[1] The meaning of "defect in the construction or maintenance of a structure" under Article 758 (1) of the Civil Code and the standard for its determination

[2] The case affirming the judgment of the court below which held that in case where the deceased's skik's ski's ski's ski's ski's ski's ski's ski's ski's ski's ski's ski's ski's ski's ski's safety is not normal and safety

[1] Defect in the installation and preservation of a structure under Article 758(1) of the Civil Act refers to a state in which a structure fails to meet the safety ordinarily required for its use. In determining whether such safety has been met, it shall be based on whether the installer and custodian of the structure has fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure. Thus, even if an accident occurred in a structure, unless there are special circumstances, it shall not be deemed that the installer and custodian of the structure has the duty to take protective measures against such an accident, unless there are special circumstances.

[2] The case affirming the judgment of the court below which held that in case where the deceased was killed due to the danger of safety while getting off a skiing from a skiing ground, the above safety net was not equipped with ordinary safety, or that the manager was not negligent in failing to perform his duty of safety care for the users in installing and managing the above safety net

[1] Article 758 (1) of the Civil Act / [2] Article 758 (1) of the Civil Act

[1] Supreme Court Decision 94Da16328 delivered on October 28, 1994 (Gong1994Ha, 3112), Supreme Court Decision 95Da22351 delivered on February 13, 1996 (Gong1996Sang, 936), Supreme Court Decision 97Da2518 delivered on January 23, 1998 (Gong1998Sang, 5848 delivered on January 14, 2000), Supreme Court Decision 99Da39548 delivered on January 14, 200 (Gong200Sang, 383) (Gong203Da244999 delivered on January 14, 200)

Plaintiff (Law Firm Gyeong & Yang, Attorneys Seo Gyeong-sung et al., Counsel for the plaintiff-appellant)

Non-riju Co., Ltd., the administrator of mutual development of the reorganization company and the taking-off of the Kim Jong-chul (Law Firm Sejong, Attorneys Yellow-sik et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2003Na11280 delivered on April 6, 2004

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

1. Regarding ground of appeal No. 1

원심판결 이유에 의하면, 원심은 그 채택 증거를 종합하여, 피해자 소외인(이하 ‘망인’이라 한다)은 2000. 12. 15. 14:00경 전북 무주군 설천면 심곡리 소재 피고 경영의 무주리조트 스키장 내 웨스턴 썬다운 슬로프에서 스키를 타고 내려오던 중 웨스턴 슬로프와 썬다운 슬로프가 합류되는 하단부 70m 지점에서 넘어지면서 진행 방향 오른쪽에 설치되어 있던 안전펜스에 부딪치는 바람에 목부분 다발성 열상, 찰과상 및 심한 팽창으로 인하여 호흡중추가 손상되는 중상을 입고 사망한 사실을 인정한 다음, 이 사건 사고 당시 망인이 안전망을 지지하는 지주봉에 부딪쳤거나 타이랩의 뾰쪽한 부분에 찔려 사망하였으며 거창병원으로 후송되었을 당시까지 생존해 있었다는 취지의 원고 주장에 부합하는 증거들을 배척하였는바, 기록에 비추어 살펴보면 원심의 위와 같은 증거취사 및 사실인정은 정당하고, 거기에 상고이유의 주장과 같이 망인의 사망경위나 사망원인, 사망시점 등에 관한 심리를 다하지 아니하고 채증법칙을 위배하여 사실을 오인하는 등의 위법이 없다.

2. Regarding ground of appeal No. 2

The defect in the installation and preservation of a structure under Article 758(1) of the Civil Act refers to a state in which a structure fails to meet safety requirements ordinarily required according to its use. In determining whether such safety requirements are met, it shall be based on whether the installer and the keeper of the structure has fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure. Thus, even if an accident occurred from a structure, unless there are special circumstances, if the accident occurred as a result of an exceptional behavior not in compliance with the ordinary usage of the structure, it shall not be deemed that the installer and the keeper of the structure has the duty to take protective measures against such accident (see Supreme Court Decisions 95Da22351, Feb. 13, 1996; 97Da25118, Jan. 23, 1998, etc.).

According to the reasoning of the judgment below, the court below found facts as stated in its reasoning after compiling the adopted evidence. In the case of the safety net of this case, the safety net of this case is installed far away from the ground, and normally, in the case of the safety net of this case, skigs lose balance in the course of ski fishing, or do not control its direction, and installed safety net at a certain distance from the ground in order to prevent skis from causing more severe injury. In light of the fact that the safety net of this case was installed at a certain distance from the ground, the degree of distance seems to be appropriate, and unlike this, the safety net of this case cannot be demanded for the defendant who installs and manages the safety net of this case to have safety facilities in preparation for all cases so that the safety net of this case does not meet the ordinary safety net of this case, and the defendant's failure to install the safety net of this case is likely to have been installed with the safety net of this case, and the defendant's failure to take the safety net of this case can not be seen as being affected by the safety net of this case.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to defects in the installation and preservation of structures

3. As to the third ground for appeal

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion on the ground that it is difficult to view that emergency measures against the deceased and measures for their return to hospital after the accident did not properly be taken as alleged by the plaintiff, there is no evidence to prove that the defendant was negligent in failing to perform his duty of safety consideration on the deceased, in light of the defendant's measures after the accident and the process of sending back to hospital, etc., the circumstance of the plaintiff's assertion alone cannot be deemed to have violated the duty of safety consideration on the part of the defendant, and that there is no causation between such circumstance and the death of the deceased.

In light of the records, the fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the duty of safety consideration as alleged in the grounds of appeal.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Kang-tae (Presiding Justice)