[1] Where a police officer’s non-exercise of authority granted to him/her constitutes an unlawful violation of his/her duty

[2] The case affirming the judgment of the court below which held that the police officer is liable for compensation for damages sustained by the victim and his bereaved family members due to subsequent murder that occurred due to the police officer's negligence in the course of performing his duties, on the ground that the police officer's failure to take other appropriate measures, such as completely isolation with the victim after arrival at the scene of the assault accident, confirming whether the perpetrator carries a deadly weapon, etc., is considerably unreasonable in light of the seriousness and imminent degree of damage

[3] Whether comparative negligence may be offset in a case where the victim's simple negligence caused or expanded damage (affirmative), and whether the court shall ex officio examine and determine the comparative negligence in a case where the person liable for damage does not assert comparative negligence (affirmative)

[4] Even if some of the joint tortfeasor intentionally committed a tort by taking advantage of the victim's care, whether another tortfeasor who does not have such reason can assert the offsetting of negligence (affirmative)

[5] Whether the negligence of a victim to be taken into account in determining the liability and scope of compensation for damages caused by a tort includes not only the fault of the victim himself/herself, but also the negligence of a person who is in a relationship to his/her status or social life (affirmative), and the method of determining whether he/she is in a relationship to

[6] The case holding that since a police officer, immediately after being called to the scene of an accident, failed to sufficiently grasp the situation at the time, and did not explain the fact that a police officer was seriously killed from the husband's perpetrator to the police officer, negligence should also be considered in calculating the scope of the State's liability, and since the perpetrator's liability should also be taken into account in calculating the scope of the State's liability for damages, the perpetrator's liability should also be considered as a factor to mitigate the scope of the State's liability for damages, since the perpetrator'

[1] Article 2 of the Act on the Performance of Duties by Police Officers, Article 2 of the State Compensation Act / [2] Article 2 of the Act on the Performance of Duties by Police Officers, Article 2 of the State Compensation Act / [3] Articles 396 and 763 of the Civil Act / [4] Articles 396, 760, and 763 of the Civil Act / [5] Articles 396 and 763 of the Civil Act / [6] Article 2 of the State Compensation Act, Articles 396 and 76

[1] Supreme Court Decision 97Da5482 delivered on May 8, 1998 (Gong1998Sang, 158), Supreme Court Decision 98Da16890 Delivered on August 25, 1998 (Gong1998Ha, 2310), Supreme Court Decision 2003Da4909 Delivered on September 23, 2004 (Gong2004Ha, 1698) / [3] Supreme Court Decision 94Da23920 Delivered on June 30, 1995 (Gong195Ha, 254), Supreme Court Decision 96Da3013 delivered on October 25, 196 (Gong196Ha, 254), Supreme Court Decision 209Da84975 delivered on July 23, 2005 (Gong196Ha, 254)

Plaintiff 1 and four others (Attorney Han Han-chul, Counsel for the plaintiff-appellant)

Korea

Gwangju High Court ( Jeju) Decision 2009Na787 Decided April 14, 2010

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Matters concerning the occurrence of liability for damages;

The duty of police officers is to protect the lives, bodies and property of the people, and maintain public peace and order, along with the prevention, suppression and investigation of crimes. Since various authorities are granted under relevant Acts and subordinate statutes, such as the Act on the Performance of Duties by Police Officers and the Criminal Procedure Act, to facilitate the performance of their duties, police officers who perform specific duties may exercise various authorities assigned to them in response to all circumstances and take necessary measures. Such authorities are generally delegated to police officers’ professional judgment based on reasonable discretion. However, in cases where it is deemed that it is considerably unreasonable for police officers to exercise their authority to take necessary measures according to specific circumstances in light of the purport and purpose of granting authority to police officers, non-exercise of such authority is deemed to violate official duties (see Supreme Court Decisions 97Da5482, May 8, 1998; 2003Da4909, Sept. 23, 2004, etc.).

In light of the reasoning of the judgment of the court of first instance, the court below held that the defendant is liable to compensate the victim and his bereaved family members for damages caused by the instant accident caused by the police officer's negligence in the course of performing his duties, as it is considerably unreasonable in light of the seriousness and imminent degree of damage inflicted on the victim, the police officer's initial action and duty of care required under the circumstances as stated in the judgment, the degree of predictability of additional crimes, etc., and the fact that the non-party 1, etc., a police officer belonging to the defendant, was completely isolated from the victim and the non-party 2 after arrival at the accident site of this case, and did not take other appropriate measures, such as confirming whether he carries a deadly weapon. In light of the above legal principles and circumstances, the judgment of the court below is just and acceptable, and there is no error of law by misunderstanding the legal principles as to the recognition of negligence in the performance of duties by the police officer

2. Regarding the scope of liability for damages:

The comparative negligence set-off system under the Civil Act is intended to take into account the obligee’s equivalent principle as to the occurrence of damages in accordance with the principle of equity when the obligee fails to fulfill the duty required under the principle of good faith. Thus, even if the damages were incurred or expanded due to such failure, it shall be deemed that there was negligence on the victim, and even if the obligor does not assert the victim’s negligence, where the victim’s negligence is recognized through litigation documents, the court shall ex officio deliberate and determine it (see Supreme Court Decisions 96Da3013, Oct. 25, 1996; 2005Da8125, Jul. 8, 2005; 2005Da8125, etc.). In addition, it is not permissible to reduce the obligee’s liability on the ground of the victim’s negligence immediately, but it is contrary to the principle of good faith to allow a person who has such a reason to set-off the damages, and thus, it cannot be interpreted that there is no other reason for the obligor’s negligence to be 29707Da19797.

Meanwhile, as long as the reasons for taking into account the responsibility and scope of compensation for damages caused by the tort are to fairly share the damages caused by the tort between the perpetrator and the victim, the negligence of the victim as well as the negligence of the person who is in a relationship that forms a whole of his status or social life with the victim shall be considered as the negligence of the victim. In any case, the issue of whether it is a relationship that constitutes a whole of the status or social life shall be determined by examining specific circumstances and considering the negligence of the victim in light of the concept of fairness (see, e.g., Supreme Court Decisions 96Da26183, Nov. 12, 1996; 98Da31868, Jul. 23, 199).

According to the reasoning of the judgment below, the court below rejected the defendant's defense of offsetting negligence against the plaintiff 5, on the ground that it is difficult to deem that there was any negligence in relation to the occurrence of the accident of this case to be the object of offsetting negligence against the plaintiff 5, in light of the circumstances as stated in the judgment of the court below, on the ground that it is difficult to deem that there was any negligence in relation to the occurrence of the accident of this case to be the object of offsetting negligence against the plaintiff 5, inasmuch as the police officers, at the time when the plaintiff 5 opened a visit at the site of this case and called together with the non-party 2, at the time when the police officers were called up to three or more persons, and there was sufficient trust

However, according to the reasoning of the judgment below and the evidence duly admitted by the court below, the police officers dispatched after receiving the report of murdering the wife from the non-party 2 asked the non-party 2 to answer the report, but did not hear any answer from the non-party 2. The non-party 1 again asked the non-party 5 who was injured by the non-party 1. The victim requested the non-party 5 to request that the non-party 5 who was a woman living together without any particular answer. The police officers who did not accurately grasp the situation at the time did not sufficiently control the non-party 2, such as waiting for the first-aid vehicle sent to the victim, and did not take measures to safely isolate the victim. In light of the above circumstances, the police officers did not sufficiently grasp the situation at the time immediately after the dispatch, and did not explain the non-party 2's fault to the non-party 2, and thus, did not explain the defendant's fault to the non-party 2.

In addition, as the couple living together with the victim, the non-party 2 was in a relationship that forms a whole of the status or living relationship with the victim, and as long as the non-party 2 murdered the victim by taking advantage of the principle of fairness, the responsibility of the non-party 2 shall also be considered as a factor to reduce the scope of the defendant's liability.

Therefore, without considering the above negligence and responsibilities between the victim and the non-party 2, the judgment of the court below that recognized the defendant's liability for the total amount of damages suffered by the victim is erroneous in the misapprehension of legal principles as to comparative negligence or limitation of liability for damages, which affected the conclusion of the judgment.

Meanwhile, in light of the fact that the defendant's liability was not limited by the negligence or the responsibility of the victim and the non-party 2, the court below seems not to take this into account even in calculating the consolation money for the victim and the plaintiffs. In light of the contents and degree of the victim and the non-party 2's negligence and responsibility as seen earlier, the part

3. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)