2014Na200341 Compensation (as referred to)

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2

3

4

High 3, 4 is a minor, and the legal representative A, her mother B

[Defendant-Appellant] Plaintiff 1 and 2 others

○○, ○○, ○○

[Defendant-Appellant] ○○

Gangwon-do

The representative of the Do Governor shall be the highest order

Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellant]

Seoul Central District Court Decision 2012Gahap76312 Decided May 28, 2013

Seoul High Court Decision 2013Na201077 Decided August 29, 2013

Supreme Court Decision 2013Da211865 Decided January 23, 2014

May 27, 2014

June 19, 2014

1. The plaintiffs' appeal is dismissed.

2. The costs of the lawsuit after the appeal are assessed against the plaintiffs.

The judgment of the first instance shall be revoked. The defendant shall revoke the judgment of the court of first instance. The defendant shall each 108,012,032 won, 032 won, 000 won, and

C and D, each of these KRW 5,00,000, and the line of the first instance judgment from July 29, 2012 to each of them

Until such date, 5% per annum and 20% per annum from the following day to the date of full payment.

D. Payment ( Plaintiff A reduced the claim in the trial before remand) ( Plaintiff A reduced the claim in the trial before remand. 1)

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus, citing this as it is in accordance with the main text of Article 420 of the Civil Procedure Act.

2. Whether liability for damages arises;

A. The plaintiffs' assertion 1) The plaintiffs' assertion

The Defendant, as a manager of the construction and management of the instant river that is a public structure, has a high risk of water play in the vicinity of yellow sloping, and thus, should take all measures to prevent the accident, including the installation of a tag or warning sign. However, the instant accident occurred due to negligence on the part of the Defendant. Accordingly, pursuant to Article 5(1) of the State Compensation Act, the Defendant is obliged to pay damages to the Plaintiffs, who are the bereaved family members of the Deceased, for each damages, KRW 108,012,032, and KRW 5,000,000, and damages for delay to the Plaintiff C and D, respectively.

2) Defendant’s assertion

The Defendant established and implemented a number of plans to prevent water play accidents in the summer, and the static-gun installed warning signs, banners, etc. at the entrance, etc. of Heung Park, located adjacent to the instant river, to prevent water play safety accidents, and warneded that water play in the instant river is deep. Nevertheless, it appears that the Defendant was unable to properly see the above warning details on the wind moving to the instant river through a forest path, not the entrance of the river created by the Deceased, but on the forest path. Furthermore, the Defendant, including the Deceased, moved to the area near the Yellow Sea where the instant accident occurred, and moved to the area near the Yellow Sea where the instant accident occurred, without any safety equipment, even with knowledge that the depth was deep. Accordingly, the Defendant was not liable for the death of the Deceased.

B. Recognizing facts1) The instant river is a river running along the Heung Park. The river is a tourist destination centering around the Heung Park’s surrounding area, and the instant river is a small river that uses Heung Park to the extent that tourists play water at the time of diving. 2) The river in front of Heung Park is a river that does not reach the depth of Heung Park, and tourists normally play water. On the other hand, the river is a large part of the instant river located adjacent to Heung Park Park, the width of which is about 20 to 30 meters, and is protruding the instant river from the legal side of the local 415-line (hereinafter “the road of this case”). The river of this case is protruding the river of this case, the height of the water surface of which is about 5 to 6 meters, and the area of the river of this case is lower than that of the local Do 415-line (hereinafter “the road of this case”).

The depth is 1.5 to 2 meters.

3) For the purpose of approaching the Heung Park to a yellow bruth, the instant river is cut off to the instant road, and the width of the road shall move along the edge of the road. On the edge of the road, the instant river is installed with a rail and several spaces outside the rail, and the retaining wall constructed with concrete outside the rail, and thus, it seems that people usually do not come from the edge of the instant road. Furthermore, in light of the current state of the instant accident location, general Heung Park Park Park Park’s construction of the instant river, it appears that general tourists do not go from the instant river and do not seem to go from the retaining wall or the yellow bruth above, and it is not anticipated that the said river would not go out. 4) The Gangwon-do governor delegated the tasks of maintaining, repairing, checking the status of river management, etc. to the YY under the Regulations on the Delegation and Entrustment of Administrative Authority and the Gangwon-do Ordinance on the Delegation of Administrative Affairs, and the YY delegated the tasks of maintaining and repairing the instant river.

Accordingly, at the entrance of Heung Park, the following is observed in the area where the depth of the deceased is high in danger of safety accidents, and the head of the Si/Gun will see the king. The head of the Si/Gun can see a sufficient preparatory movement before 00 ambling off the water. The children, the elderly and the elderly do water play together with their guardians. After drinking, the ambling of the water play is installed at the entrance of Heung Park Park, and the ambling of the deceased's ice ice ice ice ice ice ice ice ice ice ice ice ice ice ice ice ice ice ice ice ice, and the new river ice ice ice ice ice ice ice ice ice ice ice ice gate, with the words "the river ice ice ice ice gate and the river ice ice ice ice ice gate," and the new river ice ice ice ice gate and the old water ice gate gate gate.

7) The instant accident occurred after the Deceased et al. started water play. At the time of the accident, the Deceased et al. started ice ice ice, and the time of the commencement of ice ice ice ice ice ice ices. At the time of the accident, the Deceased’s death village E was ice ice ice ice out at the point of the instant accident, and the Deceased ice ice ice ice dice dice dice dice with E without attaching any safety equipment. E was rescued by others, but E was rescued by others, but the Deceased was unable to rescue. Before the Deceased et al., the Deceased et al. checked, the Deceased et al. was first checked to the students at the place where students were ice ice ice, and the Deceased et al. notified the Deceased of ice ice ice dice dice dice dice dice as well as the Deceased’s new ice dice dice dyke.

9) Since 2009, there was no occurrence of the following accidents in the instant river from the date of the instant accident to the date of the occurrence.

[Grounds for recognition] Gap evidence 6, Eul evidence 1, 2, 4, 5, 6, 10, Eul evidence 3, 5, 6, 7, 8, 10, 11, 13, and 14, Eul evidence 3, Eul evidence 1, 2, 4, and 12 evidence, Eul evidence 3, Eul evidence 1, 3, Eul evidence 1, 2, 4, and 12, the result of fact-finding of the witness of the first instance trial, the testimony of the witness of the court of first instance, the results of fact-finding, and the whole purport of the pleadings.

1) Whether the Defendant is in the position of a construction manager of public structures

The Governor of Gangwon-do bears the duty to maintain and manage the river of this case as the managing agency of the river of this case, which is a local river, pursuant to Article 8 (2) of the River Act. Thus, if causation between the installation and management defect of the river of this case and the accident of this case is acknowledged, the defendant, the local government to which the Governor of Gangwon-do belongs, is liable pursuant to Article 5 (1) of the State Compensation Act. 2) "the defect in the construction and management of the river of this case" of Article 5 (1) of the State Compensation Act refers to the state where public structures have failed to have ordinary safety in accordance with their purposes. Thus, it cannot be said that there is a defect in the construction or management of the river of this case without the complete state of public structures and any defect in its function. It is sufficient to determine whether the above safety was satisfied by taking into account the purpose of the public structure of this case, the current status of the installation site and the situation of its use, etc., and to establish the installation and management of the public structure of this case as 90.

In particular, there is no choice as to whether a river as a natural public structure should be installed or not, and there is natural existence in the state of danger, and there is only a certain limit in the risk management of a river itself in preparation for an dysium accident due to the wide range of the river basin and the dysical change due to the situation of flow water (sea water). As such, it is impossible for a river management authority to conduct risk management for all river areas with the risk of an dysium 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 the river area by comprehensively taking into account the current status of the river in question, the current status of the use thereof, the history of the past

B) We look back to the instant case. We examine the instant case. On the road that was delegated by the Governor of Gangwon-do to maintain and manage the instant river by the Governor of Gangwon-do, the managing agency of the instant river, through the entrance of Heung Park or Heung Park and installed a warning sign and banner for the prohibition of swimming in order to protect the safety of users of the instant river as seen earlier. Furthermore, it is anticipated that the Governor of Gangwon-do and the head of Seogi-do would cut off the instant river and make ice ice ice out outside the rail of the edge of the instant road, and there is no manager to appoint a manager to take protective measures, such as prohibiting water play in the vicinity of the instant river, or additional installation of a warning sign or a tag to urge attention at the point of the instant accident. Accordingly, it cannot be deemed that the Governor of Gangwon-do was not responsible for the installation and management of the instant river.

3) Whether to recognize proximate causal relation

According to the above facts, the accident of this case is deep in the depth of the point where the Deceased was involved.

In light of the aforementioned circumstances, even if the Governor of Gangwon-do was aware of the fact, even if there was a defect in the installation and management of the river on the part of the instant accident site in the installation and management of a dangerous sign or a tag at the risk of danger without wearing any safety gear, it is difficult to recognize the proximate causal relation between such negligence and the instant accident. (iv) The outcome of the lawsuit is difficult to acknowledge the proximate causal relation between such negligence and the instant accident, even if the Governor of Gangwon-do voluntarily withdrawn the protective measure as above.

Therefore, it cannot be deemed that there is a defect in the maintenance and management of the river of this case, and furthermore, there is no proximate causal relation with the accident of this case, so the defendant is not liable for damages against the plaintiffs under Article 5 (1) of the State Compensation Act.

3. Conclusion

Therefore, the claim of this case by the plaintiffs should be dismissed without any further review. However, the judgment of the court of first instance is justifiable with this conclusion. Therefore, the plaintiffs' appeal is dismissed as it is without merit.

Judges fixed-ranking of the presiding judge

Judges Lee Dong-chul

Judges Kim Jae-hyung

1) The Plaintiffs, at the first instance court and the first instance court before remanding, jointly Defendant and the fleet group, who are not the Defendant, as co-defendants, respectively.

The Court sought to pay each of the above money to the High Court, and the trial before remanding part of the plaintiffs' above claims

The judgment was rendered, and only the defendant appealed to the judgment of the court before the remanding, the plaintiffs and the defendant's company.

The portion of the objection is final and conclusive.