[1] The meaning of "public structures" under Article 5 (1) of the State Compensation Act

[2] The meaning of "a defect in installation" under Article 5 (1) of the State Compensation Act

[3] The case holding that a retaining wall not yet offered for the general public due to a construction being completed does not constitute a public structure under Article 5 (1) of the State Compensation Act

[1] The term "public structures" as stipulated in Article 5 (1) of the State Compensation Act refers to tangible or physical facilities which are donated to a specific public purpose by the State or local governments, including cases where the State or local governments manage by ownership, lease or other rights, as well as cases where the State or local governments manage by ownership, lease or other rights.

[2] "Defects in the construction" under Article 5 (1) of the State Compensation Act refers to the state in which the public structure, which was offered for public purposes, fails to have safety requirements ordinarily for its use.

[3] In a case where the local government discovered the risk of collapse as a result of conducting a field investigation on the rash, which is a sloped sloping, and designated and managed it as a zone at risk of collapse to prevent the collapse, and where the non-party company ordered to install a retaining wall in the rash, and given the non-party company a contract for the construction of retaining wall facilities to the non-party company, the non-party company was able to perform the construction of the retaining wall, and the victim got out of the construction site and got out of the construction site and suffered bodily injury due to the collapse of soil, the case holding that the retaining wall installed at the time of the accident can not be deemed as a public structure under Article 5 (1) of the State Compensation Act, insofar as the non-party company was in the process of construction due to a contract for the construction work and did not yet have been provided for public use.

[1] Article 5 (1) of the State Compensation Act / [2] Article 5 (1) of the State Compensation Act / [3] Article 5 (1) of the State Compensation Act

[1] Supreme Court Decision 80Da2478 delivered on July 7, 1981 (Gong1981, 14157), Supreme Court Decision 94Da45302 delivered on January 24, 1995 (Gong1995Sang, 1137) / [2] Supreme Court Decision 96Da54102 delivered on May 16, 1997 (Gong1997Ha, 1834 delivered on October 10, 1997) (Gong197Ha, 3446), Supreme Court Decision 97Da2518 delivered on January 23, 1998 (Gong198Sang, 584 delivered on January 16, 1998), Supreme Court Decision 97Da27022 delivered on October 10, 197 (Gong1997Ha, 346), Supreme Court Decision 90Da58498 delivered on February 13, 1998

Plaintiff 1 and four others (Attorneys Kim Gi-hoon et al., Counsel for the plaintiff-appellant)

Sucho-si (Attorney Sung-sung et al., Counsel for the defendant-appellant)

Chuncheon District Court Decision 97Na2652 delivered on February 20, 1998

The judgment of the court below is reversed. The case is remanded to Chuncheon District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court recognized the following facts by comprehensively taking account of the evidence adopted in its judgment.

As a result of an on-site investigation, as to the speech and behavior in the natural condition where the miscellaneous trees of approximately 60∑ 15·4 meters in length, high altitude, about 5m, gradient, and the sloping slope, have been found to be in an early stage, the Defendant designated the above branch as a zone at risk of collapse and completed a management ledger, and designated Nonparty 1 who is a public official under its jurisdiction as the person in charge of management, and managed it. On April 21, 1994, the Defendant decided to make a construction of retaining wall facilities at a height of about 30 meters at the above branch as the person in charge of management. On April 21, 1994, the Defendant changed the above retaining wall facilities construction to the Daeho Construction Co.,, Ltd. (hereinafter referred to as the “Seoho Construction”) and the construction of the above retaining wall facilities at KRW 29,07,000,000.

The non-party company sold approximately 3 meters of the depth of the above construction site during the execution process of the above construction site. In such a case, there is a house near the above construction site, so there is room for neighboring residents to walk and be equipped with safety facilities in preparation for fall, and then sold the land, if it is impossible, measures such as setting up a sign sign prohibiting entry into the construction site and leading them to walk on another way, or taking into account the safety of the people driving around the construction site at night, but the construction was enforced without taking such safety measures.

On the other hand, the defendant has been in fact managing the above branch, and as a person in charge of the retaining wall, the non-party 2 who is a public official under the jurisdiction of the defendant was dispatched to the site to direct and supervise the above construction, so the non-party company should have been negligent in carrying out the construction after taking such various safety measures.

On May 13, 1994 due to the negligence of the non-party company and the defendant, around 00:00 on May 13, 1994, the plaintiff 1 returned home to the village residents as a temporary tenant installed in the vicinity of the above construction site, and the soil collapseed, and the 3ms below the floor fall into the floor, and suffered from the injury of the 12 chromosome and the gal damage.

Based on the above facts found, the court below held that the plaintiff 1 was liable for damages suffered by the plaintiff 1 and his/her family members due to the plaintiff 1's injury caused by the above defects in the above installation of the retaining wall facility managed by the defendant, and barring any special circumstances, the defendant, who is the installer and manager, is liable for compensating for the damages suffered by the plaintiffs 1 and his/her family members pursuant to Article 5 (1) of the State Compensation Act, and partly accepted the plaintiffs' claim of this case.

2. However, the term "public structures" under Article 5 (1) of the State Compensation Act refers to fluids or physical facilities granted by the State or local governments for a specific public purpose, including cases where the State or local governments manage them by ownership, lease and other rights, as well as cases where the State or local governments actually manage them (see, e.g., Supreme Court Decisions 80Da2478, Jul. 7, 1981; 94Da45302, Jan. 24, 1995). The defect in the construction refers to cases where the public structures offered for a public purpose are in a state in which the public structures are in a state in which they fail to meet safety requirements that have to have been ordinarily prepared for their use (see, e.g., Supreme Court Decision 96Da54102, May 16, 197).

However, according to the facts acknowledged by the court below, the construction site of this case where the accident occurred is a sloping slope in the natural condition where miscellaneous trees originally fall, and the defendant discovered the risk of collapse due to partial damage of the surface and rupture of basic parts as a result of a field investigation, designated the above spawn as a zone in danger of collapse, and managed the above spawn as a person in charge of management, and installed a retaining wall in the spawn to prevent the collapse. On April 21, 1994, the non-party company contracted the retaining wall installation work to the non-party company to perform the construction work, and the non-party company did not perform the construction work, and the non-party company fell around the construction site on May 13, 199, and the non-party company collapseed with soil, and suffered injury as stated in the judgment of the court below, and the non-party company cannot be deemed to have installed the retaining wall at the time of the accident, as well as the construction of the non-party company under the State Compensation Act.

However, the purport of the judgment of the court below is that the accident of this case occurred due to the failure of safety at the construction site of the retaining wall facility of this case managed by the defendant, and the lack of safety at such construction site becomes the cause of the accident of this case, and thus the defendant is responsible for the accident of this case, the court below should have deliberated further on the contents of the contract for retaining wall installation work between the defendant and the non-party company, as well as the circumstances leading the defendant after concluding the contract, etc., and further determined whether the degree of supervision of the construction work of the non-party company, the contractor, is merely a so-called supervision that supervises the fairness of construction, or whether the construction work of the non-party company, the contractor, is conducted in accordance with the design drawing or specifications, or whether the operation and execution of the specific construction work at the site can be considered to have reached the degree of management of the construction itself by directly directing, supervising, and monitoring the construction work.

Nevertheless, the court below concluded the accident of this case as an accident due to the defect in the construction of public structures under Article 5 (1) of the State Compensation Act. In so doing, the court below erred by misapprehending the legal principles as to public structures, thereby affecting the conclusion of the judgment. The part pointing this out in the grounds of appeal is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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.

Justices Jeong Jong-ho (Presiding Justice)