(영문) 제주지방법원 2008.7.15.선고 2007가단5969 판결

1. The Defendants shall pay to each of the plaintiffs Kim Jong-young an amount of KRW 172,702,361 won, KRW 1,500,00 per annum from August 27, 2005 to July 15, 2008, and KRW 20% per annum from the next day to the day of full payment.

2. The plaintiffs' remaining claims against the defendants are dismissed.

3. Ten percent of the costs of lawsuit shall be borne by the plaintiffs, and the remainder shall be borne by the defendants.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The Defendants shall pay to each of the plaintiffs Kim Jong-young 243,595,366 won with 1,60,000 won per annum from August 27, 2005 to the service date of a copy of the complaint of this case and 20% per annum from the next day to the day of full payment.

Reasons

1. Basic facts

A. The Defendants were jointly awarded a contract for the Construction of Jeju-do Cultural Park (including elevator construction work) with the Jeju-do Cultural Park Corporation, and Plaintiff Kim Jong-bong was a person who was involved in the instant accident, which is deemed to be below, while doing tin work at the construction site at the Jeju-do Jeju Cultural Park ELV LIB site. The Defendant was the parent of the Plaintiff Kim Jong-dae, the first high Kim○, and the e-mail was the parent of the Plaintiff Kim Jong-gun.

B. On August 27, 2005, at the entrance of the second floor elevator at the construction site of the stone culture park, Plaintiff Kim Jong-bong was engaged in the work of cutting the concrete wall in the part of the elevator entrance, which was cut back in order to install an elevator on the elevator entrance. After completing the stone work, Plaintiff Kim Jong-bong felled below 8 meters in the course of the elevator entrance in the course of the operation of the elevator through the elevator entrance with the body laid down on the elevator pipe installed at the entrance of LVbeter, and as a result, he suffered from the injury, such as the 12 chest pressure pressure, etc. requiring approximately 16 weeks medical treatment (hereinafter “accident”).

【Unsatisfied Facts, Gap evidence 1-1-2, Gap evidence 3-1-5, Gap evidence 4, Eul evidence 5-2, and the purport of the whole pleadings

2. Whether liability for damages arises;

A. The parties' assertion

The plaintiff Kim Jong-bong, as the business owner, has a duty to install a safe distance between the accidents of falling, and has a duty to provide safety education to workers in order to prevent the fall, but he neglected this duty, thereby resulting in the accident of this case.

As to this, the Defendants did not neglect safety management, and Plaintiff Kim Jong-bong was involved in the accident of this case in the course of unloading work tools through the Liberian Round. The Defendants asserted that they are not responsible for the accident of this case since Plaintiff Kim Jong-bong was not anticipated to transport the work tools in the above way.

B. Determination as to the Defendants’ negligence

(1) Relevant statutes

(A) Occupational Safety and Health Act;

Article 23 (3) provides that "the business owner shall take necessary measures to prevent risks in the course of work in places where workers might fall down, earth and sand, structures, etc. might collapse, material objects might fall or come down, and other places where the risk in the course of carrying out work is anticipated to occur due to natural disasters," and Article 23 (4) provides that "the safety measures to be taken by the business owner under the provisions of paragraphs (1) through (3) shall be determined by Ordinance of the Ministry of Labor." Article 29 (1) provides that "the business owner who carries out a part of the business carried on by a contract and which is prescribed by Presidential Decree shall take the following measures to prevent industrial accidents that may occur when workers employed by the business owner and his/her employees carry out the same work at the same place," and Article 29 (2) provides that "the business owner who takes the measures to prevent industrial accidents prescribed by Ordinance of the Ministry of Labor shall take such measures as prescribed by Ordinance of the Ministry of Labor."

(B) Enforcement Decree of the Occupational Safety and Health Act

Article 26(2) of the Act provides that “The business as prescribed by the Presidential Decree” means the construction business and the businesses falling under any subparagraph of Article 23”.

Article 30 (5) of the Act provides that "a place where there is a risk of industrial accidents" means a place falling under any of the following subparagraphs. 3. A place where the establishment of a safe accident is required." Article 29 (2) of the Act provides that "the measures to be taken by the business owner who is the contractor under the provisions of Article 29 (2) of the Act shall be in accordance with the safety rules, the health rules, and the standards for the safety of construction works as publicly notified by the Minister of Labor under the provisions of subparagraph 3 of Article 26-2 of the Decree, except as otherwise provided in these Rules."

(d) Rule on Industrial Safety Standards

Article 7-2 provides that the business owner shall install a structure that meets the standards falling under each of the following subparagraphs in order to prevent danger to workers by falling, etc. (hereinafter referred to as "safety signal"). 1. The provisions of Article 7-2 provide that "the owner shall install a string, confluence, or a rail pole with an sufficient strength (the intermediate string, string, and rail pole may be replaced by any similar structure and performance)" and the provisions of Article 8 provide that "the business owner shall install a 2nd or more of the 2nd or more of the 2nd or more of the 40nd or more of the 2nd or more of the 2nd or the 40th or more of the 2nd or more of the 2nd or the 40th or upper of the 2nd or upper of the 2nd or upper of the 40th or upper of the 2nd or upper of the 40th or upper of the 2nd or upper of the 2nd or upper of the 2nd or upper of the 2nd or upper of the 40th or upper of the 3rd of the 3rd of the 3rd.

(2) Determination

According to the relevant Acts and subordinate statutes as seen earlier, a business owner is obligated to install a safe buser in order to prevent a crashion with respect to a suit at the place where workers might fall down. The accident site of this case is the opening door, which is the entrance of the elevator entrance, and at a height of 8 meters above the ground and where workers might fall down, the business owner is obligated to install a safe buser (i) the Defendants, who are the business owner, are obligated to install a concrete wall in the part of the elevator entrance, which is not inside the elevator entrance, not inside the elevator entrance, even if they find out the concrete wall in the ceiling of the elevator entrance, which is not the inside of the elevator entrance, (ii) the safety bus engine is likely to fall down with the elevator platform during the course of the above operation).

However, if Gap evidence 6-6-6, 8, 14, 15, 18, 20, and 21 comprehensively reflects the purport of the entire pleadings, the defendants installed one safety belt at the entrance of the elevator entrance with safety facilities to prevent the fall at the accident site of this case, and did not have any more fixed safety belt, it can be acknowledged that the defendants did not take necessary measures to prevent the danger, such as the fall, to the level required by the relevant laws and regulations, so the defendants are held liable for tort against the accident of this case.

In addition, even if the accident of this case occurred in the course of transporting the work tools through the boarding path, the process of transporting the work tools is also part of the stone work in charge of the plaintiff Kim Jong-bong, and the plaintiff Kim Jong-bong was engaged in the work of cutting concrete walls in the part of the elevator entrance entrance at the time of the accident of this case. It is judged that the plaintiff Kim Jong-bong was possible to expect that the plaintiff Kim Jong-bong was carrying the work tools through the elevator entrance for the convenience of the work. Therefore, the defendants cannot be exempted from the responsibility.

C. Limitation on liability

However, when comprehensively considering the purport of the entire arguments in Gap evidence 6-6, 8, 14, 15, 18, 20, and 21, it is recognized that the plaintiff Kim Jong-bong suffered an accident of this case by getting off the work tools through the elevator entrance in danger of falling, and that the plaintiff Kim Jong-bong was able to get off the safety vehicle at the time of the accident at the time of the accident at the time of the accident at the time of the accident at the time of the accident at the time of the accident, the above negligence of the plaintiff Kim Jong-bong was based on the accident at the time of the occurrence of the damage, and thus, it is reasonable to take this into account, but the ratio is set at 40% in light of the above facts, and the scope of the defendants' responsibility is limited to 60% in light of the above facts (if the defendants were negligent in the plaintiff Kim-bong, but the defendants' negligence, which is the business operator, was larger, set the scope of the defendants' responsibility).

3. Scope of damages.

(a) Actual income:

In the instant accident, the loss of lost income equivalent to the total monetary value of the lost operation ability of Plaintiff Kim Il-bong is KRW 352,220,01 calculated at the present price at the time of the instant accident in accordance with the Hofmanial Calculation Act, which deducts intermediate interest at the rate of 5% per month, such as (2) based on the facts recognized as identical to (1) and the details of evaluation.

(1) Facts and details of assessment

(1) Gender: Male.

(2) Date of birth: May 22, 1979

(3) Date and time of an accident: August 27, 2005

(4) Age and name of lease at the time of an accident: 26 years of age, 5 months of age, 50.06

5. Occupation and import: Plaintiff Kim Jong-bong shall obtain the income from the stonework as at the time of the instant accident.

As such, the unit wage rate for the stonework shall be applied, and the plaintiff Kim Jong-young shall be applied.

Revenue is KRW 1,975,468 per month from August 27, 2005 to July 24, 2006 (=unit price of wage)

89,794 won x 22 days), from July 25, 2006 to May 21, 2039, 2,027,366 won

(i) The unit wage rate is 92,153 won x 22 days).

(6) The period of hospitalized treatment: From August 27, 2005 to July 24, 2006 of the same year.

(7) Labor disability rate: 100% labor disability rate for the period of hospitalized treatment, and the following day for such period.

From May 21, 2039, to May 21, 2039, 72.4% of the loss of labor capacity (e.g., drilling);

54%, there is a duplicate disability of 40% of the external motors

(2) Calculation

The lost income during the period of hospitalization is KRW 19,314,743, and KRW 332,905,268, which was suffered from lost income after the period of hospitalization (attached Form No. 332,905,268).

[Ground of recognition] The facts without dispute, Gap 7 and 8 evidence, the results of physical appraisal conducted by the chief of the Jeju Hospital Hospital in this Court, the significant facts in this Court, and the purport of the whole pleadings

B. Limitation on liability

(1) Actual income during the period of hospitalization: 11,58,846 won (=19,314,743 won x 60%)

(2) Actual income after the period of hospitalization: 19,743,161 won (=32,905,268 won x 60%)

(1) Temporary layoff benefits correspond to the lost income during the period of hospitalization. As such, disability benefits shall be deducted only from the amount of damages equivalent to the lost income during the period of hospitalization. Since disability benefits correspond to the lost income after the period of hospitalization, it shall be deducted from the amount of damages equivalent to the lost income after the period of hospitalization. Thus, even if the amount of temporary layoff benefits or disability benefits received by the victim exceeds the passive amount of damages recognized by the court, it shall not be offered for the purpose of calculating the amount of damages that differs in nature (see, e.g., Supreme Court Decisions 93Da10651, Sept. 10, 1993; 93Da34091, Dec. 21, 1993; 94Da6628, Apr. 26, 1994).

According to the health account and evidence evidence Nos. 1 and 1 of this case, it is recognized that the plaintiff Kim Jong-bong received temporary layoff benefits from the Korea Workers' Compensation and Welfare Service, 13,122,480 won, and 43,040,80 won for disability benefits, respectively, due to the accident in this case. With respect to the lost income during the period of hospital treatment, the plaintiff Kim Jong-young deducts the business suspension benefits received by the plaintiff and deducts the disability benefits received by the plaintiff for lost income after the period of hospital treatment

Therefore, as a result of calculation, the actual income during the period of hospital treatment of Plaintiff Kim ○○ was KRW 0,00, and the actual income after the period of hospital treatment remains KRW 156,702,361 (the actual income after hospital treatment period 199,743, KRW 161 - Disability benefits 43,040,80).

(2) The Defendants asserted that the above amount should also be deducted since the Plaintiff Kim Jong-bong received an injury insurance amount of KRW 32 million due to the instant accident.

In full view of the purport of the entire pleadings in the statement No. 2 of the evidence No. 2, it is recognized that the tank engineering, to which the Plaintiff Kim Jong-bong belongs, was paid KRW 32 million from the above insurance company on the basis of the non-dividend New Drivers Injury Insurance Contract that was concluded between the Plaintiff Kim Jong-bong and the Hyundai Marine Fire Insurance.

However, the above accident insurance amount has the nature of an insurance premium already paid by the tank engineering, which is not the defendants, and also, since the fixed amount of accident insurance has the nature of personal insurance such as life insurance, it shall not be the benefit to be deducted as a offsetting profit and loss (see, e.g., Supreme Court Decision 98Da25061, Nov. 24, 1998). Thus, the above assertion by the defendants is not accepted.

(d) Condolence money;

(1) Reasons for consideration: All circumstances shown in the pleadings of the instant case, such as the age of Plaintiff Kim Jong-bong, the background of the instant accident, the degree of injury suffered by Plaintiff Kim Jong-young, the Plaintiffs’ family relationship, and the amount of consolation money claimed by the Plaintiffs.

(2) Amount of consolation money

(A) Plaintiff Kim Jong-bong: 16,000,000 won 2)

(B) Plaintiff Kim-○, Lee Dong-gun, each of which was KRW 1,500,000.

E. Sub-decision

Therefore, the Defendants are obliged to resist each of the above amounts of KRW 172,702,361 (i.e., KRW 156,702,361 + KRW 16,000 + KRW 16,000 + KRW 16,000) to each of the plaintiffs Kim Jong-young, and KRW 1,50,000 per annum from August 27, 2005 to July 15, 2008, which is the date of this decision, to dispute about the existence and scope of the Defendants’ obligations to perform, and to pay damages for delay at each of the above amounts of KRW 20% per annum under the Civil Act from the following day to the date of full payment.

4. Conclusion

Therefore, the plaintiffs' claims against the defendants are justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges

This account;

Note tin

1) The term "business owner" refers to a person who operates a business by employing a worker (Article 2 subparagraph 3 of the Industrial Safety and Health Act), and includes a person who operates a business as a business.

The calculation of profits and losses for video works belongs to and refers to a person who is in the position to direct and supervise workers in an objective manner, and the plaintiff Kim Jong-young is subject to such an application.

Defendant 1, a joint contractor, is also the same as Defendant 2, even if he/she received the request of Defendant 2.

A business operator shall be responsible for the instant accident.

2) The Plaintiff Kim Jong-bong sought a payment of consolation money of KRW 16 million.