(영문) 대구지방법원 2019.5.30.선고 2018가합209380 판결

1. The defendant shall pay to the plaintiff 161,954,396 won with 5% interest per annum from November 27, 2016 to May 30, 2019, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 30% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 237,931,594 won with 5% interest per annum from November 27, 2016 to the date of the instant judgment, and 15% interest per annum from the next day to the date of full payment.

Reasons

1. Basic facts

A. On November 27, 2016, 21:50 on the 21:21:50 on a knife knife car owned by Kim○, Kim○, (hereinafter referred to as “accidented vehicle”), Park Jong-dong, at a speed of 61.3 km each hour at the 61.3 km each hour, from the ice side of the road at the Dong-dong, the knife Parkcheon-si, the knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knif knif.

was made.

B. The road of this case flows down below about 7 meters from the bend section of the bend, and the road was found to have been scisfed by the snow that was taken on the day of the accident at the time of the accident at the time of the accident. The deceased’s heir, who was a lineal ascendant, and scisfate Plaintiff, but the co-inheritors died after the accident at issue. The Defendant is the installer and manager of the road of this case and the instant scisfyl.

D. Meanwhile, according to the above insurance contract, △△ Fire Marine Insurance Co., Ltd. (hereinafter referred to as "fire marine insurance"), which is an insurance company of the automobile insurance contract of the accident, paid KRW 147,606,480, and KRW 246,000,000,000 as insurance money due to the death of the victim of the accident, Kim Il-chul, Kim Il-young, the heir of Park Il-young, under the above insurance contract. E. The fire marine insurance against the defendant is liable for damages of the deceased, who is the driver of the accident, and the defendant's negligence on the installation and management of the protection fence of this case, and the defendant's 205% judgment of 208,000,000,000,000 won as insurance money due to the death of the above victims of the accident, was decided to have been paid to the defendant as the insurance company of the accident, and the defendant's 208,000,0000 won,000 won,000.

[Ground of recognition] Facts without dispute, Gap's statements and images, and the purport of the whole pleadings, as to Gap's evidence Nos. 1 through 3, 5, 8, and 10 (including numbers; hereinafter the same shall apply)

2. Summary of the parties’ assertion

A. The plaintiff

The location of the instant accident is a bridge that is expected to cause serious accidents when leaving a vehicle. As such, the shock fence at a level above SB4 level shall be installed in accordance with the Road Act and the Guidelines for Installation and Management of Road Safety Facilities established by the Minister of Land, Infrastructure and Transport pursuant to Article 37 of the Road Act and Article 17 of the Enforcement Rule of the same Act (hereinafter referred to as the “instant Guidelines”), to prevent the escape of vehicles out of normal driving routes, and to reduce the injury of passengers and the damage of vehicles, and the shock fence at a level above SB4 should be inserted into the connected part of the pole and enter a sluri-V. Nevertheless, the Defendant did not install a protective fence in conformity with the above standards, and did not repair, maintain, or reinforce the instant road even after the said guidelines.

The accident of this case is installed with a protective fence, which is attached to the road of this case and the road of this case

The defect in management and the negligence of the deceased, who is the driver, concurrently occurred. The defendant's fault ratio in the accident of this case is 30%. Thus, the defendant is obligated to pay the plaintiff, who is the mother of the deceased and his heir, the property damage of 167,031,594 won [=56,771,983 won + 4,402,535 won in the daily retirement allowance + 4,402,535 won in the daily retirement allowance + 53,744,532 won after retirement + 53,74,532 won in the daily retirement allowance], 60 million won in the deceased, consolation money of the deceased, and 90 million won in funeral expenses (i.e., 3 million won in funeral expenses x 300 million won).

B. The Defendant, in accordance with the judgment of the relevant case, performed its liability for reimbursement against the deceased and other passengers of the accident, and thus, the liability for reimbursement for the accident of this case remains no longer. Even if the Defendant’s liability exists, it is established on the premise of the driver’s duty to safely drive the accident, and thus, it could not prevent the driver from departing from the road even if the accident was installed at the SB4 level protection fence in light of the degree of collision angle and speed of the accident vehicle. The accident of this case occurred by the driver’s total negligence, as seen above, since the accident of this case occurred due to the driver’s total negligence, the Defendant’s liability for compensation cannot be recognized.

3. Occurrence of liability for damages;

A. Grounds for liability

(1) Of the instant administrative guidelines enacted by the Minister of Land, Infrastructure and Transport pursuant to Article 37 of the Road Act, such as facility standards for the protective fences, and Article 48 of the Rules on the Structure and Facility Standards of Roads, the Enforcement Rule thereof, are as stated in the attached Form.

(2) Whether there was a defect in the construction and management of the instant protective fence

(A) An accident due to a defect in the construction or management of a public structure does not refer only to cases where only the defect in the construction or management of a public structure causes damage, but also to cases where the defect in the construction or management of a public structure causes damage, if the defect in the construction or management of a public structure becomes one of the joint causes, even if another natural event or a third party’s act or the victim’s act concurrently causes damage (see, e.g., Supreme Court Decision 94Da32924, Nov. 22, 1994). In addition, if a safety standard prescribed by statutes or internal rules of the administrative agency exists, it can be a single standard to determine whether the defect in the construction or management of a public structure is defective (see, e.g., Supreme Court Decision 2004Da23455, Nov. 9, 206).

(B) In light of the following circumstances, the instant protective fence was in a state of failing to meet safety requirements to be installed as a bridge protective fence as a bridge, in light of the records and images of No. 8, and the purport of the pleading as a whole.

① Around September 199, the instant management guidelines set up the standards for installation and management of a bridge protection fence by enacting a bridge protection fence on and around September 199, and subsequently integrated the said standards at the “Safety Facilities for Vehicle Protection” around July 2001. The instant management guidelines set forth that the “vehicle protection fence” shall meet the respective performance standards in the event of a collision of real vehicles according to the test conditions given for the rating based on the strength of the facilities at the design speed of the applicable road.

According to the management guidelines of this case, a protective fence should be installed in the level of SB4 (standard shock level 160kJ, general recommendation level) or SB5 (level 230kJ, road conditions or facilities development level) in the case of a bridge section, the speed of which is 60 km a speed of which is 60 km a speed of time. Since the road of this case is a bridge section, the speed of which is 60 km a speed of accident is 60 km a speed of time, the protective fence of SB4 level (standard shock level 160kJ) J should be installed at least. However, the protective fence of this case was maintained without being replaced after the completion of the ludle school on December 193, and there is no evidence to acknowledge that the shock level by the physical vehicle collision test was separately certified.

② As a result of the in-depth analysis of the instant accident, the Gyeongbuk-do branch of the Road Traffic Authority expressed the opinion that “the road of this case is narrow in the section or the vehicular width of the road of this case at the speed of 60km, so the overall painting of the vehicle is necessary in order to secure the width of 3.25 meters. If the vehicle leaves the road, it is necessary to construct a drum on the shoulder of the road in order to induce its return to the road, and it is highly likely that the vehicle might fall when leaving the road due to the installation of a bridge-grade rail, and thus, it is necessary to construct an adequate level of protective fence.”

③ Under the instant management guidelines enacted around September 199, the term “bridge protection fence” was established on a bridge. According to the “bridge protection fence”, a street screen-type fence installed on a bridge is required to put the pipe (slater) in the connecting part of the bridge, to enter a slive pipe through a slve pipe, and to enter a V with a slve pipe through a slve pipe, and to design a slve between a street pole and a prop in such a way that the slves can withstanding the load, by inserting a slve in the connecting part of the beam and the prop. However, the instant protective fence was merely inserted into the prop fence without strengthening the seal capacity, by inserting a slve in the connecting part of the beam and the prop, and was in such a condition that it can easily leave the prop due to easy collision.

(C) Thus, the defendant, who is the installer and manager of the road of this case and the protection fence of this case, has the duty to prevent the occurrence or expansion of the second accident or damage by installing the protection fence sufficient to prevent the escape of vehicles on the road of this case, so that the vehicle does not leave the bridge even if it goes outside the bridge. It is obvious that the defect in the construction and management of the protection fence of this case was caused by the occurrence or expansion of the damage caused by the accident of this case.

(3) Judgment on the defendant's assertion

On the other hand, the defendant asserts that there is no additional liability for damages against the plaintiff as the fire marine insurance already performed its liability for indemnity in accordance with the judgment of the related case. However, in the related case, the fire marine insurance was recognized as the defendant's liability for the damages of the above victims by exercising the right to claim damages against the plaintiff who was the deceased or his heir, by exercising the right to claim damages against the plaintiff who was the victim of the accident, the defendant's liability for indemnity against the plaintiff who was the deceased or his heir

B. Limitation on liability

Meanwhile, in full view of the aforementioned evidence and the purport of the entire oral argument, the deceased, who was the driver of the vehicle involved in the accident, had driven the road in this case by lowering the speed to a half of the maximum speed limit (Article 17(1) of the Road Traffic Act and Article 19(2)2(b) of the Enforcement Rule of the Road Traffic Act), even though the driver of the vehicle involved in the accident had driven the road in this case beyond the maximum speed limit (Article 17(1) of the Road Traffic Act, and Article 19(2)2(b) of the Enforcement Rule of the same Act). The accident in this case is attributable to the deceased's failure to drive the vehicle or the mistake in driving. Thus, it is reasonable to view that the accident in this case overlaps with the defect in the construction and management of the protective fence of the defendant prior to the above negligence of the driver of the vehicle involved in the accident. Accordingly, it is reasonable to consider the defendant's damages calculation, but it is reasonable to limit the defendant's liability to 20% damages.

4. Scope of liability for damages

In principle, the period of the calculation shall be calculated on a monthly basis, but less than the last month and less than KRW 1 shall be discarded. The current price calculation at the time of the accident of the amount of damages shall be governed by the simple interest rate which deducts the interim interest at the rate of 5/12 percent per month. It shall be rejected that the parties' arguments are not separately explained. [Grounds for Recognition] The parties' arguments are not dispute, the entries in Gap No. 1, 7, and 11, and the purport of the whole

(a) The deceased’s lost income;

(1) Basic facts (a) Date of birth and gender: Date of birth on 1975 and date of birth on 1975 (b): 39.

C) At the end of each name: 2056.

(ii)the operating period and income;

According to the records in Gap evidence No. 7, the deceased is recognized to have received a total of KRW 1,425,00 for the three months immediately preceding the accident in this case while working as* from January 1, 2012 to the date of the accident in this case, barring any special circumstance, the deceased would have worked in the above company until he reaches the retirement age of 60,000,000 per month as prescribed by the rules of employment (Evidence No. 4) of the above company, and could have earned an average of KRW 4,750,000 per month. Accordingly, until before the deceased reaches the age of 60,000, the deceased would have earned an average amount of KRW 4,755,00 per month, which is the average amount of the above income. Accordingly, the actual income shall be calculated by deeming that the deceased could have earned an income equivalent to the daily wage of an ordinary worker in an urban area from the end of 65,000 after the empirical rule-based maximum working age.

Therefore, from the date of the instant accident to the date of 60 years of age, the average monthly income of 4.75 million won, from the date of the instant accident to the date of 2035, and from the date of 2035 to the date of 65 years of age of the deceased, the amount calculated by multiplying the unit price of urban daily wage for the first half-yearly year of 2019, which is close to the date of the closing of the instant argument by 22 days, shall be deemed the monthly income amount of the deceased.

(4) Calculation: 52,369,448 won as listed below shall be calculated on the basis of the foregoing recognition if the deceased’s lost income is calculated on the basis of the foregoing recognition.

A person shall be appointed.

(b) A lost retirement allowance for the deceased;

As seen earlier, the Deceased appears to have worked for a stock company on January 1, 2012 and had been 4,750,000 won per month until he reaches the age of 60. Since his heir received KRW 52,745,269 from the deceased’s retirement allowance after the death of the instant accident, 11,625,000 as retirement allowance that could have been paid at the time of the instant accident would have been converted into the present price at the time of the instant accident, the amount of KRW 57,732,450 as stated in the column of “the present price at the time of the accident” in the following table is KRW 57,732,450 as at the time of the instant accident, and as sought by the Plaintiff, KRW 57,147,804, as at the time of the instant accident, the amount of KRW 52,745,269, as at the time of the death of the Deceased shall be deemed as the actual retirement allowance of the Deceased and recognized as damages.

A person shall be appointed.

According to the circumstances and rule of experience revealed in the arguments, such as the deceased’s occupation and income, and the background of the occurrence of this case, the Plaintiff recognized that the funeral expenses of the deceased were paid KRW 3 million.

D. Limitation on liability

(1) The defendant's ratio of liability: 20% (see the above 3.B.).

(2) Property damages after limitation of liability

(A) Deceased: 11,354,396 won = 556,771,983 won (i.e., lost income of 552,369,448 won + 4,402,535 won in lost retirement allowances) x 20%]

(B) Plaintiff: 600,000 won (i.e., funeral expenses of KRW 3 million x 20%)

(e) consolation money;

At the time of the deceased’s death, the deceased was at the time of supporting and king his family with his age of 41 years and 4 months, and the Plaintiff appears to have suffered a considerable pain due to the deceased’s son’s death and her son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’

(f) Inheritance amount;

(1) Amount to be inherited: 151,354,396 won (=property damage 111,354,396 won + 40 million won)

(2) Inheritance shares and inheritance amount: According to the purport of Gap evidence No. 1 and all the arguments, the plaintiff shall solely inherit the deceased's property as the mother who is the lineal ascendant of the deceased.

G. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 161,954,396 (i.e., inheritance amount of KRW 151,354,396 + funeral expenses of KRW 600,000 + 10,000 won for the Plaintiff himself/herself), and as to this, 5% per annum under the Civil Act from November 27, 2016, the date of the instant accident to May 30, 2019, which is the date of the instant judgment, and 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

5. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.