(영문) 서울중앙지방법원 2020.6.12. 선고 2019나52852 판결

2. The defendant shall pay to the plaintiff 31,052,560 won with 5% interest per annum from March 10, 2017 to August 22, 2019, and 12% interest per annum from the next day to the day of full payment.

3. The plaintiff's remaining main claims and conjunctive claims are dismissed, respectively.

4. 3/4 of the total costs of the litigation shall be borne by the Plaintiff, and 1/4 by the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

Purport of claim and appeal

1. Purport of claim

From March 10, 2017, the defendant shall pay to the plaintiff 120,262,80 won with 5% interest per annum from the date of service of a copy of the application form for modification of the claim and the cause of the claim in this case until the date of service of a copy of the application form for modification, and 15% interest per annum from the next day to the date of complete payment (the plaintiff shall be the plaintiff's damages under Article 2 of the State Compensation Act, and the plaintiff shall be the conjunctive damages under Article 5 of the State Compensation Act, with the amount of money stated in the above claim).

2. Purport of appeal

A. The plaintiff

Of the judgment of the court of first instance, the part against the plaintiff regarding the money that orders payment under the following shall be revoked. The defendant shall pay to the plaintiff 89,210,240 won with 5% interest per annum from March 10, 2017 to August 22, 2019, and 12% interest per annum from the next day to the date of full payment.

B. Defendant

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

Reasons

1. Scope of the judgment of this court;

ex officio deemed.

The plaintiff made a statement in the first instance court on April 9, 2019, that made it clear that the plaintiff primarily claimed the state compensation under Article 2 of the State Compensation Act due to the public official's intentional or negligent act, and as a preliminary claim for the state compensation under Article 5 of the same Act due to the defect in the public structure.

The above two claims may be brought by combining the so-called “substigative preliminary claims” that the parties have selective relations with each other in terms of their nature, upon filing a lawsuit in the form of a consolidation of the primary and conjunctive claims, only the order and scope of the adjudication of the lawsuit. In addition, where the primary claims are not fully accepted, the plaintiff may bring a lawsuit by combining them with the purport that it is possible to judge the conjunctive claims within the scope of the amount not accepted from the primary claims (see, e.g., Supreme Court Decision 2012Da35675, Dec. 24, 2014).

Meanwhile, in the case of the primary and preliminary consolidation, several claims are indivisible in one litigation procedure, and where no judgment is rendered on the conjunctive claims while rejecting the main claims, if an appeal is filed against the judgment, the conjunctive claims whose judgment was omitted shall also be transferred to the appellate court, and such parts shall not be deemed to have been pending in the lower court (see, e.g., Supreme Court en banc Decision 98Da2253, Nov. 16, 2000).

However, the first instance court, which accepted part of the plaintiff's main claim in Paragraph 1 of the judgment and dismissed the plaintiff's remaining claims in Paragraph 2 of the judgment, on the ground that the defendant's liability for damages is recognized pursuant to Article 2 of the State Compensation Act, clearly stated that the plaintiff's claim based on Paragraph 1 of the Article 5 of the State Compensation Act is not judged separately. This is against the plaintiff's intent to make a judgment on the conjunctive claim within the scope of the amount not accepted in the main claim. Therefore, the judgment of the first instance court is erroneous in the misapprehension of the judgment on the plaintiff's conjunctive claim, and the first instance court needs to re-determine all the plaintiff's main and conjunctive claims.

2. Judgment on the primary claim (the claim for damages under Article 2 of the State Compensation Act)

(a) Facts of recognition;

The following facts may be acknowledged in full view of the purport of the entire pleadings, either in the absence of a dispute between the parties, or in the entries or images of Gap evidence of subparagraphs 1 through 6, and Eul evidence of subparagraphs 1 through 8 (including the serial number):

1) At the time of demonstration and accident

A) From around 11:00 on March 10, 2017, B participated in the â€˜F assembly' hosted by E (hereinafter referred to as â€˜E') on the front of the exit of the Seoul Jongno-gu Seoul Jongno subway No. 3 Air Line No. 4:00. B â……………………………………â………â…………â……………ââââââââââââââââââââââââââââââââ……ââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââ…………………………âââââââââââââââââââ,

B) At the time, multiple police officers were performing their duties to suppress assembly and demonstration on the roof of the police-protection wall, and around the police bus and the police-protection wall. The police-protection wall was in the form of a transparent preventive wall on the left side of the police tower, and there was only one meter away from the I Noise Management Vehicle (hereinafter “the noise management vehicle”). On the front of the noise management vehicle in this case, another noise management vehicle operated by the Seoul Metropolitan Police Agency was installed.

C) At the time, the instant noise management vehicle was a special vehicle operated by the former North Korean Police Agency, and was performing duties related to the broadcast of the vessel at the time of the operation of the police station, and the chief of the police station was performing duties related to the broadcast of the vessel at the time of the operation of the former North Korean Police Agency, and the chief of the police station operated a warning broadcast to the effect that the last chief of the police station continues to have access to the participants in the assembly due to the collision of the said police bus through the spacker of the instant noise management vehicle. The said J also opened a door and warn the police officers of the concern that the instant noise management vehicle would be recovered due to the continuous collision of the police bus.

D) B, as seen above, began to enter multiple assemblies or participants (hereinafter referred to as “participations in assemblies”) due to the gap in the protective parking wall caused by the collision of vehicles, and the police officers around it came fast to the Japanese cultural center, other noise control vehicles operated by the Seoul National Police Agency were set up as a tower by cutting the spacker mold. However, in the noise control vehicle of this case, J et al., in the instant noise control vehicle, moved to a place other than the vehicle immediately before the spacker falls on the ground, with the spacker’s roof installed on the roof as follows. At the time, J did not operate the spack in the instant noise control vehicle with the spacker’s 10∑ volumeed, but did not take active measures such as the fall of the front police officers, but did not take active measures such as the fall of the vehicle within the scope of the danger to the out of the assembly.

E) On the other hand, the noise control vehicle of this case, which was followed by the protective parking wall of 1m due to the collision with the police-protection bus of this case using the above police bus of this case, became a serious string of the noise control vehicle of this case. Accordingly, the noise control vehicle of this case, where approximately 100 km on the roof of the noise control vehicle of this case, which caused a large stringer of large strings (131m in height x 96cm in height x 89cm in height hereinafter referred to as the "stacker frame of this case"), was a fixed device. Accordingly, the noise control vehicle of this case was reduced to the lower part of the noise control vehicle of this case at around 12:26 on the same day, and the noise control vehicle of this case was demoted as a participant of the assembly, and the accident of this case (hereinafter referred to as the "accident of this case").

F) L was immediately transferred to Jongno-gu Seoul Metropolitan Government University, but at around 13:50 on the same day, L died due to multi-dropic diverosis and falering.

2) Costs, etc. of the instant noise control vehicle

The noise management vehicle of this case, which is managed by the Seoul National Police Agency, is a special vehicle for lighting broadcasting, which was produced and supplied by the public procurement agency, participating in the bidding in 2012, and is installed in Hyundai MT 3.5t truck, and a studs and strings are installed inside the tower, and the studs of this case are installed on the studs of this case, and the studs of this case are built and installed on the studs of this case. The studs of this case are connected to chain above the studs installed on the studs of this case. The studs of this case can be driven through the operation of equipment outside the studs in response to the situation of demonstration. Since the studs of this case should be changed from time to time to time for the studs and radio broadcast corresponding to the situation of demonstration, it can only be connected to the studs of this case and can not be converted into the studs.

With respect to the operation of the noise control vehicle of this case, J also received education to take care of the fact that the noise control vehicle can fall into the ground caused by the electric wires, etc. in the event that the noise control vehicle starts on the platform, while the noise control vehicle is going up on the platform. Therefore, even if the noise control vehicle’s structural power outside the structure of the noise control vehicle of this case turns down on the front and rear side, the studer mold may lose the center above the platform and fall on the ground.

3) Related lawsuits

A) Of the participants at the above assembly participants, B took a police bus managed by the police as above and 50 times using the above police bus, which is a dangerous object, and assaulted many police officers performing the duty of suppression of assembly and demonstration at that time, thereby hindering the legitimate performance of duties by the police officers, damaging public goods, and causing the death of the deceased by illegally using a vehicle, and thereby causing special assault against the deceased under the Seoul Central District Court Decision 2017No321, Seoul Central District Court Decision 2017Da321 on the ground that the above act of the vehicle collision against the deceased was difficult to readily conclude that the act of the vehicle collision against the deceased was an assault against the deceased, and sentenced to a judgment of conviction as to the remaining charges of special assault by the above court on the ground that there was no proof of the crime against the deceased, and the prosecutor and the Seoul High Court appealed as 2017No1724, but all of these appeals were dismissed (the prosecutor, although not guilty of the conjunctive charged facts charged, it is difficult to expect that the prosecutor’s appeal was dismissed by 27171).

B) Meanwhile, as Seoul Central District Court Decision 2017Kadan518653, the police officers, including the Defendant andO, filed a claim for damages against E and P and Q, taking the lead of an assembly and demonstration that mobilized violence as above, and sought physical and mental damages, such as the damage of the police vehicles and equipment caused by the demonstration, and the police officers who suffered the injury, and the compensation for mental damage, such as medical expenses, incurred by the assembly and demonstration. Accordingly, the court expressed the intention of the claimant for the damages, and made a decision in lieu of the conciliation by reflecting the opinions of both parties of the above case, and the decision in lieu of the conciliation became final and conclusive because both parties of the above case did not object thereto.

4) The status of the deceased L and the plaintiff

On March 10, 2017, the deceased L(hereinafter referred to as "the deceased") died and succeeded to the deceased's property as the only inheritor.

(b) Occurrence of liability for damages;

1) Illegal activities committed by the organizer and main organizers of assemblies and demonstrations including B

According to the above facts, even though the accident of this case is sufficiently aware that the participants of the assembly or demonstration or the police could receive ideas in the process of the assembly or demonstration or the process of restraint or suppression of the assembly or demonstration, it can be seen that there is a possibility that the participants of the assembly or the police will suffer injuries, the organizer of the assembly or demonstration, and the P, Q, etc. led the assembly or demonstration, or led the participants to use violence, or prevented the participants from participating in the assembly from participating in the assembly from exercising violence, it can be seen that there is a possibility that one person B, during the assembly or demonstration, takes the police bus of the above police bus which he seized, may cause the people in the surrounding areas due to the shock, and even if it is recognized that there is a possibility that the police defense wall might be different from the other police wall of this case by continuously entering the police bus of this case with many participants, including the Deceased, who continued to have a conflict with the police wall of this case and caused the conflict with the defense wall of this case.

Therefore, the above act of B, E, P, Q, etc. taking the lead of the assembly and demonstration, and the organizer of the assembly and demonstration, cannot be deemed to have caused the occurrence of the accident of this case, or the injury or death of the deceased. (In the relevant criminal case, the judgment of acquittal was rendered on the ground that there is no proof of a crime as to the primary charge of special assault and death of the deceased, and the ancillary charge of negligence caused by negligence, but the judgment became final and conclusive. However, in the case where the prosecutor indicted the deceased as the charge of special assault and death, which requires the possibility of an actor's predictability as to the result of the "the existence of violence against the deceased" or "the death of the deceased," the court which dealt with the case, should prove that the facts charged should be proved to the extent that the judge should exclude a reasonable doubt" in light of the principle of criminal law, and it is only deemed that there is insufficient evidence of the prosecutor's crime in light of the principle of the criminal law, and it cannot be deemed that "the negligence" and "the elements of tort under the civil law as requisite for the death of the deceased.

2) Breach of duty to protect the participants in the assembly of police officers

Meanwhile, according to the above facts, police officers managing the above assembly and demonstration have been conducted by the means of report during the process of the assembly or demonstration, and since some participants of the assembly are expected to leave from the assembly or conduct an excessive action, they shall properly control the participants of the assembly to prevent crimes from causing harm to the lives and body of the people, such as participants of the assembly, etc., and shall take necessary measures to protect the participants of the assembly, i.e., the duty of care to protect the participants of the assembly, who have been obliged to take necessary measures to prevent harm to the lives and body of the people, such as participants of the assembly, but B did not seize the above police bus and left the defense wall. Accordingly, the police officers did not take measures to prevent the fall of the framework of the present assembly and demonstration even though they had faced with the risk of falling, even though they did not take measures to cope with the noise of the deceased in the danger zone, and did not take measures to directly take measures to remove the deceased from the danger zone by the police officers of the present assembly and to remove it from the noise zone.

On the other hand, the defendant argued that the police officer cannot be held responsible for the police officer because the situation where the police officer was able to control the above space, which led to the creation of a situation where the police officer was in the vicinity of the site including the behind part of the noise control vehicle in this case, taking into account the safety of the demonstration team. However, even if the defendant's assertion was made, there was no police officer in the vicinity of the police vehicle or the noise control vehicle in this case according to the judgment of the police commander, and even if there was a possibility that the police equipment might be abused by the demonstration team, so the police officer should first take measures to block or eliminate the possibility of abuse, so it is deemed that the police officer did not take such measures, but if it is judged that such measures could not be taken, it was necessary to take a higher level of measures such as the dissolution of the demonstration team, etc., or that such measures were not taken. Therefore, it is difficult to accept the defendant's assertion that there was a difference in the situation of the police officer's wrong command or the direction.

Thus, the above mistake of police officers who managed the above assembly and demonstration at the time of the accident in this case may be deemed to have caused the occurrence of the accident in this case or the death of the deceased.

(iii) joint tort;

After all, the accident in this case occurred between the above intentional or negligent tort committed by the Police Officers B and E, P, Q, etc. (hereinafter referred to as “B, etc.”) and the above intentional or negligent violation of the duty of protection against the participants in the assembly. Accordingly, it can be deemed that the death of the Deceased was caused. The liability for damages caused by the tort in the Civil Act, such as B, etc., and the duty of the Defendant to compensate for damages caused by the tort under Article 2 of the State Compensation Act as well as the duty of the police officers under the above negligence is in a joint tort relationship. Thus, the Defendant is jointly liable to compensate for the damages inflicted upon

C. Limitation on liability

On the other hand, the following facts revealed by taking account of the overall purport of the arguments, namely, the location of the noise control vehicle in this case was not the place of assembly or demonstration of the participants at the police wall width. Nevertheless, in light of the difference in the police wall installed by B, which attempted to dismantle the police wall, the Deceased, the police officers, etc. at the time of the noise control vehicle or the defense wall, and the police officers, etc. at the time of the noise control vehicle or the defense wall, etc. at the time were sent a warning against the danger of fall of the noise control vehicle in this case, and in fact there was no other person than the deceased at the time of the fall of the noise control vehicle in this case, at the time of the assembly or demonstration prohibition, the Defendant’s negligence in the situation of the noise control vehicle in this case, and thus, it is reasonable to deem that the Defendant’s negligence in the situation of the noise control vehicle in this case, i.e., the damage compensation liability for the noise control vehicle in this case, has been extended by 20%.

D. Scope of liability for damages

(i) Property damage;

Since the plaintiff sought reimbursement of KRW 10,262,80 for funeral expenses following the deceased's death, funeral expenses due to the deceased's death shall be calculated pursuant to Article 3 (1) 2 of the State Compensation Act, Articles 3 and 4 of the Enforcement Decree of the same Act, and Article 9 of the Enforcement Decree of the State Compensation Act shall be calculated according to the whole arguments, and if the defendant's liability is limited as mentioned above after calculating funeral expenses pursuant to the above Ordinance of the State Compensation Act, the amount shall be 2,052,560 won [=10,262,80 won for common person for urban day [102,628 won] x 0.2]. Thus, the plaintiff's above assertion is without merit within the above recognition scope, and the plaintiff's assertion about the above portion of funeral expenses due to the death of the deceased's death shall not be considered to violate the above Article 3 (1) 2 of the Enforcement Decree of the State Compensation Act, and the above provision shall not be considered to violate the principle of the State Compensation Act 1 [Attachment 2] or 4].

2) Consolation money

The plaintiff sought 100,000,000 won as consolation money of the deceased, and 10,000,000 won as consolation money of the plaintiff. Thus, considering the deceased's age, family relation, property and degree, the circumstances and result of the accident of this case, degree of negligence, and all other circumstances shown in the oral argument, it is reasonable to determine consolation money of the deceased as 24,00,000,000 won, and the plaintiff's consolation money as 5,00,000 won due to the accident of this case. Thus, the plaintiff's above assertion is justified within the extent of recognition above, and the plaintiff's assertion on the part exceeding the above amount is without merit.

E. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 31,052,560 won in total as compensation for damages against the deceased and the plaintiff (i.e., funeral expenses 2,052,560 won + consolation money 24,000,000 won + Plaintiff 5,000,000 won +) and its claim against the plaintiff from March 10, 2017, which is the date of the accident in this case, is deemed reasonable to dispute as to the existence or scope of the defendant's duty of performance until August 22, 2019; 5% per annum under the Civil Act until August 22, 2019; and 3% from the next day until the day of full payment; and 12% per annum under Article 2 (2) of the Addenda of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc.; therefore, the plaintiff's claim about the main cause of claim is without merit.

3. Judgment on the conjunctive claim (claim for damages under Article 5 of the State Compensation Act)

(a) Scope of trial on the conjunctive claim;

As examined in the judgment on the plaintiff's primary claim, the court of the first instance recognized 31,052,560 won of the plaintiff's claim amount (120,262,80 won and damages for delay), and rejected the remainder of the claim. Thus, the plaintiff's conjunctive claim is limited to the amount obtained by deducting the above amount of the claim from the plaintiff's amount of claim(hereinafter referred to as "amount of claim").

B. Determination

The plaintiff is "public structure" as provided by Article 5 (1) of the State Compensation Act, which is used by the police at the place of assembly or demonstration, as the noise control vehicle in this case and the spacker's above-mentioned spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spacker's spack.

In light of the following facts: (a) it is not sufficient to recognize that the noise control vehicle of this case and the police equipment of this case, installed above, were defective in the construction and management of the public structure, i.e., the construction and management of the public structure, because it was not equipped with the safety ordinarily required as a public structure; (b) the determination of the Plaintiff’s primary claim under Paragraph (2) was based on the evidence presented by the Plaintiff; (c) in full view of the purport of the entire arguments in the above evidence, the ice mold of this case had to be tight from time to time in order to provide a UV broadcast against the situation of the demonstration; and (d) it was necessary to change its direction to chain without fixing the noise control vehicle of this case and its chain from time to time to time; and therefore, (e) it was not sufficient to recognize that the Plaintiff had any defect in the installation and management of the noise system of this case and the equipment used in the police at the site of the assembly or demonstration, and (e) it was not sufficient to recognize that the Plaintiff had any defect in the construction and management of the machinery of this case.

C. Sub-committee

Therefore, the plaintiff's argument about the plaintiff's conjunctive claim related to the remaining claim amount is without merit.

4. Conclusion

Therefore, the judgment of the court of first instance, which omitted the judgment on the plaintiff's conjunctive claim, is unfair, and it is so revoked ex officio, and the plaintiff's primary claim is accepted within the above recognition scope, and all of the remaining primary claims and conjunctive claims are dismissed as they are without merit. It is so decided as per Disposition.