[1] In a case where the administrative authority of a higher local government on the maintenance and management of a road is delegated to the lower local government head by the Ordinance on delegation of administrative authority, the person who is liable for damages caused by a tort or public structure in the course of delegated affairs

[2] The meaning of "defect in the construction or management of public structures" under Article 5 (1) of the State Compensation Act, and the standard for determining whether there is a management defect where a traffic safety defect occurred due to a third party's act after the construction of a road

[3] The case holding that the court below erred by misapprehending the legal principle in a case where Gap corporation, who received a contract for construction work for improving the street rearing environment of the sidewalk abutting on the road by the head of the autonomous Gu having jurisdiction over the delegation of the sidewalk management, etc. pursuant to the "Seoul Special Metropolitan City Ordinance on the Management of Major Facilities, such as Roads", was placed on the road as it is, while performing construction work, and Eul was driving the otobba, and suffered bodily injury as it goes beyond the center of the construction work, which was loaded on the road and went beyond the center of the wind without discovering the gravel for the construction work which was loaded on the road

[4] Where a contractor specifically directs and supervises the contractor's work progress and method, whether the contractor is liable for damages incurred to a third party due to a contractor's or his employee's tort (affirmative) and the meaning of "supervision and supervision" here

[1] Articles 2(1) and 5(1) of the State Compensation Act / [2] Article 5(1) of the State Compensation Act / [3] Article 5(1) of the State Compensation Act / [4] Articles 756 and 757 of the Civil Act

[1] Supreme Court Decision 96Da21331 Decided November 8, 1996 (Gong1996Ha, 3543), Supreme Court Decision 99Da11120 Decided June 25, 199 (Gong199Ha, 1511), Supreme Court Decision 2002Da15917 Decided September 27, 2002 (Gong2002Ha, 2561) / [4] Supreme Court Decision 2013Da78372 Decided February 13, 2014

Plaintiff 1 and two others (Law Firm Hann, Attorneys Kim Han-soo et al., Counsel for the plaintiff-appellant)

Gangdong-gu Seoul Metropolitan Government

Seoul Special Metropolitan City (Law Firm Han River, Attorneys Kang Han-soo et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2016Na2450 decided March 24, 2017

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

A. If the administrative authority of a higher local government related to the maintenance and management of roads was delegated to the lower local government head under the Ordinance on the Delegation of Administrative Authority, it is not a mere internal delegation. In the case of the delegation by an agency, the delegated sub-local government head is performing the affairs in the position of an administrative agency under the higher local government, and thus, the subject of reversion of affairs is not different. Therefore, in a case where a public official belonging to the lower local government head who assists the head of the local government intentionally or negligently causes damage to another person, or causes damage to another person due to a defect in a structure installed and managed as a delegated affairs, the upper local government that entrusted the authority shall be liable for such damage (see, e.g., Supreme Court Decisions 9Da1120, Nov. 8, 196; 9Da1120, Jun. 25, 19

Meanwhile, the “defect in the construction or management of a public structure” under Article 5(1) of the State Compensation Act means that a public structure is in a state in which the public structure is not equipped with safety ordinarily required for its use. In a case where a traffic safety defect, which is the original purpose of the construction of a road, was caused by a third party’s act after the construction of a road, the existence or absence of a defect should be determined by individually and specifically examining whether the defect was left neglected even though all circumstances, such as the structure and location of the road, the environment of the place, and the situation of the use thereof, etc., are considered. As a result, in a case where the safety defect of the road can not be caused at a time and at a place where the possession or management of the manager cannot be caused, the defect in management should be recognized (see, e.g., Supreme Court Decision 2002Da15917, Sept. 27, 2002).

B. The lower court acknowledged the following facts.

1) On November 23, 2012, Plaintiff 1 driven Oral Ba on or around 02:23, 2012, and left left from the ecological park distance from the ecological park name of Gangdong-gu Seoul Metropolitan Government to the shooting distance of the lux elementary school, proceeding about 50 meters to three lanes from the third line road of the luxal elementary school. The Plaintiff 1 suffered injury by getting out of the center of the wind of the construction works, which was loaded on the said three-lane, without discovering the gravel.

2) The road in which the above accident occurred is the road possessed and managed by the Defendant Seoul Special Metropolitan City, and the Korea Forest Afforestation Professional Engineer Office (hereinafter “Korea Forest Afforestation”) was awarded a contract by the Defendant Gangdong-gu Seoul Special Metropolitan City (hereinafter “Defendant Gangdong-gu”), the contracting authority, for the construction work to improve the street trees environment of the sidewalk abutting on the above road, and the construction work was carried out, and the said construction work was loaded on the road as it is. At the time of the accident of this case, there was no warning board or construction sign informing that the above obstacle occurred.

3) According to the attached Table “major facility management agency” under Article 5 of the Seoul Special Metropolitan City Ordinance on the Management of Major Facilities, such as Roads, the head of the competent autonomous Gu shall provide for the management of news reports (including survey districts), the Seoul Metropolitan City Do Do Do Do Road (including road facilities) and the cleaning of sidewalks

C. Examining the above facts in light of the legal principles as seen earlier, given that the instant road was loaded with the gravel, from the day immediately before the accident occurred to the time of the accident, and the cause for the accident occurred, it should be deemed that the instant road was in a state of failing to meet the safety ordinarily required to be equipped according to its purpose. In light of the structure, location environment and current use of the relevant road, and the time when the gravel was loaded, etc., it is difficult to deem that the Defendant Seoul Special Metropolitan City’s act of managing the instant road’s safety defect was under the situation where the Defendant, who occupied and managed the instant road, could not have any act of managing the instant road. Therefore, it should be deemed that there was a defect

D. Nevertheless, the lower court determined that there was no defect in the construction and management of the instant road under Article 5(1) of the State Compensation Act on the ground that there was no possibility and possibility of avoiding damage caused by a defect in the function of the instant road in the Defendant Seoul Special Metropolitan City on the ground that the management of the instant road and the cleaning of the instant road and the instant sidewalk was entrusted to the head of the competent autonomous Gu, and that the said road and the instant sidewalk were caused in the course of performing construction of street trees by giving a contract to the Han-gu forest landscape as part of the news management. However, in light of the aforementioned legal principles, the lower court erred by misapprehending the legal doctrine on the defect in the construction and management of public structures under Article 5(1) of the State Compensation Act, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal assigning this error

2. As to the first ground for appeal by the defendant Gangdong-gu

A. In principle, a contractor in a contract for work does not assume any responsibility for compensating a third party for damages incurred by the contractor in relation to the work, unless there is gross negligence on the part of the contractor regarding the contract or order. Provided, That where a contractor specifically directed and supervises the contractor’s work progress and method, the relationship between the contractor and the contractor is not different from that between the contractor and his/her employee, and thus, the contractor is liable for damages incurred to a third party due to a tort committed by the contractor or his/her employee, as prescribed in Article 756 of the Civil Act. Here, the direction and supervision refers to the management of the contractor’s body by directly directing, supervising, and monitoring the operation of specific work at the site (see Supreme Court Decision 2013Da78372, Feb. 13, 2014, etc.

Meanwhile, in cases where an agency delegates administrative authority to another person due to a defect in a public structure established and managed by the delegated agency, the local government to which the agency entrusted the authority belongs shall be liable pursuant to Article 2 or 5 of the State Compensation Act, and the local government or State to which the agency entrusted the authority belongs shall not be liable pursuant to Article 2 or 5 of the State Compensation Act. However, Article 6(1) of the State Compensation Act only provides that where the person to whom the authority was delegated was responsible for the construction and management of the public structure and the person to whom the cost of construction and management of the public structure is not the same, the person to whom the authority was delegated shall be liable for damages (see Supreme Court Decision 9Da1120, Jun. 25, 199, etc.).

B. Therefore, in order to recognize the liability for damages to Defendant Gangdong-gu as a contractor under Article 758 of the Civil Act, gross negligence on the contract or instruction shall be recognized. In order to recognize the employer’s liability under Article 756 of the Civil Act, it shall be recognized that the actual employer relationship was specifically directed and supervised to the extent that the actual employer relationship can be recognized. In order to recognize the liability for damages due to defects in the construction and management of public structures under the State Compensation Act, it shall meet the requirements for the recognition of the liability

C. Nevertheless, the lower court recognized only the facts as seen earlier, and determined that the Defendant Gangdong-gu was liable for damages without recognizing or determining facts as to whether there was gross negligence with respect to the contract or instruction of the Defendant Gangdong-gu, and whether the Defendant specifically directed and supervised the operation and implementation of the construction. In light of the aforementioned legal principles, in so determining, the lower court erred by misapprehending the legal doctrine on the liability of the contractor for damages, the liability of the user in the contract relationship, the liability of the user in the contract relationship, the liability of the construction and management of public structures, thereby adversely affecting the conclusion of the judgment,

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendant Gangdong-gu, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jung-hwa (Presiding Justice)