2014dan531038 Reimbursements

Plaintiff A

Law Firm Taeyang, Attorney Shin-yang

[Defendant-Appellee]

Korea

The Minister of Justice of the Republic of Korea

Litigation Performers Kim Young-young

March 20, 2015

May 8, 2015

1. The defendant shall pay to the plaintiff 22, 376, 120 won with 5% interest per annum from March 15, 2014 to May 8, 2015, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

4. Paragraph 1 can be provisionally executed.

The defendant 11, 880, 600 won to the plaintiff and a copy of the complaint of this case from March 15, 2014 to the plaintiff

Until service date, 5% per annum and 20% per annum from the following day to the date of full payment.

H. D. Payment

1. Basic facts

○ The Plaintiff is an insurer who has entered into an automobile comprehensive insurance contract with respect to the 14 money** Hoschton vehicle (hereinafter referred to as “Plaintiff vehicle”), and the Defendant is the construction and manager of the national highways No. 37.

○ On April 24, 2013: (a) around 40, 2013, when driving the Plaintiff’s vehicle, and driving the National Highway No. 37 National Highway No. 355 (T. 2 lanes) on the surface of the road (hereinafter referred to as “the instant protective fence”) in the direction to the right side of the road, he fell beyond the slope (hereinafter referred to as “the instant accident”; hereinafter referred to as “the instant accident”); (b) the driver B and the passenger died; and (c) the passenger was injured by the passenger D (No. 2).

○ The Plaintiff paid insurance proceeds of KRW 223, 761, and 200 in total with the insurance proceeds of the instant accident until March 14, 2014 ( = KRW 100,00,000 to the heir of the network B + KRW 85,693,430 to the heir of the network C + KRW 37,187,70 to D + KRW 37,187,70 to the heir of the network + KRW 880,000 to the repair cost of the D (Evidence 3).

2. The parties' assertion

A. The plaintiff's assertion

Since the damage of the accident of this case was increased due to defects in the construction and management of the protection fence of this case, the defendant is obligated to pay to the plaintiff who is the insurer of the plaintiff vehicle that acquired the damage claim by subrogation of the insurer by paying the damage compensation to the victims as the installer and manager of the protection fence of this case.

B. Defendant’s assertion

The accident of this case occurred due to the violation of the duty of safe driving by the driver of the plaintiff vehicle, and there is no defect in the protection fence of this case installed and managed by the defendant.

3. Determination

A. The defects in the construction or management of the public structure under Article 5(1) of the State Compensation Act refer to the defects in the construction or management of the public structure in a state of lacking safety ordinarily required for its use. Thus, it cannot be said that there is a defect in the construction or management of the public structure merely because the public structure is not in a state of completeness and its function. In determining whether the construction or management of the public structure is equipped with safety above, it is reasonable to determine whether the construction manager has fulfilled the duty to take protective measures to the extent generally required under social norms in proportion to the danger of the public structure in light of all the circumstances, including the purpose of the public structure in question, the current state of the place in which the public structure is installed, and the possibility and avoidance of the occurrence of damages due to the defects in the function of the public structure from an objective point of view, i.e., the defect in the construction or management of the public structure in a situation below the construction manager’s performance of management of the public structure is not acknowledged (see Supreme Court Decision 200Da4650, Apr. 29, 20005).

11.9. See Supreme Court Decision 2004Da23455 Decided 9.

2) According to the following circumstances, Gap evidence Nos. 2, 4, Eul evidence Nos. 8, 9, and 13 (including branch numbers) and video as a whole, it was found that the protection fence of this case was in a state of safety that would normally have been equipped according to its purpose, that is, the vehicle deviating from the normal driving route was not equipped with safety to prevent the escape from the road of this case, and such defect was caused by the occurrence or expansion of damages caused by the accident of this case. The defendant, who is the construction and manager of the road of this case, including the protection fence of this case, is liable to compensate for damages caused by the accident of this case pursuant to Article 5(1) of the State Compensation Act.

In the management guidelines for the installation and management of the road safety facilities (No. 4), the purpose of the main purpose of the protection fence is to prevent vehicles deviating from the road outside of the road, the passage of the road, or the sidewalk, etc.; at the same time, reduce the harm of passengers and the damage of vehicles to a minimum level, and return the vehicle to the normal direction. The types of the protection fence (such as the protection fence in this case and the protection fence), classes (from SB1 to SB5), height, etc. are set according to the risk, characteristics of the place of installation, etc., and the horizontal support is to be measured when banking is installed.

○ The road in which the instant accident occurred consists of two-lanes on the left side. On the right side of the Plaintiff’s vehicle operation direction, a simplified bus stops are entering the road of this case into the bus stops, leading to the bus stops and the outer slopes of the road of this case. While the entrance roads and the outer slopes are constructed by soil, there is about 13 cm high between the entrance roads and the flowers, and there is a protection fence of this case (No. 2).

○ The level of the instant protective fence to the upper end of the drails is on the basis of the surface of the above drails (including the fluoral height between the above drasium and the drasium), but it is not about 53 meters, excluding approximately 13 cm, the height of the above drasium, and is on the basis of the flower at which the instant protective fence is installed (No. 5-2, No. 11, No. 13).

○ The Plaintiff’s vehicle fells the instant protective fence via the Trhythm with a rhymthrhm, with a strong height exceeding the rhymthm. The instant protective fence was used in the process (No. 3,6,7,10, No. 8, No. 9-2, No. 9-3). It is reasonable to view that the rhym of the instant protective fence was installed on the fence created by soil, and failed to secure the support ability to sufficiently sturst the shock of the vehicle.

○ The driver’s broom driving of the Plaintiff’s broom in the instant road is the cause of the deprivation of the road, but it does not appear to have intentionally been driven in the direction of the protection fence of the instant case by regarding the form of the broom mark (e.g., the surface) (No. 9-3).

○ After the occurrence of the instant accident, the Defendant additionally installed two protective fences in front of the instant protective fence and the entrance road into the said fence.

B. The instant accident subject to the limitation of liability for damages occurred due to the mistake of running the Plaintiff’s broom, etc. on the course of the instant accident, and considering all the circumstances revealed in the argument of the instant case, including the circumstances where such error was caused by more major causes than the occurrence of the instant accident, the background of the instant accident, the form and situation of the instant road, the construction of the instant protective fence, and other circumstances, it is reasonable to limit the defect of the protective fence to 10% of the amount contributed to the expansion of the damage of the instant accident.

4. Conclusion

Therefore, the defendant is obligated to pay the plaintiff who subrogated the insurer with the payment of the insurance money of this case 22,376,120 won as indemnity amount ( = 223,761,200 won X defendant's liability ratio of 10%) and damages for delay calculated at each rate of 5% per annum under the Civil Act from March 15, 2014, which is the day following the last payment date of the insurance money of this case until May 8, 2015, which is the date of the decision of this case where it is deemed reasonable to dispute about the existence and scope of the defendant's obligation to pay damages for delay calculated at each rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Thus, the plaintiff's claim of this case is justified within the extent of the above recognition, and the remaining claim is dismissed as it is without merit.

Judges Lee Dong-young