2014 Gohap 511086 Claims

Federation of Korea Passenger Transport Business Association

Seoul Metropolitan Government

December 12, 2014

January 23, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 182,237,365 won with 5% interest per annum from the day following the service of a copy of the complaint of this case to the day of the decision, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. On January 13, 2011, A was sentenced to a suspended sentence of two years for October in the case of violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents (Seoul Northern District Court 2010 Godan2927) due to the following criminal facts. The above judgment became final and conclusive around that time (hereinafter “related criminal cases”).

On October 16, 2009, Defendant (A, hereinafter the same applies) is a person engaging in driving of BNF Gun. Around 09:10 on October 16, 2009, Defendant driven the above taxi and proceeded along three-lanes of the Seoul Dongdaemun-gu Seoul (hereinafter referred to as the “instant road”) along three-lanes of the two-lanes. At the same time, the victim D (73 years of age, hereinafter referred to as “victim”) who is driving in the same direction at the right side of the above taxi in front of the bicycle, the driver of the vehicle had a duty of care to ensure safety after driving the taxi at a sufficient interval of time. Notwithstanding this, the Defendant neglected to do so and caused serious harm to the driver of the vehicle by sending the signal with a horn, etc., the Defendant lost the victim’s ability to take care of the bicycle in front of the above vehicle’s right side or by negligent negligence and caused the collision between the victim and the bicycle driver’s ability to take care of the bicycle.

B. After that, the victim died on July 8, 2013. The victim’s wife and children (E, F, G, and H) filed a lawsuit seeking compensation against the plaintiff, who was a mutual aid business entity that entered into a mutual aid agreement with respect to the foregoing taxi vehicles operated by A, as Seoul Central District Court 2013Kadan509785. On January 3, 2014, the above court rendered a decision to recommend reconciliation that “the plaintiff would pay a total of KRW 131,00,000 to the wife and children of the victim,” and the above decision to recommend reconciliation became final and conclusive at that time (hereinafter referred to as “related civil case”).

D. The defendant is the person who occupies and manages the road of this case.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 7 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

이 사건 사고는 피해자가 이 사건 사고 지점에 있던 맨홀 뚜껑 주위의 움푹 파인곳을 지나가다가 또는 이를 피하려다가 중심을 잃고좌측으로 전도되면서 발생한 것으로, 이 사건 사고는 A의 과실과 위와 같은 피고의 도로 관리상 과실이 경합하여 발생한 것이다. 따라서 피고는 원고에게 이 사건 사고로 원고가 지출한 364,474,730원 중 피고의 과실비율 (50%)에 따른 182,237,365원을 구상금으로 지급할 의무가 있다.

(b) Fact of recognition;

The following facts are acknowledged in full view of the purport of the entire pleadings in Gap evidence 8, Eul evidence Nos. 3 and 4.

1) On October 16, 2009, the date of the instant accident, the traffic accident report prepared by the Dongdaemun-gu Seoul Police Station on October 16, 2009, stating that “There is an environmental factor causing the road accident of this case,” and “an accident that occurred from a defect in the surface in the shape of the surface where the surface of the road in the vicinity of the victim from among the roads that A passes to the left-hand side of the victim, is due to a defect in the surface where the surface of the road in the vicinity of the victim, and the accident that occurred from getting off the center of the bicycle in the direction of the vehicle A, regardless of his own kis, and going beyond the front even of the steering gate of the vehicle of this case,”

2) On the same day, the investigation into the site of the ‘Investigation Report (Outline Investigation)’ prepared by the Dongdaemun-gu Seoul Police Station on the same day includes the statement to the effect that “The road is damaged before and after 20 meters in width on the right lids near the location of the instant accident” (No. 8-3).

3) "Investigation report (suspect specific) prepared in the Dongdaemun Police Station in Seoul Eastdong Police Station on the same day" states that "The height of the collision itself is 95cm in the vehicle of the skin and the height of bicycle hand is 95cm in height at the time of the collision shall not be considered to have been exceeded before the collision is presumed to have been made by hand to have been in normal height, and this point is considered to be this point, and there is a failure of the manle lid in the accident scene and there is a conflict between the bicycle driver and the bicycle driver being damaged by the seat of the manle (Evidence 8-4)."

4) On the same day, A made a statement at the Dongdaemun Police Station in Seoul Eastdong Police Station as follows (No. 3). At the time of view, at the time of the proposal, a bicycle driver may go to the left-hand side of the bicycle. However, the bicycle driver was overtakened on the left-hand side of the bicycle, but the bicycle driver lost the center as he was under the influence of alcohol and shakes on the left-hand side, and the front-hand even of the vehicle. (m) At the road floor, there was a lid of the front door of the vehicle, and the surrounding areas were prone, and therefore, the bicycle driver went beyond the center."

5) On October 19, 2009, the "Investigation Report (General) prepared by the Seoul Eastdong Police Station on the road on the right side of the road" states that "A between the moment that the injured party intends to keep on the right side of the road surface and keep on the right side of the road at the same speed as the injured party judged that the road will continue to proceed to the right side and the road will proceed to the right side of the road, and that A would keep on the right side of the road at the same speed, and tried to avoid the collision while proceeding without keeping a sufficient distance since the vehicle is parked on the two-lanes (Evidence A No. 8-5).

6) On December 5, 2009, A made a statement at the Dongdaemun-gu Seoul Police Station (No. 3 and 4 evidence) as follows.

「피해자가 탄 자전거가 지나가는 것을 사고 전에 보긴 보았는데 정확히 얼마 전에 본지는 모르겠지만 일반적으로 차 옆으로 자전거나 오토바이가 많이 지나가는 실정이고 또 그 자전거도 길 옆 쪽으로 가고 있었기 때문에 저는 충분히 자전거 옆으로 갈수 있다고 생각되어 별 생각 없이 운전해 가고 있었는데 맨홀 뚜껑이 있는 곳에서 그 사람이 술에 취한 듯 좌우로 흔들려서는 저는 순간적으로 길 좌측으로 붙여서 멈춰서려고 했는데 그 순간 자전거가 제 옆으로 부딪치는 소리가 “즉”하고 나서 바로 멈췄습니다. (당시 속도가 얼마였냐는 질문에) 제 생각으로는 10킬로미터 정도 되는 것으로 생각했는데 사고 후에 타코메타를 확인해 보니 20킬로로 나왔습니다. (중략) 저는 처음에는 맨홀 뚜껑주변이 패여 있어서 그것에 걸려서 제 차에 부딪친 것으로 생각하고 있었는데 제 차 사이드미러에 부딪친 자국이 있는 것으로 보았을 때는 맨홀 뚜껑에 걸려서 넘어진 것은 아니고 맨홀 뚜껑 옆 바닥이 패여 있어서 그것을 피해 길 안쪽으로 방향을 틀면서 흔들렸던 것 같습니다.」

7) On May 24, 2010, A made the following statements at the Seoul Northern District Prosecutors' Office (Evidence 3).

「3차로를 주행하다가 자전거와 차가 비슷하게 진행하다가 자전거가 갑자기 제 차옆으로 부딪쳤습니다. 피하려고 하였는데 차가 막혀서 차가 있어서 최선을 다해서 피했지만 충돌을 하였습니다. (중략) 자전거가 옆에서 맨홀에 부딪쳐서 쓰러진 것입니다. (중략) 자전거가 앞에 있던 것을 보지 못했고, 아마 뒤에서 왔을 텐데 옆에서 있는 것만 보았습니다. (중략) 당시 심하게 정체되어서 시속 15㎞ 정도 되는 것 같습니다.」 8) 2010. 5. 31. 서울북부지방검찰청에서 작성된 '수사보고(사고 당시 상황 확인)'에는 다음과 같은 내용이 기재되어 있다(갑 제4호증). 본건과 관련하여 2010, 5. 31. 15:10경 본건 사고 현장에 출동하여 교통사고보고를 작성한 장안 경사 와 통화한 결과, 사고 발생 현장에 피해자가 택시와 충돌 후 자전거와 함께 넘어지고 도로에다 머리를 다친 사실 상황인 것으로 기억하고, 사고 직후 피해자는 의식이 명료한 상태로 맨홀 뚜껑 때문에 사고가 난 것이라고 진술하였다고 하고, 다만 맨홀 때문에 자전거가 튕겨서 부딪친 것인지 아니면 피해자가 맨홀을 피하려다가 택시와 충돌한 것인지 원인은 알 수 없다고 진술한 사실을 보고합니다.」 9) 2010. 7. 30. 도로교통공단이 이 사건 사고에 관하여 작성한 '교통사고 종합분 석서'에는 다음과 같은 내용이 기재되어 있다(을 제3호증).

The point at which the accident occurred in this accident site is about 15.9m wide, five lanes from the roadside 15.9m wide, which is a dried asphalt packing road, and the point at which the surface of the road in the vicinity of the Mandole is a flat straight line.

The accident scene also is presumed to be a collision between the collision of the ○ accident vehicle's first taxi's right side and the left side of the bicycle's hand, and the taxi is presumed to have been at a relatively rapid speed in the event of the collision. In the event of the collision, I picture 2, which is presumed to be close to the situation of the establishment that the body of the bicycle's body is not applied to the left side at the time of the collision, the analysis of the collision point and the movement situation at the time of the collision of the 0-accident vehicle's first collision.

(C)The conditions of the collision points are consistent with the point near the top surface of the bicycle, and the taxi is overtaking the left side of the bicycle at the time of the collision, or where the left side of the bicycle normally straighted, or where the bicycle passes through a point near the top side of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the collision points and the left side of the bicycle, the conditions of the collision points are deemed to be consistent with the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the 2.

C. Determination

In light of the following circumstances, the evidence submitted by the Plaintiff alone is insufficient to recognize that the instant accident occurred due to the part surrounding the Mandole located near the point where the instant accident occurred, and there is no other evidence to acknowledge the causal relationship. Therefore, the Defendant cannot be recognized as joint tort liability with the Plaintiff due to the instant accident. Accordingly, the Plaintiff’s above assertion premised on this cannot be accepted.

① The details of the traffic accident report or each investigation report prepared by the Seoul Dongdaemun Police Station are merely the prosecution or opinion of the police officer prepared based on the fact that there was the damage in this case at the location near the location of the instant accident.

② In light of the fact that the victim’s bicycle riding in a normal way while the victim’s bicycle riding in the investigation agency, the victim’s damage part in the instant case is only a conjecture or opinion to the effect that the victim passed the damaged part of the instant case or attempted to do so.

③ On May 31, 2010, the victim’s statement to the effect that “the accident will occur due to lids from the first place,” which was written at the time of the investigation report prepared by the Seoul Northern District Prosecutor’s Office on May 31, 2010, is merely the victim’s full statement heard through slope I rather than the victim’s direct hearing, and it is difficult to believe it as is. Even if the victim got such speech immediately after the accident of this case, it is difficult to believe the victim’s statement under such circumstances when considering shock, etc. of the victim incurred at the time of the accident of this case. The comprehensive traffic accident analysis report of this case objectively analyzing the cause of the accident of this case based on the damage level, final location, road structure, etc. of the taxi and bicycle at the time of the accident of this case, it is difficult to see that the damaged part of this case is serious depth to the extent that the safety of bicycle operation of the bicycle of this case would be rapidly unstable.

⑤ In light of the fact that the victim’s bicycle riding was close to the establishment at the time of the instant accident, the Defendant appears to have been overtaken in close vicinity to the victim’s voluntary living. The evidence submitted by the Plaintiff alone is insufficient to exclude the possibility that the instant accident occurred due to collision with the Defendant’s taxi that was overtaken by the victim in close vicinity to the victim while driving the bicycle normally, or other causes unrelated to the damaged part of the instant case, such as collision with the Defendant’s taxi that was overtaken by the victim, or lost the center of play or other causes irrelevant to the damaged part.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge, branch judge

Judges Training Sub-Appellant

Judges Kim Yong-nam