[1] The degree of duty to take protective measures taken by the managing body of a river, which is a natural structure, in order to prevent the following accidents

[2] The case holding that the court below's judgment which recognized the local government's liability for damages was erroneous in misapprehending legal principles in a case where a minor Gap who attended the training meeting sought damages against the local government, which is the river management authority, as the minor Gap was able to see and play ice above a part of the depth of the river and the depth of the river depth

[1] A river as a natural structure has no choice as to whether to install it or not, and there is natural existence in the state of danger, and there is a certain limit to the risk management of a river itself in preparation for a dives accident due to the wide range of the basin and the divesity of flowing water depending on the circumstances of flowing water. Thus, it is impossible for a river management authority to conduct risk management for all areas of a river that pose a risk of a dives accident. Thus, if the river management authority fulfilled its duty to take protective measures to the extent generally required by social norms in proportion to the danger of a river area by comprehensively taking into account the current status of the river in question and the status of its use, the history of past accidents, etc.

[2] In a case where Gap, a minor attending a training center, moved a small river side of an amusement park to the lower part of the river, ice, and play on the upper part of the river, and Gap's bereaved family claimed damages against the local government, which is the river management authority, the case holding that the court below acknowledged the local government's liability for damages by misapprehending the legal principles on the liability for defects in the installation and management of a river, on the ground that the local government, the river management authority, as the river manager, is equipped with ordinary facilities to protect the safety of the people using the river by installing warning signs and banners on the way of approaching the river at the entrance of an amusement park or the amusement park, and even if the local government was found to have failed to take protective measures such as installation of separate protective signs or tags, it is difficult to view that there is a proximate causal relation with the accident, even if there is no negligence, such as installation of a separate protective measures to the point of accident.

[1] Article 5 (1) of the State Compensation Act / [2] Article 5 (1) of the State Compensation Act

Plaintiff 1 and three others (Law Firm Shinsung, Attorneys Kang Dong-gu et al., Counsel for the plaintiff-appellant)

Gangwon-do (Law Firm Multi-Hunting, Attorneys Yoon Jae-Gyeong et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Na201077 decided August 29, 2013

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below held that the defendant (the actual river management agency is "Seoul-do branch office" but the defendant is responsible for the installation and management of the river of this case, and it is not the defendant's liability for damages to the forest of this case, since the defendant (the "defendant" is not the local government to which he belongs, since it is responsible for the defendant's damages to the river of this case) has a manager who is in charge of the duty of installing and managing the river of this case, there was an amusement park installed frequently by the general public in the vicinity of the Yellow Posium where the accident of this case occurred, and the water depth near the Yellow Posium was much more deep than 1.5m to 2m above the surrounding surrounding the river basin, and the defendant was responsible for installing the river of this case, which is a minor forest of this case, for protecting the deceased's safety near the river of this case by preventing water play in the vicinity of the accident of this case or installing a dangerous sign or sub-mark in the vicinity of the accident.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The "defect in the construction or management of a public structure" under Article 5 (1) of the State Compensation Act refers to a state in which the public structure has failed to have safety ordinarily required for its use. Thus, it cannot be deemed that there is a defect in the construction or management of a public structure merely because the public structure has a defect in its function without having to complete the construction. The determination of safety above is based on whether the installer or manager has fulfilled the duty to take protective measures to the extent generally required in proportion to the danger of the public structure by comprehensively taking into account all the circumstances, such as the purpose of use of the public structure in question, the current status of the site in use, etc., and whether the construction or manager has fulfilled the duty to take protective measures to the extent that is generally required in proportion to the danger of the public structure. In light of the relationship with the public structure in question, the person who installs and manages it, or the financial, human and physical constraints of the person who installs and manages it, etc. (see, e.g., Supreme Court Decisions 9Da5404, Feb. 25, 2000>

In particular, there is no choice as to whether a river as a natural structure should be installed or not, and there is natural existence in the state of danger, and there is a certain limit to the risk management of a river itself in preparation for a dives accident due to the wide range of the river basin and the variability of flowing water depending on the circumstances. As such, it is impossible for a river management authority to conduct risk management for all the river areas that pose the risk of a dives accident. Thus, if the river management authority has fulfilled its duty to take protective measures to the extent generally required by social norms in proportion to the danger of the river area by comprehensively taking into account the current status of the river in question and the status of its use, the history of past accidents, etc.

B. The record reveals the following facts and circumstances.

① The instant river is a river running along the Heung Park Park, and is a tourist destination centering around the area around the Heung Park Park, and the instant river is a small river to the extent that the tourists using Heung Park play water in a locking manner.

(2) Rivers in front of Heung Park are to the extent that they do not have knee height, and tourists normally have water play.

③ The Yellow Rock is a large part adjacent to the instant river, the width of which is about 20 to 30 meters in Heung Park, protruding the instant river from the legal surface of the 415 line of local highway (hereinafter “instant road”) to the river, the height of the upper part of the water surface is about 5 to 6 meters, and the lower part of the water surface is about 1.5 to 2 meters deep than the surrounding area.

④ In order to access the instant river to the Heung Park, it is necessary to cut off the instant river to the instant road, cross the direction of the road, and move along the edge of the road. On the edge of the road, a rail installed according to the instant river, and a retaining wall constructed with several space outside the rail, leading to a concrete-style retaining wall, and thus, it seems that people would not normally walk at the edge of the instant road. Furthermore, in light of the current state of the instant accident location, general Heung Park Park-si tourists seem to have opened the instant river and opened the instant river to the lower end of the retaining wall or the yellow sleep. It is not anticipated that the instant river would not go out of the lower end of the instant road.

⑤ The Deceased and his work (hereinafter referred to as “the Deceased, etc.”) moved to the opposite side of Heung Park for the purpose of iceing by finding a deep depth of the river. The Deceased, etc. turned to the river of this case through the gravel field where the floor of the river was revealed and the water depth. At first, the Deceased, etc., coming to the river of this case through the part where the said river was cut to the river of this case. At first, the Deceased, etc., while moving to the river of this case, coming to the river of this case on the part of a concrete retaining wall outside the rail at the edge of the road of this case, they turned to the river of this case, and turned to the river of this case.

6. The Deceased, on the one hand, did ice two times on the other on the other on the other on the other on the other on the one hand, and dives out of the river on the other on the other before the instant accident, he seems to have been aware of the depth and danger of the point of the accident.

7) The instant accident occurred after the Deceased et al. started water play, and it appears that the time the Deceased et al. started ice ice ice from the Yellow Sea. At the time of the instant accident, Nonparty 1, who was the deceased’s death village, ice ice ice iced around Yellow Sea, and then ice ice dice dice diced with Nonparty 1 without attaching any safety equipment at the point of the instant accident, and dice dice dice dice diced with the water, and the Deceased dice diced with Nonparty 1, and Nonparty 1 was rescued by others, but the Deceased was not rescued.

8) Before the Deceased et al. conducted ice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice.

9) On the other hand, at the entrance of Heung Park, the following are observed in the name of the head of Si/Gun in an area with high risk of safety accidents in this area. The head of Si/Gun shall observe the following matters. The head of Si/Gun in order to see the head of Si/Gun. The head of Gun and the chief of Si/Gun shall see a sufficient preparation movement before 00 ambling a water play. The children, the elderly and the elderly have a water play together with their guardians. After drinking ○○, there is a sign stating the “water play directions” as stated in the “......... A warning sign and banner stating the phrase “the head of Si/Gun and the depth of water depth” entered the entrance of the river of this case through Heungung Park Park Park, and there are many signs stating “the head of Gun and the chief of Si/Gun,” “the head of Gun and the chief of Si/Gun,” and the head of Si/Gun and the chief of Gu, “the safety lighting of the Gu,” and the equipment, etc.

(10) The river of this case has never caused any of the following accidents before the accident of this case occurred since 2009.

C. Examining the above facts and circumstances in light of the legal principles as seen earlier, the Defendant, the manager of the instant river, is deemed to have an ordinary facility to protect the safety of the people using the river by installing warning signs and banners on the paths adjacent to the instant river via Heung Park or Heung Park. Furthermore, the Defendant is not obliged to take protective measures such as prohibiting water play in the vicinity of the instant accident site or installing additional signs or tags to urge attention at the instant accident site, even if he did not have any proximate causal relation with the Defendant, even if he did not have any safety equipment despite being aware of the fact that the Deceased’s depth of the instant accident site was deep, it is difficult to recognize that the Defendant did not have any proximate causal relation with the instant accident at the location of the instant accident site, and even if he did not have any danger to the instant accident, it is difficult to recognize that the Defendant did not have any negligence with the instant accident at the location of the instant accident site.

D. Nevertheless, the lower court recognized the Defendant’s liability for damages by deeming that the instant accident was caused by the defect in the installation and management of the instant river solely based on its stated reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the defect liability in the installation and management of a river, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)