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

[2] In a case where a defect in the construction or management of a public structure becomes one of the common causes and is causing damage to another natural event or a third party’s act or a victim’s act in competition, whether such damage can be deemed as due to a defect in the construction or management of a public structure (affirmative)

[3] The case holding that in a case where Party A was liable for damages sustained by Party A due to the above accident in the course of maintaining separate drainage facilities, in a case where: (a) the vehicle was driven by a car and caused an accident to shock the front part of the vehicle at the opposite direction; and (b) the point at which the accident occurred was a habitual ice area due to an unknown leakage of water; and (c) the State, a manager of the road, confirmed that the water leakage from the road flows out of the road; and (d) the point at which the accident occurred,

[1] "Defect in the construction or management of a public structure" under Article 5 (1) of the State Compensation Act refers to a state in which the public structure is not equipped with safety ordinarily required for its use. However, it cannot be said that there is a defect in the construction or management of a public structure merely because the public structure has a defect in its function without any complete condition. In determining whether the construction or management of the public structure is equipped with safety above, it shall be based on whether the construction or management manager 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 status of the place of installation, and the situation where the public structure is installed. If, from an objective point of view, there is no possibility and possibility of avoidance of the occurrence of damage due to the defect in the function of the public structure in time and place, namely, if it is proved that the defect in the public structure is under a situation where the construction or management of the public

[2] "An accident caused by a defect in the construction or management of a public structure" is not limited to cases where only a defect in the construction or management of a public structure causes damage, but it is reasonable to interpret that the damage was caused by a defect in the construction or management of a public structure, as long as the defect in the construction or management of a public structure causes a damage, even if another natural event or a third party's act or a victim's act concurrently takes place.

[3] The case holding that in a case where Gap driving a car and caused the accident of shocking the front part of the vehicle driven in the opposite direction while driving the car, and the site of the accident was habitually iced due to the leakage of the road where the cause of the accident occurred, even though the State, a manager of the road, confirmed that water leakage flows out of the road, he temporarily installed ice ice sign, etc., and did not fundamentally maintain separate drainage facilities to prevent the occurrence of the accident, the State was responsible for installing the road at the time of the accident as long as the accident occurred due to the construction of the road at the time of the accident, and the point of accident is sufficiently anticipated that the accident is likely to occur, and it is difficult for a driver operating the point of the accident, who is operating the vehicle at the time of the accident, including the point of the accident, and on the other hand, the State, a manager of the road, at the time of the accident, could have sufficiently predicted that the above road was destroyed by the construction of the road at the time of the accident or the construction of the road at the time of the road.

[1] Article 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

[1] Supreme Court Decision 200Da56822 Decided July 27, 2001 (Gong2001Ha, 1937) Supreme Court Decision 2003Da62026 Decided June 11, 2004 / [2] Supreme Court Decision 94Da32924 Decided November 22, 1994 (Gong195Sang, 78)

Plaintiff (Law Firm Jeonsung, Attorneys Cho Dong-young et al., Counsel for the plaintiff-appellant)

Korea

November 16, 2011

1. The defendant shall pay to the plaintiff 153,828,692 won with 5% interest per annum from December 1, 2007 to December 7, 201, and 20% interest per annum from the next day to the day of full payment.

2. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 39,585,457 won with 5% interest per annum from December 1, 2007 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. At around 08:30 on November 28, 2007, the Plaintiff: (a) driven 17 national highways located in Jincheon-gun, Jincheon-gun, Do; (b) opened the national highway from the Cheongcheon-do to the Jincheon-do Do; (c) opened the road from the Cheongcheon-do Do Do Do Do ; and (d) opened the road to the Do Do Do Do Do Do Do Do Do (hereinafter “the road of this case”); (d) opened the road after the ice part of the road of this case was turned down to the Do Do Do Do Do Do Do Do ; (e) opened the road to the Do Do Do Do Do ; (e) opened the road to the Do Do Do Do Do ; (e) caused by the Nonparty’s shocking the front part of the Do Do Do 14D Do Do Do Do ; (hereinafter “the accident”).

B. On November 12, 2007, the point where the instant accident occurred is a zone where the cause is unknown due to the leakage of pipelines laid on the right side of the instant road. On November 12, 2007, the head of the instant road manager, notified the Defendant, who is the manager of the instant road, of the risk of the water flow and ice ice ice ice ice accident, requested the improvement of the road drainage system.

C. However, even though the Defendant confirmed that water leakaged on the instant road was flowing out after the above notice and request was made, on November 16, 2007, the Defendant temporarily installed ice ice ice sign, sand jun, and dyke, and did not maintain separate drainage facilities to prevent water from flowing out on the instant road, and accordingly, the point of the instant accident was 2-3 meters away from water flowing out at the time of the instant accident.

[Reasons for Recognition] A without dispute, Gap evidence 1 through 5, Eul evidence 12, Eul evidence 1 through 4, Eul evidence 9, Eul evidence 10, Eul evidence 10 (including each number), the result of this court's request for the delivery of documents to the Cheongju District Prosecutors' Office, the result of inquiry about the head of this court's request for physical examination to the head of the Chungcheongnambuk National University Hospital; the purport of the whole pleadings;

2. Occurrence of liability for damages;

"Defect in the construction or management of a public structure" under Article 5 (1) of the State Compensation Act means that the public structure is in a state of lacking safety ordinarily required for its use. However, it cannot be said that there is a defect in the construction or management of a public structure solely because the public structure has a defect in its function without the complete condition. In determining whether the construction or management of a public structure has satisfied the above safety requirements, the determination shall be made on the basis of whether the installer or manager 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 purpose of use of the public structure and the current status of the installation and the current status of the public structure. In other words, the defect in the construction or management of the public structure is not likely to have been predicted and avoided due to the defect in the construction or management of the public structure unless it is proved that the defect in construction or management of the public structure could not have an effect on the construction or management of the public structure (see Supreme Court Decision 200Da563694, Jul. 27, 2001). 201.

According to the above facts, the point of the accident in this case can easily see the flow of water from the pipes laid on the right side of the road in this case, and the winter and winter, as well as can easily see the flow of water from the conduits laid on the right side of the road in this case, to enter the road at the end of the right side of the road in order to reduce the speed of the vehicle, and thus, it is difficult for the operator of the point of accident in this case to operate the barc to operate the barc to reduce the speed of the vehicle. Thus, it is difficult for the operator of the point of accident in this case to easily predict whether the accident occurred or not. On the other hand, the defendant can expect that the road in this case, including the point of the accident, can be connected with the road in this case, including the point of the accident, if the water flow flows on the road in this case, and thus, the defendant, who is the manager of the road in this case, shall install the drainage facilities to prevent the flow of water on the road in this case and install the road in this case, despite the lack of the duty to temporarily remove the road.

Therefore, in light of the circumstances surrounding the occurrence of the instant accident, the instant accident occurred due to the Defendant’s defect in the construction or management of the instant road. Therefore, the Defendant is liable to compensate the Plaintiff for the damages caused by the instant accident.

3. Scope of liability for damages

(a) Actual income: 271,772,738 won;

【Ground for recognition】 Unsatisf

(b) Expenses for medical treatment: 16,039,170 won;

[Ground for recognition] Unsatisfy

(c) Future medical expenses: KRW 9,845,476 (the plaintiff shall disburse KRW 11,773,549 as the future medical expenses incurred from the instant accident; for the purpose of calculation, it shall be deemed that the plaintiff has disbursed the future medical expenses on November 17, 201, which is the day following the date of the closing of the instant case, and shall be calculated at the present price at the time of the instant accident).

【Ground for recognition】 Unsatisf

D. Limitation on liability

1) The Defendant’s ratio of responsibility: 50% (However, the point where the instant accident occurred due to water coming into and out of the instant road due to low temperature, and there is a ice ice ice sign installed, and thus, the Plaintiff, who frequently passed the instant road at ordinary times, has a duty to safely drive the instant road and prevent the instant accident by driving the road at ordinary times, such as driving the road at a speed exceeding the restricted speed (20km/h in the case where the 40km/h and surface ice are ice, 20km/h). Such negligence by the Plaintiff is the cause of the occurrence of the instant accident and the expansion of damages, and it is reasonable to consider the amount of damages to be paid by the Defendant, but it is reasonable to limit the Defendant’s liability for damages regarding the instant accident to a level exceeding 50% in light of all the circumstances revealed in the argument of the instant case.).

2) Calculation: 148,828,692 won = (the actual daily income of KRW 271,772,738 + 16,039,170 + future treatment expenses of KRW 9,845,476 + 50 per cent, and 50 per cent)

(e) Mutual aid;

Although the Defendant asserts to the effect that hospital treatment costs of KRW 7,00,000 paid by the Plaintiff to the Plaintiff, the Defendant should be deducted from the amount of damages to be compensated by the Defendant. However, in full view of the respective descriptions and arguments in the evidence Nos. 6 through 10, and Nos. 11 (including each number), the Defendant’s assertion that the case damage insurance company paid KRW 6,80,000 to the Gangnam-nam Hospital, and KRW 200,00 for the Plaintiff’s hospital treatment costs, and the Plaintiff directly paid KRW 16,039,170 for the remainder of the medical expenses and medicine expenses other than the above hospital treatment costs. Thus, the Defendant’s assertion that the Plaintiff paid KRW 16,039,170 to the Defendant in addition to the above hospital treatment costs, is not acceptable.

(f) consolation money;

1) Reasons for consideration: The Plaintiff’s age, family relationship, property and level of education, circumstances revealed in the instant pleadings, such as the occurrence of the instant accident and its consequences, degree of negligence between both parties, and the degree and degree of disability.

(ii) Amount determined: 5,000,000 won;

G. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff KRW 153,828,692 (=property damage 148,828,692 + solatium 5,00,000 +) and to pay damages for delay at each rate of 5% per annum under the Civil Act from December 1, 2007, which is the date of the instant judgment, to December 7, 201, where it is deemed reasonable to dispute the existence and scope of the Defendant’s duty of performance, since November 28, 2007, which is the date of the instant judgment, until December 7, 2011, and from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jong-hee (Presiding Judge)