[1] The meaning of "defect in the construction and preservation of a structure" under Article 758 (1) of the Civil Code and the standard for its determination

[2] Criteria for determining defects in the construction and management of a road

[3] The case holding that there is a defect in the construction and management of an expressway in case where an accident occurred to another driver who stopped on the side and inspected a vehicle on the side because the vehicle is dissatisfed on the side of the expressway and the rainwater that runs across the two lanes and turned down on the two lanes and turned down under the same circumstance

[1] Defect in the installation and preservation of a structure under Article 758(1) of the Civil Code refers to a state in which a structure fails to meet the ordinary safety requirements according to its use. In determining whether such safety is satisfied, it shall be based on whether the installer and custodian of the structure has fulfilled the duty to take protective measures to the extent that is generally required by social norms in proportion to the risk of the structure.

[2] The construction and management defects of a road, which are structures, shall be determined specifically according to social norms by comprehensively taking into account all the circumstances, including the road utilization conditions, including the location of the road, the structure of the road, the volume of the traffic at the time of the accident, and the original purpose of use, and the location and form of physical defects.

[3] The case holding that there is a defect in the construction and management of an expressway in case where an accident occurred to another driver who stopped on the side and inspected a vehicle on the side because the vehicle was dissepted on the side of the expressway and the rainwater standing across the two lanes and turned down on the two lanes and turned down under the same circumstance

[1] Article 758 (1) of the Civil Act / [2] Article 758 (1) of the Civil Act / [3] Article 758 (1) of the Civil Act

[1] Supreme Court Decision 97Da27022 delivered on October 10, 1997 (Gong1997Ha, 3446), Supreme Court Decision 97Da2518 delivered on January 23, 1998 (Gong1998Sang, 584), Supreme Court Decision 95Da44658 delivered on February 13, 1998 (Gong1998Sang, 700), Supreme Court Decision 98Da17381 delivered on October 23, 1998 (Gong1998Ha, 2728) / [2] Supreme Court Decision 97Da3194 delivered on April 222, 199 (Gong197, 1546), Supreme Court Decision 97Da31989 delivered on September 36, 198 (Gong97Da198989 delivered on April 29, 197)

Hyundai Marine Fire Insurance Co., Ltd. (Attorney Kim Jae-chul, Counsel for the plaintiff-appellant)

Korea Highway Corporation (Attorney Nacheon-he et al., Counsel for defendant)

Seoul District Court Decision 98Na56040 delivered on July 8, 1999

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

The grounds of appeal are examined.

1. Summary of the judgment below

According to the reasoning of the lower judgment, the lower court rejected the Defendant’s construction of the instant expressway by 0: (a) on July 4, 1996, 20: (b) on the ground that the instant truck was driven by the point of 0: 20 square meters away from the point of 20: The Plaintiff’s construction of the instant expressway; (c) on the ground that the instant truck was carried out on the surface of 3:0 square meters; (d) on the ground that the instant truck was carried out by the point 0: 1 square meters; (e) on the ground that it was found that the instant truck was carried out by 10 square meters from the point 20: from the point 3rd of the instant expressway; and (e) on the ground that the instant truck was carried out on the road 1:6mm; (e) on the ground that there was a lack of sufficient evidence of 1 square meters from the point 3rd of the instant expressway; and (e) on the ground that the instant truck was carried out by 10:60 meters from the date of the accident.

2. Determination:

Article 758(1) of the Civil Act refers to a structure in a state where it does not have safety ordinarily required according to its use. In determining whether such safety is satisfied, the standard should be determined whether the installer or custodian of the structure has fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure (see Supreme Court Decision 97Da27022, Oct. 10, 1997). The defect in the construction and management of a road, which is a structure, shall be determined specifically in accordance with social norms, by comprehensively taking into account all the circumstances such as the location of the road, road structure, traffic volume, traffic conditions at the time of the accident, and the original purpose of its use, and the location and form of physical defect (see Supreme Court Decision 97Da49800, Feb. 13, 1998).

Even according to the reasoning of the judgment below, the point of the accident in this case is an expressway of the second line and the high level of safety of the vehicle should be ensured. However, even if the accident in this case continued to exist on the day of the accident, from 10:00 to 21:00 on the day of the accident, it cannot be viewed as a concentrating rain every year under the weather conditions of our country where the rain has experienced as 49mm during 11 hours at the time of the accident, and it cannot be viewed as concentrating rain every year under the conditions of our country where the accident in this case occurred at the time of the accident, and it is difficult to view that the rain between 19:0 and 20:0 on the basis of the point of the accident in this case was 3.2 meters, and the rainfall between 20:00 to 21:0 as above is merely 4.2mm, and even if the accident in this case occurred at the point of the accident in this case, it cannot be seen that the accident in this case occurred after the accident in this case's.

According to the above circumstances, the point of accident of this case, as stated in the judgment of the court below, is the intersection of the gate section of the gate, and four surrounding 300 meters sections are installed, and even if the defendant continued to patrol the above highway and continuously performed the work of dealing with the accident and the removal of garbage, barring special circumstances where the safety defects of the highway where rainwater occurred when and at the same time, the defendant could not have performed the duty of protective measures to the extent generally required by social norms against the expressway, the above facts alone do not lead to the failure of the defendant to perform the duty of protective measures to the extent that the safety defects of the highway where rainwater occurred when and at the same time, the safety defects of the highway where rainwater occurred.

Nevertheless, the court below's rejection of the plaintiff's assertion that the defendant's defects in the construction and preservation of the expressway of this case caused the accident of this case is erroneous in the misapprehension of legal principles as to the defects in the construction and management of the road, or in the incomplete hearing or in the misconception of facts against the rules of evidence, which affected the conclusion

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the case.

Justices Cho Cho-Un (Presiding Justice)