[1] The meaning of “defect in the installation and preservation of a structure” under Article 758(1) of the Civil Act and the standard for determining its existence and existence / Where damage was incurred due to a defect in a structure, but the damage was not realized due to a defect in the structure, whether “damage caused by a defect in the installation or preservation of a structure” can be deemed as “damage caused by a defect in the installation or preservation of a structure” (negative)

[2] In a case where Party A, a general waterworks business operator, has the exemption clause that "the Mayor may suspend water supply to the whole or a part of the water supply area or restrict the use of water if deemed necessary for the public interest, and the Mayor shall not be responsible even if damage to the water user occurs," and Party A, a local government failed to perform its duty of water supply to Party B, etc. for a certain period since it was not supplied with purified water from the Korea Water Resources Corporation, a metropolitan waterworks business operator, and Party B, etc. sought damages against Party A, the case holding that the judgment below which did not recognize Party A's exemption was erroneous in misapprehending legal principles, on the grounds that Party A's failure to supply tap water to Party B, etc. for a certain period of time constitutes "disaster, other unavoidable circumstances, or where it is deemed necessary for the public interest," which is the exemption from the duty of due care as stipulated under the Water Supply Ordinance.

[1] Article 758(1) of the Civil Act provides, “If any damage is inflicted on another person due to a defect in the construction or maintenance of a structure, the possessor of the structure shall be liable for the damage. However, if the possessor fails to exercise due care necessary for the prevention of damage, the owner shall be liable for the damage.”

The legislative purport of the above provision is that a person who manages and owns a structure shall exercise due diligence necessary for the prevention of danger, and if any damage occurs due to the realization of risks, he/she is fair to impose liability on him/her. Therefore, “defect in the installation and preservation of a structure” refers to a state in which a structure does not have safety ordinarily required according to its intended purpose. In determining whether such safety is satisfied, it shall be determined based on whether a person who installs and preserves 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.

In light of the contents and legislative purport of the foregoing structure liability provision, and the standard for determining the “defect in the installation or preservation of a structure,” even if any damage was incurred due to a defect in a structure, if the damage was not caused by a realistic realization of the risk related to the defect in the structure, it cannot be deemed as “damage caused by a defect in the installation or preservation of a structure”.

[2] In a case where Gap local government's water supply ordinance, which is a general waterworks business operator, has the exemption clause that "the Mayor may suspend water supply to the whole or part of the water supply area or restrict the use of water if it is deemed necessary for the public interest, and the Mayor shall not be responsible even if damage to the water user occurs," and Gap local government failed to perform its duty of water supply to Eul et al. for a certain period since it was not supplied with purified water from the Korea Water Resources Corporation, which is a metropolitan waterworks business operator, and Eul et al. sought damages against Gap local government, the case holding that the fraction for a certain period of time occurred since the temporary water supply system installed and managed by the Korea Water Resources Corporation was partially transferred to the local government, and there is no reason for the fraction, and there is no difference in the time of preparation for water supply pipes, etc. when water supply is interrupted due to the suspension of water supply due to the fraction, and it is difficult for Gap local government to view it as an inevitable reason to acknowledge Gap's local government's exemption from the duty of due care to the extent of due to unavoidable reasons."

[1] Article 758 (1) of the Civil Act / [2] Article 758 (1) of the Civil Act

[1] Supreme Court Decision 2008Da61615 decided Feb. 11, 2010 (Gong2010Sang, 507)

See Attached List of Plaintiffs (Law Firm Gyeongbuk, Attorneys White-gu et al., Counsel for the plaintiff-appellant)

Gu-Si (Law Firm Han-ro et al., Counsel for the defendant-appellant)

Korea Water Resources Corporation (Law Firm Sejong, Attorneys Kang Shin-sok et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 2014Na1028 decided October 14, 2015

The part of the judgment of the court below against the defendant, which is reversed, and that part of the case is remanded to the Daegu High Court. The plaintiffs' appeals are dismissed. The costs of appeal between the plaintiffs and the defendant Korea Water Resources Corporation are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the plaintiffs' grounds of appeal on Defendant Korea Water Resources Corporation

A. Article 758(1) of the Civil Act provides, “If any damage is inflicted on another person due to a defect in the construction or preservation of a structure, the possessor of the structure shall be liable for the damage. However, if the possessor does not neglect due care necessary for the prevention of damage, the owner shall be liable for the damage.”

The legislative purport of the above provision is that a person who manages and owns a structure shall exercise due diligence necessary for the prevention of danger, and if damage occurs due to the realization of risk, he/she is fair to impose liability on him/her. Therefore, “defects in the installation and preservation of a structure” refers to a state in which a structure does not have safety ordinarily required according to its intended purpose. In determining whether such safety is satisfied, it shall be determined based on whether a person who installs and preserves 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 Decision 2008Da61615, Feb. 11, 2010).

In light of the contents and legislative purport of the foregoing structure liability provision, and the standard for determining the “defect in the installation or preservation of a structure,” even if any damage was incurred due to a defect in a structure, if the damage was not caused by a realistic realization of the risk related to the defect in the structure, it cannot be deemed as “damage caused by a defect in the installation or preservation of a structure”.

B. According to the records, the Plaintiffs filed a claim against the Defendant Korea Water Resources Corporation for damages arising from the structure liability under Article 758(1) of the Civil Act on the ground that the Defendant Korea Water Resources Corporation was the owner and possessor of the instant temporary structure, who failed to properly install and manage the instant temporary structure, caused the instant accident, and thereby, the Plaintiffs suffered emotional distress due to their failure to be supplied with tap water.

However, according to the above legal principles, it is difficult to view the above damages claimed by the plaintiffs as damages related to the legal interests to be protected at the responsibility of structure. Thus, this part of the plaintiffs' claims cannot be accepted without further review.

Unlike the above, the lower court’s determination on the establishment of structure liability and the exemption of Defendant Korea Water Resources Corporation from liability on the premise that the risks associated with the defects of a structure have arisen in reality is erroneous, but the conclusion of rejecting the Plaintiffs’ claim on this part is just and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the relevant legal doctrine

2. As to the ground of appeal against the plaintiffs' defendant Ku-si

Article 26(1) and (4) of the former City Water Supply Ordinance (hereinafter “Water Supply Ordinance”) provides that “The Mayor may suspend water supply or restrict the use of water in whole or in part, if deemed necessary for the public interest, in the event of a disaster or other unavoidable circumstances, and in this case, the Mayor shall not be responsible for the damage to the water user.” The above exemption provision provides that exemption shall be granted only when it is excluded from the case of intentional or gross negligence on the part of the defendant Gu Water Supply, and the above intentional or gross negligence shall be significantly fulfilled the duty of due care of a good manager. Furthermore, the lower court determined that the failure of the defendant Si Water Supply obligation to the plaintiffs from May 8, 2011 to May 11, 2011 was inevitable due to the failure of the supply of tap water to the plaintiffs, and thus, it constitutes “other unavoidable circumstances” as provided for in the above exemption provision, and that there is no evidence to acknowledge the intention or gross negligence on the part of the defendant Si at the time of the Gu Water Supply Corporation.

In light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles as to the interpretation of the exemption provision among waterworks ordinances, violating the rules of evidence

3. As to the ground of appeal by the defendant Ku-si

A. The lower court, based on the adopted evidence, did not recognize the Defendant-U.S.-si exemption on the ground that the fractional part from May 12, 2011 to May 13, 2011, which was known by the adopted evidence, does not constitute “a disaster, other unavoidable circumstances, or where deemed necessary for the public interest” as stipulated in the exemption provision of the Water Ordinance.

(1) On May 10, 201, the Defendant Korea Water Resources Corporation supplied Defendant U.S. Si with a large volume of the contract supply, and around May 11, 201, the Defendant Korea Water Resources Corporation supplied a large number of remaining water after filling up the accumulated shortage quantity until then and supplying a large number of remaining water at the end, it seems that the supply of the purified water did not seem to have been short at the latest until May 11, 201.

(2) Under the relevant Acts and subordinate statutes, such as the Water Supply and Waterworks Installation Act, Defendant America, as well as the Plaintiffs, is obligated to secure adequate drainage facilities and appropriately adjust them to supply promptly tap water to the confinement prices, including the Plaintiffs, and to install a drainage pipe with appropriate water control facilities and appropriate pipes for the drainage area so that tap water can be supplied stably by adequate water pressure in response to the changed demand quantity, and the drainage facilities must be divided into an appropriate area as needed.

(3) In the case of Kimcheon-si, where the Defendant was unable to receive the supply of purified water as in the old Si, an emergency measure was taken against some residents, and a fraction was taken against some residents, but the fractional period was shorter than the Defendant, it cannot be deemed that the fractional period during the above period was due to an ordinary occurrence of a difference in time.

B. However, we cannot accept the above decision of the court below for the following reasons.

(1) The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

① The instant accident occurred when part of the file of the instant temporary storage device installed and managed by the Defendant Korea Water Resources Corporation was transferred, and there was no cause attributable to the Defendant Gumi-si with respect to the instant temporary storage device.

② In the event that the supply of tap water has been suspended due to the suspension of water supply, it is necessary to prepare for the cleaning of drainage pipes, and there is a difference in water supply hours depending on the high level of the water supply area and the structure of drainage channels. Therefore, it is deemed inevitable for the Si-U.S. market to generate a difference to a certain extent between the time when the water was re-supplyd by the Korea Water Resources Corporation and the time when the water was re-supplyd by the Plaintiffs.

③ Even though the demand for tap water of residents has temporarily increased rapidly due to the suspension of water supply, it is inevitable to allocate the same quantity of tap water to all residents in consideration of the situation of the accommodation price, such as hospital, school, large unit apartment complex, vulnerable facilities, etc. in the event that the defendant old-si re-supplys tap water. Therefore, it is not easy to supply tap water to all residents in a lump sum.

④ The supply of an emergency connection facility from the same drainage area with higher accommodation than that of the yellow drain area at the Gumi-si may be deemed as a part of an option to minimize damage, taking into account such water supply system, etc.

(5) Although water services facilities are necessarily necessary in modern society, it is not easy to promptly change the design of water services facilities in the most efficient way according to the rapid growth rate of cities.

6) Since the Kimcheon-si differs in terms of the supply system of the defendant Si and the tap water, the length of the water pipe, the water pipe length, the fractional area, the fractional time, the number of households, the method of re-supply of tap water, etc., it is inappropriate for the lower court to take the fact that the lower court simply compared between Kimcheon-si and the defendant Gu

(2) Examining such circumstances in light of the aforementioned exemption provision of the waterworks ordinance and relevant legal principles, there is room to view that Defendant U.S.’s failure to supply part of the Plaintiffs during the period from May 12, 2011 to May 13, 2011 constitutes “cases deemed necessary for disaster, other unavoidable circumstances, or for public interest,” and it is difficult to view that Defendant U.S.’s failure to perform the duty of care as a good manager responsible for performing the duty of care, in light of its status.

C. Nevertheless, the lower court, solely based on its stated reasoning, deemed that the fractional part from May 12, 201 to May 13, 201 does not constitute the grounds for exemption stipulated by the waterworks ordinance, and thus, did not recognize the exemption from the Defendant Sin Sin Sin Gul. In so doing, the lower court erred by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the interpretation of the grounds for exemption stipulated by the waterworks ordinance. The allegation contained in the grounds of appeal pointing this out is with merit, the part against the Defendant Sin Gul Gul Si

4. Conclusion

Therefore, the part of the judgment of the court below against the defendant Ku-si is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All appeals by the plaintiffs are dismissed, and the costs of appeal between the plaintiffs and the defendant Korea Water Resources Corporation are assessed against the losing party. It is so decided as per Disposition by the assent

Justices Ko Young-han (Presiding Justice)