle was damaged by the foregoing circumstances, the Defendant was entrusted to a specialized repair business entity for repair immediately on the day of the accident. Although the specialized repair business entity was entrusted with the foregoing and recognized that the front section of the Defendant’s vehicle’s electric device is considerably damaged with inflammable substances, the fire in this case occurred while keeping the vehicle without any particular investigation or taking necessary measures to prevent the possibility of fire and the occurrence of the fire. In such a case, there is room to deem that the Defendant took protective measures required by social norms in proportion to the risk of the Defendant vehicle.

Nevertheless, the lower court, without examining or determining whether the Defendant fulfilled its duty to take protective measures as above, found the Defendant liable solely on the ground that there was a defect in the Defendant’s vehicle due to drilling, and the occurrence of the instant fire due to such defect. In so doing, the lower court erred by misapprehending the legal doctrine on the judgment of the Supreme Court under Article 3 subparag. 2 of the Trial of Small Claims Act.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)