[1] The meaning of “a defect in the installation and preservation of a structure” under Article 758(1) of the Civil Act and the standard for determining whether a structure has ordinary safety according to its use

[2] In a case where Party A’s vehicle was moved to Party B’s vehicle that was parked in an apartment parking lot due to an unknown cause on the ground of a fire that occurred, the case holding that the lower court erred by misapprehending the legal doctrine that Party A is liable to compensate for damages, even though it cannot be deemed that Party A failed to perform its duty to take protective measures to the extent generally required by social norms, and that Party A is liable to compensate for damages as the owner of the structure

[1] Article 758(1) of the Civil Act, Article 288 of the Civil Procedure Act / [2] Article 758(1) of the Civil Act, Article 288 of the Civil Procedure Act

[1] Supreme Court Decision 2013Da1921 Decided May 23, 2013, Supreme Court Decision 2017Da218208 Decided August 18, 2017

Korea Commercial Insurance Co., Ltd.

Samsung Fire and Marine Insurance Co., Ltd. (LLC, Attorneys Kim Young-soo et al., Counsel for the plaintiff-appellant)

Seoul Southern District Court Decision 2018Na58347 decided February 14, 2019

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of the Seoul Southern District Court.

The grounds of appeal are examined.

1. “Defects in the installation and preservation of a structure” under Article 758(1) of the Civil Act refer to a state in which a structure fails to meet safety requirements ordinarily required for its use. In determining whether such safety requirements are met, the determination shall be based on whether the installer and custodian of the structure in question fulfills his/her duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure (see, e.g., Supreme Court Decision 2013Da1921, May 23, 2013). The burden of proving the existence of defect in the installation and preservation of a structure lies on the victim (see, e.g., Supreme Court Decision 2017Da218208, Aug. 18, 2017).

2. A. Based on its stated reasoning, the lower court determined that the Nonparty, the owner of the Defendant vehicle, is liable for damages on the premise that the instant fire occurred due to the defect in the Defendant vehicle.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

1) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) On September 16, 2017, the day before the instant fire occurred, the Nonparty, the owner of the Defendant vehicle, was parked the Defendant vehicle in a normal way in an apartment parking lot around 17:20 on September 16, 2017.

B) The instant fire occurred around 03:45 on September 17, 2017 after parked the Defendant’s vehicle, and around 10 hours thereafter, and there seems to be little possibility that the instant fire would have been ignited due to the engine strength, etc. of the vehicle.

C) On August 19, 2017, the Nonparty was inspected on August 19, 2017, which was around one month from the date of the instant fire occurrence, and the Nonparty did not appear to have changed the structure or device of the Defendant’s vehicle in violation of the automobile safety standards.

D) At the request of the Gyeongnam Police Agency, the Busan Science Investigation Research Institute, which assessed the instant fire accident, presented its opinion that “When considering the burning shape and CCTV images of vehicles, the engine room is deemed to have been launched. If the possibility of combustion is excluded due to artificial factors, the engine room can be deemed to have been created by electrical factors.” However, the opinion presented that “the limitation of the specific cause of combustion is not possible because the apparatus and vessels supplied with regular power inside the engine room were seriously destroyed by fire.”

2) Examining the foregoing factual basis in light of the legal principles as seen earlier, in this case where the specific cause of extinguishment was not revealed, it cannot be deemed that the Nonparty, the owner of the Defendant vehicle, was proven that he/she failed to perform the duty to take protective measures to the extent generally required by social norms regarding the Defendant vehicle

C. Nevertheless, the lower court determined that the Nonparty, the owner of the Defendant vehicle, was liable for damages on the premise that the Nonparty, who was the owner of the Defendant vehicle, failed to perform the duty of protection that is generally required by social norms with respect to the Defendant vehicle, as the owner of the structure. In so doing, the lower court erred by misapprehending the legal doctrine on the burden of proof of defect in the installation or preservation of the structure in the liability for damages under Article 758(1) of the Civil

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Seon-soo (Presiding Justice)