[2] Whether a state liability for an omission by a public official can be recognized even if a statute does not explicitly stipulate a duty of action by a public official (affirmative with qualification) and the standard for its determination

[2] For the purpose of recognizing state liability for damages due to a public official's omission, the requirements of Article 2 (1) of the State Compensation Act, which provides that "if a public official causes damage to another person by intention or negligence because he/she was in charge of performing his/her duties, in violation of the law," should be met. It does not mean only a violation of the law expressly provided for a public official's duty to act in the strictly formal meaning, and it does not mean a case where the country whose primary mission is to protect people's lives, bodies, property, etc. is to protect people's lives, bodies, property, etc. because the situation of imminent and serious danger occurs or is likely to occur. If the country whose primary mission is to protect people's lives, bodies, property, etc. can not protect people's lives, bodies, property, etc. unless there is a ground for the formal meaning of the law, it can be acknowledged that a public official's duty to act can be excluded from the state or related public official's duty to act in principle, unless the public official performs his/her duties only in accordance with the relevant law, it can be determined whether there is a serious violation of public official's duty to act or negligence.

A. Ground of appeal No. 1: Defendant Republic of Korea and the Korea Agricultural and Rural Infrastructure Corporation (hereinafter referred to as “Defendant Corporation”)’s prior prevention responsibility and Defendant Corporation’s ex post facto prevention responsibility

As to the plaintiff's assertion that the above construction works of the Yeongsan River Corporation and the defendant Corporation could have predicted an increase in the tides of the above construction works, but failed to predict it by negligence or failed to devise such measures, it cannot be deemed that the above Defendants are subject to preventive responsibility for the above Defendants on the ground that it is difficult to recognize that there was a possibility of predictability of flood damage as alleged by the plaintiff before the construction of the Yeongsan River, and in addition, in light of the circumstances stated in its reasoning, the defendant Corporation may not be subject to the duty to take follow-up measures such as investigating the causes of inundation and establishing preventive measures against the victims, or providing financial support to the defendant Bapo-si, like the defendant Republic of Korea. In so doing, the court below did not err by misapprehending the legal principles as to the duty of care in illegal acts, such as the grounds for appeal, nor by misapprehending the legal principles as to the duty of care in the grounds for appeal, and the precedent cited by the plaintiff in the grounds for appeal cannot be invoked in this case.

B. Ground of appeal Nos. 2 and 5: Extinctive prescription period

Article 96 of the Budget and Accounts Act refers to cases where other Acts stipulate the extinctive prescription period shorter than the five-year extinctive prescription period stipulated in Article 96 of the Budget and Accounts Act, and Article 766 (2) of the Civil Act, which provides for the ten-year extinctive prescription, does not constitute "the provisions of other Acts" under Article 96 of the Budget and Accounts Act (see Supreme Court Decisions 67Da751 delivered on July 4, 1967; 99Da53742 delivered on April 7, 200), so there is no reason for appeal to the contrary.

C. Ground of appeal No. 3: Request by the residents of Samdo and Do.

The court below rejected the claim against the defendant Republic of Korea and the defendant Corporation of the aforementioned designated parties on the ground that there is no assertion or proof as to whether the aforementioned designated parties can establish measures in order to prevent flood damage caused by the following reasons: the designated parties' priority 22, 23 (the third-school resident is the third-school resident), 32, 33, and 34 (the rate of residents) are located in the area of the previous island under the administrative district, although they were located in the area of the area where the designated parties reside, or are currently located in the area of the waters in front of the Sinpoe, or there is no error of law by misunderstanding the facts against the rules of evidence, or by misapprehending the legal principles as to the existence of the duty of care and the burden of proof in tort.

D. Ground of appeal No. 4: misunderstanding of legal principles in calculating consolation money

The court below recognized that flood damage was inflicted on the designated parties Gap as stated in the judgment of the court below due to the error that the above defendant did not take proper responsibility for ex post facto prevention from around January 1990, and determined the amount of consolation money to be compensated for damage from July 28, 1990 to January 1996, in ordering the compensation for damage from July 28, 1990 to January 28, 1996. In light of the various circumstances in the records and the reasoning of the court below, the above measures of the court below are just and acceptable, and there is no misapprehension of legal principles as to the grounds for appeal.

2. We examine Defendant Republic of Korea’s grounds of appeal.

A. Ground of appeal No. 1: misunderstanding the legal principles of state liability

In order to recognize the State liability due to omission of a public official, as in the case of recognizing the State liability for damages caused by a public official’s act, the requirements of Article 2(1) of the State Compensation Act, which provides that “where a public official causes damage to another person by intention or negligence in violation of the statutes,” should be met. It does not mean where a public official explicitly violates the statutes of the strict formal meaning, even though there is a duty to act of a public official to act in violation of the statutes. It does not mean where the State whose primary mission is to protect the lives, bodies, property, etc. of the people is to protect the lives, bodies, property of the people, etc. if it is impossible to protect the lives, bodies, property, etc. of the people unless it comes to exclusion from the danger, it can be recognized that the State or the relevant public official has the duty to act in violation of the statutes of the public official’s duty to act in violation of the Act and the Act and subordinate statutes. However, unless the public official performs his/her duty in principle, unless it is likely that the public official’s duty in violation of the Act and subordinate statutes would be 90.

In the above purport, the court below is just in holding that a public official belonging to the defendant Republic of Korea has an obligation to promptly take appropriate measures to prevent flood damage under Articles 3(1), 40(1), and 46 of the former Act on Countermeasures against Flood and Flood (wholly amended by Act No. 4993, Dec. 6, 1995) in light of the overall circumstances as stated in its holding, and there is no error of law by misunderstanding the legal principles of state liability due to a public official's omission, such as the grounds for appeal.

B. Ground of appeal No. 2: Error of mistake

The judgment of the court below is just in light of the records, and there is no error of law of misunderstanding of facts, such as the grounds of appeal, in light of the records, as to the designated parties of the attached list 16, 18, 25, 37, 38, and 44 during the residence period as indicated in the judgment of the court below.

C. Ground of appeal No. 3: Violation of disposition right principle

The court below is just in accepting consolation money of KRW 4 million or KRW 5 million within the limit of 20 million, each of their claims against the designated parties under the attached list 1, 5, 6, 25, and 37 (see the petition of appeal and the petition of appeal) and does not constitute an unlawful violation of the principle of disposition like the ground of appeal (the above defendant seems to have asserted that the claim amount of the above designated parties is the amount calculated by each designated party among the preparatory documents dated March 27, 1998, and the amount calculated by each designated party in the above preparatory documents is merely a lost income).

3. We examine the grounds of appeal on the part of defendant Jong-chul.

A. First ground of appeal: Violation of the rules of evidence

The grounds of appeal are that there is an error in violation of the rules of evidence in the court below's decision that the court below acknowledged that there was a defendant Jongpo-si, not the Republic of Korea, that held that the responsibility of flood damage in the judgment was caused by the construction of the Yeongsan River and that there was a flood damage in the judgment, even though there was a causal relationship between the construction of the Yeongsan River and the flood damage in the judgment of the Yeongsan River, as seen in the ground of appeal No. 1 of the plaintiff's ground of appeal, unless the defendant Republic of Korea is deemed that there was a prior preventive liability before the construction of the Yeongsan River and Seomjin River, it cannot be held that the defendant Republic of Korea is not responsible even if there is a causal relationship between the construction of the Yeongsan River and the flood damage in the judgment of the Yeongsan River, and that there is no error in the violation of the rules of evidence in the court below's decision that held that the defendant

B. Ground of appeal No. 2: misunderstanding of legal principles under Article 113(2) of the Local Autonomy Act

The grounds of appeal are that there were errors in violation of Article 113 (2) of the Local Autonomy Act that the court below's damages should not be transferred to the local government, even though flood damage occurred due to the construction of the Yeongsan Seomjin River in the Republic of Korea. However, the judgment of the court below that recognized that flood damage in this case occurred due to the non-performance of the post-prevention responsibility in the Republic of Korea and the defect in the management of the public structures in the defendant Bapo City, and that the above defendants jointly and severally ordered the above defendants to pay damages cannot be deemed to have committed an error of the State's burden to the local government.

C. Ground of appeal No. 3: misunderstanding about the subject of management of public structures

The grounds of appeal are that there is a mistake of facts or a misunderstanding of legal principles in the court below's decision that the facilities, such as inner walls, in the decision of the court below, are installed and managed by the defendant Republic of Korea (the Minister of Oceans and Fisheries) pursuant to Article 9 of the Harbor Act and Article 2 of the Enforcement Decree of the same Act, and even though they cannot be installed and managed as the defendant Bapo City, a local government, pursuant to Article 11 subparagraph 4

Article 9(1) of the Harbor Act provides that a designated harbor shall be implemented by the Minister of Oceans and Fisheries for construction, reconstruction, maintenance, repair, and dredging of harbor facilities; a local harbor shall be implemented by the Mayor/Do Governor; and Article 11 subparag. 4 of the Local Autonomy Act provides that a local government shall not handle State affairs with respect to designated harbors; however, an inside wall, etc. in the decision of the court below is related to the coast of Sinpo City, and the owner of installation and management thereof shall be deemed to be a Sinpo City (or, as recognized by the court below, from Oct. 24 to Feb. 28, 1994 as the emergency countermeasure project as determined by the court below, the construction or operation of a coastal road between Nov. 15, 1993 to Jan. 16, 1996; and that there is no significant decrease in sewage damages caused by the construction or installation of a river station in the above area where sewage was installed, and that there is no reason to recognize that the construction or installation of a river station in the above area where sewage was located.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition.

Justices Lee Ji-dam (Presiding Justice)