2018Na68063 Compensation for damages

1. A;

2. B

[Judgment of the court below]

C

Law Firm Shin-z., Attorney Park Jae-sik, Counsel for plaintiff-appellant

Suwon District Court Decision 2017Gau208287 Decided May 24, 2018

October 1, 2019

November 12, 2019

1. The part of the judgment of the court of first instance against the defendant shall be revoked.

2. All of the plaintiffs' claims corresponding to the above revocations are dismissed.

3. All appeals filed by the plaintiffs are dismissed.

4. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

The defendant shall pay to the plaintiff A 8,986,534 won, 5,30 won to the plaintiff B, and 5,033,30 won with 5% interest per annum from December 2017 to the delivery date of a copy of the application for modification of the claim and the cause of the claim in this case, and 15% interest per annum from the next day to the day of full payment (the plaintiff reduced the claim in this court).

2. Purport of appeal

A. The Plaintiff: The judgment of the first instance court is modified as follows. The purport of the claim is stated.

B. Defendant: The part against the Defendant in the first instance judgment is revoked, and the Plaintiffs’ claim corresponding to the revoked part is dismissed.

1. Facts of recognition;

The following facts are either in dispute between the parties, or acknowledged by comprehensively taking account of Gap evidence Nos. 1, 2, 3, 4, 8, 9, 10, 11 (including each number in the case of serial numbers), Eul evidence Nos. 1, 2, 3, and 4, testimony of witnesses of the first instance court, testimony of witnesses of the first instance court, and the whole purport of the pleadings as a result of the on-site inspection by this court:

A. The plaintiff A is the owner of the apartment E-M apartment unit in Gwangju City, and the plaintiff B is the owner of the above apartment unit G, and the defendant is the owner of the above apartment unit H.

B. Around July 25, 2016, the Defendant purchased air conditioners, and on August 2016, 2016, the Defendant installed air conditioners in the above H through I, who was requested to install the air conditioners from the distribution company of air conditioners. At the time of the installation of the air conditioners, I connected the air conditioners to the public air conditioners on the floor of the living room as above H. At the time of installation of the air conditioners.

C. On July 12, 2017, Plaintiff A found water to fall from the ceiling of the living room above F, and Plaintiff B became aware that water was drained on the G floor above (hereinafter “instant water accident”).

D. Around that time, Plaintiff B received an accident related to the water leakage accident of this case, which he joined the J insurance company, and the said insurance company conducted an investigation into this issue, and then the said insurance company drafted an accident investigation report to the effect that, at the time of the installation of the air conditioner, Plaintiff B connected the air conditioner installer at the time of the installation of the air conditioner to the public air conditioner, which was located on the ground of the above H unit, and that, at the time of the installation of the air conditioner, the air conditioner occurred to the living room floor of the above G unit and water appears to fall down with the ceiling of the above F unit.

2. The plaintiffs' assertion

The plaintiffs asserts that they are liable for damages to the defendant for the following reasons, and the plaintiff A is liable for damages for the payment of KRW 8,986,534, the sum of KRW 5,886,534, and KRW 100,000, KRW 3,000, KRW 300, and KRW 8,986,534, the sum of KRW 1,733,30, KRW 300, KRW 300, KRW 300, and KRW 5,03,30,000, respectively.

A. The defendant did not confirm whether the water leakage level of the official divers in installing and using the air conditioners owned by him, and since the water leakage accident of this case occurred due to the defendant's breach of such duty of care, the defendant is liable to compensate the plaintiffs for the damage pursuant to Article 750 of the Civil Act.

B. In installing and preserving air conditioners owned and occupied by the Defendant, the Defendant connected the air conditioners to the air conditioners without confirming whether the water discharge pipes have been drained, and as a result, the instant water leakage accident occurred, the Defendant is obliged to compensate the Plaintiffs for the damages in accordance with the responsibility of the occupant and the owner of the structure under Article 758(1) of the Civil Act.

C. The defendant is one employer who has installed the defendant's air conditioners, so long as the water leakage accident of this case occurred due to negligence in the first air conditioners installation, the defendant is liable to compensate the plaintiffs for the damages in accordance with the employer's liability under Article 756 (1) of the Civil Code.

3. Determination

A. First, we examine the plaintiffs' assertion of the above paragraph (1).

1) As seen earlier, the water leakage accident in this case does not appear to be due to the defect in the water pipe installed by the Defendant or the connection defect between the water pipe and the water pipe for the water pipe for the water pipe. It is presumed that the water leakage accident in this case was due to the water pipe for the water pipe for the water pipe for the public use, and it was merely presumed that the water leakage error exists within the section for the exclusive use of the apartment in this case, but rather exists within the section for common use of the apartment in this case.

In addition, in general, when a person holding a divided ownership of an aggregate building uses electricity, waterworks, etc. in his/her section of exclusive ownership, he/she is obligated to verify the defects of electric facilities and waterworks in his/her section of exclusive ownership and to compensate for the damages to others caused by such defects. However, it cannot be said that he/she has a duty of care to confirm the defects in electric facilities and waterworks within the section of exclusive ownership

Therefore, the defendant's duty to confirm whether there is a defect in the connecting part or the air conditioner pipe owned by him in connecting the drainage pipe of air conditioner to his own partitioned part of the above H, and to pay attention to prevent water leakage from occurring. However, prior to the connection, the defendant has no duty to confirm prior to the connection whether there is a defect in the common part, and to prevent damage caused by the defect in the common part.

2) In addition, the Plaintiffs asserted to the effect that the existence of the instant public interest hall was not easily confirmed as the land, and that the public interest hall was used without confirming whether the water was drained despite not indicating the water drained in the design drawing of the instant apartment building, and that the Defendant did not confirm whether the water was drained in the public interest hall immediately after the Defendant installed the air conditioner around July 2016 and the Defendant did not confirm whether the water was drained out through the air conditioner installer, and thus, the Defendant did not confirm whether the water was drained out through the air conditioner installer’s duty of care.

However, in light of the fact that the apartment of this case is normally used by other Dongs or other lakes of the apartment of this case, it does not seem to have been doubtful whether the defendant used the apartment of this case for smooth use of the apartment of this case and used it after checking the amount of water discharge, and there is no evidence to acknowledge that the defendant was aware of the calendar phenomenon in the public drainage pipe immediately after the installation of the air conditioner. Accordingly, the plaintiffs' assertion cannot be accepted.

B. Next, we examine the plaintiffs' assertion of the above B-Ba.

Article 758(1) of the Civil Act provides, “When any damage is inflicted on another person due to a defect in the construction or maintenance of a structure, the possessor of the structure shall be liable for the damage. However, if the possessor fails to exercise due care necessary for the prevention of damage, the owner of the structure shall be liable for the damage.” The defect in the construction or maintenance refers to the lack of safety ordinarily required for the structure according to its intended purpose. Here, the safety which has to be installed is not only safety which is limited to the use of the structure itself, but also safety which is required under the circumstances where the structure is actually being installed (see, e.g., Supreme Court Decision 92Da21050, Oct. 10, 1992).

In light of the above facts and the whole purport of the arguments, the water leakage accident in this case is presumed to be due to the water leakage in the public room, and it does not appear to be due to the water leakage in itself or the connecting defect between the water pipe and the water pipe in this case, and as long as the water leakage pipe connects the water leakage in the public room without the water leakage in the connecting part, the safety required for the installation and use of the water pipe seems to be all satisfied. ③ The water leakage accident in this case cannot be deemed to be due to the water leakage in the public room (the water leakage part is deemed to fall under the common part. Accordingly, even if the management body or the council of occupants' representatives of the apartment in this case owned the water leakage part jointly with other occupants, it cannot be accepted, in light of the lack of the plaintiffs' duty of due care to the lack of the management body or the management body of the apartment, and thus, it cannot be accepted that the plaintiffs' joint owner or the defendant did not have any other responsibility for the installation and management of the water supply system.

C. Finally, we examine the plaintiffs' multilateral assertion.

The plaintiffs claim the employer's liability on the premise that the defendant is the employer of the Air-conditioner in this case. However, according to the Eul evidence No. 4, the defendant appears to have been installed free of charge by the selling company of the Air-conditioner in this case, and there is no evidence to prove that the defendant employed the above I and requested the above I to establish the Air-conditioner in this case, or requested the above I to establish the Air-conditioner in this case. Furthermore, even if the defendant requested the above I to establish the Air-conditioner in this case, it constitutes a contract relationship, and the contractor is not liable for damages suffered by the contractor to a third party unless there is gross negligence on the contract or instruction (see Article 757 of the Civil Act), and there is no assertion or proof of the plaintiffs as to the fact that there is no significant negligence on the contract or direction (see Article 757 of the Civil Act) by the contractor in this case. Therefore, the above paragraph (c)

4. Conclusion

Therefore, the plaintiffs' claims shall be dismissed in its entirety on the grounds that they are without merit. Since the part against the defendant among the judgment of the court of first instance against the defendant is unfair in conclusion, it shall be revoked, and all of the plaintiffs' claims corresponding to the revoked part shall be dismissed, and each appeal by the plaintiffs shall be dismissed in its entirety as it is without merit

judges of the presiding judge;

Judges Kim Jong-sik

Judges Cho Jin-jin

1) The plaintiffs, who are owners of Fhos and G, did not use Ehos and only the defendant, the owner of Hhos, used Ehos' common areas under the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Act on the Ownership and Management of Aggregate Buildings"). However, in light of structural structure or use under the Act on the Ownership and Management of Aggregate Buildings, only the part of the building, which is the object of divided ownership, independent of other parts and is the object of divided ownership under the Act on the Ownership and Management of Aggregate Buildings, falls under the section for exclusive use (Article 2 subparag. 3 and 4 of the Act on the Ownership and Management of Aggregate Buildings), and the part of the building, other than the section for exclusive use, falls under the section for exclusive use (Article 2 subparag. 3 and 4 of the Act on the Ownership and Management

2) The plaintiffs can only assert any defects in construction against the construction contractor of the apartment of this case, or can assert any defects in the preservation of the structure against the management body of the apartment of this case or the council of occupants' representatives, which is the possessor of the part concerning the drainage failure of the common guard.