Republic of Korea (Government Law Firm Corporation, Attorneys Kim Jong-min, Counsel for defendant-appellant)

Handong Construction Co., Ltd. and two others (Law FirmMail, Attorneys Kim Jong-hun et al., Counsel for the plaintiff-appellant)

Korean Technology Development Co., Ltd. (Law Firm Shin, Attorney Seo-won, Counsel for the plaintiff-appellant)

May 12, 2011

Suwon District Court Decision 2009Da10051 Decided February 4, 2010

1. Of the judgment of the court of first instance, the part against the Plaintiff in relation to Defendant Han-dong Construction Co., Ltd., which orders payment under the following shall be revoked:

Defendant Handong Construction Co., Ltd. shall pay to the Plaintiff the amount of KRW 660,698,203 as well as 5% per annum from March 12, 2009 to June 2, 201, and 20% per annum from the next day to the day of full payment.

2. Upon a claim for a change in exchange at the trial of the party, the plaintiff confirmed that the plaintiff has a bankruptcy claim to receive KRW 275,162,007, out of the amount stated in paragraph 1 of each of the defendant Handong Construction Co., Ltd. and each of paragraph 1 of the above.

3. The plaintiff's remaining appeal against the defendant Youngdong Construction Co., Ltd., appeal against the defendant Youngnam Construction Co., Ltd., and appeal against the defendant Youngnam Construction Co., Ltd., and other claims against the trustee in bankruptcy for the bankruptcy of Jeong Jong-dong Development Co., Ltd.

4. The costs of appeal between the Plaintiff and Defendant Yong Nam Construction Co., Ltd. are assessed against the Plaintiff, and the total costs of appeal between the Plaintiff and the remaining Defendants are assessed against

5. The monetary payment portion under paragraph (1) may be provisionally executed.

1. Purport of claim

A. Defendant Han-dong Construction Co., Ltd and Defendant Yong-Nam Construction Co., Ltd shall pay to each Plaintiff 660,698,203 won with 5% interest per annum from March 12, 2009 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

B. The plaintiff confirmed that he/she has a bankruptcy claim of KRW 275,162,007 against the bankrupt M&D Co., Ltd.

(The plaintiff reduced the purport of the claim against the defendant Handong Construction Co., Ltd. and the defendant Yong-Nam Construction Co., Ltd. at the trial, and changed the claim against the trustee in bankruptcy of the bankrupt Jong-dong Development Co., Ltd., the trustee in bankruptcy from the claim for monetary payment to the claim for bankruptcy claim confirmation)

2. Purport of appeal

The judgment of the first instance shall be amended as follows:

The Defendants jointly and severally pay to the Plaintiff the amount of KRW 803,200,409 as well as the amount calculated by applying 5% per annum from March 12, 2009 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of full payment.

1. Basic facts

A. Construction of the road works of this case, and current status of underground warehouses of this case

(1) On September 21, 1998, the Plaintiff entered into a contract for facility construction works between Defendant Handong Construction Co., Ltd. (hereinafter “Defendant Handong Construction”), Defendant Youngnam Construction Co., Ltd. (hereinafter “Defendant Youngnam Construction”), Chungcheong Construction Co., Ltd. (hereinafter “Defendant Youngnam Construction”), and Chungcheong Construction Co., Ltd. (hereinafter “Yannam Construction, etc.”) as a joint contractor between Defendant Handong Construction, etc., and between Defendant Handong Construction, etc. and the 48 lines of national highways, the Plaintiff entered into a contract for facility construction works with the Korea Co., Ltd. to construct the road from four lanes to eight lanes of national highways (hereinafter “instant road construction”). On December 2, 1998, the Plaintiff entered into a contract with the Korea Co., Ltd. to supervise the instant road development services with respect to the instant road construction works.

(2) Meanwhile, the Nonparty, a business operator who leases lighting equipment to a broadcasting station, etc., was in possession of lighting equipment at the 326.21 square meters of the ground floor (hereinafter “instant underground warehouse”) among the three neighborhood living facilities (hereinafter “instant building”) of the 3rd floor of Kimpo-si, Kimpo-si, Kimpo-si, the Nonparty, a business operator who leases lighting equipment to a broadcasting station, etc., was located adjacent to the right side of the road (Seoul Ypo-si, the road of the instant underground warehouse was located under the right side of the 326.21 square meters of the ground floor (hereinafter “instant underground warehouse”). From among the roads of the 48th line on the national highways, the said building was located under the vicinity of the 48th line, the road of the instant underground warehouse was adjacent to the right side of the road (Seoul Ypo-si, the road of the instant building was parallel to the road of the said decline and the parking lot.

(3) Of the instant road construction sections, Defendant Han-dong Construction, etc. performed the work of cutting the existing four-lanes of road in depth on the right side of the road (hereinafter referred to as “the instant cutting construction section”) with respect to the said section from the above tent to the site of the instant building (hereinafter referred to as “the instant cutting construction section”), and in the process, removed the high-quality concrete pipes of 600 meters in diameter laid underground according to the cutting construction section. Moreover, as seen above, the lower part of the building site of the instant building site, which is the end of the cutting construction section, the top part of the cutting construction section, was laid underground in accordance with the upper part of the building site of the instant case, not the cutting part, and the remainder was laid underground in accordance with the upper part of the lower part of the building site of the instant building site. However, the remainder was exposed to the lower part of the center, and there was grass and soil around the exposed part.

(4) According to the special specifications among the “GimpoIC - Seoul Metropolitan City Road Expansion and Packing Construction Execution Design Specifications,” which was made by the Seoul Regional Construction Management Agency around December 1997 under the Plaintiff’s control, the contractor shall remove high water on the ground of the original site prior to the execution of the construction and install a drain channel in the course of the construction, treat the external inflows and install a drain channel, and shall take necessary measures such as protection air defense, etc. after consultation with the supervisor so as not to impede the permanent or temporary structures on the ground of the construction site or its surrounding areas, and (3) establish an appropriate disaster prevention system, such as materials, equipment, etc. necessary to at least prevent natural disasters, such as rain, heavy snow, strong wind, flood, etc., arising during the construction of the construction.

(5) In addition, the Defendant’s Intervenor Korea Technology Development Co., Ltd., as a supervisor, ordered Defendant Handong Construction Co., Ltd. to conduct disaster prevention education and construction site inspection from May 23, 2001, and notified the Minister of Government Policy Coordination on June 4, 2001 that he had issued an order for flood prevention measures from the Minister of Government Policy Office. On July 10, 2001, the Defendant ordered disaster prevention measures against the long-term steel industry, especially for the part where the measures for flood prevention are insufficient, such as ordering the restoration of inflows to the front-class pipes.

B. Occurrence of flood accidents of this case

(1) From July 14, 200 to July 2:00, 2001 to July 15, 2001, at the high village of Kimpo-si, which is the part of the cutting construction work of this case, a concentration of at least 170 meters for 4 hours in the first place (number omitted) (170 meters in the case of Kimpo Airport Meteorological Team located near the part of the cutting construction of this case; 185 meters in the case of Kimpo-si observation stations located near the part of the cutting construction of this case; 190 meters in the case of high village observation stations; 190 meters in the case of high village observation stations; and the Korea Meteorological Administration issued a warning around 17:0 on July 14, 201 through the broadcast media, and around 22:00 on the same day.

(2) 위와 같이 내린 집중호우로 인하여 다량의 빗물이 천둥고개 위쪽으로부터 경사면을 따라 절토공사로 인하여 움푹 들어간 이 사건 절토공사구간에 다량 유입되어 절토공사로 파헤쳐진 토사와 섞여 이 사건 우수관으로 흘러들어간 결과, 우수관안에 토사가 쌓여 이 사건 우수관을 통하여 이 사건 지하창고 쪽으로 매설된 우수관의 배수용량이 저하된 데다가, 절토공사 후 이 사건 우수관으로 향하는 가배수로 등의 배수시설이 설치되어 있지 않았던 이유로 이 사건 절토공사구간으로 유입된 다량의 빗물이 이 사건 우수관을 통하여 제대로 배출되지 못하고 이 사건 우수관 부근과 지표면 높이가 비슷한 노면 쪽으로 넘쳐흐른 후 경사면을 따라 이 사건 지하창고의 진입로를 거쳐 이 사건 지하창고에 흘러들어 이 사건 지하창고를 50㎝ 정도 침수시켰다(이하 ‘이 사건 침수사고’라 한다).

C. Progress of the lawsuit filed by the Nonparty

(1) On August 28, 2001, the Nonparty filed a lawsuit against the Plaintiff, Handong Construction, etc., and the Nonparty, Inc., Ltd., seeking compensation for damages caused by the flood accident of this case. On October 21, 2005, the above court determined that the flood accident of this case, such as the Plaintiff, Handong Construction, etc., overlaps with the negligence in the implementation of the road work of this case and the concentration rate at the time of the implementation of the road work of this case. The damages suffered by the Nonparty due to the flood accident of this case shall be the total amount of KRW 1,579,740,000, which is the damage amount of the lighting equipment stored in the underground warehouse of this case. However, by recognizing that the concentration of damages caused to the above damages and the Nonparty contributed to 30% of the above underground warehouse management negligence of this case, the Nonparty’s claim for compensation for damages was eventually limited to the amount of damages of KRW 2050,000,309,2797,297.

(2) With respect to the above judgment of the first instance court, all of the parties except for the case (Seoul High Court Decision 2005Na105103, Seoul High Court Decision 2005Na103, the non-party withdrawn the lawsuit against the Chungcheong Construction Industry Co., Ltd., Ltd., Ltd., Ltd., which was taken over during the appellate trial proceeding). The Seoul High Court, on February 13, 2007, did not prove that there was gross negligence with respect to the contract or instruction of the road works of this case, and there is insufficient evidence to acknowledge that the construction was managed by direct direction, instruction, supervision, and reading at the specific site of the road works of this case, on the ground that the non-party 2 was not responsible for the aforementioned conjunctive construction of the plaintiff's main claimant's damages claim pursuant to Article 756 of the Civil Act, and the non-party 2 was dismissed from 07 per annum 200 to 70 per annum 20 per annum 3, which is a public structure of this case.

(3) On March 12, 2009, the Plaintiff paid KRW 660,698,203 out of the total damages of KRW 473,922,00 and damages for delay up to March 12, 2009, which were ordered to the Nonparty in accordance with the above judgment. Defendant Handong Construction paid KRW 168,352,135 to the Nonparty on March 18, 2009, KRW 473,922,00 and KRW 329,278,40,409 and damages for delay up to March 12, 2009, KRW 60,69,200, KRW 2789, KRW 259, KRW 2059, KRW 2059, KRW 269, KRW 259, KRW 2059, KRW 259, KRW 200, KRW 209.

D. Meanwhile, on August 11, 2003, the Chungcheong Construction Industry Co., Ltd., which comprehensively succeeds to the status of the Chungcheong Construction, entered into a contract for divided transfer of the construction business with C&C Co., Ltd., and Jeonnam Do Governor accepted the report on the transfer or acquisition of the construction business on October 10, 2003, and C&C Co., Ltd. changed its trade name on August 22, 2005 to M&C Co., Ltd. on March 12, 2007 (hereinafter “C&C”), and changed its trade name to M&C Co., Ltd. (hereinafter “S&C”), and the argument that C&D Co., Ltd. was not a transferee of the business of the Chungcheong Construction Industry Co., Ltd. against this point is rejected).

E. Meanwhile, on October 5, 2010, after the judgment of the court of first instance was rendered, the due development was declared bankrupt on October 5, 2010 by the Seoul Central District Court No. 2010Hahap47, and ○○○○ (hereinafter “Defendant Preferred Development Trustee”) was appointed as the bankruptcy trustee. The above bankruptcy trustee taken over the lawsuit of this case.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4, 6 through 12 (including paper numbers, hereinafter the same shall apply), Eul evidence 1 to 6, Eul evidence 1, Eul evidence 2 to 5, and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The instant accident occurred due to the defect in the construction of the instant road works. The Plaintiff is not negligent in this regard, and according to the instant road works contract, the contractor is required to bear the total amount of the construction works. As the Plaintiff paid damages to the Nonparty, Defendant Handong Construction, Defendant Young-gu Construction, and the Nonparty Young-gu Construction and the Nonparty Young-gu Construction are jointly and severally liable to pay the said amount and damages for delay to the Plaintiff.

B. Determination as to the occurrence of the right to indemnity

(1) According to the above facts, the flood accident of this case occurred when the construction contractor of the road construction of this case, which is the construction contractor of the road construction of this case, the construction contractor of the road construction of this case, and the construction of facilities to prevent flood damage due to concentrated rain or to secure drainage channels in accordance with the provisions of the special specifications of the road construction of this case and the supervision of the technology development company, but the existing excellent pipes are removed, and the construction negligence of neglecting the existing excellent pipes without installing drainage facilities, and the construction and management of roads in the cutting section of this case, and the construction of the road of this case, which installed and managed the road of the cutting section of this case, for the purpose of preventing flood damage due to concentrated rain, the defects in the construction and management of public facilities, which did not perform all the duty of protecting flood damage due to concentrated rain, are jointly liable for joint tort.

(2) In addition, in a case where the plaintiff compensates for damages due to defects in the construction and management of public structures, if there is a separate person who is liable for the cause of damages (Article 5(2) of the State Compensation Act). If there is no negligence on the occurrence of the flood accident of this case and Defendant Han Dong Construction, etc. are entirely responsible for the occurrence of the flood accident of this case, the plaintiff can claim the full amount of the damages to Defendant Handong Construction, etc., and if it is acknowledged that all the plaintiff and Defendant Handong Construction, etc. are negligent, the right of reimbursement can be exercised according to the ratio of the burden determined according to the degree of negligence.

(3) In the above case of Seoul High Court Decision 2005Na105103, the Plaintiff’s liability for damages is a defect in the construction and management of public structures that did not fulfill the obligation to prevent flood accidents caused by concentrating the construction work of this case through Handong Construction, etc., which is the contractor of this case. This purport is that the Plaintiff shall be liable for damages caused by the negligence of Defendant Handong Construction, etc. which is the contractor of this public structures. Thus, it is insufficient to recognize the defects in the construction and management of the above public structures in an internal indemnity relationship between the Plaintiff, Handong Construction, etc., and there is no specific assertion and proof as to the Plaintiff’s negligence, such as the negligence in terms of the construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction work site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s construction site’s installation and construction site’s installation.

Therefore, it is difficult to see that there was any negligence on the occurrence of the flood accident of this case to the plaintiff, and the flood accident of this case was caused by negligence, such as the construction of the defendant Handong, which is the contractor. Therefore, in case there are several joint tortfeasors who are liable to compensate for damages against one of the joint tortfeasors, it is reasonable to see their obligations to compensate for damages, unless there are special circumstances. However, if there are no negligence on the part of the joint tortfeasors who are the right to compensate for damages, it is reasonable to see that there is no negligence on the part of the joint tortfeasors, i.e., where there is no internal burden, the relationship between the obligation to compensate for damages among the several joint tortfeasors (Supreme Court Decision 2003Da24147 delivered on October 13, 205), it is reasonable to see that there is no negligence on the part of the joint tortfeasors who are the right to compensate for damages (Supreme Court Decision 203Da24147).

C. Determination as to the defendants' defenses, etc.

(1) As to the defenses of the exemption of Han Construction

Since Defendant Han-dong Construction is a defense that the Plaintiff exempted the obligation of indemnity from the obligation of indemnity, it is not sufficient to acknowledge the same only by the descriptions of evidence Nos. 1 through 6, and there is no other evidence to acknowledge it, the above defense is without merit.

(2) As to Defendant Yong-Nam Construction’s assertion of forfeiture of rights

Since the company reorganization procedure commenced after the occurrence of the flood accident in this case, and the company reorganization plan was approved, the plaintiff's indemnity claim was rejected due to the failure to report under the above reorganization procedure, and in full view of the purport of the whole pleadings in the statement in Eul or Eul, and evidence Nos. 1 through 4, defendant Youngnam Construction decided the company reorganization procedure as of February 17, 2005, the period for reporting the reorganization claim was decided on April 7, 2005, and the company reorganization plan was decided on August 24, 2005, the company reorganization plan was decided on September 27, 2006, and the company reorganization plan was ordered on October 31, 2006, the non-party cannot claim for damages due to the flood accident in this case, and the plaintiff's participation in the company's reorganization claim as joint and several surety's indemnity claim against the company which is a joint and several surety company's right to indemnity after reporting the reorganization claim in this case's damages claim in this case.

D. Sub-committee

Ultimately, the Plaintiff is obligated to pay to the Plaintiff the amount of KRW 660,698,203 as well as damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from March 12, 2009, which is the joint exemption date for the Plaintiff’s payment of the said damages to the Nonparty, until June 2, 2011, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the following day to the date of full payment. The Plaintiff is obligated to pay the amount of damages for delay calculated at the rate of 660,698,203 among the above 660,698,203 won and the above 6660,698,203 won and the above 6660,536,196 won and the 275,207 won exceeding the amount of damages to the Nonparty as a bankruptcy claim.

3. Conclusion

Therefore, the plaintiff's claims against the defendant Han-dong Construction and the defendant Young-dong Development Trustee are accepted within the scope of the above recognition, and each of the remaining claims against the above defendants and the claims against the defendant Young-dong Construction are dismissed as without merit. Since the judgment of the court of first instance is in part different from this conclusion, the part against the plaintiff for the defendant Young-dong Construction, which corresponds to the above money, is revoked and ordered to pay the payment, and upon the claim changed in exchange at the trial, it is confirmed that the plaintiff has bankruptcy claims as above for the defendant Jong-dong Construction, the remaining appeals against the defendant Young-dong Construction, the appeal against the defendant Young-dong Construction, and the remaining claims against the trustee in bankruptcy for the defendant Young-dong Construction, are dismissed as it is so decided as per Disposition by the court of first instance.

Judges Shin Young-chul (Presiding Judge)