[1] Even if the victim’s damage was caused under special natural conditions, where it is not possible to limit the scope of the tortfeasor’s compensation by recognizing the contributory portion of the natural power

[2] The case not recognizing the contributory portion of natural power in determining the scope of compensation for the damage caused by a landslide caused by a concentrated rain after the construction of forest roads

[1] In a tort compensation case, where the damage suffered by the victim was caused by competition between natural power and the tortfeasor's negligence, the scope of compensation for the tortfeasor shall be limited to the remaining part which deducts the portion deemed to have contributed to the natural power in relation to the occurrence of the damage from the perspective of fair burden of damage. However, on the other hand, even if the damage suffered under special natural conditions, unlike ordinary damages, even if the damage suffered was caused under special natural conditions, if the tortfeasor could have predicted such natural conditions or the degree of the risks arising therefrom, and if he could have prevented the occurrence of the natural conditions in advance by taking appropriate measures without any excessive effort or expense, the scope of compensation for the damage caused by the occurrence of the accident by neglecting the measures to prevent the accident should not be limited by recognizing the contributory portion of the natural power, thereby limiting the scope of compensation

[2] The case holding that the right to a contributory portion of a natural force is not recognized in determining the scope of compensation for damage caused by a landslide caused by a concentrated rain after the construction of a forest road

[1] Article 393 of the Civil Code / [2] Article 393 of the Civil Code

[1] [2] Supreme Court Decision 89Meu1275 delivered on July 23, 1991 (Gong1991Ha, 2211), Supreme Court Decision 92Da52122 delivered on February 23, 1993 (Gong1993Sang, 1078), Supreme Court Decision 94Da31334 delivered on February 28, 1995 (Gong195Sang, 1454)

Plaintiff (Attorney Park Jong-il et al., Counsel for the plaintiff-appellant)

National Forestry Cooperatives Federation and one other (former Change: National Forestry Cooperatives Federation)

Seoul High Court Decision 99Na15841 delivered on October 6, 1999

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by the Defendants are dismissed.

1. As to the defendants' grounds of appeal

According to the reasoning of the judgment below, since the construction of the above forest road by the court below acknowledged the facts based on the evidence established by the non-party 1 and the non-party 2's non-party 1's internal inspection of the construction of the above forest road, the construction of the above forest road by removing the natural land from natural disasters, such as flood, landslide, etc., and cutting the sloping surface of the forest with its lower land and artificially 9.81m in total length, and 4.9m in width after the construction of the above forest road, were likely to increase the risk of natural disaster after the above construction, the construction of the above forest road by the non-party 2's negligence on the ground that the above construction of the forest road by the non-party 1's internal construction of the forest road and the construction of the above forest road by removing the safety-related construction of the forest road by neglecting the construction of the above sloping surface and the construction of the forest road by removing the above sloping surface from the above construction of the forest road.

In addition, the Supreme Court precedents that the Defendants are satisfied are not appropriate to be invoked in the instant case, depending on the different issues. The Defendants’ grounds of appeal are rejected.

2. Plaintiff’s ground of appeal

(1) 원심판결 이유에 의하면 원심은, 1985년부터 1994년까지 10년 동안 강원 인제군 지역의 7월과 8월 강우량 합계는 평균 470.1㎜인데 1995년 7월과 8월의 강우량은 합계 1,111.5㎜이고, 7월의 위 10년간 월평균 강우량은 251.1㎜인데 1995년 7월의 월 강우량은 330.5㎜이며, 8월의 위 10년간 월평균 강우량은 219㎜인데 1995. 8.의 월 강우량은 781㎜이며, 특히 사고 전날인 1995. 8. 23.에는 84㎜의 비가 내렸고 사고 직전인 1995. 8. 24. 03:00-04:00에 10㎜의, 04:00-05:00에는 7㎜의, 05:00-06:00에 18㎜의 비가 내린 것을 비롯하여 사고 당일 00:00부터 06:00경까지 약 44㎜의 많은 비가 내렸으며, 그 비로 인하여 위 임도상에 유실되거나 유실 직전에 있는 부분은 16군데나 되는 사실, 사고일 무렵인 1995. 8. 8. 19:50경 강원 (주소 1 생략) 야산이 무너져 약 50t 가량의 낙석이 인제가스충전소 앞 31번 국도를 덮치는 산사태가 발생하였고, 사고 무렵 집중호우로 (주소 2, 3 생략)의 가아천 부근 전 3.5㏊, 답 27.7㏊의 농경지가 침수, 유실 또는 매몰되었고, 같은 달 24일 08:20경 같은 리 광치령에서 인제 방면으로 약 60m 지점 31번 국도상에 약 20t 가량의 토사가 도로로 무너져 내리고, 같은 달 25일 20:00경 강원 인제군 (주소 4 생략) 부근 44번 국도가 약 200t의 낙석 및 토사에 매몰되는 산사태가 발생한 사실 등을 인정한 다음, 원고로서도 사고 전날부터 많은 비가 내렸고, 사고 당일 밭에서 배수작업을 할 당시에도 집중호우로 위 계곡의 물이 불어나고 있었으며, 더구나 원고의 집이 위 임야 아래의 용소골계곡 바로 옆에 위치하고 있었으므로, 미리 가족들을 안전한 곳으로 대피시키는 등의 조치를 취하여야 함에도 불구하고 이를 게을리한 잘못이 있고, 이는 이 사건 사고로 인한 손해의 발생 및 그 확대의 한 원인이 되었다 할 것이며, 또한, 앞서 본 바와 같이 위 사고는 자연력인 집중호우로 인한 산사태와 피고들의 위와 같은 잘못에 의하여 발생하였으므로, 가해자인 피고들의 배상범위는 손해의 공평한 부담이라는 견지에서 손해발생에 대하여 자연력이 기여하였다고 인정되는 부분을 공제한 나머지 부분으로 제한하여야 할 것(대법원 1993. 2. 23. 선고 92다52122 판결 참조)이나, 피고들의 손해배상책임을 면제할 정도에는 이르지 아니하므로 피고들이 배상할 손해액의 산정에 있어 이를 참작하기로 하되, 원고의 과실과 자연력의 기여도를 모두 합한 비율은 위 사실관계에 비추어 60% 정도로 봄이 상당하므로 원고 및 그의 가족으로 공동생활관계에 있는 망인들에 대한 피고들의 책임은 이를 제외한 나머지 40% 부분으로 제한한다고 판단하였다.

(2) On the other hand, in a case involving compensation for damages caused by a tort, if the damage sustained by the victim was caused by competition between natural power and the tortfeasor's negligence, the scope of compensation for the tortfeasor shall be limited to the remaining portion obtained by deducting the part deemed to have contributed to natural power in relation to the occurrence of the damage from the perspective of fair burden of damages (see, e.g., Supreme Court Decisions 89Meu1275, Jul. 23, 191; 92Da52122, Feb. 23, 1993; 92Da52, Feb. 23, 1993). On the other hand, even if the damage suffered under special natural conditions, unlike ordinary damages, even if the damage suffered by the victim was caused under such natural conditions, if the perpetrator could have anticipated such natural conditions or the degree of risks therefrom in advance, and if it was possible for the tortfeasor to prevent the occurrence of damage under such natural conditions by taking appropriate measures without making excessive efforts or expenses, it shall not be limited to the scope of compensation for the tortfeasor's.

(3) According to the facts duly established by the court below, since the construction of the forest road of this case was conducted by cutting the natural forest of this case, which was 1000, and cutting the slope of the forest of this case with a long slope of 9.81km in total length and 4.9 meters in width, and the risk of natural disaster after the construction of the forest road of this case increases naturally. Thus, the defendants did not change the design of the forest road of this case and did not take minimum protective measures for 1 year, and did not take any measures for 5 years, but did not take measures for 5 years, and did not take measures for 9 years, and did not take measures for 9 years, it can be seen that the defendants did not take measures for 5 years, including 5 years old and 5 years old and 5 years old and 9 years old and did not take measures for 9 years old and 5 years old and 9 years old and, even if they did not take measures for 9 years old and 5 years old and 5 years old, the average amount of the river of this case cannot be seen.

Considering the circumstances, in the instant case, the scope of damages should not be limited by recognizing the contributory portion of natural forces in determining the scope of damages.

(4) In addition, even if the Defendants were to have failed to take proper measures such as evacuation of their families to a safe place as pointed out by the lower court, they should have taken active measures, such as evacuation of their neighboring residents, including the Plaintiff and their families, in accordance with the horse cather first fit after the completion of the construction. The records show that the Defendants did not take such measures. Thus, in determining the scope of the compensation for damages of this case, such errors by the Plaintiff should not be considered.

(5) Nevertheless, the court below's decision limit the defendant's liability to 40% of the total amount of the defendant's liability by taking account of the plaintiff's negligence and the degree of contribution to natural power as seen earlier, is erroneous in the misapprehension of legal principles as to the degree of contribution to natural power and in the misapprehension of legal principles as to the recognition of facts that form the basis of limitation of liability, which affected the conclusion of the judgment.

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendants’ appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)