[1] Whether the Korea Highway Corporation has a duty of care to verify and check the fixed state of the cargo vehicles, such as covering the freight vehicles passing through the expressway collection station (negative)

[2] The case holding that a party may be subject to a criticism that he had a sacrificing against the party due to a trial other than an estimate of the legal issues which the party had no opportunity to present

[1] Considering the scope of business of the Korea Highway Corporation as stipulated in the relevant statutes, it is difficult to view that the Korea Highway Corporation has a duty of care to verify and check the fixed state of cargo vehicles passing through the expressway charges collection station.

[2] The case holding that in case where the plaintiff added a new argument different from the plaintiff's assertion that had been at issue before the date of the first oral argument after the appellate court's oral argument, but the plaintiff's previous argument was closed after the closure of the oral argument, and the judgment was sentenced to a new argument that had not been tried at all, the defendant may be subject to criticism that the defendant committed an influence to the defendant due to a trial other than an estimate of the legal issues that had not been given an opportunity for oral argument

[1] Article 758(1) of the Civil Act, Article 12 of the Korea Highway Corporation Act, Article 3 of the Toll Road Act, Article 6 of the Motorway Act, Articles 9 and 24(1) of the Road Act, Article 35(3) of the Road Traffic Act / [2] Article 126 of the Civil Procedure Act

Hyundai Marine Fire Insurance Co., Ltd. (Law Firm Honam General Law Office, Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

Korea Highway Corporation (Law Firm White General Law Office, Attorneys Kim Young-young et al., Counsel for the defendant-appellant)

Jeonju District Court Decision 9Na1102 delivered on May 31, 2001

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below acknowledged that the passenger car driven by the non-party 1 was collisioned with the non-party 2's Lartra car which was stopped due to the accident prior to this, and the accident taken place as one of the causes of the accident. In light of the objective situation at the time of the accident, it is difficult for the defendant to recognize defects in the road management that could not secure the traffic safety due to removal of the obstacles on the expressway, etc., but the defendant who is responsible for the safety management of the road traffic by checking and inspecting the fixed state of the cargo cover of the vehicle passing through the charge collection office so that the objects such as the road do not fall on the expressway. In light of the result that the road fell away from the expressway, the court below held that it was difficult for the victim to find that the road accident was incomplete if the manager of the charge collection office had paid ordinary attention to the expressway, but did not take any action against the non-party 1 as the defendant's fault and negligence on the part of the non-party 1.

However, considering the Defendant’s business scope, etc. as stipulated in the relevant statutes, it is difficult to view that the Defendant has a duty of care to confirm and check the fixed condition of the cargo vehicles passing through the expressway destination, and as well as the fact that the lower court was premised on the Defendant’s breach of the duty of care when passing through the expressway collection office, that is, there was no evidence to acknowledge it in the record that, even if the manager had exercised ordinary care, he could easily find that the fixed condition of the tent of the cargo vehicles passing through the expressway would have been incomplete, it cannot be inferred without permission only by the result that the instant obstacle fell away from the expressway.

However, the court below's determination that the defendant is liable for tort on the premise that the defendant violated the above duty of care is not erroneous in the misapprehension of legal principles as to negligence in road management or by recognizing facts without evidence, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

In addition, according to the records, since the first instance court, it was only disputed whether the defendant can recognize defects in the road management that could not secure the safety of road traffic because of the removal of the instant obstacles away on the expressway, etc., and the defendant has repeated attack and defense over this issue. However, only on the 12th day after the first oral argument in the lower court, the court added an argument that there was negligence in not verifying and checking the fixed state of the cargo vehicles that the plaintiff passed through the fare collection station at the court, such as the cover of the cargo vehicles, etc., within the court, after the first oral argument, and the court below, without any examination thereon, concluded the arguments and made the above decision as seen earlier. In light of the process of the lawsuit or the process of the trial in this case, it did not dispute whether the defendant was negligent in entering the expressway without confirming and inspecting the fixed state of the truck covering the defendant at all until the last day of the court below's final date of pleading, and thus, it did not have been argued that the defendant did not have the opportunity to make a new argument during the trial and management of the plaintiff's.

For the same reasons, without examining the remaining grounds of appeal by the defendant, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)