2013 Gohap 5675 Damages

Is 00

Attorney Kim J-jin, Counsel for the plaintiff-appellant

○○ Comprehensive Market Corporation

Representative in-house director ○○

Law Firm Master-General, Counsel for the plaintiff-appellant

Attorney Park Dong-sik

October 30, 2013

November 20, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 150,000,000 won with 5% per annum from September 2, 2011 to the date of the instant judgment, and 20% per annum from the next day to the date of full payment.

1. Basic facts

A. The plaintiff is an outsourced manager of the building of this case, who is an employee of ○○ Special Construction (representative: Madle) and performed waterproof construction on the rooftop of Daejeon Jung-gu** (hereinafter "the building of this case"), and the defendant is an outsourced manager of the building of this case.

B. On August 18, 2011, the Defendant entered into a construction contract with 3.2 million won (excluding value-added tax) to carry out the rooftop waterproof construction of the instant building (hereinafter “instant construction”). On September 2, 2011, the Plaintiff, while carrying out the instant construction project on September 2, 201, incurred electric images of both sides, left parts of both sides, left parts of both sides, and four degrees (hereinafter “instant accident”).

[Ground of recognition] The non-contentious facts, Gap evidence 1 to Gap evidence 3, the purport of the whole pleadings

A. The Defendant is the manager of the instant building, and the possessor or owner of the transformation facilities, which caused the electric shock accident, and is responsible for compensating the Plaintiff for the damages, since the instant accident occurred due to the defect in the installation or preservation of the said structure.

B. The Plaintiff did not have a direct employment relationship with the Defendant, but performed the instant construction upon receipt of work instructions and management orders through the preceding (i)0, the managing director of the instant building, who is an employee of the Defendant.

Therefore, as an employer who manages the Plaintiff’s labor, the Defendant is obligated to take necessary measures, such as improving the physical environment so that the Plaintiff’s provision of labor does not harm life, body, or health. However, the Defendant neglected the above duty of protection and caused the instant accident. Therefore, the Defendant is liable to compensate the Plaintiff for the Plaintiff’s damage based on nonperformance or tort.

C. Although the Defendant was well aware that the instant construction was conducted in the vicinity of the substation, and thus, there was a danger of shock, the Defendant entered into a contract on the instant construction work with the Ediversum. In addition, the Ediversum was requested to block all of the transformation facilities to the former ○○ at the time of the instant construction, but the former ○○ refused it. Therefore, the Defendant, as a contractor, is liable to compensate the Plaintiff for damages because it falls under a case where there was gross negligence on the contract or instruction pursuant to Article 757 of the Civil Act.

D. Therefore, the Defendant is obligated to pay the Plaintiff damages amounting to KRW 258,765,860 as damages, KRW 5,296,220 as damages, KRW 13,93,075 as damages, KRW 47,016,00 as damages, KRW 325,01, KRW 155, KRW 258,765,860 as damages, + KRW 5,296,220 as damages + KRW 13,93,075 + KRW 47,00,000 as damages for delay, and KRW 150,00 as damages for delay.

3. Determination

A. "Defects in the installation and preservation of structures, etc." under Article 758 (1) of the Civil Act refer to defects in the installation and preservation of structures, etc., which are in the state of failing to be equipped with safety ordinarily according to their use. In determining whether such safety is equipped, the criteria should be as to whether the installer and preservation of the relevant structures fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the danger of the relevant structures. Thus, even if an accident occurred in a structure, barring any special circumstance, the Plaintiff cannot be deemed to have a duty to take protective measures against the installer and preservation of the structure against such an accident, which is the result of an exceptional act not in compliance with the usual usage of the structure, and thus, it is difficult to recognize that the Plaintiff installed a structure to take protective measures to ensure that the Plaintiff did not have access to the structure, which is an access to the structure, and thus, installed a facility to ensure that the Plaintiff did not have access to the structure, such as an access to the structure, and installed a facility to control and to prevent such danger.

In addition, the defendant is not the owner of the transformation facilities, and there is no room for responsibility as the owner.

Ultimately, this part of the Plaintiff’s assertion is without merit.

B. Whether the duty of safety consideration was violated

An employer, as an incidental duty to the good faith principle accompanying a labor contract, bears the duty to protect an employee by improving his/her human and physical environment so that the employee does not harm his/her life, body, or health during the course of providing his/her labor, and is liable to compensate for damages incurred by the employee by violating such duty (see, e.g., Supreme Court Decision 9Da56734, Jul. 27, 2001).

With respect to the instant case, there is no evidence to acknowledge that the Defendant is the Plaintiff’s employer. Rather, the Defendant concluded a contract for the instant construction with the O.O. Special Construction as seen earlier. In full view of the overall purport of the pleadings in the statement No. 9, No. 4, and No. 5, and No. 5, the Defendant instructed and supervised the Plaintiff’s small part, as well as the Plaintiff’s small part of the instant construction management officer, the instant construction management officer, and the fact that the former part of the instant building, as the manager of the instant building, did not directly direct, manage, and supervise the instant construction, including matters necessary for the progress of the instant construction. The Defendant paid the construction cost of KRW 3520,00 (including KRW 3.2 million x 1.1, value-added tax) on September 9, 2011.

According to the above facts, the labor contract relations can be recognized between the plaintiff and the defendant, and it is difficult to recognize the labor contract relations between the plaintiff and the defendant, and there is no reason to assert this part of the plaintiff's assertion on the premise of the labor contract relations between the plaintiff and the defendant.

In light of the following facts: (a) the records of No. 5 and No. 7 alone were sufficient to recognize that the Defendant had taken safety measures against the instant construction; (b) it was not sufficient to acknowledge that the former ○○○ during the instant construction; (c) there was no other evidence to acknowledge that the instant construction works continuously demanded to cut off the transformation facilities; (d) the Defendant discussed the risks of shocking from the transformation facilities during the instant construction contract before the instant construction contract, and in light of the overall purport of pleadings in the records No. 9 and No. 5; (b) the instant building was a commercial building; (c) it was difficult to cut off the power source of the transformation facilities; and (d) the instant construction contract was concluded on the ground that the construction works were conducted with safety equipment at the time of the instant construction; and (e) this was concluded on the ground that the Plaintiff had the Plaintiff use the electric aluminium ingredients in the process of preventing the instant accident by using the electric aluminium ingredients, etc., without being equipped with the safety equipment at the time of the instant construction works.

Therefore, this part of the plaintiff's assertion is without merit, which is premised on the defendant's gross negligence on contract or instruction.

D. Sub-committee

Therefore, the plaintiff's claim is without merit without examining the scope of damages.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judge and deputy judge

Judges Park Jeong-young

Judge Maximum-type