2016Na10073 Compensation for damages

A

B

Daejeon District Court Decision 2015 Ghana20893 Decided January 18, 2016

September 30, 2016

October 28, 2016

1. The part of the judgment of the court of first instance against the plaintiff corresponding to the money ordered to be paid below shall be revoked.

The defendant shall pay to the plaintiff 707,500 won with 5% interest per annum from June 1, 2016 to October 28, 2016, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 1,415,00 won with 15% interest per annum from the day following the delivery of the original claim and the copy of the application for modification of the cause of the claim as of May 31, 2016 to the day of complete payment (the plaintiff reduced the purport of the appeal by reducing the purport of the claim as above in the trial, thereby reducing it within the scope of the appeal).

1. Facts of recognition;

A. The plaintiff is the owner and resident of 105, 402, 102, 105, 300, 300, 300, 100,000, and the defendant was the tenant of 105, 502, 300,000,000,000,000.

B. In 2013, water from the toilet 402 apartment site was lowered, and after December 2014, 2014, water ice and fungi were generated in the ceiling of the ward. Water was lowered in the grassland on April 2, 2015, around October 2, 2015, water was diminished in the toilet tent, and water was reduced from the toilet tent until December 2015 (hereinafter referred to as "water leakage in this case").

C. On April 23, 2015, the Plaintiff: (a) notified the Defendant of the water leakage; and (b) requested the Defendant to take appropriate measures; and (c) on April 23, 2015, the Plaintiff sent the content of the following: (a) “In the event that the Plaintiff did not perform the construction by April 30, 2015, the lessor and the Defendant, a lessor, a complete construction for the water leakage source until April 30, 2015; and (b) notified the owner and lessee that it would inevitably file a lawsuit against the lessee for damages.”

D. From February 2015, around 502 apartment water: pipeline rupture inspection, boiler water leakage inspection, water leakage detection equipment to put pressure into pipes through pipes; pipeline rupture inspection; waterproofing toilet construction; water-proof construction of main sewage pipe; and floor waterproof construction; and water leakage continued.

E. On April 2015, 2015, the first police officer, and the first police officer on October 2015, 2015, the construction works related to water leakage (the construction works are not verified accurately) in apartment No. 502. However, the construction works did not find water sources and the water leakage continued until December 2015.

F. After the Defendant’s passage on December 2015, D around the floor of apartment 502, D installed a primary precision pipe test to detect water leakage by drilling at least 100 holess on the floor of apartment 502, and a kitchen pipe, to check out the emulsion of pipes by opening the kitchen pipe and exposing the pipes, and then replaced the old emulsion with the new emulsion of pipes. In addition, D performed a waterproof construction work from the boiler pipeline to the place of water outflow.

G. On January 2016, the Plaintiff confirmed that the construction was completed, and paid KRW 1,415,000 to the construction cost. As to the apartment 402, the Plaintiff confirmed that the said construction was completed, and paid KRW 1,415,00 as the construction cost.

H. Around February 2016, there was no progress in the process of water leakage from the apartment house 402 to the apartment house 402 ceiling, and there was no construction work related thereto at the time. On April 18, 2016, there was an excellent repair work on the apartment 105 rooftop, which was made at the request of the lessee of the apartment house due to the leakage of the apartment 502 distribution box.

(i) At present, the number of apartments 402 does not reach any longer.

[Ground of recognition] The contents and images of Gap evidence Nos. 1 through 3, 5 through 9, Eul evidence Nos. 3 through 6, and 10 (including paper numbers), and the fact-finding to the head of the management office of the party court, the purport of the whole pleadings

2. Occurrence of liability for damages;

A. Recognition of liability

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 requirements are met, it shall be determined based on whether the installer and the lessee of the structure has fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the danger of the structure.

2) As seen earlier, it is reasonable to view that the water leakage of apartment Nos. 402 has ceased after the completion of pipes and waterproof construction, such as port entry, and that the water leakage of apartment Nos. 502 was caused by a defect in the installation or preservation of pipes or floors installed on the floor of apartment No. 502, which is not equipped with safety normally (the Defendant asserts that the water leakage of this case is likely to have occurred due to the water leakage of the excellent pipes installed on the outer wall of apartment, but it is difficult to recognize the Defendant’s assertion in light of the fact that the water leakage of this case occurred even in winters with a large number of water leakages, or that the location of this case is a ceiling or toilet site located far from the outer wall of apartment).

3) Therefore, the Defendant, an occupant of apartment 502, is liable to compensate the Plaintiff for the damages incurred by the Plaintiff due to the instant water leakage.

B. Judgment on the defendant's defense of immunity

1) The defendant's assertion

The defendant asserts that since the defendant did not neglect the duty of care necessary for the prevention of damages by fulfilling the duty of protection measures generally required by social norms, it is exempted by the proviso of Article 758(1) of the Civil Code.

2) Determination

Unless there are special circumstances, such as that the defect in piping or floor waterproof construction installed on the apartment floor is not revealed externally, and it is difficult to know whether there is a defect before checking the status of piping due to the removal of the floor, it is difficult to view that the Defendant has a duty of care to take measures to anticipate the defect in piping or waterproof construction before water leakage occurs, unless there are special circumstances such as that the Defendant provided the cause of water leakage by installing separate facilities on the floor of apartment 502 or there was a circumstance that can expect water leakage.

However, following the Plaintiff’s notification of water leakage and the request for adequate repair works, the Defendant, as a possessor responsible for the management of a structure, has a duty of care to actively find a water source and thoroughly take necessary and adequate measures to prevent water leakage from occurring. In the instant case, where water leakage continues even though some waterproof construction works have not been performed due to the failure to find a water source, measures were necessary to take measures to detect the precision of the inside pipe itself or its drinking water and to prevent the water leakage from occurring through the removal of the floor. Ultimately, the problems of water leakage in the instant case have been resolved after such measures were taken (whether the lessor is ultimately the owner of the object of lease is merely the reason to consider in determining the relationship between the lessee and the lessor’s internal responsibility, and cannot be viewed as the reason to avoid liability for damages as a possessor of a structure in relation to the victim who is a third party).

In light of the fact that the Defendant notified the instant water leakage to D who is the owner of the instant case and cooperated in the construction related to water leakage, it is recognized that the construction project performed by the Defendant while occupying apartment Nos. 502 is the degree of water leakage and floor waterproof construction, notwithstanding the continued water leakage, the Defendant did not take active measures separately, and that the construction project on the pipes of the floor No. 502 floor of apartment building No. 502 ought to be done after the fact that the Defendant was the director, the Defendant cannot be deemed to have paid due attention to the prevention of damage caused by water leakage in this case. Accordingly, the Defendant’s assertion of immunity is rejected

3. Scope of liability for damages

According to the above facts, it is recognized that the Plaintiff’s property damage caused by the water leakage in this case is KRW 1,415,00. However, considering the fact that even though water leakage detection was made several times on the floor of apartment Nos. 502 at the time, the damage was expanded due to the failure to find the cause of water leakage, the Defendant cooperationd with the construction related to water leakage, and the Defendant appears to have suffered considerable inconvenience due to the continued construction, it is reasonable to limit the Defendant’s liability by 50%.

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated by the rate of 707,500 won (i.e., 1,415,000 won x 0.5) and 15% per annum under the Civil Act from June 1, 2016, which is appropriate for the Defendant to dispute over the existence and scope of the obligation, from June 1, 2016, to October 28, 2016, after serving a copy of the claim claim and the cause of the claim as of May 31, 2016 (i.e., the date the judgment of the competent court is rendered, and the damages for delay calculated by the rate of 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the following day to the date of full payment.

4. 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. Since the judgment of the court of first instance is unfair with some different conclusions, it is revoked and part of the plaintiff's appeal is accepted, and the defendant is ordered to pay the above recognized amount. The plaintiff's remaining appeal is dismissed as it is without merit.

Correction of judge;

Judges Kim Jae-chul

Judges Go Young-sik