(영문) 부산고등법원 2017.9.20. 선고 2016나52555 판결

A. Defendant Ulsan Metropolitan City School Safety Mutual Aid Association shall pay to the Plaintiffs 5% of the total sum of the cited amount in the separate sheet, and the amount in the separate sheet of the cited amount in the separate sheet, with respect to each of the amounts indicated in the separate sheet of the cited amount, 5% per annum from August 21, 2014 to April 28, 2016, 15% per annum from the following day to the date of full payment, and 5% per annum from August 21, 2014 to September 20, 2017 to the date of full payment, and 15% per annum from the following day to the date of full payment.

B. The plaintiffs' claims against the defendant Ulsan Metropolitan City and the remaining claims against the defendant Ulsan Metropolitan City School Safety Mutual Aid Association are all dismissed.

2. Of the total litigation cost, the part arising between the plaintiffs and the defendant Ulsan Metropolitan City is borne by the plaintiffs. 70% of the part arising between the plaintiffs and the defendant Ulsan Metropolitan City School Safety Mutual Aid Association is borne by the plaintiffs, and the remaining 30% is borne by the defendant Ulsan Metropolitan City School Safety Mutual Aid Association.

The provisions of paragraphs 3 and 1(a) may be provisionally executed.

Purport of claim and appeal

1. The plaintiffs' claims and purport of appeal

The judgment of the first instance is modified as follows. The Defendants jointly paid 1,263,82,596 won to the Plaintiff and 449,269,078 won among them, 5% per annum from September 6, 2012 to June 18, 2015; 20% per annum from the following day to September 30, 2015; 15% per annum from the next day to the date of full payment; 814,53,518 won per annum from the next day to the date of full payment; 20% per annum from the next day to May 26, 2017 to the date of full payment; 3% per annum from the next day to the next day of the Plaintiff’s claim to the Plaintiff’s 15% per annum; 30% per annum from the next day to the day of full payment; 25% per annum from the next day to the next day of the Plaintiff’s claim to the Plaintiff’s 2,300,250.5% per annum and 25% per annum.

2. Purport of appeal by Defendant Ulsan Metropolitan City School Safety Mutual Aid Association

Of the judgment of the first instance, the part against Defendant Ulsan Metropolitan City School Safety Mutual Aid Association shall be revoked, and all of the plaintiffs' claims corresponding to the revoked part shall be dismissed.

Reasons

1. Facts of recognition;

The reason why the court uses this part is the same as the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the main defense of the Defendant Metropolitan City

The reason why the court is to use this part is that, except that the "Article 5 of the State Compensation Act" is applied to "Article 2 (1) or Article 5 of the State Compensation Act" to "Article 2 (1) or Article 5 of the State Compensation Act" of No. 4 of the judgment of the court of first instance, it is identical to the reasoning of the judgment of the court of first instance. Thus, it is acceptable

3. Determination as to the claim against the defendant Metropolitan City

The reason why the court uses this part of the judgment of the court of first instance is as follows: (a) the part of the "videos No. 5, No. 19, and No. 20, No. 9" in the letter of the judgment of the court of first instance is deemed as "each Videos No. 9-1 through No. 7, and the result of the on-site inspection of this court"; (b) approximately 15-20,000 " around 40,00" in the letter No. 6, as "no. 14,00"; and (c) the plaintiffs added the judgment as to the matters alleged in the trial of the court of first instance as stated in paragraph (3) of the judgment of the court of first instance; and (c)

【Additional Judgment Matters】

A. The plaintiffs' assertion

Even before the occurrence of the instant accident, students of G Elementary School left the instant structure, and was sacrifies with it. Teachers of G Elementary School did not take appropriate measures, such as making oral warnings or mistakes, and preventing them from breaking into the instant structure, even though they frequently appeared, and did not take appropriate measures, such as blocking facilities or installing warning signs. Since the instant accident occurred due to the negligence in the course of performing duties of the teachers, the Defendant Metropolitan City, a local government to which the said teachers belong, is liable to compensate for the damages suffered by the Plaintiffs pursuant to Article 2(1) of the State Compensation Act.

B. Determination

1) The principal of a school or a teacher has the duty to protect and supervise students. However, such duty to protect and supervise students on behalf of a legal supervisor such as a person with parental authority under the Education Act is recognized for students who are engaged in educational activities in a school or are in a living relationship closely related to such duties, and is held responsible for teachers, etc. to the extent that such accidents may normally occur even if a student is involved in an accident due to neglecting the duty to protect and supervise students. Such predictability shall be determined by taking into account the student’s age, social experience, judgment ability, and all other circumstances (see Supreme Court Decisions 96Da19833, Aug. 23, 1996; 2007Da40437, Jan. 17, 2008).

2) In full view of all the following circumstances, it is difficult to deem that the instant accident could normally occur, taking into account the following circumstances: (a) evidence Nos. 1, 2, 5, 5, 1, 2, 3, 9-1 through 7 of the evidence Nos. 8-1, 2, 3, 9-1 through 7 of the evidence Nos. 9, and witness R, S, S’s testimony, and the result of the on-site inspection by this court:

Therefore, it cannot be deemed that the teachers of G elementary schools have been negligent in performing their duties as alleged by the Plaintiffs. This part of the Plaintiffs’ assertion cannot be accepted.

① At the time of the instant accident, a rail of outdoor stairs between the second and third floors was installed with handrails. Accordingly, the height of outdoor stairs has reached a total of 125 cm (i.e., the height of concrete structure + 95 cm ＋ 30 cm). This meets the criteria of “the height of stairs and railing stipulated in the school facility safety management standards [Attachment 1] under Article 10(1) [Attachment 1] of the Enforcement Decree of the School Safety Act, “the height of stairs is above 85 cm from stairs.” In addition, in light of the social common sense or empirical rule, it seems that it is not sufficient to suppress intentional movement to the outside of stairs or prevent the fall, etc. without intention. 2) Meanwhile, in excess of the outdoor rail, the width of the space with which it is possible to occur in the event that the instant facilities move parallel to normal, is about 40 cm and that it was very high to the extent that it constitutes an outdoor rail that exceeds the two stories in itself.

② At the time of the instant accident, Plaintiff A was the sixth-year student at an elementary school of 12 years old at the time of the instant accident. In light of the Plaintiff’s age, etc., it cannot be deemed that Plaintiff A had the ability to determine whether Plaintiff A was an adult. However, it seems that Plaintiff A had the ability to distinguish the possibility of an accident in the event that the Plaintiff exceeded the outdoor stairs railing between the second and third floors, and exceeded the outer stairs railing between the second and third floors, was within the capacity to distinguish the possibility of an accident in the instant structure. The fact that Plaintiff A met Plaintiff A while deeming Plaintiff A’s friendship and J was dangerous before the instant accident occurred is also supported by the foregoing determination.

③ The instant accident completed a natural science class for the fifth school hours and occurred during the middle school hours before the beginning of the 6th school hours. At the time, students, including the Plaintiff A, were moving autonomously to participate in the sports class, and the school teachers, etc. were not in a state of leading the students. Meanwhile, there is no evidence to deem that there was a teacher who had observed the Plaintiff A’s sudden behavior immediately before the instant accident occurred.

④ Even if some of the students were to be exposed to the instant facilities prior to the instant accident, there is insufficient evidence to deem that such deviation behavior continued and such situation was specifically known by the teachers of G Elementary Schools. On the other hand, it is difficult to view that G Elementary Schools teachers could have predicted the instant act, such as the instant accident, solely on the case of a part of individual deviation behavior previously committed in the past.

4. Determination on the claim against Defendant Mutual-Aid Association

The reason why the court uses this part of the reasoning of the judgment of the court of first instance is as stated in Paragraph 4 of the reasoning of the judgment of the court of first instance, except where the part of Paragraph 4 of the reasoning of the judgment of the court of first instance is used as follows. Thus, it is acceptable in accordance with the main sentence

The actual contents of the judgment of the court of first instance shall be conducted in accordance with the following subparagraphs from 4 to 8 pages 9.

[Supplementary Use]

Furthermore, we examine whether the accident of this case constitutes the "school safety accident" subject to the benefits of mutual aid.

Article 2 subparag. 6 of the School Safety Act provides that "school safety accident" means an accident that occurs during educational activities and refers to an accident that causes harm to the life or body of students, school personnel, or participants in educational activities, and an accident that occurs directly to the management and supervision of the principal of the school, such as school meal services, etc., and that occurs to the students, school personnel, or participants in educational activities, as prescribed by Presidential Decree." Article 2 subparag. 4 provides that "educational activities means activities falling under any of the following subparagraphs." Under each subparagraph, "under the control and supervision of the principal of the school, such as classes, special activities, discretionary activities, outdoor activities, training activities, or sports games, etc., conducted by the principal of the school, or by participating in various events or competitions recognized by the principal of the school." Meanwhile, Article 2 subparag. 4 of the Enforcement Decree of the School Safety Act provides that "within six hours before and after school or after school hours, such as day-to-day and day-time hours defined by Presidential Decree."

In other words, the accident in this case returned to the case, and the accident in this case occurred while the plaintiff A was out of outdoor stairs in order to complete a natural science class of 5 school hours and attend a 6 school hours. However, according to the provisions of Article 2 subparagraph 4 (c) of the School Safety Act and Article 2 subparagraph 2 of the Enforcement Decree of the School Safety Act, moving the 5 school hours during the 6 school hours during the 6 school hours should be deemed to fall under the "educational activities" as an activity related to the class. Meanwhile, the accident in this case should be deemed to fall under the "school safety accident" under Article 2 subparagraph 6 of the School Safety Act. Accordingly, the defendant's Mutual Aid Association is obligated to pay each of the above mutual aid benefits to the plaintiffs, unless there are special circumstances.

The provisions of the first instance judgment shall be followed from the last 11th to the 13th 1th eth eth eths as follows.

[Supplementary Use]

C) Defendant Mutual Aid Association’s assertion of comparative negligence

The defendant Mutual-Aid Association asserts to the effect that "the accident of this case occurred due to the negligence of the plaintiff A, so it shall offset the negligence according to the provisions of Article 19-2 of the Enforcement Decree of the School Safety Act and Article 2-3 of the Enforcement Rule of the School Safety Act."

However, Article 19-2 of the Enforcement Decree of the School Safety Act is invalid because it limits the rights of the beneficiaries without statutory delegation (see, e.g., Supreme Court en banc Decision 2016Da208389, Oct. 19, 2016). As long as the enforcement decree becomes null and void, Article 2-3 of the Enforcement Rule of the School Safety Act, which was prepared by delegation of the said Enforcement Decree, shall be deemed invalid. Accordingly, the above assertion by the Defendant Mutual-Aid Association, cannot be accepted

D) Consolation money

When calculating the amount of consolation money to be paid to the plaintiffs in accordance with the standard table of consolation money for physical disabilities under Article 19 and attached Table 5 of the Enforcement Decree of the School Safety Act, it shall be as follows:

Plaintiff A: 20,000,000 won (based on the loss rate of labor capacity 100%)

○ Plaintiff B, C: 10,000,000 each (the parent of a married person is the parent of the married person, each of which is 1/2 of the victimized person)

○ Plaintiff D and E: each of 2,500,000 won (the victim himself/herself is a sibling) 1/8)

The actual contents of the judgment of the court of first instance shall consist of 14 pages 10 to 15 pages 20 as follows.

[Supplementary Use]

However, as to whether the nursing expense claimed by the Plaintiff A is an nursing expense for the day on which the nursing was actually performed during the period of the medical treatment, it is insufficient to recognize the nursing expense only with the statement of No. 15, and there is no other evidence to acknowledge it. Therefore, this part of the allegation by Plaintiff A is without merit.

(iv)the agreed amount and the starting point of counting damages.

(A) the amount of recognition

○ Plaintiff A: Total amount of KRW 381,450,692

[The disability benefits = 361,450,692 + 20,000,000 won]

○ Plaintiff B and C: 10,000,000 consolation money, respectively.

○ Plaintiff D and E: 2,500,000 consolation money, respectively.

(b)the starting point of counting damages;

Article 41(2) and (4) of the School Safety Act provides, “The Mutual-Aid Association shall determine whether to pay a mutual aid benefit within 14 days from the date on which it receives a claim for a mutual aid benefit, and where it decides to pay a mutual aid benefit, it shall, without delay, pay a mutual aid benefit to the person who files a claim for

In light of the relevant provisions and the legislative intent of the School Safety Act, it cannot be deemed that the Defendant Mutual Aid Association is liable for the delay of the duty to pay mutual aid benefits from the date of the instant accident, and it shall be deemed that the Plaintiffs are liable for the delay of payment only after the lapse of 14 days from the date on which the Plaintiffs requested the Defendant Mutual Aid Association to pay the mutual aid benefits. Therefore, the base date for calculating damages for delay on the amount of recognition shall be the date after the lapse of 14 days from August 6, 2014, which is clearly recorded that the duplicate of the complaint of this case was served on the Defendant Mutual Aid Association.

D. Determination on the defense of offsetting by Defendant Mutual-Aid Association

1) Defendant Mutual Aid Association’s assertion

The treatment for Plaintiff A was terminated on December 31, 2013, and thereafter, even if the treatment for the said Plaintiff was performed, it is necessary to prevent the aggravation of fixed symptoms, and thus, not to be eligible for the payment of the medical care benefits. Therefore, since the Defendant Mutual Aid Association paid KRW 15,100,940 to Plaintiff A after December 31, 2013, it is not eligible for the payment of the medical care benefits, the said Plaintiff is obligated to return unjust enrichment equivalent to the above medical care benefits to the Defendant Mutual Aid Association. The Defendant Mutual Aid Association shall set the aforementioned claim for return of unjust enrichment against the Plaintiff’s claims such as disability benefits.

2) Determination

A’s claim for disability benefits, etc. that the Plaintiff owned against the Defendant Mutual-Aid Association constitutes a claim prohibited from seizure pursuant to Article 47(2)4 of the School Safety Act. Therefore, the Defendant Mutual-Aid Association cannot set up against A, a creditor, with set-off against the claim prohibited from seizure as above (Article 497(5) of the Civil Act) and this part of this claim by the Defendant Mutual-Aid Association cannot be accepted.

E. Sub-decision

Therefore, Defendant Mutual Aid Association is obligated to pay damages for delay calculated by 5% per annum under the Civil Act from August 21, 2014 to September 20, 2017 and 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings until April 28, 2016, the date when the first instance court rendered a substantial decision that the Defendant Mutual Aid Association may dispute about the existence and scope of the obligation to perform, with respect to each of the following amounts as mutual aid benefits, as stated in the "total sum of the cited amount table" and the "amount of additional discount" in the attached amount.

5. Conclusion

Therefore, the plaintiffs' claims against the defendant Mutual-Aid Association shall be accepted within the scope of the above recognition, and the plaintiffs' claims against the defendant Metropolitan City and the remaining claims against the defendant Mutual-Aid Association shall be dismissed in its entirety on the grounds that there are no grounds. Since the part concerning the defendant Mutual-Aid Association among the judgment of the court of first instance is partially unfair, the plaintiffs' appeals are partially accepted, but it is decided as per Disposition by the court of first instance, including the plaintiff D and E's claims expanded in the court of first instance, and it is so decided as per Disposition.

Judges

The presiding judge, judges and grandchildren;

Judges Kim Jong-chul

Judges Go-soon

Note tin

1) The Enforcement Decree of the School Safety Act, which applies to the instant case, is prior to the amendment by Presidential Decree No. 24423, Mar. 23, 2013; hereinafter the same shall apply).

2) As long as the outdoor stairs rail itself has the safety of social norms, it cannot be deemed that there is a duty of care to take measures, such as installing a separate shielding facility, in order to prevent this exceptional behavior that goes beyond the outdoor stairs rail.

3) The School Safety Act applicable to the instant case, before being amended by Act No. 11690, Mar. 23, 2013; hereinafter the same shall apply).

Article 47 (Protection of Right to Benefits)

(2) The right of a beneficiary to receive mutual aid benefits shall not be transferred or seized.

5) 【Prohibition of set-off against the claim prohibited from seizure” under Article 497

If claims cannot be attached, such obligor shall not set-off and set up against the obligee.