2012 grouped 511464 damages (ar)

U20(43-1)

Jeon Sung-nam District

Attorney Ansan-yang, Counsel for the defendant-appellant

Attorney Lee Dong-chul

Jeonnam-do

The representative of the Do Governor Park Jong-young

[Defendant-Appellant] Ying Co., Ltd., Counsel for defendant-appellant

June 14, 2013

July 12, 2013

1. The defendant shall pay to the plaintiff 1,922,849 won with 5% interest per annum from June 15, 2013 to July 12, 2013, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 7,011,872 won with 20% interest per annum from the day following the delivery of a copy of the claim and the ground for the claim in June 14, 2013 to the day of complete payment.

1. Basic facts

A. The Choyang-do is a quasi-river designated by the Notice No. 96 of Jeonnam-do on May 23, 1935 (current local class II river) and a bank is constructed according to the volume of the above river.

B. The Plaintiff cultivated Subdivision from 000 Mayang-ri, 3372 m2 (hereinafter “instant land”) to 2008 to 2011, in the case of the North Korea, which is north of Choyang-gun adjacent to Choyang-gun, and the Defendant is the installer and manager of an embankment, which is the Choyang-gun and its accessory.

C. However, during the period from August 16, 2010 to the 17th day of the same month, if North Korea, including the Choyangcheon, part of the Choyang-do 785 meters in total (hereinafter “the bank of this case”) located in the Hanyangcheon-do adjacent to the land of 785 meters inyangyang-do (hereinafter “the bank of this case”) was leaked, and Choyangcheon-do was flooded, and the flooded water caused the inundation and the flooded damage (hereinafter “the flood damage of this case”) caused to the land of this case through several lots of neighboring soils.

[Ground of recognition] A without dispute, each image of Gap evidence 2 through 3 and 7 (including each numbered evidence), Eul evidence 1 and 2, testimony of new witness 00, the result of the on-site inspection by this court, the fact inquiry by the head of this court on January 17, 2013, the purport of the whole pleadings as a whole.

2. Occurrence of liability for damages;

A. The parties' assertion

1) The plaintiff's assertion

Although the defendant should install the Choyangcheon and its embankment safely in preparation for the intensive care, the defendant constructed the embankment in this case with weak inland soil, and established the basic river plan and did not establish the basic river plan even though he did not manage Rayangyang in accordance with the basic river plan. The damage caused by the flood disaster in this case was caused by the defect in the construction and management of the embankment and the embankment. Thus, the defendant is liable to compensate the plaintiff for damages caused by the flood disaster in this case.

2) Defendant’s assertion

① Even though the Defendant fulfilled the duty of management of Choyangcheon, such as dredging of deposited soil and removing miscellaneous trees, the flood of this case occurred due to the concentration, which is a sediative natural disaster, and ② even if there were damages due to the flood of this case, this is the Plaintiff’s responsibility for cultivating molecules who are not suitable for growth conditions in a case where flood is allowed, and ③ the Plaintiff’s reduction in harvest of molecules is not due to the flood of this case, but due to the cold damage.

(b) Markets:

1) Relevant legal principles

The term "construction or management of a public structure" in Article 5 (1) of the State Compensation Act refers to the state in which the object of construction and management of a public structure is in a state in which the object of construction and management is not in a state of safety ordinarily required according to its purpose. It is not in a state of complete construction and management of the public structure, and there is a defect in its function. The mere safety cannot be said to be defects in the construction or management of the public structure. In determining whether the construction and management of the public structure has satisfied the duty to take protective measures to the extent generally required by social norms in proportion to the danger of the public structure, by comprehensively taking into account all the circumstances such as the use of the public structure in question, the current state of the installation and utilization of the public structure in question. In objectively and objectively, in a case where there is no possibility and possibility of the occurrence of damage due to the functional defect of the public structure in time and location, the defect in the construction and management of the public structure can not be recognized (see Supreme Court Decision 9Da405427, Feb. 25, 2000).

Meanwhile, there is no choice about the original installation of a river as a natural structure, and there is a lot of natural and technological situation where it is difficult to remove risks from a simple method. It is difficult to predict the source of flowing water, such as the size, scope, and time of flood generation, even though it is an object of natural phenomenon. In fact, it is difficult to grasp certain functions of a river due to experiments, and it is inevitable to grasp the actual flood, and ultimately, it is difficult to manage the river based on past flood experience. In addition, it is necessary to complete the repair work of a river with a large scale and construction work, and it is necessary for a long time to determine whether it is possible for the management agency to find out the method of water control according to the characteristics of the river basin and its long-term nature, and it is reasonable to determine whether it is necessary to have long experience in the construction work of a river and to determine the level of water supply and improvement of a river based on the existing plan to manage the river by means of natural and technological changes. It is also reasonable to find out the method that meets the above characteristics of a river.

2) Grounds for liability

As a whole, the river management agency established the basic river plan on a ten-year basis with respect to the river under its management, including basic matters necessary for the use and eco-friendly management of the river (Article 25(1) of the river Act). The bank of this case is located on the surface of an attack on the river, while the defendant performed the restoration of the river from the river in the vicinity of the river in 2003, part of the bank of this case was dump construction, but the bank of this case was constructed with soil, and the defendant was not obliged to remove the river from the 14th of March 11, 200 to the 14th of June 2009 to the 10th of the same month to the 10th of the 2nd of the same month to the 10th of the 2nd of the river, which is the river of this case to the 10th of the 1st of the 2nd of the 2nd of the same month to the 10th of the 2nd of the same month.7th of the 2nd of the river.

3) Judgment on the defendant's assertion

① The assertion: (a) it is insufficient to recognize that the Defendant fulfilled his/her duty to manage Choyangcheon solely based on the fact that he/she carried out the intermittent dredging work and the miscellaneous removal work as seen earlier; (b) it is recognized that the concentration 169m of the total rainfall in the vicinity of Choyangcheon was carried out between August 16, 2010 and August 17, 2010; (c) it cannot be deemed that in Korea, it does not constitute the weather change of Choyang-do that is difficult to expect the concentration concentrating rain in the case of Korea; (d) three times or more of the daily rainfalls of the above period on July 2010, which are similar to the daily rainfalls of the above period; and (e) there is no material to deem that the concentration of the above period significantly increased the risk of collapse compared to the previous concentrated rain.

② The assertion: (a) it cannot be deemed that the occurrence of damage caused by the flood disaster of this case was solely due to the Plaintiff’s negligence, and the above assertion is without merit. (b) It is separate from the circumstance where the Defendant’s responsibility is limited.

③ The assertion: In accordance with the statement in the statement in the statement in the 1 and 2 in Gap 4, the fact that the plaintiff received 1 million won each in 2010 (60% of the damage rate) and 201 (90% of the damage rate) and 2011 (the damage rate of 90%) which were cultivated on the land in this case is recognized, but it is a separate theory that the plaintiff did not have any damage due to the damage in this case. Such circumstance alone is insufficient to conclude that the plaintiff did not have any damage due to the damage in this case. Thus, the above assertion is without merit.

4) Limitation on liability

The scope of the defendant's compensation should be limited to the remaining portion after deducting the part which is deemed to have contributed to natural ability as to the plaintiff's negligence and loss from the point of view of fair burden of damage.

According to the foregoing, the Plaintiff is found to have cultivated most of the areas (the land category of this case is referred to as “the answer”), which are located in the neighboring lower court near the Yangcheon-do, where it is vulnerable to flood damage compared to rice, but has not prepared sufficient measures to prevent the inundation of the land of this case. Such negligence of the Plaintiff also caused the flood of this case. In addition, the Plaintiff’s contribution to natural history, such as the total amount of rainfall at the time reaches 169 meters, shall be limited to 60% of the amount of property damage suffered by the Defendant, taking into account all the circumstances shown in the argument of this case.

3. Scope of liability for damages

It is obvious in light of the empirical rule that the plaintiff suffered losses due to flooding, which caused a decrease in the number of molecules, due to the flood disaster of the plaintiff. The amount of such losses would be equivalent to the amount that the plaintiff would have been able to obtain by shipping normally molecules around June through July 7, 2011 if the plaintiff had not been able to obtain by shipping normally molecules. In light of the following circumstances, the plaintiff argued that the plaintiff suffered damages from the winter between 2010 and 2011, which would amount to 90% of the cultivation area of the East Sea, from the defendant in 2011, by asserting that the plaintiff sustained 100,000 won restoration expenses from the defendant in 200,000 won, 50% of low molecules farmers in North and North Korea, and 10% of average damages from the Do 10% of the growth area of the Do 10% of the Do 20,010.

According to the result of the fact-finding conducted on June 11, 2013 with respect to the head of Sungsung-gun, the fact that average income of a molecule farmer in the area of Masung-gun in 201 is 2,376/m2, and since the area of the land in this case is 3,372m2, the defendant is obligated to pay to the plaintiff 1,922,849 won ( = 2,376 won x 3,372m square x 0.4 x 0.6 x 0.63), as requested by the plaintiff, from June 15, 2013 to June 14, 2013, the following day after the delivery of a copy of the request for change of the purport of the claim and the request for change of the head of the Gu, the defendant is obliged to pay damages for delay calculated at the rate of 25% per annum from the next day of the judgment of this case until July 12, 2013.

4. Conclusion

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

St. St. St.

1) Although the defendant was authorized to submit specific materials on the third day for pleading of the instant case, the defendant is demoted until the date of closing argument of the instant case.

No additional data on quantity has been submitted.

2) The average income of the above farmers in 2011 seems to have suffered from the damage that most of the diversists in the area of the diversities of the divers of the Sung-gun.

It reflects that the damage reported by the plaintiff is somewhat large to 90% of the cultivation area compared to other farmers.

In the case of B not location, a farmer whose damage rate in the East Sea is 50% was higher than the average income, and a farmer whose damage rate is 75% higher than the average income.

The average income level of miscellaneous income has been earned, and farmers with 90% level like the plaintiff have earned less income than average income.

(100 - 90 %) X1 ¡À (100 - 25 %) = 0.4

3) Since the Plaintiff’s damages had already been considered as part of the damage inflicted on the East Sea, the Defendant does not deduct the recovery expenses paid to the Plaintiff.