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과실비율 40:60
red_flag_2(영문) 서울민사지법 1992. 4. 23. 선고 91가합32201 제3부판결 : 항소

[손해배상(기)][하집1992(1),121]

Main Issues

The case holding that, among the visitors to skiing ground, the first-class driver was liable for damages due to defects in the installation and preservation of structures, if he/she escaped from skik's ski from middle-class driver's skis and died, he/she was liable to the ski ground proprietor.

[Reference Provisions]

Article 758 of the Civil Act

Plaintiff

Plaintiff 1 and four others

Defendant

Tymyang Industrial Company

Text

1. The defendant shall pay to the plaintiff 1 and 2 17,379,99 won respectively, the amount of 1,000,000 won per annum from January 6, 1991 to April 23, 1992, and the amount of 25 percent per annum from the next day to the date of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. The costs of the lawsuit are divided into three parts, one of which is the defendant, and the other is the defendant, respectively.

4. The above paragraph (1) can be provisionally executed.

Purport of claim

The defendant's judgment and provisional execution order that each of the plaintiff 1 and 2 shall be 43,143,942 won, 3,4, and 5 shall be 2,00,000 won per annum from January 6, 191 to the date of the rendering of this judgment, and 5 percent per annum from the next day to the date of full payment, and 25 percent per annum from the next day to the date of full payment.

Reasons

1. Occurrence of liability for damages;

A. Grounds for liability

(1) At around 16:00 on January 5, 1991, the deceased Nonparty: (a) went off from the top of "gradin" at approximately 60 meters in width, one of the skiing 2-side Domn Skisp Dop Dop, Yongsan-gun, the Defendant Company owned and managed, and (b) died from a hospital, such as a 10-year genetic tree, a body from the upper part of the 10-year genetic trees owned and managed by the Defendant Company, with approximately 17:25 on the same day during transmission to the hospital at around 17:25 Damn wre, a chest, a skidin in length, and a 600-meter radius; and (c) went away from the boundary of the right skid; (d) around 300 meters in length from the Eastra’s top; and (e) died from the center.

(2) The deceased had been experienced several times, but was in a state of trying to escape from the superscopic level, and first, on the day of the accident, the above skiing was transferred from the above skiing ground to the aboveRa for the superscopic level, to some extent, and then he was faced with the above accident.

(3) The above "Skira" is a ski for a medium-class ski fishing with a certain degree of 10-20 degrees, but in part, 30 degrees are about 10-20 degrees, and ski fishing with a normal and normal ski fishing with a ski from the top to the left side. When considering the long direction from the top to the left side, a skig is installed at the place where a ski is installed on the left side. However, the opposite side of the above skina was installed without safety facilities such as the above skina, except where the safety facilities such as the above skina are installed on the outside side of the old skina boundary line.

(4) In the event that the defendant owned and managed, the above Mki ground is booming with many skiings. Ski ground is in place for elementary levelers, middle levelers, and senior officers, and each ski ground is not controlled by the defendant company by measuring the level of practical capabilities but by selecting Ski ground in line with the actual capabilities of the defendant company.

(5) Meanwhile, the above skiing ground for Defendant Company’s management is one of the sports facilities stipulated by the Installation and Utilization of Sports Facilities Act, and Article 5 of the same Act provides that the business entity shall be equipped with safety facilities, equipment, and maintain and manage the facilities.

(6) The plaintiffs 1 and 2 are the parents of the above deceased, and the plaintiffs 3, 4, and 5 are the births of the deceased.

(7) Accordingly, the defendant company as the owner and manager of the above skiing ground, even though the accident was caused by the above "Ski ground", it is anticipated that the ski ground that the above "Ski ground was used for the middle-class driver, but the ski ground that the above ski ground attempted to get out of the first level as in the case of the deceased, would be further expected, and the ski ground that the ski ground attempted to get out of the first level, such as in the case of the deceased, would have been tryed to get out of the first level, and the above ski ground was not installed in the previous ski ground, so it caused the deceased to undergo the accident of this case, and therefore, the above ski ground facilities were installed or preserved. Therefore, the above ski ground facilities are liable for compensation for damages suffered by the deceased and the plaintiffs.

(b) Whether to waive or limit liability;

However, even though the deceased must choose a skiing in line with his actual ability, he could get a skiing and get a skiing. However, in the remaining real capabilities of the deceased, he could still get a skiing from the above ski, which is difficult to get a ski in line with his actual capabilities.

Such negligence of the deceased was caused by the above accident, but it is not sufficient to exempt the defendant from liability (in this respect, the defendant's claim for exemption shall not be accepted). In calculating the amount of damages to be compensated by the defendant, it is reasonable to consider it as about about 60% in light of the above facts, and its ratio is limited to the remaining ratio excluding the above negligence ratio.

【Premium】

Gap evidence 1, 2, 3-1, 2-2, 2-1, 2-1 to 47, 1-1, 2-2, 2-1, 2-1, 2-1, 3-1, 3-2, and 3-2,

2. Scope of damages.

(a) Actual income:

The lost income loss equivalent to the monetary total appraised value of the capacity of operation lost by the deceased Nonparty due to the instant accident is KRW 64,39,99.

This is based on the following (1) the outcome calculated at the present price at the time of the instant accident according to the discount method that deducts the interim interest at the rate of 5 percent per month, as follows:

(1) Facts of recognition and evaluation

(A) Gender, age, and life expectancy: The deceased is a normal and healthy woman who was born on August 20, 1965, whose age is 25 years of age and 4 months at the time of the accident and whose average life expectancy is 51.75 years of age.

(B) Residential right: the deceased was living together with his family at the residential area located in Yeongdeungpo-gu Seoul Metropolitan Government at the time of the accident.

(C) Financial assessment of operating ability: The wage of the city ordinary person is KRW 16,100 per day around January 1, 1991, which is 191,00 (the plaintiffs sought KRW 17,510,000 per hour wage, but there is no proof of objectivity and universality, and therefore, the unit price of government wage shall be calculated as above) and the monthly wage shall be above KRW 402,50 per month multiplied by 25 days per month, which is 25 days per month recognized later.

(D) Maximum working age: A person engaged in daily work may work on the 25th day of each month until he/she reaches the age of 60 (Application of Experience Regulations).

(e) Cost of living: 1/3 of revenues (the fact that there is no dispute).

【Premium】

Gap evidence 1, Gap evidence 7-1 and 7-2, and the whole purport of the pleading

(2) Calculation

* Period (less than month, less than month)

From an accident to the age of 60: July 34 (415 months)

*Calculation (if less than Won is but not less than hereinafter the same shall apply)

gold 402,500 won x 2/3 x 240 =64,39,99 (the heading number of 415 months shall apply to 240.6426 or 240 in order to avoid excessive compensation)

B. Contributory Negligence

* Liability Ratio: 40% (the foregoing 1-B.)

*Calculation: 64,399,99 won x 40/100 =25,759,99 won

(c) Compensation money;

(1) It is sufficiently recognized in light of the empirical rule that the non-party who died as seen earlier due to the above accident, as well as the plaintiffs in family relations, suffered considerable mental pain. Thus, the defendant is obligated to go against money and body, and the defendant is obliged to do so. The following is reasonable in consideration of the deceased and the plaintiffs' age, family relation, circumstance of accident, degree of negligence of both parties, and other various circumstances shown in the argument of this case.

(2) Amount of the gold

The Deceased: 5,000,000 won

Plaintiff 1 and 2: each gold 2,000,000

Plaintiff 3, 4, and 5: 1,000,000 each amount

(d) Inheritance relations; and

(1) The deceased non-party’s heir: Plaintiff 1 and 2 (see the above 1-A(6))

(2) Inheritance amount;

Plaintiff 1 and 2: 15,379,99 respectively [The daily income of the deceased (25,759,99 + 5,000,000 won) x 1/2]

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1 and 2 an amount of 17,379,99 won (15,379,99 won + 2,000,000 won for inheritance + 15,3799 won for inheritance), the plaintiff 3,4, and 5 each amount of 1,00,000 won for each of the above accidents after the date of occurrence of the above accidents, which the plaintiffs sought from January 6, 191 to April 23, 192, the amount of 5% per annum under the Civil Act and 25% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiffs' claim of this case is justified within the above recognized scope, and the remainder is dismissed, and provisional execution is subject to Articles 89 and 92 of the Civil Procedure Act, and Article 19 of the provisional execution is subject to Article 19 of the same Act.

Judges Choi Dong-dong(Presiding Judge)