2012 Gohap 45660 Damage, etc. (as defined)

A person shall be appointed.

Law Firm Hycheon (Law Firm Hycheon, Counsel for defendant-appellant)

Attorney Lee Jae-sik, Kim Jae-ho, and Park Jong-sik

National Pension Service

Seoul Songpa-gu 35 Dao-ro 13 (Sacheon-dong and National Pension Management Corporation)

Representative Maximum light

Attorney Song-su Act

1. B

Law Firm Namsan, Counsel for the plaintiff-appellant

Attorney Hah-ho, Hah-ho, Hah-gu, Jeonn Sea Office, Kim-jin, and Kim Jong-jin

2. C

Attorney Lee Lee-sung, Counsel for the defendant-appellant

Attorney Park Jae-ho, Attorney Park Jae-ho

3. D.

4. E.

Defendant 3 and 4 Law Firm Yong-Nam, Counsel for defendant 3 and 4

Attorney Seo-gu

F

Attorney Park Sung-won, Kim beneficiary-young, Park Jin-jin, and Kim-Support, Counsel for the defendant-appellant

April 30, 2015

June 25, 2015

1. Defendant D and E shall jointly pay to the Plaintiff the amount of KRW 80,582,770 as well as 5% interest per annum from January 12, 2012 to the date of full payment. (b) Defendant D and E shall pay to the Plaintiff’s Intervenor the amount of KRW 20,417,230 as well as 20% interest per annum from July 17, 2014 to the date of full payment.

2. The plaintiff's claim against defendant B and C and the plaintiff's remaining claims against defendant D and E are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff, Defendant D and E shall be borne by the said Defendants, and the part arising between the Plaintiff, Defendant D and C shall be borne by the Plaintiff, including the costs incurred from participation. The part arising between the Plaintiff’s successor and the Plaintiff’s successor D and E shall be borne by the said Defendants, and the part arising between the Plaintiff’s successor and the Defendant B and C shall be borne by the Plaintiff’

4. Paragraph 1 can be provisionally executed.

1. The plaintiff;

The Defendants jointly pay to the Plaintiff KRW 101,00,000 as well as the full payment with respect thereto from January 12, 2012.

By the day, 5% interest per annum shall be paid.

2. The intervenor succeeding to the plaintiff

The defendants jointly participate in the succession of this case against the plaintiff's successor's 20,417,230 won and the plaintiff's successor's successor's participation.

It shall pay 20% interest per annum from the day after the copy of the application is served to the day of full payment.

1. Basic facts

A. Defendant D and E are those who jointly operate a golf practice course (hereinafter referred to as “instant golf course”) in the name of Defendant D and E* the Gu**** in * in * in * in * in * screen, and Defendant B (hereinafter referred to as “Defendant B”) is a company that has established a golf with a system of a golf operation in the instant golf course, and Defendant C Co., Ltd (hereinafter referred to as “Defendant C”) is a company that imports and sells the instant golf course (hereinafter referred to as “instant golf course”) No. 9 I used by the Plaintiff, which is located in the instant golf course.

B. On January 12, 2012, while the Plaintiff was running a screen golf in the instant golf course, the Plaintiff real nameed the right eye on the hedging separated from the Plaintiff’s right side with the Plaintiff’s eye, thereby causing damage to the friendly eurgal damage, net gym, red gym, island gym, etc. (hereinafter “the instant accident”).

C. On August 23, 2013, the Plaintiff’s succeeding intervenor paid KRW 20,417,230 as a disability pension to the Plaintiff, and “When the Plaintiff’s succeeding intervenor paid the disability pension as a third party’s act, the Plaintiff’s succeeding intervenor subrogated the beneficiary to the third party’s right to claim damages against the third party within the scope of the amount of the benefits.” On July 11, 2014, the Plaintiff succeeded to the instant lawsuit on the ground that the Plaintiff subrogated to the right to claim damages equivalent to the lost income of the Plaintiff within the scope of the disability pension paid pursuant to Article 114(1) of the National Pension Act.

[Grounds for Recognition] The facts without dispute, Gap's statements in 2-1 to 5, Gap's evidence 1-1 and 2, video, and the purport of the whole pleadings

2. Determination as to Defendant D and E

A. The occurrence of the instant accident is attributable to the occurrence of the liability for damages

In light of the following circumstances: (a) Party A had to carry out a golf-related construction work outside the instant golf wing structure with a high level of care to ensure the safety of the users of the instant golf wing machines; (b) Party A had to carry out a golf-related construction work outside the instant golf wing structure with a high level of care; (c) Party B had to carry out a golf-related construction work outside the instant golf wing structure with a high level of care to ensure the safety and security of the users of the instant golf wing machines; and (d) Party B had to carry out a golf-related construction work outside the instant golf wing structure with a high level of care to ensure the safety and security of the users of the instant golf wing machines; and (e) Party B had to carry out a new construction work outside the instant golf wing structure with a high level of care; and (e) Party B had to carry out a new construction work outside the instant golf wing structure with a high level of injury.

Nevertheless, Defendant D and E neglected to perform the above duty of care and provided the Plaintiff with the instant golf debt to the extent that the instant golf debt was seriously defective in safety and durability to the extent that the instant golf debt was separated from the floor before the instant golf debt adjoining the floor. Accordingly, the Plaintiff was involved in the instant instant golf debt while the Plaintiff was doing so, so, the said Defendants are liable to compensate the Plaintiff for the damages incurred by the Plaintiff.

On the other hand, Defendant D and E alleged that they were not responsible for the said Defendants, or that their responsibility should be mitigated, since they were engaged in the instant golf course with drinking at the time of the instant accident. However, it is insufficient to deem that the Plaintiff was under drinking alcohol at the time of the instant accident, and there is no other evidence to acknowledge this differently, and in light of the circumstances surrounding the instant accident, etc. as seen earlier, it cannot be said that the existence or scope of responsibility of Defendant D and E differs depending on the Plaintiff’s drinking or not. Thus, Defendant D and E’s assertion is without merit.

(b) Scope of damages;

In addition to the following separate statements, the period for calculating the amount of damages shall be the same as each corresponding item of the attached Table for calculating the amount of damages, and in principle, it shall be calculated on a monthly basis in addition to the separate statement for the convenience of calculating the amount of damages, and the current price calculation at the time of the accident shall be made by the simple discount method that deducts the interim interest at the rate of 5/12 per month.

1) The fact that the actual income is recognized

- Basic facts: *. 39 years of age at the time of birth, male, and accident ** * Month * Day, 39 years of age, 39.91 years of age, 39.91

- The actual income level: 26,353,630 won per month as a urology doctor (316,243,570 won per year): 12 months);

- Operating Period: 300 months until January 26, 2037 when the plaintiff turns 65 years of age;

- Period of hospitalization: 10 days (from January 12, 2012 to January 21, 2012)

- Ratio of loss of labor capacity: 24% from January 12, 2012 to January 21, 2012: 100% from January 22, 2012 to January 26, 2037 at the end date of operation: 24%

[Grounds for recognition] The statement of evidence Nos. 4 and 9, the result of the physical examination entrusted to the Synish Hospital at the school of this court, the purport of the pleadings as a whole, or the amount recognized: From January 12, 2012 to January 21, 2012: 8, 465, 465 won until January 22, 2012 to January 26, 2037: 1,222, 913, 214 won

Medical expenses paid by the Plaintiff due to the instant accident: 2,703,720 won

[Grounds for recognition] The reasons why Gap's evidence Nos. 5 and the reasons why consolation money is considered: The plaintiff's age, the part and degree of injury, the circumstances of the accident of this case, and other circumstances or circumstances shown in the argument of this case): Decision Nos. 30,00, 000 won

Ultimately, the amount of damages that Defendant D and E shall pay to the Plaintiff is KRW 1,264,00,082,39 ( KRW 1,231,378,679 + KRW 2,703,720 + solatium 30,000 + KRW 101,00,000 as part of the damages. Meanwhile, the Intervenor succeeding to the Plaintiff sought payment from the Plaintiff on August 23, 2013.

The Plaintiff paid KRW 20,417,230 to the disability pension, and pursuant to Article 114(1) of the National Pension Act

Within the scope of the disability pension paid as above, the fact that the plaintiff acquired on behalf of the plaintiff a claim for damages equivalent to the lost income of Defendant D and E, and participated in the lawsuit of this case is as seen earlier. As such, Defendant D and E are obligated to pay to the plaintiff KRW 80,582,770, which deducts the above KRW 20,417,230 from the above KRW 101,00,00,000, and KRW 20,582,770, and the plaintiff’s successor to the lawsuit of this case to the plaintiff KRW 20,417,230.

Therefore, Defendant D and E are jointly obligated to pay to the Plaintiff 80,582,770 won and damages for delay calculated at the rate of 5% per annum under the Civil Act from January 12, 2012, which is the date of the instant accident, to the date of complete payment. Defendant D and E are obligated to pay to the Intervenor succeeding to the Plaintiff 20,417,230 won and damages for delay calculated at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from July 17, 2014 to the date of complete payment.

3. Determination as to Defendant B

A. The plaintiff's assertion

Defendant B, a company which designed and manufactured the instant golf course, was negligent in designing and manufacturing the said floor by putting slicks, etc. into the floor of the instant golf course and slicking with a slicks, etc., even in the case where the objects, such as golf balls, have been strongly shocked, even if the said part of the instant golf course had been designed so as to absorb the shock.

In addition, Defendant B permitted Defendant D and E to use his trade name in the instant golf course operated by Defendant D and E, and the Plaintiff misleads Defendant B as the place where Defendant B operated the instant golf course. As such, Defendant B shall be jointly and severally liable with Defendant D and E as the nominal lender pursuant to Article 24 of the Commercial Act.

Furthermore, in light of the fact that Defendant B acquired a certain portion of the revenues generated from the instant golf course, and that Defendant B, Defendant D, and E permitted the use of its trade name to the instant golf course, Defendant B is in a relationship with the employer and employee, and Defendant B should compensate for the damages suffered by the Plaintiff as an employer under Article 756 of the Civil Act.

B. Determination

1) First, according to the argument that Defendant B was negligent in design and production of the shock portion of the instant golf loans, according to the purport of the statement and the entire argument of evidence Nos. 9-1 through 4, No. 2, and No. 6, Defendant B is an enterprise that produces and sells the golf Formula 1, etc. installed in the instant golf course. The part of the instant golf course with a strong hyd, separated from the instant golf course, is not a component of the golf Formula 1 system, but rather a component of the golf course of the instant golf course such as the above part, and the artificial hyd facilities of the instant golf course are not directly determined by Defendant D and E, which are its operator, and are not directly decided by Defendant B. In light of these circumstances, it cannot be deemed that Defendant B is involved in the design and production of the hyd part of the instant golf course, and thus, Defendant B’s assertion on the premise that it is without merit.

2) In addition, as to the assertion that Defendant B shall be jointly and severally liable with Defendant D and E as the nominal lender, the trade name of the instant golf course is not “B”, but “GOLF Arade and screen,” and even if there is a mark symbolizing Defendant B on the instant golf course, it is merely the fact that Defendant B uses the instant golf course system with a screen screen with which Defendant B produced and sold, and it cannot be deemed that Defendant B operated the instant golf course solely on such circumstance. Thus, the Plaintiff’s assertion on this part is without merit.

3) On the other hand, as to the assertion that Defendant B shall be liable as Defendant D and E’s employer, Defendant B’s health room, and employer’s liability under Article 756 of the Civil Act imposes an employee’s compensation for damages incurred to a third party in connection with the performance of his/her duties. In order to establish employer’s liability, the relationship between the employer and the tortfeasor, i.e., the employer’s relationship of use, and the relationship of actual direction and supervision between Defendant B and Defendant D and E, and therefore, the Plaintiff’s above assertion is groundless.

4. Determination as to Defendant C

A. The plaintiff's assertion

Defendant C is a company that imports and sells the instant golf loans and has the duty to ensure that the pertinent products have the durability and safety at a normal level. The fact that the instant golf loans were separated from the hyd part before contact the floor is serious defect that did not meet the above internal structure and safety. Accordingly, Defendant C is liable to compensate for the damages suffered by the Plaintiff.

B. Determination

A manufacturer who manufactures and sells a product is responsible for manufacturing and selling the product with safety and durability within the expected range in light of its technical level and economic feasibility at the time of its distribution, in terms of its structure, quality, performance, etc., if any damage occurs to consumers due to any defect that fails to meet such safety and durability, he/she is liable to compensate for damage due to tort. In general, in order to impose liability on the manufacturer for damage due to a defect of the product, the accident occurred in the consumer’s situation where the product was normally used.

If the manufacturer proves that the accident occurred in an area under the exclusive control of the manufacturer and that the accident does not normally occur without any negligence, it shall be presumed that the product has a defect and that the accident occurred due to the defect unless the manufacturer proves that the accident occurred due to other causes, not the defect (see Supreme Court Decision 2003Da16771, Mar. 12, 2004, etc.).

In light of the facts that the instant golf was used repeatedly by a large number of unspecified users prior to the instant accident, and the instant accident occurred due to neglecting the duty of care to frequently check and verify the safety and durability of the instant golf loans, the instant golf products were separated from the golf products before the Plaintiff contacted the floor, and the instant golf products were cut off with the floor of the wooden materials covering the instant golf products with the outer part of the wing string. In view of the developments separated from the Plaintiff, etc., there is a possibility that the instant golf products used repeatedly by the large number of unspecified users were used in a way other than normal usage prior to the instant accident. In addition, in light of the fact that Defendant D and E neglected the duty of care to check and verify the safety and durability of the instant golf products, and the video products of the evidence Nos. 8 and 11 are not sufficient to prove that the instant golf products were ordinarily used under the exclusive control of Defendant C, and there is no other evidence to acknowledge the safety and composition of the instant products.

5. Conclusion

Therefore, the plaintiff's claim against the defendant D and E is justified within the above scope of recognition, and the remaining claims are dismissed as without merit. Since the plaintiff's claim against the defendant D and E is reasonable, the plaintiff's successor's claim against the defendant D and C is accepted. The plaintiff and the plaintiff's successor's claim against the defendant Eul and C are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jin-jin

Judges Lee Jong-soo

Judges Lee Dong-joon

1) Of the golf course floors related to the instant accident, parts of the structure of the wing plug, composed of a strong green and yellow rubber plate

(c)

A person shall be appointed.