[1] The meaning of "defect in the construction or management of public structures" under Article 5 (1) of the State Compensation Act and the criteria for its determination

[2] Whether damage caused by other natural facts, or in competition with the act of a third party or a victim may be deemed as caused by the defect in the construction or management of a public structure (affirmative)

[3] Whether a state liability can be recognized due to a public official's omission even if a statute explicitly provides for a public official's duty to act (affirmative with qualification)

[4] The case holding that the local government is liable for damages due to the defect in the installation and management of underground lanes and surrounding sewerage facilities and the omission by public officials belonging thereto, but the responsibility is limited to 50% by recognizing the concurrence of natural power, etc.

[1] Defect in the construction and management of a public structure under Article 5 (1) of the State Compensation Act refers to a state in which the public structure is in a state of lack of safety ordinarily required for its use. In determining whether such safety has been secured, it shall be based on whether the installer and custodian of the public structure has fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the danger of the public structure.

[2] An accident resulting from a defect in the construction and management of a public structure does not mean only the defect in the construction or management of the public structure causes the occurrence of the damage, but it is reasonable to interpret that the damage was caused by a defect in the construction or management of the public structure, so long as the defect in the construction or management of the public structure causes the damage, even if the other natural event or a third party's act or the act of the injured party concurrently causes the damage.

[3] In order to recognize the state liability due to the omission by a public official, the requirements of Article 2(1) of the State Compensation Act, which provides that "if a public official causes damage to another person by intention or negligence because he/she was in performing his/her duties, in violation of the Act and subordinate statutes," should be met. Here, "in violation of the Act and subordinate statutes," does not mean only a violation of the Act and subordinate statutes expressly provided for a public official's duty of act. It does not mean a case where a country whose primary mission is to protect the lives, bodies, property, etc. of the people is to protect the lives, bodies, and property of the people because there is an imminent and serious danger or risk that it is likely that such danger or injury would occur, unless it is provided for the exclusion of danger, the State whose primary mission is to protect the lives, bodies, property, etc. of the people can be recognized unless there is a basis for the formal meaning of the Act and subordinate statutes. This also applies to the

[4] Where a local government failed to fulfill its duty to take protective measures to the extent generally required by social norms in proportion to the risk of flooding, and a public official belonging to the local government failed to fully implement necessary measures for disaster situations, such as the prevention of flooding, the case holding that the local government recognizes the local government's liability for damages incurred to property due to defects in the installation and management of underground lanes and the surrounding sewerage facilities and the omission of public officials, but it limits liability to 50% by recognizing competition such as natural history

[1] Article 5 (1) of the State Compensation Act / [2] Article 5 (1) of the State Compensation Act / [3] Article 2 (1) of the State Compensation Act / [4] Articles 2 (1) and 5 (1) of the State Compensation Act, Articles 396 and 763 of the Civil Act

[1] Supreme Court Decision 99Da54004 delivered on February 25, 200 (Gong2000Sang, 830) Supreme Court Decision 200Da56822 delivered on July 27, 2001 (Gong2001Ha, 1937) Supreme Court Decision 2002Da13164 Delivered on June 14, 2002 / [2] Supreme Court Decision 94Da32924 delivered on November 22, 1994 (Gong195Sang, 78) / [3] Supreme Court Decision 98Da18520 delivered on October 13, 198 (Gong198Ha, 265) and Supreme Court Decision 2000Da526205 delivered on April 24, 2001 (Gong1998Da520645 delivered on April 24, 2002)

Leewon-ordinary Co., Ltd. and 28 others (Law Firm Han & Han, Attorney Kang Dong-dong, Counsel for the plaintiff-appellant)

Yongsan-gu Seoul Metropolitan Government (Law Firm Sol, Attorneys Im-soo et al., Counsel for the plaintiff-appellant)

July 22, 2005

1. The defendant shall pay to the plaintiffs 5% interest per annum from July 15, 2001 to August 26, 2005, and 20% interest per annum from the next day to the day of full payment. The defendant shall pay to the plaintiffs 697,871,020 won per annum.

2. All of the plaintiffs' claim and conjunctive claim and consolation money claim as to the plaintiffs' property damage are dismissed.

3. 3/4 of the costs of lawsuit shall be borne by the Plaintiffs, and 1/4 by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs 5% interest per annum from July 15, 2001 to the service date of a copy of the complaint of this case from July 15, 2001 to the service date of a copy of the complaint of this case, and 25% interest per annum from the next day to the day of complete payment.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged by taking account of the following facts: Gap evidence 1-2, Gap evidence 30-2, Gap evidence 32-1, 2, 14 through 59, Gap evidence 33, Gap evidence 38-1, Gap evidence 46, 81, Eul evidence 4-1, Eul evidence 4-1, Eul evidence 8-2, Eul evidence 8, and the whole purport of the pleadings as a whole.

A. At 16, Han River-ro 2, Yongsan-gu, Seoul, has a credit rating (hereinafter referred to as the "the underground rating map of this case") completed around September 198, and the above underground rating is installed in the form of a u-ro with a length of 187 meters (372 meters if a retaining wall is included), width of 24 meters, depth of 4.6 meters or more (37 meters or more if a retaining wall is included) that is installed in the right angle of a railroad in order to allow a railroad to pass along the underground route as a result of the passage of a railroad on the ground, and there is a rainwater pumps installed in order to drain off rainwater that flows into the underground route into the outer wall of the underground rating.

B. On July 15, 2001, from around 00:00 to 04:00, there was an accident where the plaintiffs' buildings or leased stores located in Yongsan-gu Seoul, Yongsan-gu, Seoul (hereinafter referred to as "the flood accident of this case") and the rainwater near the underground lane flows into the underground lane and flows into the underground lane, from around 03:00 to around 04:00, as it is, the rainwater flow out between the end of 03:0 and the end of 04:0, the apartment-gu, Seoul, Yongsan-gu, Seoul, where the underground lane flows over the rainwater, 2nd-1, 2-194, and 2-196 were flooded (hereinafter referred to as "the flood accident of this case").

C. At the time of the flood accident of this case, 2 Han River-ro, located near the south entrance of the instant underground tea, was cut down without connecting to the sewage pipes leading to the 2nd reservoir located north of the instant underground tea, and part of the rainwater receiving (exemplary) in the vicinity of the instant underground tea was also prevented from lowering rainwater as sewage pipes.

2. Summary of the parties' arguments;

A. The plaintiffs' assertion

The flood accident of this case occurred due to defects in the construction and management of the defendant's public structure and negligence in the performance of the duties of the public officials belonging to the defendant. Thus, pursuant to Articles 5 (1) and 2 (1) of the State Compensation Act, the defendant is responsible for compensating the plaintiffs for damages suffered by the plaintiffs due to the above accident (the 10 million won out of the claimed amount shall be consolation money, the remainder shall be claimed as property damage, and the compensation for consolation money shall also be claimed as preliminary compensation in preparation for cases where property damage is not recognized)

(1) Although the instant underground lane has a rainwater pumps installed, despite the emergency situation at the time of the instant flood accident, the public officials in charge began to operate 3 costs rapidly after leaving 3 pumps in operation in order without completely operating 3 pumps, and the distribution of electricity to the pumps was installed inside the inside, not outside, and thus, the rainwater has not been entirely operated after leaving the rainwater inside the machinery room where the rainwater pumps are installed.

In addition, in the instant underground lane, there are oil pipes and rainwaters for collecting water and draining water along the roadways and the boundary line of India. However, the Defendant lost its function as the management negligence of the Defendant, and the rainwater flown at the time of the flood accident at all was not drained.

(2) At the time of the flood accident of this case, 2 Han River, near the instant underground lane, was cut by 600mm sewage pipes around the diameters installed on the 316-1 road underground, and rainwater receiving water, etc. were unable to perform the function of the sewerage facilities near the underground lane (hereinafter “the instant sewerage facilities”), such as earth and sand, etc. Accordingly, rainwater receiving rainwater and drained into the instant underground lane that flows out according to the surface of the earth.

(3) A public official belonging to the defendant did not completely implement the warning or evacuation broadcasting that the instant underground tea level might cause flood damage to the residents of the first place, and even if the concentration was anticipated, he did not take necessary measures for the disaster situation, such as emergency call-up of employees at around 04:00 when flood has already been completed.

B. Defendant’s assertion

There is no defect in the installation and management of the instant underground tea and sewerage facilities (this case’s underground tea also was installed in accordance with the guidelines for handling sewage in the field of sewage planning in Seoul Special Metropolitan City, and only one of the rainwater collected therefrom). The flood accident of this case is an unavoidable natural disaster caused by the inflow of the instant underground tea, which was caused by the rain of 108mm per hour, into the Han River and Han River-ro 2, etc., which was caused by the rain of 108mm per hour, the Defendant is not liable to compensate the Plaintiffs for the damages caused by the force majeure, and even if the household responsibility is recognized, the responsibility of the Defendant is limited because the natural history and the negligence of the Plaintiffs contributed to the occurrence of damage.

3. Occurrence of liability for damages;

(a) The basis for the determination;

(1) The facts that all of the underground roads and sewerage facilities of this case are located within the jurisdiction of the defendant, and since the public announcement was made for recognition of routes with respect to roads including the underground roads of this case, the defendant's head of the Gu has been managing them until now since the public announcement was made for recognition of routes. The sewerage facilities of this case also are public sewerage facilities under Article 2 of the Sewerage Act, which are managed by the defendant and managed by the head of the Gu of the defendant, can be recognized by the whole purport of pleadings as a whole. According to the above facts acknowledged, according to Article 22 (1) of the Road Act, each of the above underground roads of this case is installed, improved, repaired, and maintained under Article 7 (1) of the Sewerage Act. Since each of the above facilities constitutes a physical facility provided for public purposes, each of the above facilities is a public structure as provided for in Article 5 of the State Compensation Act.

On the other hand, the defect in the construction and management of a public structure under Article 5 (1) of the State Compensation Act refers to a state in which the public structure is in a state of failing to meet safety requirements ordinarily required for its use. In determining whether such safety requirements are met, it shall be based on whether the installer and custodian of the public structure has fulfilled the duty to take protective measures to the extent generally required in proportion to the danger of the public structure (see Supreme Court Decision 2002Da13164, Jun. 14, 2002).

In addition, an accident due to a defect in the construction and management of a public structure does not mean only a defect in the construction or management of a public structure causes damage, but it is reasonable to interpret that the damage was caused by a defect in the construction or management of a public structure as long as the defect in the construction or management of a public structure causes damage, even if another natural event or a third party's act or a victim's act concurrently causes damage (see Supreme Court Decision 94Da32924 delivered on Nov. 22, 1994).

(2) In addition, in order to recognize state liability due to a public official's omission, the requirements of Article 2 (1) that "if a public official causes damage to another person by intention or negligence in violation of the laws and regulations" should be met, and "in violation of the Acts and subordinate statutes" do not mean any violation of the laws and regulations expressly provided for the duty of a public official to act in a strictly formal sense, and it does not mean a case where the country whose primary mission is to protect the lives, bodies, property, etc. of the people is to protect the lives, bodies, property, etc. of the people because there is an imminent and serious danger or injury to the lives, bodies, property, etc. of the people because the country whose primary mission is to protect the lives, bodies, property, etc. of the people can not be protected unless it is stated in the exclusion of the danger, unless there is a ground for the formal meaning to protect the lives, bodies, property, etc. of the people, it can be recognized that the State or related public officials cannot be excluded from such danger, and the same applies to local governments and public officials belonging thereto (see Supreme Court Decision 2003Da69652, Jun.

(3) On the basis of such determination, we examine whether there is a defect in the installation and management of the instant underground tea, etc., and whether the public officials belonging to the Defendant violated the duty due to negligence in performing their duties.

B. Facts of recognition

The following facts are not disputed between the parties, or there is no dispute between Gap evidence 33, Gap evidence 38-1, Eul evidence 39-1 through 7, Gap evidence 40, 45, Gap evidence 49-1 through 19, Gap evidence 50-1, 2, Eul evidence 2, Eul evidence 2, Eul evidence 4-1 and 4-2, the testimony of the witness truth date, the fact inquiry about the Administrator of the Korea Meteorological Administration, the result of the on-site verification conducted by this court as of March 11, 202, and the results of the appraisal conducted by the appraiser Kim Jong-soo as of January 12, 2004, and the whole purport of the oral argument is not believed, and it is insufficient to reverse the recognition.

(1) There is a delivery of 3.5 meters wide from each side of the four-line vehicular roads and the two sides of the instant underground vehicular roads. At the time of construction in around 1988, plastic material oil directors of 450mm in diameter are laid underground according to the boundary of roadways and India, and 14 rainwaters were installed in both sides of the station.

(2) After the flood accident, the oil pipeline lost its function as a water pipe, and the defendant made 30cm wide and 15cm wide and covered the water tank on the oil pipeline in around 192. At the time of the flood accident in this case, the above water pipe was cut off due to soil, waste, etc. and did not function as a water pipe (after the flood accident in this case, the defendant installed 7 manle of the water house where rainwater can be collected from rainwater on both sides of the roadway and installed on both side of the road).

(3) Under the instant underground parking scheme, rainwater pumps are installed inside the middle part of the wall surface of this case (the initial cost was borne by the Seoul Special Metropolitan City, and the management entity changed the Defendant from the Korea Railroad to the Seoul Special Metropolitan City), the office of integration and management, the office of machinery and management, and the office of machinery inside the 40-mast pumps (the 1st cost of the pump was 7t per minute of water. The initial design was planned to be 50-mast pumpss, based on the 50-year storm frequency frequency, but the design was changed as above at the time of the initial design, based on the 20-year high frequency frequency of the floor of this case). The 20-year high frequency of rainwater pumps, which supplied electricity to the pumps, was installed more than that of the first 20-year morth morth mor 2, the 2007th mor mor 75m mor mor mor mor 2 from the 2nd mor mor.

(4) At or near the entrance of the instant underground lane, rainwater, which did not flow into the surrounding sewage pipes, flows into the underground lane depending on the earth’s surface. There is no facility to prevent rainwater from flowing into the underground lane, and if water is drained up to 7/10 of the height from the floor of the underground lane up to 7/10, the entire roadway of the vehicular road starts to run down at the bottom of the surrounding building.

(5) On July 15, 2001, on the day of the flood accident of this case, the Yongsan-gu Japan, from 00:00 to 04:00, approximately 256mm, and among them, 108mms between 02:10 to 03:10 (this refers to the high frequency of 80 years in Seoul area).

(6) At the time of the flood accident of this case, public officials belonging to the defendant were serving in the rainwater pumps (two persons, each of whom was worked during the period of the flood control work). At around 03:00, when the water flows into the rainwater pumps room at the underground level, they moved from the rainwater pumps room to the north side of the underground Do where the rainwater pumps room was located where the water was cut down and the water was turned out, and the water was likely to flow out to the pump room, and the water was prevented from spreading electricity to the above facilities. Accordingly, the rainwater pumps were not operated from that time, and the flood level of this case was completely cut down.

(7) At the time of the flood accident in this case, if the rainwater pumps continued to operate, approximately 1.04m (4.92m - 3.8m), the flood depth was reduced to approximately 8,324m (30,278m - 21,954m - 21,954m). If the pump was installed as the first design, the flood depth was about 0.34m (4.92m - 4.58m), the flood depth was about 2,830m (30,278m - 27,48m - 27,48m - 30m - the flood depth was about 0.61m (4.92m - 92m - 4.31m) and the flood depth was about 5,040m (30,278m - 278m - 298m - 37m - 298m m29, respectively).

(8) Han River 2, 316-1 underground, 600mm sewage pipes of 316-1 underground, were installed in order to send the rainwater, collected from the rainwater sources near the river basin, located south of the instant underground tea, to the sewage pipes connected to the 2nd reservoir located north of the underground tea. As seen earlier, as seen earlier, from the rainwater sources near the river basin at the time of the instant flood accident, the rainwater, collected from the rainwater sources near the river basin at the time of the instant flood accident, turned down again to the ground through the rainwater sources near the southwest of the underground tea.

(9) On the roads connected to the Han River toward the south of the instant underground streets, 13 rainwaters are installed by both sides. The said rainwaters or sewage pipes connected to the said rainwaters have not been dredged for a considerable period prior to the flood accident of the instant case, and the said sewerage facilities did not carry out water collection functions according to the designed capacity at the time of the flood accident, and as a result, the said rainwater flows into the underground lane as it was impossible for the rainwater to flow into the underground lane as at the time of the flood accident (the Han River was set up around March 202, where the rainwater flows into the sewage pipe).

(10) Based on the Countermeasures against Natural Disasters Act, Defendant Gu office is organized with the head of the Gu, the head of the Construction and Transportation Headquarters as the officer in charge of sewage control, and the head of the sewage department, when issuing the first step emergency order of the disaster, and the head of the construction and transportation bureau, when issuing the second step emergency order of the disaster (the head of the Gu, the deputy head of the Gu, and the head of the construction and transportation bureau notified of the disaster after 03:00 on the day of the flood accident, and ordered or performed the duties of receiving, investigating, and reporting the damage after 04:0 on the day of the flood accident (the head of the Gu, the head of the Gu, the head of the Gu, and the head of the construction and transportation bureau). The head of the Gu office received the first step emergency order of the Seoul Metropolitan Government on July 14, 200, which was issued by the head of the Seoul Metropolitan Government on the day of the flood accident, and the head of the Gu office and its employees did not take measures against the flood disaster management headquarters and its employees.

(11) On August 4, 2002, from around 06:00 to around 11:00, the flood accident of this case, the rain of 168mm in Yongsan-gu Seoul, Yongsan-gu, Seoul. On the 8rd line road near the instant underground lane, the traffic of the vehicle is controlled by knee-high-level rainwater, but there was no rainwater in the instant underground lane.

(c) Markets:

(1) Whether there is a defect in the construction and management of public structures

According to the above facts, the above underground map of this case has a duty to take protective measures in proportion to its danger when buildings near the high-water reservoir are likely to be flooded. The defendant, who is the installation and preservation of the above underground lane and the surrounding sewerage facilities, is not obligated to take such protective measures just because the above underground lane and the relevant sewerage facilities have been installed in accordance with general standards such as sewage planning work guidelines in Seoul Special Metropolitan City. The above facts can be seen as follows. ① The above underground map of this case does not have a duty to manage water collection and drainage facilities such as oil and tap water, etc. in the underground lane, even though rainwater flows out if the structure of the above underground map does not have a smooth flow of water if it is not installed, the above underground lane of this case does not have a duty to manage water collection and drainage facilities such as water supply. ② The above underground lane of this case is installed more than the first time to permit rainwater flow into the underground lane, and the defendant has no choice but to install the underground drainage facilities to the extent that rainwater flows out from the underground surface of this case.

(2) Whether the statutes were violated for the performance of duties

In order to protect the lives, bodies, and property of residents from disasters, a local government shall formulate and implement a plan for the prevention of disasters, emergency countermeasures against disasters, disaster restoration, etc. in the relevant area (Article 3(3)); and a person responsible for the prevention of disasters (in the case of the defendant), as prescribed by relevant Acts and subordinate statutes or a plan for the prevention of disasters (Article 36 and subparagraph 2 of Article 2); and a person responsible for the prevention of disasters (in the case of the defendant), shall take emergency measures, such as matters necessary to prevent or mitigate the occurrence of disasters, including the issuance or delivery of a warning in order to prevent the occurrence of disasters or to mitigate the occurrence of disasters (Article 36 and subparagraph 2 of Article 2); and a person responsible for the prevention of disasters shall, without delay, take emergency measures necessary to prevent or mitigate flood or other disasters (Article 39); the Enforcement Decree of the same Act shall take charge of general management and execution of emergency countermeasures; matters ordered by the Central Disaster Countermeasures Headquarters; and matters necessary for the prevention of disasters and emergency countermeasures within his/her jurisdiction (Article 13).

According to the above facts and the above facts, the head of the Gu, who is the defendant's disaster prevention manager, has the legal obligation to take measures such as flood prevention in the event that the roadway or sewerage is flooded and damage to property in neighboring buildings is anticipated, and other public officials belonging to the defendant also have the obligation to implement measures such as flood prevention, etc. as well as to promptly notify the defendant's disaster prevention countermeasure headquarters or its members of the duty to promptly take measures ordered by the Seoul Special Metropolitan City Disaster Countermeasures Headquarters or inform the disaster prevention manager and its employees of the duty to notify the disaster prevention manager

(3) Sub-decisions

Ultimately, the above defendant's construction and management defects and the violation of the law by negligence of the public officials belonging to the defendant caused damages to the plaintiffs due to the flood accident of this case. Accordingly, pursuant to Articles 5 (1) and 2 (1) of the State Compensation Act, the defendant is liable to compensate the plaintiffs for damages caused by the flood accident of this case.

D. Determination of the Defendant’s Force Majeure Claim and limitation of liability

The defendant asserts that the flood accident of this case was caused by force majeure due to the concentration of 108mm per hour, which occurred due to the inflow of Han River and rainwater, which was caused by the Han River and its nearby notification unit, and thus, the defendant does not bear liability for damages caused by the flood accident. Thus, the defendant's assertion that the defendant does not bear liability for damages. As seen above, the fact that the flood accident of this case was caused by the rain of 256mm between 0:00 and 04:00 per hour at the time of the flood accident of this case. However, it is not sufficient to recognize that the flood accident of this case was caused by force majeure in the construction and management of the defendant's public structure or even if there was no violation of the laws and regulations by the public officials belonging to the defendant, the above assertion by the defendant is rejected.

However, according to the facts acknowledged above, the damages suffered by the plaintiffs due to the flood accident of this case shall be deemed to coincide with the natural history and the defendant's fault, so the scope of the defendant's compensation shall be limited to the remaining part which deducts the part which is deemed to have contributed to the natural ability in relation to the damages from the perspective of fair burden of damages. In full view of all the circumstances shown in the argument of this case, such as the strong amount and the background of the accident at the time of the flood accident of this case, the defect in the construction and management of the defendant's public structure, and the violation of laws and regulations of the

4. Scope of damages.

A. Comprehensively taking account of the following facts: (a) evidence Nos. 51 through 80, and evidence Nos. 83 through 105-5, and the purport of the entire pleadings (the Central Fire-Special Adjustment Co., Ltd., Apr. 4, 2005), the damages incurred by the plaintiffs due to the flood accident of this case can be acknowledged as having the same facts as the amount indicated in the Plaintiff’s Schedule column for damages (the above recognition is insufficient to be followed only with the evidence No. 106, evidence No. 107-1 through 5 of the evidence No. 107). The defendant is obligated to pay damages to the plaintiffs at the annual rate from the date following the day of July 15, 2001 to Aug. 26, 2005, which is the date of the flood accident of this case; and (b) the damages for delay under the Civil Act to be paid to the plaintiffs by the day of full payment of each of the above amounts.

B. Although the plaintiffs also seek compensation for consolation money due to the flood accident of this case (the part that was not recognized as the property claim in preliminary + the part that was not recognized as the property claim). In general, in the case of infringement of a property right due to a tort of another person, it shall be deemed that mental suffering is recovered by compensation for the property damage, barring any special circumstances. It shall be recognized that the compensation for property damage has a irrecoverable mental damage. The compensation for the property damage can be recognized as the fact that there is an irrecoverable mental damage. The plaintiffs' assertion on this part is without merit

5. Conclusion

Therefore, the primary claim on the plaintiffs' property damage is accepted within the scope of the above recognition, and all of the remaining primary and conjunctive claims on property damage, and consolation money claims are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench. The plaintiff's list is omitted.

Judges Gangnam-gu (Presiding Judge) Kim Jong-ri