Article 493 of the Civil Procedure Act, requirements for establishing liability for damages on collection and delivery

(a) The fact that a month is liable for damages in the first place is not limited to the cases where a month has intention or gross negligence on the part of a month, and the same applies to cases where a passage has been completed.

Article 493 of the Civil Procedure Act, Article 2 (2) of the State Compensation Act

Cropic fever (Attorney Im Young-young, Counsel for defendant-appellant)

Defendant 1 and one other

Seoul High Court Decision 64Na859 delivered on September 24, 1965

(1) All appeals are dismissed.

(2) The costs of appeal are assessed against the Defendants.

The Defendants’ grounds of appeal are examined.

(1) On the first ground for appeal

According to Article 493 of the Civil Procedure Act, if a series of calendars causes damages to the creditors or other interested persons because it was an act to receive delegation from the creditors, or a violation of an official duty, and the purport of Article 493 of the Civil Procedure Act is not to limit it to cases where a series of calendars had intention or gross negligence, but to exclude cases where a series of calendars had a progress room.

Even though the provisions on the liability of the state under the Constitution or the provisions of Article 2(2) of the State Compensation Act are applied, it is not limited to only the case of intention or gross negligence of the first liability for the month of collection as stipulated in Article 493(a) of the Civil Procedure Act.

The purpose of Article 2(2) of the State Compensation Act is that where the State inflicts damage on any other person in violation of the statutes by intention or negligence at the time when a public official performs his/her duties, the State is liable for reimbursement to the public official. In particular, it is limited to the cases where the public official was intentionally or by gross negligence. Therefore, it is not necessary to examine whether there was gross negligence on the part of the victim when he/she was responsible for the collection and delivery, or whether there was a progress or gross negligence on the part of the public official. In this sense, we cannot accept the judgment of the court below that there was an error in legal interpretation or incomplete deliberation.

The judgment of the court below cannot be deemed to have drawn the conclusion by applying the legal principles of employer's liability for damages under the Civil Act as discussed above. Thus, it cannot be said that the judgment of the court below, which is not in question, recognized the Defendant's liability for damages by applying Article 26 (2) of the Constitution and Article 2 (2) of the State Compensation Act to a false interpretation.

(2) On the second ground for appeal:

In the case of compulsory execution under the name of the debtor who ordered the removal of a building (in this case, the provisional execution is attached to the judgment of the court of the lawsuit pursuant to Article 692 of the Civil Procedure Act), the person designated in the decision of this authority shall first obtain the authorization of the court of the lawsuit pursuant to Article 692 of the Civil Procedure Act, and only the person designated in the decision of this authority may execute the execution. However, in this case, the defendant in this case (2) did not obtain the authorization of the court of the first instance, but only removed the plaintiff's building with the delegation of the defendant, who is the execution creditor, without obtaining the authorization of the court of the first instance, and in this case, it cannot be said that

The court below's rejection of the defense of comparative negligence by the defendants under the same view as party members is just, and therefore the court below is not erroneous in the interpretation of the law.

It seems that the judgment of the court below seems that only if the plaintiff has a legal obligation to take remedial measures such as the above above, it seems that the plaintiff is negligent, but if we rhife the context before and after, it cannot be seen that the plaintiff is a single material to lead the decision that the plaintiff has no legal obligation to do so.

(3) On the third ground for appeal:

As to the starting point of the statute of limitations for the right to claim damages, the Civil Act stipulated that the damage should be known to the person who caused the damage, and the purport that the damage should not be caused is that the harmful act should not be included not only in the occurrence of damage but also in the tort (Supreme Court Decision 63Da626 Decided November 7, 1963, Supreme Court Decision 63Da626 Decided May 4, 1965, Supreme Court Decision 64Da1696 Decided May 4, 19

According to the arguments, in this case, the plaintiff's execution of removal of a building without undergoing the court of the lawsuit's authorization decision or necessary examination (2). Thus, the plaintiff's execution of removal of a building should be deemed to have been known to the fact that it was a tort on October 18, 1956, which was at the time of execution. However, although the defendants' execution of a judgment which declared provisional execution against the plaintiff's building without obtaining the authorization decision from the court of the lawsuit, it would be unreasonable to say that such execution is a tort against the general public who has no knowledge of law even if it was executed without receiving the authorization decision from the court of the lawsuit. The court below is justified in rejecting the defendants' defense of extinctive prescription.

The court below did not err in the application of law.

Accordingly, this appeal is dismissed as it is without merit, and all costs of appeal are assessed against the defendants.

This decision is consistent with the opinions of the involved judges.

The judge of the Supreme Court (Presiding Judge) of the Republic of Korea shall have the authority to transfer a red net holiday.