2017Na13556 Damages

1. A limited company's O0 farming;

2. Transcript○○.

Massung Group

Gwangju District Court Decision 2014Gahap4509 Decided August 10, 2017

July 5, 2019

August 30, 2019

1. Of the judgment of the court of first instance, the part against the plaintiffs falling under the following order to pay is revoked.

The defendant shall pay 49,718,400 won, 249,859,200 won, and 249,859,200 won, and 5% per annum from April 19, 2014 to August 30, 2019, and 15% per annum from the following day to the date of full payment.

2. All remaining appeals by the plaintiffs are dismissed.

3. 80% of the total costs of litigation shall be borne by the Plaintiffs, and 20% shall be borne by the Defendant.

4. The part ordering the payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant will pay 3 billion won to the plaintiff limited liability company, 1.5 billion won to the plaintiff changed ○○○○○, and 1.5 billion won per annum from April 19, 2014 to the service date of a copy of the complaint of this case, and 15% per annum from the next day to the day of complete payment.

1. Basic facts

A. From around 2005, the Defendant granted subsidies to the "project to create a mountain ginseng cultivation complex" or "project to create a mountain village ecological village", which is conducted within the jurisdiction of forests and fields, etc., and around April 2014, the Defendant carried out "forest tending project, including livering work, in forests and fields, etc."

B. The Plaintiffs received subsidies from the Defendant from around 2007 to around 2009 as the source of the project to develop the mountain ginseng farming complex. ① OO forest (the project site in 2007), ② ○○-○-O forest (the project site in 2008 and the land survey appraisal map in 2008; hereinafter referred to as “the forest of this case”; ③ △△△△-△△△△△△△△ (the project site in 2009) have cultivated mountain ginseng in the same area.

C. The Defendant’s project to support the creation of a mountain ginseng cultivation complex is the project to support 60% of the seed price and labor cost incurred by those eligible for support, such as the Plaintiffs, for the cultivation of mountain ginseng. The current status of the Defendant’s project to support the creation of the mountain ginseng cultivation complex in 2008 for the Plaintiffs related to the forest of this case is as follows.

A person shall be appointed.

D. On January 2014, the Defendant: (a) selected four parcels of land, including the instant forest, as the subject of “forest tending project”; and (b) decided to take care of the “natural forest”; and (c) started from April 17, 2014 to April 19, 2014, the instant forest and the area of the △△△△△△ (attached Form 34,35 through 64, and 34 of the “survey” in the instant forest and the area of the instant forest, which connected each point in sequence of 34,35 through 64, and 34, was conducted as part of the said forest tending project (hereinafter “the instant area damaged”).

The purpose of the whole theory

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 3, 6, and 7, the result of the on-site inspection by the first instance court, the parties' assertion 2.

A. The plaintiffs

Since 2008, the Plaintiffs were receiving subsidies for the development project of Gyeyang Ginseng Plant in the instant forests and fields, and were taking care of approximately 2 million mountain ginseng seeds (120 km). However, around April 2014, the Defendant carried out livering work as part of the forest tending project in the instant forests and fields. Since the Defendant was well aware that mountain ginseng was cultivated in the instant forests and fields through the project to support the development project of Gyeyang Ginseng Complex in 2008, the Defendant did not select as the subject of the forest tending project, or was obligated to take necessary measures to prevent damage to the rearing environment of Gyeyang Ginseng in the course of livering the livering work, the Defendant conducted livering work without neglecting this.

Therefore, the Defendant is obligated to pay KRW 3 billion to Plaintiff ○○ Farming and KRW 1.5 billion to Plaintiff ○○○○○○○○○○○, as part of the compensation for damages caused by the tort as above.

B. Defendant

The person who actually cultivated the mountain ginseng in the forest of this case is the current △△△△△△△ (the husband of △△△△△, the representative director of ○○○○○○, and the Plaintiff’s △△△△△△ was the city of the Plaintiff’s △△△△), and the former △△△△ received a final judgment of conviction by committing a criminal fact that “the Defendant acquired the subsidy in the support project for the creation of the Yangyang Fishery Complex in 2008 and 2009. Therefore, the Plaintiffs cannot be deemed to have sold the mountain ginseng seed in the forest of this case for the purpose of cultivation, and thus, the instant livering work does not constitute a tort. Even if the act falls under a tort, it does not constitute a tort. Accordingly, even if the livering work is deemed to have created an environment suitable for the growth of the Gyeyang Ginseng by

3. Establishment of tort liability

(a) Whether a mountain spawned ginseng for the purpose of cultivation;

In full view of the following facts and circumstances recognized by the lower court based on the overall purport of the testimony and pleadings of the △△△△△△△△△△△△△△△△△ and Kim △△△△, the following facts and circumstances are revealed: (a) the above basic facts, the above quoted evidence, the evidence evidence, the evidence evidence, and the evidence submitted by the Defendant (in particular, the evidence of the evidence Nos. 1 and 11) are insufficient to support the fact that the Plaintiffs were taking care of mountain ginseng seeds at least about 120 kmg in the instant presence; and (b) the evidence submitted by the Defendant (in particular, the evidence of Nos. 1 and 11) is insufficient to support them.

① From around 2007 to 2009, the Plaintiffs were selected as a person eligible for support for the project for the development of the mountain ginseng development complex from the Defendant and received subsidies from the Defendant, and cultivated the mountain ginseng in the area eligible for support, such as the forest of this case. Since the Defendant’s public officials in charge supervised the purchase and distribution of the mountain ginseng seeds according to the original project plan before and after the payment of each of the above subsidies, it is reasonable to deem that the mountain ginseng seeds were cut and salved according to the above project plan, unless the circumstances, such as false salivation by public offering with the public officials in charge

② 실제 유△△는 2007년부터 2009년까지 '지리산산삼 영농조합법인'으로부터 1톤이 넘는 산양삼 종자 또는 종근을 구입하였고, 이 사건 임야에 해당하는 부분은 최 소한 120kg(약 200만개로 1㎡당 약 30주)을 넘는다. 피고의 담당공무원인 박▲▲도, "원고들이 위 산양삼재배단지조성 지원사업의 보조금 지급과정에서 당초 신청한 종자 량보다 많은 수량의 종자를 가져와 다른 농가들보다 훨씬 많은 수량의 종자를 파종하 였다." 고 확인하였다.

③ According to the results of each appraisal by the appraiser at the first instance court, △△△△△, and Kim △△△△△, and the testimony by the witness at the first instance court, a large amount of mountain ginseng was collected from the affected areas and areas (hereinafter “ordinary areas”) where the pertinent damage was not affected, among the forest land in this case. The mountain ginseng, which was brought up in the instant △△△△△, was all the root root around 208 when the root year was based.

④ Following the instant livering work, the Defendant also designated three places among the forest land in the instant case (25m = 5m x5m m) and surveyed the quantity of mountain ginseng. The average number of mountain ginseng at the time was a 61m 25m m2, which cannot be deemed as the mountain ginseng.

⑤ Although the relevant △△△ and Plaintiff changed ○○ rendered a final and conclusive judgment of conviction by deceiving the subsidies for the support project for the development of the mountain ginseng cultivation complex in 2008, this is only based on the submission of some exaggerated data, and it is irrelevant to the ordinary labor cost or the disbursement of the purchase cost of seeds.

6) The Plaintiffs filed a petition with the Defendant that “after the instant livering work, it was designated as the place where the existing mountain ginseng was cultivated as the place where the livering work was conducted,” and the Defendant was aware of the unexpected forest administration by “the experts, etc. participated and consulted on the compensation measures by receiving the amount of damage.”

B. Whether a causal relationship exists

As seen earlier, ① the Plaintiffs were provided with subsidies from the Defendant and provided care for mountain ginseng seeds equivalent to approximately 120 km in the instant forest, and ② the Defendant had already been selected as a person eligible for support for the development project of the mountain ginseng branch and carried out an unreasonable livering work by carrying out the instant forest tending work in addition to the forest land that was provided with subsidies. According to the reasoning of the evidence No. 3 of the first instance trial appraiser Kim △△△△△△△, the result of the appraisal by the first instance trial appraiser Kim △△△△△△△△△, according to the overall purport of the testimony and arguments of the witness Kim △△△△△△△△△, the instant livering work was found to have been significantly less than the quantity of the mountain ginseng recovered in the normal region.

According to the above facts, the farming environment of the mountain ginseng was physically destroyed due to the livering operations of this case, or due to the difference in light speculation rate, etc., it is deemed that damage, such as the death of the mountain ginseng was caused due to the bad influence on the growth of the mountain ginseng. Thus, there is causation between the livering operations of this case and the occurrence of damage, such as the mountain ginseng death in the area where the mountain ginseng was destroyed.

C. Whether liability is limited

As seen earlier, as the Defendant included the instant forest in the “Support Project for the Creation of the Mountain Ginseng Plant in 2008” and paid subsidies, and managed and supervised the implementation thereof, it was well aware of the fact that the mountain ginseng was cultivated in the instant forest. Nevertheless, by carrying out a forest-tending project again on the forest land within the same lot number, thereby causing damage to the Plaintiffs, such as mass scopic death, etc. In light of these circumstances, the Defendant’s mistake constitutes intentional or gross negligence. In light of these circumstances, it was not revealed that the Plaintiffs did not have contributed to the occurrence or expansion of the said damage (the difference between the ordinary region and the region). Accordingly, the Plaintiff did not limit liability.

D. Sub-committee

Therefore, while the plaintiffs were cultivated in the forest of this case by selling mountain ginseng seeds in the forest of this case, it shall be deemed that the defendant aggravated the environment of mountain ginseng cultivation by performing the livering work in the damaged area of this case, thereby causing damage to the plaintiffs, such as mountain ginseng death. Therefore, the defendant is liable for all damages suffered by the plaintiffs due to such unlawful act.

4. Scope of damages.

A. The result of each appraisal by the first instance appraiser, △△△△△ and Kim △△△, and the basis for calculating the amount of damages

The appraiser △△△△△△△ of the first instance trial determined the first surviving share of 25 weeks per square meter based on the estimated opa ratio as 25 weeks, and calculated the amount of damages by multiplying the natural depreciation rate by 9% per annum, and then collecting the mountain ginseng in the damaged area and calculating the difference between the mountain ginseng in the above normal area and the mountain ginseng in the damaged area. The amount of damages was calculated by multiplying the damaged area and the price per mountain ginseng by the damaged area.

The appraiser of the first instance trial, Kim △△△△, an average of the mountain ginseng recovered in the normal region and the average of the mountain ginseng recovered in the affected area of this case (within the normal region, the Plaintiff selected 1, the Defendant 1, and the appraiser 2 as the reference land, respectively. Within the damaged area, the Plaintiff selected 25% of the reference land, the Defendant 25% of the reference land, and the appraiser 50% of the average land at the rate of 50%) and calculated the amount of damages by multiplying the damaged area, the amount of damages by the damaged area, the amount of damages per mountain ginseng, and the amount of the average of the mountain ginseng recovered in the affected area of this case.

Each appraiser's appraisal result is not specifically unlawful in its contents or procedure. However, in light of the comparison of the quantity of the mountain ginseng recovered in the normal region and the damaged region, and the productization rate, it is deemed that the method of calculating the amount of damages of the appraiser Kim △△△△△ is more concrete and realistic, it is appropriate to calculate the amount of damages on the basis of such comparison.

B. Calculation method of damages

According to the appraisal results of the first instance trial appraiser Kim △△△△△, the overall purport of the testimony and the argument of the witness Kim △△△△△△△△, the Plaintiffs’ damages (based on November 15, 2016, which is the date of preparation of an appraisal statement) arising from the instant simple work may be calculated as follows. The current calculation of the prices as of April 19, 2014, which is the date of termination of the tort, shall be governed by the Hofman Calculation Act, which deducts the intermediate interest at the rate of 5/12 per month.

【Amount of damage = damaged area 】 Quantity of damage per meter x per share x per share 】 90% of the commercialization rate】

(c) Injury area;

1) The slope area of the damaged area of the instant case

The forest of this case consists of mountain areas, and most slope areas are sloped, and the area of slope calculated by raising the slope rate shall be the actual damaged area. Thus, the damaged area shall be calculated by the standard slope area, which is not the horizontal area.

제1심 감정인 정▲▲의 측량감정 결과 및 변론 전체의 취지에 의하면, 이 사건 피해 지역과 위 봉조리 산 △△△ 중 피해지역(이하 '산 △△△의 피해지역'이라고 한다) 을 합한 전체 경사면적은 60,316㎡이고, 이를 수평면적으로 환산하면 57,273㎡( 이 사건 피 해지역 52,336m + 산 △△△ 중 피해지역 4,937㎡)이다.

The conversion rate to a slope area is 105.31% (i.e., 60,316 square meters: 57,273). Thus, the slope area in the damaged area of this building is 55,117 meters [=60, 316 square meters - 4,937 x 105.31%).

(2) The rate of reduction in the premium;

In ordinary cases where cultivating mountain ginseng seeds on forest land is intended, there is an area in which it cannot be cut due to a stone access, stone-free hole, tree, glar, large tide, etc., and the rate of reduction of the area to be cut in the field and the rate of reduction of the area to be cut in the entire forest area is to be the area to be cut in the field, and the area to be cut in the area to be cut in the area to be cut in the entire forest area. Since mountain ginseng cultivation was not possible in the original forest area, it should be excluded from

According to the appraisal results and the overall purport of the first instance court appraiser Kim △△△△△, it is recognized that the reduction rate of the forest of this case is 50%.

(iii)the calculation of the damaged area;

27,558 meters = 55,117 X reduction rate of 50% of the slope area in the affected area of this case

(d) The volume of damage per square meter and the value per each mountain ginseng;

According to the result of the appraisal by the appraiser of the first instance trial, Kim △△△△△, the overall purport of the testimony and the argument of the witness Kim △△△△△△△, the fact that the damage amount per 1m of the injury amount per 2.125 weeks (=3.250 weeks per square meter per square meter per square meter per normal region) in the damage area of the instant case is determined: ; Presidential Decree No. 2000, Nov. 15, 2016>

According to the above quoted evidence and the purport of the whole pleadings, it is recognized that the size of the mountain ginseng collected from the forest of this case is small and reduced despite the fact that it was eight years old, which is the light of the mountain ginseng collected from the forest of this case. The following circumstances recognized by the above quoted evidence and the purport of the entire pleadings are as follows: ① the Plaintiffs did not properly manage the forest of this case from the time immediately after the liver work of this case; ② the Defendant did not go against the management status of this case; ② The Defendant did not go against the ebbbbbb, etc., the mountain ginseng collected from the forest of this case is eight years old, but it is reasonable to determine the 16,000 won per 1 week, taking into account the size and weight of the forest of this case.

E. Calculation of damages

1) Calculation

A) Based on the above recognized facts and quoted evidence, the Plaintiffs’ damages (based on November 15, 2016) amounted to KRW 843,274,800 (i.e., the damaged area of KRW 27,558 square meters x 1 meter x 2.125 weeks per x 1 meter x 16,000 per share x 90% per share.)

B) On April 19, 2014, the date on which the said amount of damages is terminated, the amount of KRW 749,577,60 (= = 843,274,800/1 + 30 months + 5/12 percent (less the amount of less than a month and less than a won)) shall be calculated as the actual price as of April 19, 2014.

2) Damages by Plaintiff

A) Following the facts revealed through the overall purport of the facts acknowledged as above, quoted evidence, and arguments, the following circumstances are revealed, namely, ① a person who actually cultivated mountain ginseng seeds in the forest of this case on behalf of the Plaintiffs is the △△△△△△, ② the Plaintiffs appears to have cultivated mountain seeds in the forest of this case at the ratio of 2:1, and ② the Plaintiffs appears to have cultivated mountain seeds in the forest of this case at the ratio of 2:1 (in the 2008 Support Project for the 2008 Mountain Ginseng Complex Creation, Plaintiff ○○ Farming in the forest of this case is the 10,000 square meters out of the forest of this case, and Plaintiff Y○○ applied for each subsidy by cultivating the 50,000 square meters of the forest of this case as the 50,000 square meters of the forest of this case, and Plaintiff Y○○ applied for each subsidy as the 50,000 square meters of the forest of this case, and ③ the Defendant also did not raise any objection against the said ratio.

B) The calculation of the amount of damages for each plaintiff according to the above ratio is as follows.

① Plaintiff ○ Farming: 499,718,400 won = 749,57,600 won ¡¿ 2/3

② Plaintiff’s changed ○○: 249,859,200 = 749,57,600 won = 1/3

F. Whether management expenses are deducted

The defendant asserts that management costs should be deducted from the above damages.

However, in full view of the following circumstances acknowledged by the first instance trial appraiser Kim △△△△△’s appraisal result, the amount of damages calculated as above is premised on the fact that the management expenses are not to be paid, and thus, it is not necessary to separately deduct the management expenses. Thus, the first instance Defendant’s assertion on a different premise cannot be accepted.

① The Plaintiffs did not properly manage the damage areas of this case as well as the mountain ginseng in normal areas after the livering of this case.

② The appraiser, Kim △△△△ of the first instance court calculated the difference as the amount of damage on the basis of the normal area not properly managed and the quantity of solar ginseng taken from the damaged area of the instant case.

③ The value of the mountain ginseng collected from the forest of this case is lower than the mountain ginseng of the same root year.

G. Sub-committee

Therefore, the Defendant’s damages amounting to KRW 49,718,40, and KRW 249,859,200 for Plaintiff’s ○○○○○○○○○, and each of them, 5% per annum under the Civil Act, which is reasonable on August 30, 2019, which is the date of the final judgment of the competent court, to dispute over the existence or scope of the obligation of the Defendant’s performance, from April 19, 2014, and 35% per annum under the Civil Act, which is the date of the final judgment of the competent court, and 3(1) of the Act on Special Cases Concerning Encouragement, etc. of Legal Proceedings from the following day until the date of full payment, and Article 2(1) of the Addenda of the former Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Special Cases”) (amended by the Presidential Decree No. 2978, May 21, 2019).

5. Conclusion

Therefore, the plaintiffs' claims of this case are justified within the scope of the above recognition, and each of the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, part of the plaintiffs' appeal shall be accepted, and the part which ordered the above payment among the judgment of the court of first instance shall be revoked, and the defendant shall be ordered to pay the above recognized amount, and the remaining claims of the plaintiffs shall be dismissed as they are without merit. It is so decided as per

Kim Tae-tae (Presiding Judge)

Madonology

Long-term Management

1) The damage area of Busan △△△△△△ is to be converted from the horizontal area to the slope area (5,199m = 4,937m = a square of origin x 105.31%; cattle

The same shall apply to forests below a point of view.