Mez Fire Marine Insurance Co., Ltd. (Attorney Park Jae-sik, Counsel for the plaintiff-appellant)

Gangwon-do (Law Firm Multi-Hunting et al., Counsel for the defendant-appellant)

May 23, 2013

Seoul Central District Court Decision 2012Da5076761 Decided November 15, 2012

1. The portion of the judgment of the court of first instance against the plaintiff corresponding to the money ordered to be paid below shall be revoked. The defendant shall pay to the plaintiff 25,674,201 won and the amount calculated by applying 5% per annum from January 15, 201 to June 13, 2013 and 20% per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. 7/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 7,235,69 won with 5% interest per annum from January 15, 201 to the delivery date of a copy of the complaint, and 20% interest per annum from the next day to the full payment date.

1. Basic facts

A. The Plaintiff is an insurer who entered into an automobile comprehensive insurance contract with Nonparty 1 (vehicle number omitted) with respect to the Plaintiff’s non-party 1 (hereinafter “Plaintiff’s vehicle”).

B. At around 14:00 on July 9, 2009, Nonparty 1 driven the Plaintiff’s vehicle and proceeded with one lane of 463 local highway near the Gangseo-gu, Seoul Special Self-Governing Province, in writing, from the new steel source room to the new steel source room, Nonparty 1, who was deprived of the central line from the kibro, thereby getting out of the road opposite to the opposite side of the road and getting out of approximately 24 meters away from the road opposite to the road, and was killed by Nonparty 2 (hereinafter “instant accident”).

C. At the time of the instant accident, the Plaintiff paid KRW 1,07,480 to Nonparty 6, who was accompanied by the Plaintiff’s vehicle, KRW 1,070,690 to Nonparty 3, KRW 45,085,760 to Nonparty 4, KRW 821,160 to Nonparty 5, and KRW 200,146,920 to Nonparty 2’s bereaved family members as insurance money. Nonparty 1, the insured, paid KRW 710,220 to Nonparty 1 as the insurance money for self-physical accident. The instant vehicle was entirely destroyed, thereby paying KRW 8,610,00.

[Reasons for Recognition] Each entry and video of Gap evidence Nos. 1 through 5 (including each number, hereinafter the same shall apply) and the purport of the whole pleading

2. The plaintiff's assertion

The instant accident occurred when Nonparty 1 neglected the duty of safe driving while driving the Plaintiff’s vehicle and the Defendant’s road management defect that did not install a protective fence at the point where the Plaintiff’s vehicle falls. It is reasonable to deem that the Defendant’s error as above contributed to the instant accident as 30%. As such, the Defendant is obliged to pay the Plaintiff the indemnity amount of KRW 77,235,669 (i.e., KRW 257,452,230 x 30%) and damages for delay.

3. Determination

(a) Occurrence of and limitation on liability for damages;

"Defects in the construction and management of public structures" under Article 5 (1) of the State Compensation Act refers to the state in which the public structures are not equipped with safety ordinarily required for their use. In the construction and management of public structures, it cannot be said that there are defects in the construction or management of public structures on the ground that they are not equipped with high level of safety to the extent that they always maintain a perfect state. Thus, the degree of duty to take protective measures imposed on the installer or manager of public structures is to the extent generally required by social norms in proportion to the danger of the public structures. Thus, in the case of roads which are public structures, it is sufficient to have relative safety that expect users to use them in a common and orderly manner, taking into account the relationship with other public facilities or the financial, human and physical constraints of the person who installs and manages them (see Supreme Court Decision 9Da54998, Apr. 25, 200).

1. The following circumstances are acknowledged by comprehensively considering the overall purport of arguments and arguments on the 10th, Gap's 2, 3, and 5 through 10 items, namely, the point of accident is the road bend by the direction of the plaintiff's vehicle running. If there are many snows or snows coming from the road running in a narrow channel, the vehicle running in the same direction is dissatched, and it is highly likely to enter the road by opposite to the central line. ② The 24 meters wide from the road where the accident in this case occurred, and the large-scale accident is likely to occur by falling down on the valleys if the vehicle deviates from the road. ③ The road is not constructed near the road where the accident in this case occurred, and the road is constructed, and the road is not constructed, and the road is not constructed, and the road is not constructed, and the road is not constructed, and in principle, the road is not constructed, and the road is not constructed, to the extent of the accident in this case's slope.

However, in light of the following circumstances acknowledged by the above evidence, i.e., when the accident occurred at the time of the accident, it is reasonable to view that the defect in the construction and management of the road at the time of the accident at the time of the accident at the time of the accident at issue as 10% is 10%, and thus, the defendant's liability is limited to 10% since the defect in the construction and management of the road 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 issue, in consideration of the following: (a) Non-party 1 appears to have been passing ahead of the preceding vehicle in excess of the central line at the road 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 at the time of the accident at the time of the accident

(b) Scope of the right of indemnity;

The Plaintiff paid insurance money of KRW 257,452,230 due to the instant accident is as seen earlier. In light of the developments leading up to the instant accident and the degree of damage suffered by the victims, the above amount seems to be within the actual amount of damage caused by the instant accident. However, as long as there is no evidence to prove that there was any other agreement allowing subrogation of the insurer, the insurer cannot subrogate the insurer’s right to claim damages by Article 729 of the Commercial Act. Accordingly, the amount that the Plaintiff may claim against the Defendant is 25,674,201 won [=256,742,010 won + 257,452,230 won – 710,220%) and delay damages therefrom.

Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 25,674,201, and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from January 15, 2011, which is the date when the Defendant rendered a substantial judgment, to June 13, 2013, and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the following day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above scope of recognition, and the remaining claims shall be dismissed due to the lack of reason. Since part of the judgment of the court of first instance against the plaintiff which has partially different conclusions is unfair, the plaintiff's appeal shall be partially accepted, and it shall be revoked, and the above amount shall be ordered to be paid to the defendant, and the remaining appeal by the plaintiff shall be dismissed as it has no reason. It is so decided as per Disposition.

Judges Lee Jae-mo (Presiding Judge)

1) The Defendant asserted that the point where the Plaintiff’s vehicle crashed is a part that entered the road from the farm road to the road, and thus, it is difficult to recognize that the point where the Plaintiff’s vehicle crashed from the farm road to the road according to the images of the evidence Nos. 7, 10, and Nos. 7 through 10, and each of the images No. 7 through No. 10, it is difficult to recognize that the point where the Plaintiff’s vehicle fell from the farm road to the road. Furthermore, even if it is recognized as the entry part, the Defendant could have sufficiently prevented the occurrence of the accident or the expansion of damage by installing a guard, etc. in