[1] The meaning of "defect in the construction and management of public structures" under Article 5 (1) of the State Compensation Act, and the standard for determining defects in the construction and management of public structures

[2] The case holding that there is no defect in the construction or management of a road at a point where an accident occurred

[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 not equipped with safety ordinarily required according to its use. Thus, it cannot be readily concluded that there is a defect in the construction or management of a public structure on the ground that the construction and management of the public structure does not have a high level of safety to the extent that it always maintains a perfect state. The duty to take protective measures imposed on the installer or manager of the public structure refers to the extent generally required by social norms in proportion to the danger of the public structure. Thus, it is sufficient in the case of a road which is a public structure to have a relative safety expected by users of the public structure, taking into account the relationship with the other public structure or the financial, human and physical restrictions of the person who installs and manages it, taking into account the construction and management of the public structure.

[2] The case holding that the road manager cannot be deemed to have a defect in the construction or management of the road at the location of the accident, on the ground that the driver of the vehicle does not turn off along the vehicle at night when the road is installed in accordance with the standards that make it possible to distinguish the form of the road from the road at night, and that the driver of the vehicle does not turn off along the vehicle at night when the vehicle comes to the road at the location where the accident occurred, and it is difficult for the manager of the road to normally predict that the soundproof wall installed on the side of the road is caused by the accident, because it is difficult to predict that it is difficult for the driver of the road to normally to have caused the accident, it is difficult to install more facilities capable of distinguishing the form of the road at night in preparation for such accident, and that the manager of the road did not install shock preventive facilities on the soundproof wall.

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

[1] Supreme Court Decision 99Da54998 delivered on April 25, 2000 (Gong2000Sang, 1264)

Plaintiff 1 and one other

Korea Highway Corporation (Attorney Wang-gu et al., Counsel for the defendant-appellant)

Busan High Court Decision 2001Na7315 delivered on December 18, 2001

The judgment below is reversed, and the case is remanded to Busan High Court.

1. The judgment of the court below

원심은 그의 채용 증거를 종합하여, 소외인이 1996. 12. 16. 04:15.경 (차량번호 1 생략) 아벨라 승용차를 운전하여 안동시 일직면 평팔리 앞 중앙고속도로 상행선을 대구쪽에서 안동 쪽으로 진행하던 중 왼쪽으로 굽어지는 길에서 그대로 직진하는 바람에 그 차가 차선을 벗어나 도로 우측변에 설치되어 있던 방음벽을 들이받고 그 충격으로 튕겨 나가 반대차선에 90°각도로 전복되어 있다가 마침 반대 차선을 진행하여 오던 (차량번호 2 생략) 엘란트라 승용차에 들이 받히는 바람에 그 충격으로 두개골 및 늑골골절 등에 의한 심폐부전으로 사망한 사실, 사고가 난 중앙고속도로는 원래 왕복 4차선으로 계획되어 있었으나 사고 당시 사고 지점의 도로는 대구­안동간의 2차선만 개통되어 있었고, 개통되지 아니한 2차선은 개통된 구간과 칸막이로 분리하여 둔 채 공사가 진행 중이었던 사실, 사고 지점의 도로는 소외인의 진행방향을 기준으로 왼쪽으로 상당히 굽어져 있고, 도로 끝 부분에 방음벽이 설치되어 있었는데, 그 방음벽은 하단부에 도로쪽으로 폭 1m, 높이 30-40㎝의 돌출부위가 있었고, 진행차선의 도로면이 아스팔트에서 시멘트 포장으로 변경되었으나, 갓길부분은 계속 아스팔트로 포장되어 있었으며, 가로등은 설치되어 있지 아니하였다는 요지의 사실을 인정하였다.

원심은 나아가, 고속도로의 관리자인 피고로서는 야간에 어두운 상황에서 고속도로를 이용하는 운전자가 위와 같은 도로의 상황을 잘 알아볼 수 있도록 도로변에 화살표 모양의 유도표지판이나 데리네이터를 조밀하게 설치하여 운전자의 착각으로 방음벽에 충돌하는 사고가 일어나지 않도록 하여야 하고, 또 만일 충돌사고가 발생하는 경우에 대비하여 방음벽의 돌출 부위에 충격흡수시설을 설치하여 충돌사고로 인한 피해가 확대되는 것을 방지하여야 할 것임에도 불구하고 이와 같은 시설들을 완비하지 아니하였으므로 사고 지점의 도로에는 설치 또는 관리의 하자가 있고, 그러한 하자로 인하여 소외인이 사고 지점의 도로에 이르러 갓길을 주행선으로 착각하여 위의 차량을 운행하다가 방음벽을 들이받은 후 중앙선을 넘어 반대차선까지 튕겨 나가 반대차선에서 진행하여 오던 차량에 들이 받쳐 사망하게 되었으므로 피고는 소외인의 사망에 대하여 손해배상책임이 있다고 판단하였다.

2. The judgment of this Court

"Defects in the construction and management of public structures" as stipulated in Article 5 (1) of the State Compensation Act refers to a state in which the public structures, which have been constructed and managed for public purposes, are in a state in which they are not equipped with safety ordinarily required according to their purposes. In the construction and management of public structures, it cannot be readily concluded that there is a defect in the construction or management of public structures on the ground that they are not equipped with high level of safety to the extent that they always maintain a state of integrity. The duty to take protective measures imposed on the installer or manager of public structures means the extent generally required by social norms in proportion to the danger of the public structures. Thus, in the case of roads which are public structures, it is sufficient to say that the public structures have a relative safety that expects the method of use in the ordinary and orderly manner of the persons who install and manage them, taking into account the relationship with other public facilities or the financial, human and physical constraints of the main body (see Supreme Court Decision 9Da5498, Apr. 25, 2000).

In accordance with the evidence of the records, the road at the location of the accident is at least 3.6m in the direction of the non-party, but the road is at least 90m in the direction of the road structure and facility standards. At the time of the accident, the road at the location of the accident, at the time of the accident, there was a bruor sign indicating the form of the road at night, wherein the bruor and the bruor are able to distinguish the form of the road at night. The road at the location of the accident was installed at the time of the accident. The road at the location of the accident was installed at intervals of 32.7m in the bruter, the bruor sign was installed at intervals of 49.1m in the direction of the road at the location of the accident. The vehicle at the location of the accident by the non-party is at least 3m wide, and the road at the location of the accident was at least 8m in the case where the accident occurred at the time of the accident.

In addition to the situation where the road is installed in accordance with the defendant's installation standards, even if the point where the accident occurred is somewhat left, if the driver of the vehicle drives by paying little attention to it at night, by recognizing that the road at the point where the accident occurred is a bend road at night, it would be possible for the driver of the vehicle to safely proceed without leaving the vehicle, and without leaving the vehicle. Thus, under the above road situation, it would be difficult for the driver of the vehicle to return to the point where the accident occurred without going through the vehicle along the vehicle line and without going through the vehicle, and it would be difficult for the road manager of the road to normally predict the road by getting approximately 3 meters away from the vehicle.

Therefore, it is deemed that there is no defect in installation or management on the road at the point where the accident occurred on the ground that the defendant failed to install shock prevention facilities on the soundproof walls without installing a lot of gynasor or retic sign in preparation for such accident.

Nevertheless, the judgment of the court below that there was a defect in the construction or management of the road at the site of an accident is erroneous in the misapprehension of legal principles as to the defect in the construction or management of the road, and it is clear that this affected the conclusion of the judgment. Therefore, the ground of appeal pointing this out is justified.

3. Conclusion

Therefore, 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 Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)