Damage of human life and liability of local governments due to intensive care;

[1] Article 2 (1) of the State Compensation Act, Articles 393 and 763 of the Civil Act

Maximum Hong Mine et al. (Law Firm citizen General Law Office, Attorneys Jeon Young-sik et al., Counsel for the plaintiff-appellant)

Yongsan-gu Seoul Metropolitan Government (Law Firm Sol, Attorney Park Jae-in, Counsel for defendant-appellant)

Seoul High Court Decision 2003Na7403 delivered on November 19, 2003

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief).

1. Regarding ground of appeal No. 1

In order to recognize the state liability due to the omission of a public official, the requirements of Article 2(1) of the State Compensation Act that "if a public official causes damage to another person by intention or negligence in violation of the Act and subordinate statutes" shall be met, as in the case of recognizing the state liability for compensation due to his act of a public official, and "in violation of the Act and subordinate statutes" shall not be limited to a violation of the Act and subordinate statutes explicitly provided for in the Acts and subordinate statutes of a strict formal meaning, even though there is a duty to act of a public official, and it shall not be limited to 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, property, etc. of the people unless it is left to the exclusion of the danger, if it is impossible to protect the lives, bodies, property, etc. of the people unless there is a ground for the formal meaning of the Act and subordinate statutes (see Supreme Court Decision 98Da18520, Oct. 13, 1998).

The court below acknowledged the facts based on the adopted evidence, and judged that public officials belonging to the defendant have a duty to take measures, such as flood prevention, control, and withdrawal, in the event that the roadway or sewerage is flooded due to the storm and damage to human life or property in neighboring buildings pursuant to Articles 36, 39, and 42 of the Countermeasures against Natural Disasters Act, and to promptly take measures necessary for preventing disasters, such as prompt implementation of measures ordered by the Seoul Disaster Countermeasures Headquarters or notification to the disaster prevention manager, etc., and the violation of the duty constitutes "violation of the Act and subordinate statutes under Article 2 (1) of the State Compensation Act". In light of the records, the above determination by the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the nature of the duty of public officials under the Countermeasures against Natural Disasters Act and the elements for establishing tort. The ground for appeal on this point is not acceptable.

2. Regarding ground of appeal No. 2

Examining the adopted evidence by the court below in light of the records, it seems that the deceased had sufficient time to escape or rescue from the accident site of this case if the public officials belonging to the defendant promptly withdrawn appropriate measures necessary for the prevention of disasters, and therefore, the judgment of the court below which acknowledged a proximate causal relation between the violation of the duty by the public officials belonging to the defendant and the death of the deceased is just, and there is no error in the misapprehension of legal principles as to omission of judgment or proximate causal relation. The allegation in the grounds of appeal as to

3. As to the third ground for appeal

In a case of compensation for damage caused by a tort, if the damage suffered by the victim is concurrent between natural power and the fault of the tortfeasor, it is reasonable to limit the scope of compensation for the tortfeasor to the remaining portion obtained by deducting the portion deemed to have contributed to the natural ability from the perspective of fair burden of damage. However, even if the damage suffered under special natural conditions, unlike ordinary damages, if the damage suffered by the victim was caused under special natural conditions, the perpetrator could have predicted such natural conditions or the degree of the risks associated with such natural conditions in advance, and if it was possible to prevent the occurrence of risks under natural conditions in advance by taking appropriate measures without any excessive effort or expenses, the scope of compensation for the damage caused by an accident caused by negligence in taking such measures shall not be limited to the extent of compensation for the tortfeasor by recognizing the portion to be borne by the natural force (see Supreme Court Decision 2001Da734, Jun. 27, 2003).

Examining the above legal principles and the evidence admitted by the court below in light of the records, the court below erred by omitting judgment on the defendant's assertion that the scope of compensation by the defendant should be limited to the remaining parts after deducting the parts processed by natural force. However, it appears that the defendant could have anticipated the natural conditions or the degree of risk therefrom in advance, and that the defendant could have prevented the occurrence of risk under natural conditions for appropriate measures without any excessive effort or expenses. In this case, in determining the scope of compensation for damages, it is not limited to the extent of compensation by recognizing the contributory portion of the natural power, and thus, it cannot be deemed that there was an error of law that affected the conclusion of the judgment by the above error of the court below. Accordingly, we cannot accept the allegation in the ground of appeal that the court below erred by misapprehending the legal principles on the deduction of the contributory portion of the natural force

On the other hand, if the victim was negligent in the occurrence or expansion of damages, the fact-finding or its ratio on the grounds for offsetting the damages belongs to the exclusive jurisdiction of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity. In light of the records, the evaluation of the ratio of negligence to the victim is deemed to be remarkably unreasonable in light of the principle of equity. Therefore, the judgment below is not erroneous in the misapprehension of legal principles as to comparative negligence. The argument in the grounds of appeal as to this point

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)