2. B

3. C.

2. Busan exists-gu Busan Metropolitan City.

2. The costs of lawsuit are assessed against the plaintiffs.

On October 26, 2010, Plaintiff A driving a D motorcycle owned by Plaintiff B, and suffered injuries, such as two frames concentrated on the right side due to an accident (hereinafter referred to as “the instant accident”), which is located on the side of a four-lane (hereinafter referred to as “instant road”) in the direction of the intersection in the direction of the intersection of the military police station in Busan Jin-gu, Busan (hereinafter referred to as “the instant road”) on the side of the intersection (Article 2 subparag. 29 of the Rules on the Structure and Facility Standards of the Road, Article 2 subparag. 29 of the Rules on the Road, and the part of the road connected to the roadway to protect the road and to be used in an emergency; hereinafter referred to as “instant road”).

【Reason for Recognition】 Each description of the evidence Nos. 1, 4, and 6 (including the number of each class), the appraisal result of appraiser E, and the purport of the whole pleading

2. Determination as to the cause of action

A. The plaintiffs' assertion

As the drainage hole installed on the shoulder of this case protruding the left part, it constitutes a defect in the installation and preservation of a structure as provided by Article 758(1) of the Civil Act. The Defendants, as local governments occupying and managing the road at the point of accident of this case, neglected the Defendants’ duty to take protective measures, such as setting up a certain height of the drainage hole installed at the point of accident of this case, or not repairing the protruding part, even though the point of accident of this case is anticipated to pass the vehicle on the side of the road due to the frequent operation of vehicles. The Defendants breached their duty to take protective measures, such as failing to repair the said part of the drainage hole installed at the point of accident of this case. The accident of this case occurred by the negligence of the Defendants, and the Defendants are jointly and severally liable to compensate the Plaintiff B and the Plaintiff’s family member of this case for the damages of this case.

B. Determination as to the occurrence of liability for damages

"Defects in the construction and maintenance of a structure" under Article 758 (1) of the Civil Act refers to a state in which a structure fails to meet ordinary safety requirements according to its use. In determining whether such safety requirements are met, the determination shall be made on the basis of whether the installer or custodian of the structure fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure. If the facility fails to meet the facility standards prescribed by the relevant Acts and subordinate statutes, such circumstance can be deemed as a defect in the construction and maintenance of a structure unless there are special circumstances (see Supreme Court Decision 2008Da61615, Feb. 11, 2010). Meanwhile, the "defect in the construction and management of a structure" under Article 5 (1) of the State Compensation Act refers to a state in which a public structure built for a public purpose fails to meet ordinary safety requirements according to its use. It means that the installer or manager of a public structure has a relative duty to install and manage the structure in proportion to its complete construction and management. Therefore, it is not enough to be determined as an installer or manager of a public structure.

In light of the above legal principles, comprehensively taking into account the descriptions and videos of Nos. 3 and 6 (including various numbers) as to this case, the fact that the left part of the drainage hole installed on the shoulder of this case protruding about 40 meters is recognized. However, under Article 13 (6) of the Road Traffic Act, drivers of vehicles and horses (excluding bicycles) shall not pass along the bicycle lane or the roadside except where the safety signs permit passage, and under Article 14 (2) of the Road Traffic Act, drivers of vehicles and horses are obliged to pass along the lane except where there are special provisions on the Road Traffic Act or orders issued under the Road Traffic Act, and it is difficult to view the passage of ordinary vehicles as being installed on the road of this case in a way that the width of the road of this case is not more than 1 meters, and it is difficult to use the road of this case to make it difficult to pass through the road of this case more than 60 meters in light of the structure and speed of the road of this case.

For the foregoing reasons, the manager of the instant shoulder cannot be deemed to have a duty to expect the motorcycle to pass along the instant shoulder and to install and manage the instant shoulder. In light of such circumstances, it is difficult to deem that the aforementioned facts were in a state where the instant shoulder was not in a state of safety ordinarily required for its use, and there is no other evidence to acknowledge it otherwise.

As long as the defects of the public structure claimed by the plaintiffs were not recognized, the plaintiffs' liability for damages did not occur. Therefore, without any need to examine further the scope of damages claimed by the plaintiffs and the managing body of the road of this case, the plaintiffs' assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claims are without merit, and it is so decided as per Disposition.

Judges Kim Jong-chul

Judges Nam-man