(영문) 부산고등법원 2013.1.16.선고 2012나877 판결

Defendants jointly and severally pay to Plaintiff A 164,183,640 won, 3,00,000 won to Plaintiff B, 1,000,000 won to Plaintiff C, and 5% per annum from October 26, 2010 to January 16, 2013, and 20% per annum from the next day to the date of full payment.

2. All remaining appeals by the plaintiffs are dismissed.

3. 3/5 of the total litigation costs is borne by the Plaintiffs, and the remainder is borne by the Defendants.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

Purport of claim and appeal

1. Purport of claim

The Defendants jointly and severally pay to the Plaintiff A 810,129,804 won, 25,000,000 won to the Plaintiff B, 10,000,000 won to the Plaintiff C, and 5% per annum from October 26, 2010 to the rendering of the first instance judgment, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

The part against the plaintiffs in the judgment of the court of first instance that falls under one of the following subparagraphs shall be revoked. The defendants jointly and severally pay to the plaintiffs A 360,05,630 won, 15,000,000 won to the plaintiff B, 5,000,000 won to the plaintiff C, and 5,00,000 won to the plaintiff C, and 5% per annum from the following day to the day of full payment, and 20% per annum to the day of full payment.

Reasons

1. Basic facts

A. On October 26, 2010, the plaintiff A driven a D motorcycle owned by the plaintiff on October 21:41, 2010, and suffered injuries, such as a multi-stroke, stroke, stroke, stroke, stroke, stroke, stroke, stroke, stroke, etc., in the direction of the intersection in the direction of the Busan Military Police Unit (hereinafter "the road of this case") on the three-way intersections in front of the Busan Military Police Unit (hereinafter "the road of this case") in the direction of the intersections (Article 37 (1) of the Road Act and Article 2 subparagraph 29 of the Rules on the Standards for Structure and Facilities of Roads; hereinafter "the road of this case") that passed beyond the above (hereinafter "the accident of this case").

B. Plaintiff B is the mother of Plaintiff A and Plaintiff C is the partner of Plaintiff A. At the time of the instant accident, the maintenance and management of the instant road was delegated to the head of Busan Metropolitan City Mayor, pursuant to Article 2(1) [Attachment 1] [Attachment 1] 15 of the Busan Metropolitan City Ordinance on Delegation of Administrative Affairs.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1, 2, and 4 through 6 (including the number with each number), the result of the appraisal conducted by the appraiser E of the first instance court, the purport of the whole argument

2. The parties' assertion

A. The plaintiffs' assertion

The plaintiff A suffered the accident of this case, which was placed at the boundary of the road shoulder and the surface of this case or at the edge of the drainage hole installed on the road shoulder of this case. The problem of the road structure is that the construction or preservation defect of the public structure is a defect in the construction or maintenance of the public structure, and the defendants are jointly and severally liable to compensate the damages suffered by the plaintiffs due to the accident of this case as local governments managing the road of this case, which are public structures.

B. The defendants' assertion

The Defendants are not the road management agency of the instant road, and thus are not liable for damages. Even if they are responsible for the management of the instant road, they cannot be deemed to have defects on the instant road because they are not the facilities scheduled to drive a motorcycle under the interpretation of Articles 13(6) and 14(2) of the Road Traffic Act. The instant accident occurred due to Plaintiff A’s total negligence, and thus, the Defendants are not liable for compensating the Plaintiffs for damages.

3. Relevant statutes;

Attached Forms 1 and 1 of the relevant Acts and subordinate statutes shall be as follows.

4. Determination

A. Defendants’ liability for damages

1) Defect in the construction or management of a public structure under Article 5(1) of the State Compensation Act refers to a state in which the public structure was not equipped with safety ordinarily in accordance with its intended purpose. However, the construction or management of a public structure cannot be deemed defective merely because the public structure was not completely in a state of completeness. In light of the overall circumstances, such as the purpose of its use and the situation of its location and the current condition of its use, the determination of whether the construction manager fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the danger of the public structure should be made (see, e.g., Supreme Court Decisions 200Da56822, Jul. 27, 2001; 2003Da62026, Jun. 11, 2004). Meanwhile, if the public structure is inside a statute or an administrative agency’s internal standard of safety, it can be a standard for determining whether the construction or management of the public structure was defective (see, e.g., Supreme Court Decision 2005Da454.

In light of the above legal principles, the site of the accident in this case, according to the results of on-site inspection by the commissioned judge, the fact that the traffic volume was high at the time of the accident in this case after the plaintiff 1's accident coming to a parallel of 20 to 30 meters after the course direction at the time of the accident in this case. The height of the shoulder and the surface of the road in this case was about 6cc meters, and the height of the road shoulder and the surface in this case was originally the same, but there was a difference in the above. The road in this case, the road in this case was 5cm off, and the road in this case was 5cm off, and the width of the portion not covered by the road in this case is about 85 meters, and the fact that there was a street, etc. in about 5 meters prior to the site of the accident in this case. In addition to the above acknowledged facts, the safety of the road in this case can be considered to have been fulfilled as a whole in light of the following circumstances.

(1) According to the explanation of the rules on the standards of structure and facilities of a road in 2009, the road shoulder shall be able to prevent accidents caused by leaving the wheels, such as a roadway, and if the width of the road shoulder is wide, or pedestrians or bicycles are high, it shall be packaged without fail.

(2) Article 13(6) of the Road Traffic Act prohibits vehicles and horses from passing along the bicycle lane and the roadside zone, but the shoulder does not fall under the bicycle lane (Article 2 subparag. 8 of the Road Traffic Act) or the roadside road basin (Article 2 subparag. 11 of the Road Traffic Act). Thus, the above provision cannot be deemed as prohibiting vehicles and horses from passing along the roadside.

(3) Article 14 (2) of the Road Traffic Act is only a provision concerning the method of driving on the road along which lanes are installed, and it shall not be deemed a provision prohibiting the passage of the road on the road.

(1) In light of the fact that the police who received the instant accident did not know the fact that the Plaintiff A passed the road shoulder, the witness of the instant accident was passing through the scooters at the time of the instant accident, and the safety signs, etc. that prohibit the passage of the road was not installed at the site of the instant accident, it cannot be deemed that the traffic of the motor bicycle goes beyond the ordinary and orderly method of using the road.

⑤ The height of the shoulder and surface of the instant road does not result from a sudden spam, but can be easily found into the road, and the height of the road surface and the roadside shall naturally take place when re-packaged the roadway. The road management agency cannot be deemed to be exempted from its duty to avoid any danger due to physical reasons.

(ii) the causal relationship between the defect and the loss.

An accident caused by a defect in the actual or management of a public structure does not mean that only the defect in the construction or management of the public structure causes damage, but it is reasonable to interpret that the defect in the construction or management of the public structure causes damage, as long as the defect in the construction or management of the public structure causes damage to a third party's act or in combination with a victim's act, as long as the defect in the construction or management of the public structure causes a common cause (see Supreme Court Decision 94Da32924 delivered on Nov. 22, 1994).

According to the statement 32 of evidence No. 6-32, the accident of this case occurred in the boundary of the shoulder and surface of this case, or the part of the part of the edge of the drainage hole of this case, with the wheels of plaintiff A's motorcycle. Thus, the defect of the shoulder of this case can be deemed to have caused the accident of this case. Thus, it is reasonable to interpret that the damage of the plaintiffs was caused by the defect of the construction or management of the road of this case.

3) If the administrative authority of a higher local government on the maintenance and management of a road for which liability for damages belongs was delegated to the lower local government head under the Ordinance on the Delegation of Administrative Authority, it is not a simple internal delegation, but a lower local government head delegated with such authority shall be the road management authority, and the delegated authority shall lose its authority for administrative affairs. However, in the case of delegation of authority by an agency, the lower local government head delegated with such authority shall not be deemed to have changed in the subject of reversion of affairs since he/she performs its affairs in the position of an administrative agency under the higher local government. Thus, even if a public official belonging to the lower local government assisting the head of a local government intentionally or negligently causes damage to another person in the course of performing delegated affairs, the higher local government shall be liable for such damage (see

In light of the above legal principles, the defendant Busan Metropolitan City shall be liable under Article 5 (1) of the State Compensation Act with respect to the damage incurred due to the actual management defect of the road of this case, and the defendant Busan Busan Metropolitan City shall be liable under Article 67 of the Road Act, and the defendant Busan Metropolitan City shall be liable for the compensation under Article 6 (1) of the State Compensation Act, as the person

4) Sub-committee

The Defendants are jointly and severally liable for damages suffered by the Plaintiffs due to the instant accident (which is jointly and severally liable).

B. Limitation on liability for damages

According to the statement No. 6-32 of the evidence No. 6-2, it is reasonable to limit the Defendants’ damage liability to 20% by taking into account the following circumstances, namely, the Plaintiff’s failure to wear the safety appearance at the time of the instant accident, taking into account the overall purport of the arguments, that is, the Plaintiff’s failure to wear the safety appearance appears to have become the main cause for the expansion of damages, that is, the Plaintiff’s failure to wear the safety appearance at the time of the instant accident, that is, the Plaintiff’s failure to wear the road at the time of the instant accident, the negligence of Plaintiff A’s duty of care seems to have contributed to the occurrence of the instant accident, and that the purport of

C. Scope of damages

In principle, the period for calculation convenience shall be calculated on a monthly basis, but it shall be calculated at the present price at the time of the instant accident according to the discount method that deducts intermediary interest at the rate of 5/12 percent per month and less than the last month and at the rate of 5/12 percent per month. The expenses for future treatment and auxiliary equipment shall be calculated from the date after the closing of the instant argument, and the nursing expenses shall be calculated from the date after the closing of the instant argument, as requested by the Plaintiff A, respectively. The detailed calculation details are as shown in attached Form 2.

1) Plaintiff A’s lost income: 315,072,448 Won

Plaintiff A lost 100% of the ability to work due to the instant accident at the time of birth. Since there was no occupation at the time of the instant accident, from October 26, 2010 where the instant accident occurred to August 19, 2041, as an ordinary part of the second half of 2010, the maximum working age of which is 60 years to August 19, 201, Plaintiff A was able to earn income of KRW 1,550,934, a monthly wage for urban daily workers. Based on this, it shall be calculated based on this, 19.5 (=234 months), which was last 19.5 (=234 months), from April 26, 2030.

2. Expenses for treatment: 19,893,755 won;

The plaintiff alleged that the plaintiff A spent 20,059,755 won as the pre-treatment cost, but it does not constitute a medical treatment charge with the issuance cost of the certificate, each of subparagraphs 9-6 and 7 of Article 9-7.

(iii) Assistants: 3,521,950 won;

The plaintiff A shall be calculated on the basis of each of the following requirements: (a) 1 unit for bed-type chairss (unit price of KRW 800,000); and (b) 1 unit for the prevention of bed-type bathings (unit price of KRW 300,000) every three years; and (c) 300,000.

4) Future treatment costs: From October 18, 2012 to October 17, 2013, the day following the date of the present argument in this case, KRW 104,854,641, to October 17, 2013, KRW 2,574,647, including physical treatment costs and examination fees ( KRW 31,15,774, KRW 160,00 for 128, - 160,000 for 160,00 for 12 months for 10,000 for 10,000 for 27,518,342 (the amount is required for 10,18, to March 10, 2013, but less than monthly period for calculation convenience), general examination expenses from October 26, 2013 to 36,750,000 for 36,000,000 for 365,000.

5) Nursing expenses: 347,575,408 won;

The plaintiff A needs to open one person until April 25, 2030, which is the end date of expected life expectancy, and it is presumed that he/she received the nursing of his/her parents, etc. or his/her nursing staff, such as parents, after being hospitalized due to the instant accident.

6) Consolation money. In consideration of the developments leading up to the instant accident, the progress of treatment after the accident, the degree of damage caused by the accident, the age and occupation of the Plaintiff A, the relationship between the Plaintiffs, and all other circumstances shown in the argument of the instant case, the Plaintiff shall be determined as KRW 6,000,000 against the Plaintiff A, KRW 3,000,000 against the Plaintiff B, and KRW 1,00,000 against the Plaintiff C.

[Ground of recognition] The empirical rule, Gap evidence 2, evidence 9-1 through 5, 8 through 30, and the result of the commission of physical examination to the head of the high school of the first instance court, the purport of the whole pleadings

D. Sub-committee

Therefore, the Defendants are jointly and severally obligated to pay to Plaintiff A 164,183,640 won, 3,000,000 won to Plaintiff C, and 1,000,000 won to Plaintiff C from October 26, 2010, which is the date of the instant accident, to the extent that the Defendants’ dispute over the existence and scope of the obligation is reasonable from October 26, 2010, and 5% per annum under the Civil Act until January 16, 2013, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

5. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed without merit. Since part of the judgment of the court of first instance differs from this conclusion, it is unfair to accept part of the plaintiffs' appeal and revoke it, and order the defendants to pay the above money, and the remaining appeal of the plaintiffs is dismissed as it is without merit. It is so decided as per Disposition.