[1] The meaning of a public official’s negligence in performing his/her duties / The content of “official duties” where the State is liable for a violation of public official’s official duties, and the standard for determining whether a proximate causal relationship exists between the violation of official duties

[2] The case holding that in a case where a ship, which was on board by a fishery management body under the Ministry of Oceans and Fisheries during the special joint control of the illegal fishing operation of the Ministry of Oceans and Fisheries, conflict with the beginning in the course of the escape from the tracking of the control justice, and Gap was found to have been aware in the vicinity, and Gap's bereaved family members asserted the supervisory public official's violation of the duty of rescue on board the control administration and claimed damages against the State, it is difficult to conclude that there was negligence on the part of the supervisory public official in the course of performing his duties

[1] A public official’s negligence in performing his/her duties refers to a failure of an average person in charge of the pertinent duties to perform his/her duties while performing his/her duties. If the content of a public official’s duty imposed is not merely for the public interest or not for the internal order of an administrative agency, but for the protection of the safety and interests of individuals of society members entirely or incidentally, the State shall be liable to compensate for the damage inflicted on the victim by violating such duty to the extent that proximate causal relation is recognized. The existence of proximate causal relation ought to be determined by comprehensively taking into account the probability of the occurrence of the result, the purpose of the code of conduct, including the

[2] The case holding that, in case where the vessel Gap et al. on board at the special joint control of the fishery management body under the Ministry of Oceans and Fisheries was in conflict with the beginning in the course of the escape from the tracking of the control justice, and Gap's bereaved family members claimed the violation of the duty of rescue by the supervisory public officials on board the control body and claimed damages against the State, the case held that even if the head of the control team did not do not do his best from the theoretical and aftermathic point of view as a result of the decision to report and support the control situation, which is the only means of movement and search, the only means of movement, and even if he did not want from the theoretical and aftermathic point of view, it cannot be readily concluded that there was any error at all reasonable at the time of the accident, or that the average person neglected the duty of care to be equipped with the duty of care, and even if the control situation was not moved to the headquarters, it cannot be concluded that there was a proximate causal relation between the act and the supervisory public official's negligence in the performance of duty.

[1] Article 2 (1) of the State Compensation Act / [2] Article 2 (1) of the State Compensation Act

[1] Supreme Court Decision 87Meu1164 Decided September 22, 1987 (Gong1987, 1628), Supreme Court Decision 91Da43466 Decided February 12, 1993 (Gong1993Sang, 958), Supreme Court Decision 2014Da227843 Decided July 27, 2016

Plaintiff 1 and one other (Attorney Lee Jae-sik et al., Counsel for the plaintiff-appellant)

Korea

Busan High Court Decision 2017Na51825 decided November 9, 2017

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Case summary

According to the reasoning of the lower judgment, the following facts are revealed.

A. The East Sea Fisheries Management Body, an affiliated organization of the Ministry of Oceans and Fisheries under the jurisdiction of the defendant, intended to implement a special joint control of illegal fishing activities through the entry into and departure from the port of Busan, etc. Accordingly, the fishery guidance line of the East Sea Fisheries Management Body (hereinafter “instant fishery guidance line”) around April 22, 2015 (hereinafter “the same date, so the relevant time is stated only on the same day) moving to the neighboring sea near Gangseo-gu Busan ( Address omitted), thereby keeping the crackdown (hereinafter “instant control line”).

B. At around 19:45, the head of the control team, Nonparty 1, Nonparty 2, Nonparty 3, and four supervisory public officials, including Nonparty 4, on board the instant control group (hereinafter “instant supervisory public officials”). They discovered and accessed “Mahho-ho” (hereinafter “instant accident ship”) and “Mah-ho-ho,” both near the △△△△ Office’s resting area. On the instant accident ship, the captain of the instant accident and Nonparty 5 and Nonparty 6 were on board, while Nonparty 7, Nonparty 5, Nonparty 5, were approaching the instant control group, and two vessels escaped at a maximum speed.

C. At around 19:49, while tracking the instant accident vessel, the instant supervisory officials discovered the instant accident vessel, which was considerably damaged due to the collision with the police officer at around 15 seconds, and Nonparty 6 wounded in front of the said vessel. Meanwhile, Nonparty 5 was found to be hicked on the sea located 5 to 30 meters away from the police officer at around 20:25 by Nonparty 7 (hereinafter “instant accident”).

D. At the time of the instant accident, the temperature was lower at the time of the instant accident, and the front was almost rare.

E. The Plaintiffs are Nonparty 5’s spouse and mother, who died of the instant accident, as Nonparty 5’s co-inheritors.

2. Whether to overcontrol (Ground of appeal No. 1)

The lower court rejected the Plaintiffs’ assertion that the instant accident occurred due to excessive control on the following grounds. The instant control was in compliance with the action guidelines, such as using searchlight, etc. at an appropriate distance to ensure safety during the course of approaching the instant accident vessel. The instant accident was not occurred in the course of the said control, but occurred in the course of the said accident’s escape, and thus there is no proximate causal relation between the approach to the enforcement justice and the instant accident. The instant accident’s approach to the instant vessel is waiting for operation in the state of being loaded with the 3rd self-defense, the instant control system, and the escape without complying with the instant control order, and thus, the act of tracking the said accident’s vessel was necessary for its duties.

Examining the reasoning of the lower judgment in light of the record, it did not err by failing to exhaust all necessary deliberations and exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. Whether the enforcement of this case and the collision between the vessel involved in the accident occurred (ground of appeal No. 2)

The allegation in this part of the grounds of appeal is nothing more than disputing the selection of evidence and fact-finding, which belong to the lower court’s exclusive jurisdiction, and is not a legitimate ground of appeal. Furthermore, the lower court did not err by failing to exhaust all necessary deliberations and exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, as

4. Whether liability for damages arising from breach of structural duty is recognized (Ground of appeal No. 3)

A. The negligence in the performance of duties by a public official refers to the failure of an average person in charge of the pertinent duties to perform his/her duties (see Supreme Court Decisions 87Da1164, Sep. 22, 1987; 87Da1164, Sept. 2, 1987). If the content of a public official’s duty is not simply for the public interest or for the purpose of regulating the internal order of an administrative agency, but entirely or incidentally for the purpose of protecting the safety and interest of an individual of social members, the State shall be liable to compensate for the damage inflicted upon the public official by violating such duty to the extent that the proximate causal relation is recognized. The existence of proximate causal relation ought to be determined by comprehensively taking into account the probability of the occurrence of a general result, the purpose of the code of conduct including imposing an official duty, the attitude of harmful act, and the degree of damage (see Supreme Court Decisions 91Da43466, Feb. 12, 193; 2014Da227843, Jul. 27

B. According to the reasoning of the lower judgment and the record, the following circumstances are revealed.

(1) At around 19:49, the instant supervisory officials discovered the instant accident vessel and the injured Nonparty 6, who was destroyed by Nonparty 1, Nonparty 4, and Nonparty 3. Nonparty 4 told Nonparty 5, who was in the situation of Nonparty 6, at the control point of this case. Nonparty 4 told Nonparty 2, who was in the control point of this case, to report the instant accident to the instant fishing guide vessel with no electricity, and instructed Nonparty 2, who was in the remainder of the control point of this case, to report the instant case to the headquarters.

(2) Around 19:55 and around 19:59, Nonparty 2 reported the case at issue to the Busan Regional Maritime Affairs and Fisheries Office (38t) near the control structure of this case. Around two times, Nonparty 2 reported that a foreign substance should be removed from the marb of the control structure of this case to the marb of the control structure of this case (a device that has a propelled power after fasting water from the intake of the vessel) to the marb of the control structure of this case. The control structure of this case moved from around 20:02 to around 20:14, to the marbing direction at around 20:20.

(3) From the same point of view, Nonparty 1 and Nonparty 4, along with each other’s hand and portable searchlight, searched up to the opposite side by taking a view of the surrounding sea at the front of the rock, and examining the surrounding sea. Nonparty 3 did not look at the surrounding sea while Nonparty 6’s back and inspected the surrounding sea, but did not have to look at it in detail due to the lack of hand.

(4) At around 20:01, Nonparty 7 heard Nonparty 6’s telephone from Nonparty 6 about the instant accident’s news, and arrived at the sea of the instant accident at around 20:15, and searched the surrounding areas along with other fishing vessels and sea progress, and discovered Nonparty 5 in a state of death at the nearby sea around 20:25.

C. Examining these circumstances in light of the legal doctrine as seen earlier, it is difficult to readily conclude that the instant supervisory official was negligent in performing his/her duties, and further, there is no proximate causal relation between his/her act and the death of Nonparty 5. The reasons are as follows.

(1) As seen above, the sea area surrounding the instant accident was high in the field of ambling, the ambling, the low temperature at the time, and the front was almost rare. Since the instant supervisory officials were unaware of Nonparty 5’s accurate fall position, the search scope from the surrounding area of the instant accident did not have to be gradually expanded, and even at all times, there was no choice but to proceed with the search in order to prevent Nonparty 5 from facing the instant situation. Furthermore, in the instant control region, which is the only means of mobile search, there was a risk that the two accidents may occur in the instant control region, or the crackdowns might stop while. Nonparty 1, the head of the control team, as the head of the control team, sent the situation to Nonparty 2 with limited personnel and equipment, rather than carrying out the search and seizure at the beginning and at the same time, could be seen as regulating the situation of Nonparty 2 and resolving the danger after taking full account of these circumstances.

Of course, it may be deemed that Nonparty 2 did not send Nonparty 2 to the headquarters and filed a report on the wireless situation at the time of radio, but it was more reasonable to regard it as the same as the wireless report and face-to-face report, as well as that there was the risk of the control justice as above. In addition, even if the decision was not the best from a theoretical and climatic point of view, it cannot be readily concluded that there was an error at all unreasonable as at the time of the accident or that the average was negligent in neglecting the duty of care that the person should have

(2) As seen in the judgment of the court below, the time required for typical dices is different depending on the condition of the human body, water reaction, water temperature, or surrounding circumstances, but the time required for a typical dices is generally different, but the water is not anticipated to be omitted, or the physical condition is not poor or the water management ability is reduced. Nonparty 5 was unable to be anticipated on the instant accident ship under the influence of alcohol concentration of 0.053%, and the vehicle was crashed into the sea with a high speed and was down. In addition, it is presumed that Nonparty 5 was unable to properly hold the swimming due to the restriction on uniforms after the fall. According to the situation at the time of the initial search of the supervising official of this case, according to the situation of the instant case, Nonparty 5 was unlikely to fall and sit down on the water below the water. In full view of these circumstances, even if Nonparty 5 was well 5’s swimming, the time from the fall to the dices to the next dice.

However, as seen above, search work was inevitable, around the accident time and weather conditions of the instant accident, surrounding circumstances, personnel restrictions and equipment problems of the supervisory officials of the instant case, crackdowns, and the risk of collision between Nonparty 5. Nonparty 7, who was able to know the fall circumstances and location of Nonparty 5 more than the supervisory officials of the instant accident, searched Nonparty 5’s sea areas near the southwest, but did not discover Nonparty 5, but was 10 minutes after he was moved to the Northwestwest, and was found to be deceased only after the lapse of 10 minutes from the commencement of the search. Accordingly, even if Nonparty 1 did not move to the headquarters and had Nonparty 5 conduct the maritime search between them, it cannot be said that there is a high possibility of finding and finding it within the maximum possible period of survival of Nonparty 5.

D. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, there were inappropriate parts of the reasoning of the lower judgment, but the conclusion that did not recognize State liability is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

5. Conclusion

The plaintiffs' appeals are dismissed in entirety as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Noh Jeong-hee (Presiding Justice)