2014Na54236 Compensation (as stated)

1. A;

2. B

3

[Judgment of the court below]

Korea Railroad Corporation

President E of the Representative

Law Firm LLC et al., Counsel for the defendant-appellant

1. Korea;

legal representative G by the Minister of Justice

2. Korea Rail Network Authority;

Representative H

Defendant Intervenor’s Intervenor Law Firm J

Busan District Court Decision 2014Gahap2177 Decided December 10, 2014

September 17, 2015

November 12, 2015

1. All appeals filed by the defendant against the plaintiffs are dismissed.

2. Of the appeal costs, the part arising between the plaintiffs and the defendant is assessed against the defendant, and the part arising from the supplementary participation is assessed against the defendant.

1. Purport of claim

Defendant each of the KRW 91, 363, 737, and KRW 1,20,000 to Plaintiff A and B, and its respective of them

From March 1, 2011 to the service date of a copy of the complaint of this case, 5% per annum, and 5% per annum from the following day to the service date of the copy of the complaint of this case.

shall pay 20% interest per annum to each of the 20% interest.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiffs' claims corresponding to the above revocation shall be revoked.

All appeals are dismissed.

1. Basic facts

The reasoning for this part of the court's explanation is as stated in Paragraph 1 of Article 420 of the Civil Procedure Act, except that "the result of on-site inspection conducted by the court of first instance" in Section 3, 14 of the part of the reasoning for the judgment of the court of first instance except that "the result of on-site inspection conducted by the court of first instance" is "the result of on-site inspection conducted by the court of first instance."

2. Determination as to the cause of action

A. The plaintiffs' assertion

The Plaintiffs asserted that the Defendant is liable for compensating for damages arising from the instant accident due to the defect in the Defendant’s negligence or railroad facilities as follows. (1) The Defendant is negligent in not installing a lighting facility on the rail in which the engine operator operating a train at night, despite having to install it so that the engine operator can identify the right of the front line. (2) If the rolling stock crossing entering the railroad to the south along the railroad to the south along the rail line, if the rolling stock crossing at the site of the instant accident reaches the scene of the accident, the rolling stock manager working at the rolling stock crossing did not properly control the entry of the general public, and thus, the Defendant was negligent in the management of the railroad crossing. (3) If the rolling stock manager, who enters the road near the ordinary house located in the entrance of the front line to the railroad, has not installed safety facilities, such as fences, around the rail line, so that the general public may not enter the railroad road without permission.

(b) Defect caused by failure to install lighting facilities.

In the area where the entry of the general public is prohibited, railroads have a duty to install lighting facilities on all tracks where trains pass by, for fear of the unauthorized entry of railroad tracks by the general public.

Therefore, it is difficult to view this part of the Plaintiff’s assertion based on this premise is without merit. 2) Negligence in railroad crossing management.

The facts as seen above are the fact that K crossing the Samsung Lifelong Building located in Busan-dong, Busan-dong, and passed through the old window and led to the point of the accident of this case after passing through the old window. (The defendant asserted that at the date of the fourth pleading of the first instance trial, K's statement that at the time of the accident at the time of the accident at the time of the first instance trial, K did not move to the point of the accident through the railroad crossing is against the truth and due to mistake and cancellation of it. However, the defendant's above statement is insufficient to recognize that the defendant's above statement is against the truth and due to mistake, and there is no other evidence to acknowledge it.) The plaintiff's above assertion on a different premise is not reasonable without the need to further examine.

3) The defect in the installation and preservation of a structure under Article 758(1) of the Civil Act refers to a state in which a structure fails to meet the ordinary safety requirements according to its use. In determining whether such safety requirements are met, the standard should be whether the installer and the custodian of the structure has fulfilled the duty to take protective measures to the extent generally required in proportion to the danger of the structure (see Supreme Court Decision 99Da45413 delivered on December 24, 199).

The following circumstances, which can be acknowledged by comprehensively taking account of the overall purport of arguments as a result of the on-site inspection conducted by the court of the first instance and the following circumstances, namely, ① the vicinity of the site where the accident occurred in the vicinity of the subway line 1 in the vicinity of the Busan urban center, ② the private citizens have a house immediately adjacent to the site where the accident occurred, ② the private citizens could freely move to the above house in the public at the time of the accident at the time of the accident, ② the safety facilities, such as fences, which can prevent access to the railway line, were not installed in the vicinity of the above house at the time of the accident, ② the fences such as fences which can prevent access to the railway line after 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, were installed to prevent access to the railway line. ③ Article 13 of the "Technical Standards for Railroad Facilities" provides that the plaintiffs are not obliged to freely have access to the above railroad safety facilities.

B) Accordingly, the Defendant is responsible for establishing safety measures for railroad facilities by the Minister of Land, Infrastructure and Transport under the Framework Act on Railroad Industry Development, and the Korea Rail Network Authority is responsible for managing railroad facilities. Therefore, the Defendant is responsible for not installing fences near the site where the accident occurred.

I argue that it cannot be seen.

First, solely on the fact that the Minister of Land, Infrastructure and Transport imposes a duty to establish safety measures for railroad facilities in the Framework Act on Railroad Industry Development, it cannot be deemed that the Defendant’s duty to install safety facilities, such as fences, in the vicinity of the railway tracks

In addition, according to the Framework Act on Railroad Industry Development, the Korea Rail Network Authority requires a railroad facility manager to perform duties related to railroad facilities. Meanwhile, in light of the following circumstances that can be recognized by comprehensively considering the overall purport of arguments in the items in the Evidence Nos. 5, 6, and 1 through 4 above, ① the defendant concludes a contract for use of railroad facilities with the Korea Rail Network Authority under the Framework Act on Railroad Industry Development and uses tracks, etc. ② The Korea Railroad Corporation has concluded a contract for maintenance and repair of general railroad facilities with the defendant under the Framework Act on Railroad Industry Development and entrusts the defendant with duties of maintenance and repair of railroad facilities; ③ the defendant directly entered into a multi-level crossing project agreement with Busan Metropolitan City. As a part of the accident, it is reasonable to deem that there is no duty to install or supplement safety fences, such as fences, in the vicinity of the previous railroad facilities after the accident in question, and that there is no risk of negligence on the part of the defendant to install or repair the railroad facilities in the vicinity of the above general railroad safety facilities, even if the defendant is obligated to install the above general railroad safety facilities.

(c) Actual income of K: 302,475,079 won.

○ Basic facts

Date of birth: the date of occurrence of an accident on February 10, 1987: October 27, 2009

End of Operation: February 9, 2047

K's daily income by urban daily wage is as shown in the following daily income table (33% of the living expenses shall be deducted as K dies).

2) At the time of the instant accident, K’s liability for damages ought to be limited to 20% of the Defendant’s liability by taking into account the fact that the instant accident was occurred, taking into account the background of the instant case, the K’s age, family relationship, etc., that is, K entered the railroad line with the blood alcohol concentration of 0.24%, in which the general public’s access is prohibited.

3) The defendant is liable to pay consolation money for mental distress caused by the instant accident. The amount of consolation money shall be determined as KRW 10,00,00, KRW 5,00, KRW 00, KRW 31,000, KRW 300, KRW 31,000, KRW 495,015, KRW 200 ( = 302,475, KRW 079, KRW 200, KRW 10, KRW 200, KRW 10, KRW 200, KRW 200, KRW 305, KRW 475, KRW 205, KRW 20, KRW 10, KRW 10, KRW 205, KRW 20, KRW 10, KRW 305, KRW 205, KRW 30, KRW 405, KRW 5, and KRW 15, respectively, in consideration of the circumstances mentioned above.

3. Judgment on the defendant's assertion

Since the Defendant’s instant accident occurred on October 27, 2009, and the Police concluded the case of death of K on May 27, 2010 with the fact that K died due to a train accident, the Plaintiffs shall be deemed to have become aware of the damages and the perpetrator due to the instant accident at least on May 27, 2010, and the Plaintiffs’ right to claim damages has already expired three years prior to February 12, 2014, the date for filing the instant lawsuit.

Article 766(1) of the Civil Act provides that "the date when the injured party becomes aware of the damage and the perpetrator" means the time when the injured party has actually and specifically recognized the facts of the requirements of the tort, such as the occurrence of the damage, the existence of the illegal harmful act, and the existence of proximate causal relationship between the harmful act and the occurrence of the damage. Whether the injured party, etc. is deemed to have actually and specifically recognized the facts of the requirements of the tort should be reasonably acknowledged in consideration of various objective circumstances in individual cases and the situation in which the claim for damages is practically possible (see Supreme Court Decision 2006Da30440, Apr. 24, 2008, etc.).

As to the instant case, comprehensively taking account of the overall purport of the arguments, evidence Nos. 9 and 11, and evidence Nos. 2-1 of the evidence No. 2, the Plaintiffs raised the possibility that K will be abandoned after K's death at the point of the instant accident, due to the discovery of new weather or bank, etc. at the point of the instant accident, and ② the competent police station agreed with the Plaintiffs to conduct a reinvestigation if there are special circumstances in relation to K's death, ③ the Plaintiffs produced and distributed the former part to find such special circumstances after the instant accident. ④ On May 15, 2013, the fact that K's cell phone possession was punished as the crime of embezzlement of stolen material. Comprehensively considering the above facts, the Plaintiffs did not have any other reason to view that the Defendant's 2nd-down mobile phone of the instant accident was destroyed by the former part of the instant accident, and the Plaintiffs did not have any other reason to view that the Defendant's 2nd-down police station did not have any other reason.

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the defendant's appeal against the plaintiffs is dismissed as it is without merit. It is so decided as per Disposition.

Judges of the presiding judge;

Judge Lee Dong-dong

Judge Lee Jin-hun