Due diligence, occupational misconduct, and the State's liability for damages

A. In compulsory execution, there is a duty of care to prevent any damage beyond the necessity of the debtor’s property in the course of compulsory execution;

B. The provision of this Article cannot be interpreted to the purport that the State’s liability for damages caused by a series of illegal acts is excluded or incompatible.

C. Article 493 of the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 90) cannot be interpreted to the effect that the purport of the provision is that the State’s liability for damages caused by an official tort in the course of his/her duties is excluded or that it is not compatible with its responsibility.

Article 26 of the Constitution, Article 2 of the State Compensation Act, Article 47 of the Court Organization Act

Plaintiff

Countries

Seoul High Court Decision 65Na1119 delivered on April 21, 1966, Seoul High Court Decision 65Na119 delivered on April 21, 1966

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

Judgment on the ground of appeal No. 1 by Defendant’s Attorney

Upon considering the original judgment, the court below considered the evidence listed by the defendant's compulsory execution agency and held compulsory execution against the plaintiff's property. In execution of compulsory execution against the plaintiff's property, the non-party, who is the compulsory execution agency, has a panel with about 270 persons in length and about 12 persons in height of 8 persons in height of the plaintiff's property, and at about 2 meters in height, 3 persons are set up under the ground at about 15 persons in height, and this owner has established the above internship at about 12 persons in height, so if the removal of the entire owner of this scrap, it is ordinarily common sense that the whole owner of this scrap can collapse, and even if it was known, it is sufficient that the non-party, who is the defendant's office, was negligent in removing all the share of 70 weeks in nature, and it is justified in the court below's decision that it violated the above duty of due care as a result of compulsory execution.

The second ground of appeal is examined.

Article 47 of the Court Organization Act provides that "the chief of the district court and its branch court (excluding the chief of the district court) shall be appointed or dismissed by law, and Article 48 (1) of the same Act provides that "the chief of the district court (excluding the chief of the district court in charge of criminal affairs) shall be engaged in the execution of judgment, service of documents, and other legal affairs," and Article 2 of the same Act provides that "the chief of the district court shall also be engaged in the same purport." In full view of the above provisions, it belongs to a state public official in the practical meaning of executing judgment, serving documents, or performing legal affairs. In this case, for the purpose of executing monetary claims by the original copy of the judgment with executory power, it is clear that the non-party is not in violation of the duty of care of the plaintiff, and therefore, it is not clear that the defendant's compulsory execution agency has caused damages to the plaintiff's property on the ground of his fault or negligence, and it does not constitute a violation of Article 26 (1) of the Civil Procedure Act."

Therefore, it is so decided as per Disposition by the assent of all participating Justices.

Justices Han Sung-dong (Presiding Judge) of the Supreme Court