[1] The meaning of "defect in the construction or management of public structures" under Article 5 (1) of the State Compensation Act and the criteria for its determination

[2] The degree of the duty to take protective measures required to prevent the occurrence of the following accidents in the management of national rivers designated under Article 7 (2) of the River Act

[1] Article 5 (1) of the State Compensation Act / [2] Article 5 (1) of the State Compensation Act, Article 7 (2) of the River Act

[1] Supreme Court Decision 2005Da65678 Decided September 21, 2007 (Gong2007Ha, 1644) Supreme Court Decision 2007Da64600 Decided April 24, 2008

Plaintiff 1 and one other

[Defendant-Appellant] Plaintiff 1 and 2 others (Attorney Gyeong-jin, Counsel for defendant-appellant)

Gwangju High Court Decision 2009Na6584, 6591 decided March 31, 2010

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

The grounds of appeal are examined.

1. As to the defendants' assertion of misapprehension of legal principles as to defects in the construction and management of public structures

A. The "defect in the construction or management of a public structure" under Article 5 (1) of the State Compensation Act refers to the state in which the public structure is not equipped with safety ordinarily required for its use. Thus, it cannot be deemed that there is any defect in the construction or management of a public structure merely with any defect in its function without the completeness of the public structure. Whether the construction or management of the public structure has satisfied the above safety requirements shall be based on whether the construction or management has fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the danger of the public structure in light of the overall circumstances, such as the purpose of use of the public structure in question, the current status of the site in question, and the situation in which the public structure is installed. In a case where there is no possibility and possibility of the occurrence of damage due to the defect in the function of the public structure objectively and at a time, in other words, the defect in the construction or management of the public structure can not be acknowledged in a situation under which the construction manager of the public structure cannot exercise its management (see, e.g., Supreme Court Decision 2005Da646784.

Meanwhile, the management of a national river, which is an important river for the preservation of national land or the national economy, as a natural public structure, designated under Article 7(2) of the River Act, has a certain limit to the risk management of a river itself in preparation for a dysium accident due to the wide range of basin basin and the riverbed change due to the flow of water. However, there are various sports parks around a national river, and the current dysium accident occurred, and its neighboring public water is maintained as it is by the approach to a river, which is an accident site from the surrounding public water. Thus, it cannot be said that a management authority has a duty to take measures to protect minors to prevent the occurrence of a dysium accident, which is generally required by social norms, without taking active protective measures such as setting up a dys to prevent access to a river, which is an accident site, unless there are special circumstances.

B. Examining the reasoning of the first instance judgment cited by the lower court in light of the aforementioned legal principles and records, the lower court’s determination that there was a defect in the management of the river of this case, a national river, on the grounds as stated in its reasoning, on the following grounds: (a) the fact that the sports park used frequently by the general public was installed in the vicinity of the site where the instant accident occurred; and (b) the fact that the same type of dys accident occurred in the same site as the instant accident site before one year from the instant accident occurred; and (c) there was no error in the misapprehension of legal principles as to defects in the construction and management of public structures, contrary to what is alleged in the grounds of appeal by the Defendants. The Supreme Court precedents pointed out in the grounds of appeal by the Defendants are different from

2. As to the assertion of misapprehension of the legal principle as to the calculation of comparative negligence ratio by Defendant Jeollabuk-do

A. The fact-finding and determination of the ratio of comparative negligence in a claim for damages arising from tort are matters falling under the exclusive authority of a fact-finding court unless it is deemed that it is remarkably unreasonable in light of the principle of equity (see Supreme Court Decision 2009Da7574, Feb. 25, 2010, etc.).

B. Examining the reasoning of the judgment of the first instance cited by the court below in light of the above legal principles and records, the court below's determination of the victim's fault ratio of 20% in consideration of various circumstances as stated in its holding is just and acceptable. In so doing, the court below did not err by misapprehending the legal principles as to the calculation of the victim's

3. Conclusion

Therefore, all appeals are dismissed, 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 on the bench.

Justices Min Il-young (Presiding Justice)