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

[2] The standards for determining whether there is a defect in the preservation of a structure in case of a defect in the safety which is originally secured by a third party's act after the construction of a structure

[3] The case where a defect in the installation and preservation of a fence was denied as to the rupture, etc., of a fence, which constitutes a boundary between the construction site and the construction site due to a construction work on a neighboring land

[1] 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 normal safety requirements according to its use. In determining whether such safety is satisfied, it shall be determined based on whether the installer and custodian of the structure has fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure.

[2] In the event of a defect in the original safety caused by an act of a third party after the installation of a structure, a defect in the preservation of a structure shall not be easily acknowledged solely on the basis of such a defect in the structure. In full view of all the circumstances such as the structure of the structure, location, environment and current use of the structure in question, the removal of such a defect and the restoration to the original state shall be decided by individually and specifically examining whether such a defect has been neglected.

[3] The case holding that, in the event that a construction work on a neighboring land causes remuneration to a person who occupies the construction site and performs the construction work on several occasions for the rupture, etc., which is located on the wall, which is located on the boundary between the construction site and the construction site, the owner of the wall shall be deemed to have fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the risk of the wall, and thus,

[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 94Da16328 delivered on October 28, 1994 (Gong1994Ha, 3112), Supreme Court Decision 97Da2702 delivered on October 10, 1997 (Gong1997Ha, 3446), Supreme Court Decision 9Da45413 delivered on December 24, 1999 (Gong2000Sang, 300Sang, 383 delivered on January 14, 200), Supreme Court Decision 99Da39548 delivered on January 14, 200 (Gong200Sang, 383) / [2] Supreme Court Decision 92Da3243 delivered on September 14, 1992 (Gong1992, 2864), Supreme Court Decision 97Da39799 delivered on April 29, 197 (Gong1997Da9639794 delivered on April 197, 19797).

Plaintiff 1 and one other (Seoul General Law Firm, Attorneys Jeon-soo et al., Counsel for the plaintiff-appellant)

○○ Private Teaching Institute (Law Firm Song-dong, Law Office, Attorneys Song Man-man et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2002Na25930 delivered on April 10, 2003

The part of the lower judgment against the Defendant is reversed and that part of the case is remanded to the Seoul High Court.

1. The judgment of the court below

The court below accepted the judgment of the court of first instance that the plaintiffs 1 contracted the above 1st floor of the ground and the 2nd floor of the wall of this case (hereinafter referred to as the "construction of this case") at the time of the construction site around March 201. The plaintiff 2 was not able to repair the wall of this case and the 2nd floor of the wall of this case at the time of the construction site of this case, and the plaintiff 1 was not able to repair the wall of this case at the time of the construction site of this case. The plaintiff 2 was not able to repair the wall of this case at the time of the construction site of this case. The plaintiff 1 was able to repair the wall of this case at the time of the construction site of this case and to install the wall of this case at the time of the construction site of this case at the time of the construction site of this case, and the plaintiff 2 was able to repair the wall of this case at the intervals of 20 to 30cm away from the above construction site of this case.

2. Judgment on the grounds of appeal

Article 758(1) of the Civil Act refers to a defect in the installation and preservation of a structure in a state where the structure does not have safety ordinarily required according to its use. In determining whether such safety has been met, it shall be determined on the basis of whether the installer and the custodian of the structure has fulfilled the 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 99Da39548 delivered on January 14, 200). In particular, in a case where a defect occurs in the safety which is to be equipped with the original act of a third party after the installation of a structure, the defect in the preservation of the structure shall not be easily recognized only with such defect in the structure and location environment of the structure, and the situation such as the use of the structure of the structure, but it shall be determined on the basis of whether it has been left to the original state by individually and specifically examining whether it has been left (see Supreme Court Decision 9Da39548 delivered on September 14, 192).

However, according to the facts acknowledged by the court below, the fence of this case was rhymd and part of the fenced to the site of this case, and the ground subsidence occurred on the ground surface of the tennis court floor of this case. Since the fence of this case was implemented the construction of this case, it was caused by the winding of the part directly under the wall of this case. Since the fence of this case was at the boundary of the defendant's tennis and the construction site of this case, it was not at the place where the passage of the general public is anticipated, the risks caused by the fence or rupture, etc. occurred in the wall of this case are limited to the construction site of this case. Furthermore, according to the facts and records acknowledged by the court below concerning the limitation of liability, it seems that some of the ruptures installed on the wall of this case at the time of the accident of this case were released by light of social norms or the construction of this case, it is difficult to view the defendant as the construction site of this case to have occupied the construction site of this case and the construction of this case was not required by the plaintiff 1 et al.

Nevertheless, the court below, based on its stated reasoning, found that there was a defect in the preservation of the fence of this case and recognized the defendant's liability for damages, there was an error of law by misapprehending the legal principles as to a defect in the preservation of structure or by mismisunderstanding the facts or failing to exhaust all necessary deliberations, and the ground of appeal assigning this error is with merit.

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon-won (Presiding Justice)