(영문) 부산지방법원 2014.12.10.선고 2014가합2177 판결

1. The Defendant Korea Railroad Corporation shall pay to Plaintiff A and B 40,247,507 won, and to Plaintiff C 1,000,000 won, as well as 5% per annum from March 1, 201 to December 10, 2014, and 20% per annum from the next day to the date of full payment.

2. The plaintiffs' remaining claims against the defendant Korea Railroad Corporation and plaintiffs' claims against defendant D are all dismissed.

3. Of the costs of lawsuit, 1/2 of the portion arising between the plaintiffs and the defendant Korea Railroad Corporation shall be borne by the plaintiffs, the remainder by the defendant Korea Railroad Corporation, and between the plaintiffs and the defendant D, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The Defendants jointly and severally pay to the Plaintiff A and B 91,363,737 won, 1.2 million won to the Plaintiff C, and 5% per annum from March 1, 2011 to the service date of a copy of the instant complaint, and 20% per annum from the next day to the day of full payment.

Reasons

1. Basic facts

A. Plaintiff A, E’s parents, Plaintiff C is the type of E, and Defendant D is the worker of Defendant Korea Railroad Corporation and the engineer of KTX train.

B. On October 27, 2009, E, while attending the third grade of the Incheon National University, served two times from 18:00 to 21:28, while living together with F, G, etc. in the vicinity of the Busan National University.

C. Since the completion of a drinking-type, Samsung Bio-building located in the Busan High-dong, Busan High-dong (hereinafter referred to as "the point of the accident in this case") was crossing the same ice apartment, front railroad crossing (crime crossing) in the same Dong, and passing through the old new entrance area, and 5th Busan High-ro 2.1km located in the east-dong, Busan High-ro, Busan High-ro (hereinafter referred to as "the point of the accident in this case").

D. At around 23:47 on October 27, 2009, Defendant D operated KTX trains and passed through the Busan Station in the direction of the Busan Station, and discovered that E was from the point of the instant accident while driving at approximately 65km/h in the direction of the Busan Station, and stopped due to the rapid stop of the instant accident while setting an emergency whistle, but did not stop, and proceeded more than 100 meters (hereinafter “the instant train accident”).

E. E’s blood alcohol content at the time of death was 0.24% (based on recognition) of the instant accident, and at the time of death. [The grounds for recognition] did not dispute the following: (i) evidence Nos. 1-4, 1-2, 2-2, 4, 5-1 through 5 of the evidence No. 2; (ii) on-site verification; and (iii) the purport of the entire pleadings.

2. Judgment on the plaintiffs' claim against the defendant Korea Railroad Corporation

A. The plaintiffs' assertion

Defendant Korea Railroad Corporation has to install lighting facilities so that engine companies operating trains at night can identify things on the front side, and install fences, etc. so that civilians may not enter the tracks including the point of the instant accident without permission, but did not perform such duties and caused the instant accident.

B. Determination

1) The following facts are recognized in full view of the following: (a) the occurrence of liability for damages by evidence 2-5’s video, field inspection results, and the purport of the entire pleadings.

① A house is located immediately adjacent to the location of the instant accident and in which civilians reside, and any person can freely move to the said house from the public’s contribution to the passage of the accident at the time of the instant accident until the said house, and the entrance of the vehicle was possible.

② From the foregoing housing to the point of the instant accident, no safety facilities were installed to prevent the general public from entering the said housing site, and lighting facilities installed near the site of the instant accident were also taken place at the time of the instant accident.

③ After the accident of this case occurred, Defendant Korea Railroad Corporation cut off the way from the original entrance to the above house by using gates to prevent passage except the civilian living in the above house. According to the above facts, the person at the time of the accident of this case was in a state of free access to the above house. As such, Defendant Korea Railroad Corporation has a duty to prevent accidents by blocking passage of the above house except for those living in the house, or by installing safety fences to prevent access to the above house. Nevertheless, Defendant Korea Railroad Corporation is liable to compensate the plaintiffs for damages caused by the accident of this case because it has neglected the above duty not to bear large expenses.

2) Calculation of liability for damages

(a) lost income of E: 302,475,079 won;

○ Basic facts

Date of birth: The date on which H-born Accident occurred: the date on which the operation ends on February 9, 2047: The actual income of E on February 9, 2047 shall be as follows (the death of E).

As such, 33% of the cost of living shall be deducted).

A person shall be appointed.

B) Limitation of liability

It is reasonable to limit Defendant Korea Railroad Corporation's liability to 20% in consideration of the facts as seen earlier, the background of the instant accident, E's age, family relations, etc., and the fact that Defendant Korea Railroad Corporation was in a state of 0.24% of blood alcohol concentration at the time of death; Defendant Korea Railroad Corporation did not use lighting facilities installed at the location of the instant accident at night.

C) The Defendant Korea Railroad Corporation is responsible for paying consolation money for emotional distress suffered by the Plaintiffs due to the instant accident. Considering the aforementioned circumstances, it shall be recognized as KRW 10 million, KRW 5 million, KRW 5 million, and KRW 1 million.

D)Calculation

After the death of E, KRW 60,495,015 (= KRW 302,475,079) and KRW 70,495,015 (= KRW 20% of the limitation on X liability; KRW 10,000; KRW hereinafter the same shall apply) and KRW 10,000,000 were succeeded to the Plaintiff A and B, respectively. Therefore, the Defendant and the Korea Railroad Corporation provided for in the Civil Act that 40,247,507 won for each of the 40,247,507 won to Plaintiff A and B ( KRW 5,000,000 + KRW 35,247,507, KRW 705,015, KRW 1/2) and 100,000 from March 1, 201 to the date of the performance of the obligation or the scope of the obligation to perform each of the 201,214.

C. Determination on the motion of extinctive prescription of the defendant Korea Railroad Corporation

Since the instant accident occurred on October 27, 2009, and the competent police officer concluded the case of death of E due to the train accident on May 27, 2010, the Plaintiffs’ right to claim damages has expired three-year short-term extinctive prescription prior to the filing of the instant lawsuit.

However, the "date when he becomes aware of the damage and the identity of the perpetrator" under Article 766 (1) of the Civil Code means the time when he actually and specifically recognizes the facts of the requirements of the tort, such as the occurrence of the damage, the existence of the illegal harmful act, the proximate causal relation between the harmful act and the occurrence of the damage.

In addition, when the victim et al. actually and specifically perceived the requirement of tort, it should be reasonably recognized by taking into account various objective circumstances in individual cases and taking into account the situation in which the claim for damages is practically possible (see, e.g., Supreme Court Decision 2006Da30440, Apr. 24, 2008).

In the instant case, comprehensively taking account of the overall purport of the arguments in the statement Nos. 9, 11, and 2-1 of the evidence Nos. 2, the Plaintiffs raised the possibility of being abandoned after being killed by E as of the point of the instant accident, due to the discovery of a new post, No. 550, and No. 2, at the point of the instant accident. The Plaintiffs agreed with the Plaintiffs in the competent police station as to the death of E, if there are special circumstances in relation to the death of E, a reinvestigation was conducted. The Plaintiffs produced and disseminated a leaflet to find the aforementioned special circumstances after the instant accident; the Plaintiffs were suspected of bringing about the mobile phone of the E, which was lost from the Samsung Bio Life Group located in the mobile path of the instant accident; and the fact that this occupation was punished for the crime of embezzlement of stolen objects on May 15, 2013.

According to the above facts, the plaintiffs have endeavored to find out the circumstances of the fact that the E's cell phone, cellular phone, cellular phone, and cellular phone might have died due to other causes. Thus, the fact that the competent police station closed the case of death of E cannot be deemed to have known the plaintiffs of the damages and the perpetrator, and only when the plaintiffs were punished for the crime of embezzlement of stolen articles on May 15, 2013 on the ground that they brought the mobile phone of this case, they should have known the damages and the perpetrator. Accordingly, the above defense by the defendant Korea Railroad Corporation on the premise that the plaintiffs knew of the damages and the perpetrator on May 27, 2010 is without merit.

3. Determination as to the plaintiffs' claim against defendant D

A. The plaintiffs' assertion

Defendant D, as an engineer of KTX trains, was in operation at night and was in a railroad, but he/she was obligated to immediately stop the vehicle and prevent the accident, but he/she failed to immediately stop the vehicle, thereby resulting in the death of E.

B. Determination

In light of the overall purport of the statements and arguments in the evidence No. 10-1, No. 2, and No. 2-1, Defendant D’s failure to perform the duty of care for operation while running the KTX train, there is no evidence to acknowledge that Defendant D’s failure to perform the duty of care for operation or otherwise violated the duty of care for operation. Rather, in full view of the overall purport of the statements and arguments in the evidence No. 10-1, No. 10-2, and No. 2-1, Defendant D’s limited speed at the location of the instant accident is 80km/h, and Defendant D’s operation at the location of the instant accident where no lighting facility was installed at about 65 km/h of speed at the time of the instant accident, which was discovered at the location of 50 km and rapid stop, but it can only be recognized that E was over the train due to the weight

4. Conclusion

Therefore, the plaintiffs' claims against the defendant Korea Railroad Corporation shall be accepted within the scope of the above recognition, and the plaintiffs' claims against the defendant D shall be dismissed as it is without merit. It is so decided as per Disposition.