2012Na359 Liability for Damages

A

Attorney Park Jae-soo et al., Counsel for the defendant-appellant

Farming Association 00 Single Farming Association

Representative Director 000

Daegu District Court Decision 2011Gahap62 Decided December 23, 2011

July 25, 2012

August 22, 2012

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the following order for payment shall be revoked.

The defendant shall pay to the plaintiff 3,051,96 won with 5% interest per annum from January 14, 2011 to August 22, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The remaining appeal by the plaintiff and the defendant are dismissed, respectively.

3. Of the total litigation costs, 2/3 shall be borne by the Plaintiff. The remainder shall be borne by the Defendant respectively.

4. The part ordering a payment of money under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 162,864,00 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

A. The plaintiff

The judgment of the court of first instance is modified as follows. The defendant shall pay to the plaintiff 162,864,00 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

B. Defendant

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

1. Facts of recognition;

A. While the plaintiff kept capital in the defendant's warehouse, the plaintiff suffered damage due to black fluoral disease (hereinafter "the defect in this case") that changes in the inside of the capital in black color while the plaintiff kept capital in the defendant's warehouse. The defendant is a warehouse operator who operates a low temperature warehouse (hereinafter "the warehouse of this case") composed of two employees in the 00 00 Gyeongnam-gun and 17 hosium.

B. A entered into a capital reduction contract with the Defendant in the name of B and kept 10,718 % of the capital contained in the warehouse of this case from June 25, 2010 to July 9, 2010 (hereinafter referred to as "capital reduction") in the warehouse of this case, on eight occasions, from June 25, 2010 to July 9, 2010, and then transferred 7,430 m (hereinafter referred to as "the capital reduction of this case") among them to B, and the remainder was transferred to B.

C. On October 4, 2010, C transferred the capital reduction of this case, which was kept in the custody of 156,000,000 won (21,000 won per network) to the Plaintiff, as well as the position of the custodian contractor, to the Plaintiff on October 1, 2010. Accordingly, on October 8, 2010, the Defendant newly prepared a new evidence of the capital reduction (Evidence A2) with respect to the Plaintiff on October 8, 2010.

D. The instant capital reduction was kept in the room Nos. 6 and 17 in the original room Nos. 6 and 17 until the time when the Plaintiff was transferred to the Plaintiff. The Plaintiff was kept in the room Nos. 17 without any particular defect. While there was no particular defect in the Plaintiff’s delivery on December 3, 2010, it was confirmed that there was no particular defect in the initial room Nos. 17. However, it was confirmed that most of the Culei pots were destroyed by black fluor, thereby having no product value.

E. According to the Food and Drug Center, black colon's disease is too low during the transport or storage of capital (for food capital 1 to 27, it is possible to make a long-term storage at the temperature of about 4°C) and thus, there is a lack of oxygen. However, the capital of this case is a variety of "dives," where the dormant period is long and the storage is good and is stored and managed under normal conditions, and the black colon's disease is not well created.

[Ground of recognition] Part of Gap evidence 1 to 9, Eul evidence 1 to 5 (including each number);

The fact-finding and its supplement of the Director of the National Food Science of the court of first instance, and the result of the supplementation thereof, the first instance evidence;

witness of D partially. The purpose of the whole oral argument

2. Occurrence of and restrictions on liability for damages;

A. Determination on the cause of the claim

According to the above facts, unless the defendant asserts and proves that he/she or his/her employees fulfilled his/her duty of care as a good manager with respect to the custody of the capital of this case, which is the deposited goods, he/she shall be liable to compensate the damage suffered by the plaintiff due to black fluor's disease that occurred in the capital of this case under Article 160 of the Commercial Act.

B. Judgment on the defendant's argument

In regard to this, the Defendant asserted that the warehouse of this case was established with a warehouse monitoring system that enables remote verification, and was managed by skilled employees, and that the custody temperature of the capital of this case was also maintained 2.8 to 3.1°C. Thus, the Defendant fulfilled the duty of care necessary for the custody of the capital of this case. In light of the fact that there was a black heart disease only in the capital reduction of the Plaintiff’s sculbro, among the capital stored in the same warehouse, the defect of this case occurred only due to the problem of the capital reduction itself or the delay in the delivery of the Plaintiff who suffered profits from market price profits.

In full view of the overall purport of the arguments in the above quoted evidence and Eul evidence Nos. 6 through 17 (including paper numbers), the defendant managed the warehouse of this case through E with low temperature storage management experience of not less than 20 years and the children of the defendant representative director, and the warehouse of this case was operated by the warehouse monitoring system to verify real-time temperature and inventory conditions inside the outside through PC or smartphones. The warehouse No. 17 of this case was kept in the warehouse No. 17 of this case, even in the warehouse No. 17 of this case, the site capital reduction, etc. kept in the scultha or F, but the black heart disease occurred (487 nets from July 1, 201 and 600 nets from August 26, 2010, respectively, and the warehouse No. 1710, Oct. 16, 2016.

Mama capital was put into the room No. 8 on October 9, 2010, and was moved to the room No. 17 on October 18, 2010, and was removed to the room No. 11 on December 27, 2010, and 11 times during the period from February 25, 2011, but all black heart diseases were released in black, but the "Management and Technology Manual" published by the Ministry of Agriculture and Forestry may be recognized as having described the adequate storage temperature of edible capital in the range of 2 to 2.5 cm. However, in light of the circumstances, the above quoted evidence and recognized facts alone are insufficient to deem that the defendant fulfilled his duty of care necessary for the custody of capital in this case, and there is no other evidence to support this otherwise.

Rather, the above quoted evidence and the overall purport of the pleading, namely, ① the Defendant alleged that the instant capital reduction was always kept above 2.8 to 3.1 cc., the adequate temperature. However, the submission of the temperature measurement data in the actual warehouse No. 17, Oct. 13, 2010, Oct. 11, 10, 30, and 12.3, it appears that the temperature in the room No. 17 x 6.2 cc., even if it were to be different from the above, the Defendant appears to have been kept above 17 p.m. 5 x 2 p.m., which were hard to find to be kept in the warehouse due to the removal of flusium attached to the low temperature storage system for 6 hours. However, the Defendant did not take measures to reduce the temperature of the instant cargo from the 17 p.m., the Defendant did not have to keep it in the lower 4 p.m. storage of the instant scrap.

C. Limitation on liability

However, the following circumstances revealed in the above quoted evidence and the facts of recognition, namely, ① the Plaintiff stored the capital of this case in the PP Maluos, which is not easily passed through the air, and the Defendant did not properly confirm the method of keeping the capital of this case, such as not raising any objection as to the storage of the said Maluos overlapped with six duplicates. ② The defect of this case occurred more than five months after the request for the custody of the person under this case, and other capitals, such as the Malus, kept in the same warehouse, contributed to the occurrence and expansion of damage due to the Plaintiff’s negligence in the course of keeping the capital of this case, or the characteristics of the Mana, which was relatively vulnerable to the flus disease, compared to the Plaintiff’s negligence in the process of keeping the capital of this case. Accordingly, in view of the principle of fair burden of damage, the Defendant’s liability should be limited to 50% of the damage.

3. Scope of liability for damages

(a) The amount of damages of the scule capital;

Comprehensively taking account of the purport of the entire argument in the above quoted evidence, the Plaintiff could have disposed of the said quoted evidence at the same price as the early reduction of capital between December 2, 2010 to February 201, the Plaintiff would have been able to dispose of the 1,166 network for the 6,264 network for the 1,166 network for the franchisium that the Plaintiff did not ship on February 201. The Defendant may recognize the fact that the Defendant disposed of the 1,166 network for the franchisium that was disposed of by the Plaintiff and appropriated the 22,100,000 won for the storage charges of the capital of this case, excluding the expenses incurred by the Defendant’s disposal of the 1,166 network for the 1,166 network for the franchisium ( approximately 18,953 won per network) and thus, there was no dispute between the parties. The portion of the Defendant’s liability is 118,217,52962,5296,584 won

The plaintiff asserts that the grade of the capital reduction of this case is above at least "the level", and that the 30,000 won per 20 km from the time of the occurrence of the defect of this case was above "the price of the capital reduction of this case" around December 2010, the time of the defect of this case, and the defendant should compensate the plaintiff for the amount of 162,864,000 won per 26,00 won per 26,000 won per 26,00 won per 26,000 won, while the above quoted evidence alone is insufficient to recognize that the grade of the capital reduction of this case was above "the grade of the capital reduction of this case" and that the price of the capital reduction of this case was above 30,000 won per 20 km, and it is merely the head of the state that did not consider the expenses of disposition. The part of the plaintiff's assertion in excess of the above recognized amount is not accepted.

B. Sub-determination

Therefore, with respect to the Plaintiff’s damages amounting to KRW 59,360,796 and the amount of KRW 26,308,80 from the date of occurrence of the defect in this case, the Defendant is obligated to make an objection as to the existence and scope of the Defendant’s obligation to pay damages from January 14, 2011 to December 23, 201, the date following the delivery date of a duplicate copy of the lawsuit in this case sought by the Plaintiff, which is 20% per annum as stipulated in the Civil Act, from the date of sentencing of the first instance court until December 23, 2011; 20% per annum as stipulated in the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings from the next day to the date of full payment; 33,051,96 won, which orders additional payment at the court of first instance, from January 14, 2011 to the date of full payment; and 20% per annum as stipulated in the Civil Act, from August 25, 2012.

4. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and it is dismissed as it is without merit. The plaintiff's claim of this case was partially different from the judgment of the court of first instance.

Since the part of the appeal against the High Court is unfair, the plaintiff's partial acceptance of the appeal against the High Court is revoked, and the defendant is ordered to pay the amount additionally recognized in the trial against the High Court. Since the remaining part of the judgment of the first instance is justified, the remaining appeal by the plaintiff and the defendant's appeal are dismissed as it is without merit. It is so decided as per Disposition.

Red-face (Presiding Judge)

Freeboard Kim

x. Jark Sick Number