2011Confirmation of the existence of obligations (principal office)

201A. 2375 (Counterclaim) damages

0000 Stock Company

Bucheon-si

Representative Director;

Attorney Lee Do-young

Attorney Lee Jae-soo

1. Experimental;

Daegu Suwon-gu

2. Experimental;

Daegu Suwon-gu

[Defendant-Appellant]

December 18, 2012

January 15, 2013

1. Regarding the accidents listed in the separate sheet,

A. Ascertainment that all the Defendant (Counterclaim Defendant)’s liability for damages 1. 000 did not exist; and

B. It is confirmed that the Defendant (Counterclaim Defendant)’s damages liability against the Defendant (Counterclaim Plaintiff) does not exceed the amount indicated in paragraph (2).

2. The Plaintiff (Counterclaim Defendant) paid 75,758,456 won to the Defendant (Counterclaim Plaintiff) 2. OO and 5% interest per annum from March 19, 201 to January 15, 2013, and 20% interest per annum from the next day to the day of full payment.

3. On February 2, 200, the remainder of the principal claim against the dedicated claim and the Defendant (Counterclaim Plaintiff) 1.000 and the remainder of the Defendant (Counterclaim Plaintiff) 2.000 are dismissed, respectively.

4. The costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) 1.30, while the part arising between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) are assessed against the Defendant (Counterclaim Plaintiff), the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) 2.00.00. The part arising between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) are assessed against the Plaintiff (Counterclaim Defendant), and 50% are assessed against the Defendant (Counterclaim Plaintiff) 0.0%.

5. Paragraph 2 can be provisionally executed.

In relation to the claim of this lawsuit, it is confirmed that there is no obligation of the Defendant (Counterclaim Defendant, hereinafter referred to as “Plaintiff”) against the Defendant (Counterclaim Plaintiff, hereinafter referred to as “Defendant”) (hereinafter referred to as “Defendant”) 2. 000 in relation to the accident described in the Disposition No. 1-A and the Attached List (hereinafter referred to as “instant accident”).

Counterclaim Claim: Defendant 1 paid to Defendant 1 the amount of KRW 18,133,598, Defendant 2, the amount of KRW 186,697,757, and the amount of KRW 20% per annum from the day following the delivery date of a copy of the counterclaim to the day of complete payment.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Basic facts

(a) Relationship between the Parties

(1) The Plaintiff is a company that manufactures and sells pre-flags, etc.

(2) Defendant 1 is the owner of ○○○○○○○-○○○-○ Building (hereinafter “instant building”) in the Cheongbuk-gun, Cheongbuk-do, and Defendant 2 was a person who leased the instant building from Defendant 1 to one another on or around November 2009, and thereafter, was engaged in a pension business from March 201, 201 to another.

B. Occurrence of the instant accident

(1) 고등학생 ◆◆◆ 등 5명이 2010.8.8. 10:30경 이 사건 건물에 숙박하였는데, 위 ◆◆◆ 등 5명이 숙박하였던 객실(이하 '이 사건 객실'이라 한다)에는 원고가 제작한 선풍기(이하 '이 사건 선풍기'라고 한다)가 비치되어 있었다.

(2) 위 ◆◆◆ 등이 피고2와 함께 2010.8.9. 13:38경 이 사건 건물의 식당에서 라면을 끓여 먹던 중, 이 사건 객실에서 '펑'하는 소리와 함께 화재가 발생하여 이 사건 건물이 모두 전소되는 이 사건 사고가 발생하였다.다. 이 사건 사고의 수사결과

(1) ◆◆◆은 2010.8.9. 수사기관에서 "이 사건 선풍기가 2010.8.8.에는 잘 작동하였으나, 2010. 8. 9. 아침 08:00경부터 모터소리는 '윙'하는 소리는 들렸으나 날개는 회전하지 않았는데 그것이 좀 이상한 점이라고 생각된다"라고 진술하였다.

(2) On October 7, 2010, the National Institute of Scientific Investigation presented the opinion that the accident of this case is distinguishable from the burning trace that may occur in the event of electrical combustion from the wind of this case. ② If the possibility of artificial exploitation of water thought or cigarette butts can be excluded, it would be reasonable to regard the accident as shot light from the wind of this case as shot light.”

(3) 경북청도경찰서는 2010. 10. 26.경 '이 사건 사고는 이 사건 선풍기 내부 배선의 선간합선 등이 발생하여 발화한 것으로 추정되며, 피고2 또는 ◆◆◆ 등의 방화나 부주의로 인한 실화 혐의점을 발견할 수 없다'라는 이유로 이 사건 사고에 대한 수사를 내사종결하였다.

[인정근거] 다툼이 없는 사실, 갑 1 내지 7호증(가지번호가 있는 경우 각 가지번호 포함, 이하 같다), 을 1 내지 16호증의 각 기재, 이 법원의 국립과학수사연구원에 대한 각 사실조회결과, 증인 ◆◆의 증언, 변론전체의 취지(전문심 리위원 작성의 의견서 포함)

2. The parties' assertion

A. The plaintiff's assertion

① The origin of the instant accident is not the wind of the instant vessel. ② Even if the outbreak source of the instant accident was the wind of the instant vessel, the Plaintiff did not incur a fire due to a defect in the wind of the instant vessel, and thus, the Plaintiff does not hold liability for tort liability regarding the instant accident under the Product Liability Act or the Civil Act. ③ Even if the Plaintiff was liable for damages against the Defendants, even if the Plaintiff was liable to compensate for damages against the Defendants, the statute of limitations has expired against the Plaintiff

Therefore, the Plaintiff seeks to confirm that there is no liability for all damages against the Defendants regarding the instant accident.

B. The defendants' assertion

① The chemical origin of the instant accident is the wind of the instant vessel. ② Since the instant wind of the instant vessel was supplied around August 2002, it is presumed that the Product Liability Act is applied, and the fire was caused by the defect of the instant wind, the Plaintiff is obligated to compensate the Defendants for the damages under the Product Liability Act. ③ Even if the Product Liability Act is not applicable, the Plaintiff is liable for tort under the Civil Act against the instant accident caused by the defect of the wind of the instant vessel. Therefore, the Defendants are liable to compensate for the damages caused by the instant accident.

3. Determination

A. Whether the origin of the instant accident is the wind of the instant vessel

In light of the following circumstances, Gap evidence Nos. 3 through 6, the results of fact-finding on the Korea Electrical Safety Corporation and the overall purport of arguments, namely, ① the burning shape inside the guest room of this case is the shape that moves from the entrance to the toilet side, etc. according to the surface of the wall, ② the burning trace that may occur in the event of electrical generation from the wind hole of this case, ③ other characteristics such as TV inside the guest room of this case and electric sprink which are related to the generation of the accident of this case are not discovered in the passenger room of this case, ④ It is reasonable to view that there is no other evidence to acknowledge the possibility of the accident of this case as the non-explosionation or the non-explosionation of electrical equipment of this case (hereinafter referred to as the "explosionation of electrical equipment of this case"), ⑤ It is reasonable to recognize the possibility of the accident of the non-explosionation or the non-explosionation of electrical equipment of this case as the result of the accident of this case.

The Product Liability Act was enacted on January 12, 200 and enforced on July 1, 2002, and Paragraph 2 of the Addenda provides that "this Act shall apply to products supplied for the first time by a manufacturer after the enforcement of this Act." In this context, "supply" refers to delivery or provision for use by a manufacturer to a person who is not under his control for the first time. Thus, in this case, it is reasonable to view that the date the Plaintiff supplied the instant vessel refers to the date on which the Plaintiff delivered the instant vessel to Dozers and retailers.

그런데 갑 5, 6, 7호증, 을 11, 12, 13, 16, 17호증의 각 기재 또는 영상 및 변론 전체의 취지를 종합하여 인정할 수 있는 다음과 같은 사정 즉, ① 이 사건 선풍기는 원고가 1991. 3.경부터 1999. 3.경까지 제작한 제품으로 보이는 점, ② 원고는 대규모로 가전제품 등을 생산하는 제조업체로서 생산된 가전제품 등의 대부분을 직접 소비자에게 판매하는 대신 도·소매업체에게 판매하고 있으므로, 원고는 이 사건 선풍기를 제작한 무렵에 이를 도·소매업체에게 인도하였다고 봄이 경험칙상 타당한 점, ③ 이 사건 건물의 전 소유자 ■■■은 이 사건 선풍기를 2002. 8. 중순경 구매하였다는 확인서를 제출한 점 등을 종합하면, 원고는 이 사건 선풍기를 1999. 3.경 이전에 제작하여 이를 그 무렵 도·소매업체에게 인도함으로써 공급하였다고 봄이 상당하다.

Therefore, the Product Liability Act cannot be applied to the instant case, so long as the instant wind season is deemed to have been supplied prior to July 1, 2002.

C. Occurrence of liability for damages caused by a tort under the Civil Act

(1) Relevant legal principles

A manufacturer who manufactures and sells a product without fault is liable to manufacture and sell the product with safety and durability within the expected range in light of the level of technology and economic feasibility at the time of its distribution. In the event of damages to consumers due to defects in safety and durability, the manufacturer is liable to compensate for damages due to tort (see, e.g., Supreme Court Decision 92Da18139, Nov. 24, 1992). Meanwhile, where the manufacturer is liable to compensate for damages due to defects in a product manufactured in large quantity with high technology integrated, the process of manufacturing the product can be known only by the manufacturer, and the repair is also entrusted to the manufacturer or the repair business operator entrusted by the manufacturer, and whether such defects occurred or not, as the general public, the consumer is not aware of the existence of such defects, and it is difficult for the manufacturer to prove that the defect and the causal relationship between the defect and the damage have occurred due to the defect within the scope of 20 or more times in terms of social norms without reasonable proof from the manufacturer’s negligence in the area of the product.

(2) Estimation of product defects and Plaintiff’s liability

Based on the above legal principles, the following circumstances can be acknowledged by comprehensively taking into account the facts as seen earlier: ① internal distribution lines presumed to be connected with the cater of the instant machine and the external power source code are distinctive points of the electric power source group; ② internal distribution lines are not supplied first, and the internal distribution line can not be seen as being first generated from the internal distribution line of the instant machine (the result of inquiry by the National Scientific Investigation Institute on May 21, 201), and ② the internal distribution system of the instant machine is not likely to be used by the Plaintiff’s internal distribution system under the generally accepted social norms, considering that the internal distribution system of the instant machine cannot be seen as being used by the Plaintiff’s agent’s reasonable instruction and supervision over the instant machine. ② The internal distribution system of the instant machine is within the area of the instant machine, and the internal distribution system of the instant machine is not likely to be used by the Plaintiff’s internal distribution system.

Therefore, the Plaintiff is a manufacturer of the instant wind flag, and is obligated to compensate the Defendants for property damage caused by the instant accident.

(3) Judgment on the Plaintiff’s assertion

In regard to this, the Plaintiff asserts that the intra-line line of the air exhauster of this case, ① possibility of being caused by leakage, etc., ② possibility of being caused by the destruction of smokeing clothes due to the use of the electric code, etc. of the air of the air of this case, ③ possibility of being caused by the deterioration of the air of this case, ④ possibility of being caused by the deterioration of the air of the air of this case, ④ possibility of being caused by the combustion of the electric wires of this case, or high frequency 2) cannot be ruled out.

First, as seen earlier, the part of the Plaintiff’s assertion regarding the Plaintiff’s assertion as to the electrical equipment of the instant building is as follows. If there were only parts of the instant building but also parts of the electronic equipment except the instant electrical appliances, there is no evidence to acknowledge this. However, this part of the Plaintiff’s assertion cannot be accepted. Next, as to the Plaintiff’s argument, health team and the instant line of the windle first occurred from the internal line of the instant wind apparatus, and the internal line was deemed to be within the exclusive control area of the Plaintiff, the manufacturer, and there is no evidence to deem that there was negligence in the use and management of the instant wind apparatus. Accordingly, this part of the Plaintiff’s assertion cannot be accepted.

In addition, in the case where there is no evidence to acknowledge that the Defendants used the instant storm machine after the reasonable period of use under the social norms, and there is no evidence to acknowledge that the Defendants used the instant storm machine after the lapse of the reasonable period of use, if there was an internal straight line of the instant wind machine due to the natural deterioration of the electric wires, etc. of the instant wind machine, this cannot be deemed as a defect in the stability of the instant wind machine, and thus, the Plaintiff’s assertion may not be a ground for excluding the Plaintiff’s liability.

Finally, the plaintiff's assertion is based on the following circumstances: (a) if external correspondence phenomena occurred, it is highly probable to cause abnormal phenomena to the surrounding areas of the building of this case and electronic equipment of the building of this case; (b) there is no evidence to deem that there are electrical and abnormal phenomena to other electronic equipment except the electric wind of this case; (c) the place where high wave can normally occur is a large-scale industrial complex or a factory; (d) the building of this case was judged to be appropriate for the electric equipment of this case; (d) the professional examiner of this case is judged to be appropriate for the electric equipment of the building of this case; and (e) the opinion that the external letter or high wave may cause the interruption of the wind of this case constitutes an excessive expansion interpretation.

(4) Judgment on the plaintiff's defense of extinctive prescription

The plaintiff's "date when he committed an illegal act" under Article 766 (2) of the Civil Code refers to the date when the product was manufactured or supplied. Since the wind of this case was manufactured or sold before March 199 and ten years have passed thereafter, the plaintiff's damage claim against the plaintiff against the plaintiff was completed by the statute of limitations.

In the case of damage claim based on an illegal act at an interval of time between a false act and a harmful act, the meaning of "the date when the illegal act was committed", which is the starting point of the extinctive prescription, shall be deemed to be when it can be deemed that the damage that exists only under the conceptual and dynamic conditions, has been realized thereafter, and in other words, when it can be deemed that the occurrence of the damage would be realistic (see Supreme Court Decision 2010Da54566, Aug. 30, 2012).

Based on the above legal principles, the meaning of "the date when the defendant committed an illegal act, which serves as the starting point for the statute of limitations for the plaintiff's damage claim against the plaintiff," is not the time when the ship of this case was manufactured and supplied as alleged by the plaintiff, but it is reasonable to view that the damage to the defendants was caused by the accident of this case, which is the time when the damage was realized. However, since it is apparent that the defendants' counterclaim claim of this case was filed five months after the date of the occurrence of the accident of this case, the statute of limitations for the plaintiff's damage claim against the plaintiff of this case has not expired. Therefore, the plaintiff

D. Scope of damages

(1) Damages

(A) Defendant 1 asserted that the amount of damages of the building of this case is KRW 7,376,786, and the amount of damages of the building of this case is KRW 77,376,786. However, if the amount of damages in the event of damage caused by a tort is acceptable, the amount of damages shall be within the extent of the exchange value of the property owned (see Supreme Court Decision 91Da28719, Feb. 11, 1992). In full view of the entries and arguments in Eul evidence 6, the insurable value of the building of this case is KRW 77,376,786, and the restoration cost of the building of this case is KRW 62,570,498, and the remaining value is KRW 62,570,498, and KRW 62,570,498, and KRW 76786,786,78686,786,7867,7867,78686, etc. of this case).

(B) As to Defendant 2 (total 151,516,913)

① Facilities damage: According to the result of the commission of appraisal to the Hank Damage Evaluation Corporation of this Court in the amount of KRW 15,242,186, the amount of the facility damage of this case can be recognized as constituting 15,242,186.

② It is alleged that Defendant 2 sustained a loss of equipment equivalent to KRW 57,093,907 due to the instant accident. However, according to the above appraisal commission, Defendant 2’s loss of equipment can be acknowledged as 24,274,727.

③ Damage: 12 million won: Defendant 2 operated a private house, general restaurant, skin management room, etc. in the instant building. If Defendant 2’s income is calculated based on a report on the fact-finding survey on labor by employment type, the income from the operation of the private house and general restaurant is KRW 1,734,83 per month (income from the operation of the private house and general restaurant is KRW 1,734,83 per month (income from the operation of the lodging business, KRW 1,706,00 per month, KRW 346,00 per year, KRW 346,00 per year), and income from the operation of the skin management room is KRW 1,855,583 per month (income from the operation of the skin management room is below 3 to four years, KRW 1,815,00 per month, KRW 487,00 per year, KRW 487,00 per year). Thus, Defendant 2’s loss due to the instant accident during the period of temporary closure of business (i.)

In a case where a victim of a tort concurrently engages in two or more businesses at the time of the accident, in light of the nature of each business or the form of work, etc., his/her business affairs can be compatible independently and independently. In a case where the victim is not in fact engaged in only one business, the actual income of the victim can be calculated by individually assessing the lost amount of income of each type of business (see, e.g., Supreme Court Decision 97Da36507, Dec. 12, 1997). In a case where objective data to recognize necessary expenses and capital facilities are discovered, it is reasonable to first determine the actual income of the victim, based on which the individual's contribution or value is measured, and it is reasonable to determine the actual income of the victim, based on which the individual's contribution or value is measured. However, it is reasonable to determine that the victim's actual income is not attributable to the individual's labor service, and if the victim's actual income is not attributable to the individual's individual labor, it shall be deemed that it is not similar to the individual's actual income of the victim's 97.

Based on the above legal principles, there is no evidence to acknowledge that the income earned by Defendant 2 from running a private house, general restaurant, skin management room, etc. in the building of this case depends mainly on Defendant 2’s personal labor. Rather, as acknowledged in full view of the aforementioned evidence and the purport of the whole arguments, it is reasonable to view that Defendant 2’s income earned from operating a private house, general restaurant, skin management room, etc. in the building of this case depends mainly on the capital income in light of the content of the business and the methods of providing labor, etc., it is reasonable to deem that Defendant 2’s income from each of the above statistical income shown in the fact-finding report by type of employment claimed by Defendant 2 cannot be considered as the basis for the amount of loss from business suspension due to the accident of this case.

However, due to the instant accident, Defendant 2’s failure to operate a public restaurant, general restaurant, skin management room, etc. in the instant building can be acknowledged in light of the empirical rule. Meanwhile, where it is difficult to prove specific amount of damages in light of the nature of the instant case even though the occurrence of property damage was recognized as having occurred, the court may determine the amount of damages in proximate causal relation by comprehensively taking into account all the relevant indirect facts, such as the relationship between the parties revealed by the result of examination of evidence and the purport of oral argument, the background leading up to the occurrence of property damage, the nature of the damage, and all the circumstances after the occurrence of the damage (see, e.g., Supreme Court Decisions 2002Da6951, 6968, Jun. 24, 2004; 2004Da37034, Feb. 17, 2005); comprehensively taking account of the evidence and the purport of the entire arguments as seen earlier, it is reasonable to view that Defendant 2’s loss occurred due to the instant accident x KRW 13 million won (i.

(2) Limitation of liability

The plaintiff asserts that the amount of compensation should be reduced in accordance with Article 3 of the Act on the Responsibility for Fire Caused by Fire Caused by Fire Caused by Fire. However, Article 2 of the above Act provides that "this Act shall apply only to the claim for compensation for the part caused by fire caused by fire," and the Act on the Liability for Fire Caused by Fire does not apply to the loss, i.e., the loss of an article which is indivisible with the point of combustion, not damage caused by fire, but to the fire directly (see Supreme Court Decision 99Da32431, May 26, 2000). Since the fire room of the building of this case constitutes a direct fire which forms an integral body with the point of the accident of this case, the above assertion by the plaintiff is without merit.

On the other hand, in the case of a claim for damages caused by a tort, where the damage was caused or expanded by the competition between the harmful act and the factors of the injured party, even if the factors of the injured party are irrelevant to the causes of the injured party, if the tortfeasor's compensation for the whole damages is contrary to the principle of fairness, the legal principle of comparative negligence can be applied by analogy to limit liability for damages in consideration of the factors of the injured party who contributed to the occurrence or expansion of the damage.

(See Supreme Court Decision 98Da50586 delivered on January 21, 2000, etc.)

Based on the above legal principles, the accident in this case is presumed to have occurred due to the defect of the storm of this case, but it is not clearly revealed that the specific occurrence of the accident in this case has occurred due to any defect, the period during which the Defendants used the wind of this case (in the case of the defendants' assertion, more than 8 years) and the principle of fairness as to the share of damages and the circumstances revealed in the arguments of this case, including the price of the wind of this case, should be comprehensively taken into account, it is reasonable to limit the plaintiff's liability ratio to 50%.

Therefore, the amount of damages to be borne by the Plaintiff against Defendant 1 is KRW 30,906,843 (=damage 61,813,686 x limitation of liability 50 %) The amount of damages to be borne by the Plaintiff against Defendant 2 is KRW 75,758,456 [The amount of damages = KRW 151,516,913 + + + KRW 151,516,913 + + + KRW 24,274,727 + KRW 12 million + KRW 50 per cent of the amount of damages to be borne by the Plaintiff against Defendant 2.

(3) Mutual-aid Defendant 1 is a beneficiary of KRW 59,243,188 as insurance money for the instant building from the East Fire Insurance, and thus, the above KRW 59,243,188 should be deducted from the amount of damages that the Plaintiff bears against Defendant 1. Therefore, the Plaintiff’s loss amount (30,906,843 - 59,243,243,188 won = -28,336,345 won). (4) final calculation is made.

Ultimately, the damages to be borne by the Plaintiff due to the instant accident are not against Defendant 1, and KRW 75,758,456 is against Defendant 2.

E. Sub-committee

Therefore, in relation to the instant accident, the Plaintiff did not have any liability for damages against Defendant 1, and the Plaintiff is obligated to pay to Defendant 2 the damages for delay calculated at each rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from March 19, 2011, the day following the date of service of the instant counterclaim, which was sought by Defendant 2, to March 19, 201, which is the day following the date of service of the instant counterclaim, which is the day of the instant judgment, until January 15, 2013, which is deemed reasonable for the Plaintiff to dispute the existence or scope of the said obligation.

4. Conclusion

Therefore, the plaintiff's principal claim against the defendant 1 is justified, and the plaintiff's principal claim against the defendant 2 and the counterclaim by the defendant 2 are justified within the scope of the above recognition. Since the plaintiff's remaining principal claim against the defendant 2 and the counterclaim by the defendant 1 and the remaining counterclaim by the defendant 2 are without merit, they are dismissed. It is so decided as per Disposition.

The presiding judge, judge and Dong judge

Judges Park Jae-min

Judges Dok-Ba

1) The term “aculse” means a pulse with a high shock in which electricity or voltage rapidly increases in the electricity circuit;

(ii) means an abnormal wave occurred on the part of the Haod. (Lod).

3) The cost of the construction of the instant building is the cost of depreciation. Defendant 1 is the insurable value of the instant building.

Although calculating the amount of damages, according to the evidence Nos. 6-3 of this case, the basis and soil works for restoring the building of this case to its original state.

Since incidental construction costs are less than the time of new construction, the insurable value of the building of this case shall be assessed as damages of the building of this case.

shall not be effective.

4) The “amount of damages” of the building in this case is indicated as the “amount of damages” in the overall chart of No. 6 No. 1, 3. The remainder cost is also included.