Whether the State is liable for damages suffered by the victim due to the above accident as the user of the game assistants in the case where the golf elementarys who operated the game in a golf course managed by the State suffered injuries due to their fluority (affirmative)

In a case where a golf elementary proprietor who operated a game in a golf course managed by the State was injured by a fluor due to fluority, the game assistant who subsidized his fluor's game was paid attention to prevent the victim from going ahead of the fluor's official seal or requesting him/her from moving to the next place, and neglected to prevent the above fluor's accident, so the State is liable to compensate the victim for the damages caused by the said accident together with the perpetrator as the employer of the game assistant.

Article 756 of the Civil Act

Plaintiff 1 and two others (Law Firm Busan, Attorneys Seo Sung-won et al., Counsel for the plaintiff-appellant)

Korea

Incheon District Court Decision 2004Kadan9376 decided Nov. 1, 2005

May 18, 2006

1. Of the part against the defendant in the judgment of the court of first instance, the part against the defendant ordering the defendant to pay 45,468,421 won to the plaintiff 1 as well as 5% per annum from April 7, 2003 to July 20, 2006, and 20% per annum from the next day to the date of full payment. The plaintiff 1's claim corresponding to the revoked part is dismissed.

2. The defendant's remaining appeals against the plaintiff 1, appeals against the plaintiff 2 and 3, and incidental appeals against the plaintiffs 2 and 3 are all dismissed.

3. Of the total litigation cost incurred between the plaintiff 1 and the defendant, 2/7 shall be borne by the plaintiff 1, the remainder by the defendant, and the defendant's appeal cost against the plaintiff 2 and 3 shall be borne by the defendant, and the incidental appeal cost by the plaintiff 2 and 3 shall be borne by the above plaintiffs.

1. Purport of claim

The defendant jointly and severally with the co-defendants of the court of first instance shall pay to the plaintiff 1 63,656,548 won, 5,000 won to the plaintiff 2, and 3,000,000 won to the plaintiff 3, and 5% per annum for the period from April 7, 2003 to the date of pronouncement of the judgment of first instance, and 20% per annum for the period from the next day to the date of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding to the revocation are dismissed.

3. Purport of incidental appeal;

Of the part against the defendant in the judgment of the court of first instance, the part against the plaintiffs who seek additional payment is revoked. The defendant shall pay to the plaintiff 1 the amount of 18,182,435 won, the amount of 4,000,000 won to the plaintiff 2, the amount of 2,000,000 won to the plaintiff 3, and the amount of 5% per annum from April 7, 2003 to the date of a final judgment of the court of first instance, and the amount of 20% per annum from the next day to the date of full payment.

1. Occurrence of liability for damages;

A. Facts of recognition

(1) around 14:00 on April 7, 2003, Plaintiff 1, along with the co-defendants of the first instance court and two other parties, provided the Plaintiff 1 and Nonparty 1 and 2 with the Plaintiff’s sports assistant (hereinafter “instant golf course”). The Plaintiff 1 received the Plaintiff’s sports support from the Defendant, a golf course of the 8th M&A, which is a golf course of the Air Force (hereinafter “instant golf course”).

(2) No. 2 of the instant golf course is about 325 meters in length, and is neglected rapidly to the right side of the severe stalle, such as the attached Form, and the direction timber (the depth was a relatively large state at the time of trees and at the time to indicate the direction of the public) in the middle of the Pestawa. The right side cover of the Pestawa (the place where the Pestawawa is in progress) is connected by a mountain connected with a sound mountain, and if the public road is placed on the right side of the Pestawawa, the person carrying the public road shall be built in a situation where the public road is located more than one’s own launching.

(3) The co-defendants of the first instance trial, as shown in the separate sheet No. 2, had 100 meters away from the 100-meter cover (round 100 meters away from one another) north of the Republic of Korea, and the co-defendants of the first instance trial carried out her co-defendants in an area to an extent to an extent to an extent to an extent to be 1 meters away from the right side. The co-defendants of the first instance trial rapidly plucked to the left side, and she was in approximately 10-20 meters away from the place where the co-defendants of the first instance trial were located, and approximately 3-4 meters away from the front of the case (round 10-20 meters away from the above direction). Accordingly, the Plaintiff 1 suffered injury, such as the Plaintiff 1’s blood transfusion and the modified body salkn, etc.

(4) At the time of the above accident, Nonparty 1 and Nonparty 2 were on the side of Plaintiff 1’s immediate side, and Nonparty 1 and the co-defendant of the first instance trial and Plaintiff 1 were on the other side of the other one. The Co-defendant of the first instance trial and the Plaintiff 1 did not pay attention to Nonparty 1 and Nonparty 2, when the co-defendant of the first instance trial make an objection, may pose a risk to Plaintiff 1 if they go ahead of the front line of the co-defendant of the first instance trial, and they could move back later.

(5) Plaintiff 2 is the husband of Plaintiff 1, and Plaintiff 3 is the father of Plaintiff 1, and Plaintiff 1 and Nonparty 2 were employed by the 8th Preferred Flight Force of the Air Force that manages the instant golf course, and worked in a way of allocating golf visitors by the sequences from the instant golf course.

[Reasons for Recognition] The facts without dispute, Gap evidence 1, Eul evidence 3-1 and 2, Eul evidence 2-1 and 2-2, non-party 1 and non-party 1 of the first instance trial, and the purport of the whole pleadings.

(b) Markets:

(1) The duties of a golf course game assistant shall be carried out in addition to the role of enabling visitors to properly use the golf course facilities and removing anticipated risks in the golf course for the safety of visitors, by providing them with a line mainly with the visitors in the golf course or transporting golf banks, etc., by explaining the golf course to the visitors or controlling the progress of the golf course.

(2) However, in light of the foregoing facts and the duties of the sports assistant of the golf course as seen earlier, Nonparty 1 and Nonparty 2 were negligent in failing to pay attention to prevent the Plaintiff 1 from being exposed to the Plaintiff 1’s co-defendant or requesting the Plaintiff 1 to move to a lower level than the front line of the co-defendant of the first instance trial, while Nonparty 1 and Nonparty 2 could not be anticipated that the co-defendant of the first instance trial would be the Plaintiff 1’s co-defendant of the golf course. However, the Defendant’s assertion that there was no negligence on the part of Nonparty 1 and Nonparty 2, as Nonparty 1 and Nonparty 2 could not expect that the co-defendant of the first instance trial would be the Plaintiff 1’s co-defendant of the golf course.

(3) Meanwhile, in light of the employment relationship, work mode, and duties of Nonparty 1 and 2 recognized earlier, it is reasonable to view that Nonparty 1 and Nonparty 2 constitute an employee under Article 756 of the Civil Act in relation to the Defendant, on the ground that the 8th M&A, which manages the instant golf course, had a relation of practically directing and supervising Nonparty 1 and 2, who are sports assistants.

(4) Therefore, the defendant is the employer of the non-party 1 and 2, and is liable to compensate the damages suffered by the plaintiffs due to the above accident with the co-defendant of the first instance court.

C. Whether liability is limited

(1) Judgment on the Defendant’s assertion of immunity

The Defendant: (a) the Co-Defendant of the first instance trial did not enter the instant golf course by justifiable means while entering the instant golf course; (b) the Defendant aided and abetted the Plaintiff 1; and (c) the Defendant informed the visitors that he was unable to enter the instant golf course, which exceeds 102 others; (d) the Plaintiff 1 knew that he was a co-defendant of the first instance trial that he was unable to enter the instant golf course; and (e) provided a golf game with well-known that he would not have access to the instant golf course; (b) so long as the Co-Defendant of the first instance trial performed the golf game, the risks arising therefrom should be borne by Plaintiff 1; and (c) the Defendant

However, the above circumstance alleged by the defendant cannot be said to exempt the defendant from the liability for damages of this case. Thus, the defendant's above argument is without merit without further review.

(2) Limitation of liability

Meanwhile, according to the above evidence, the plaintiff 1, as well as the co-defendant of the first instance court, should have predicted that he might come to a way that he could not expect a normal understanding of his friendship, and should have prepared for him, and that he did not have any prior to the occurrence and expansion of the accident in the first instance court's first instance court's co-defendant's career. In addition, the plaintiff 1's negligence was found to have been caused by the occurrence or expansion of the damage in this case, but it was not sufficient to consider it in calculating the amount of damages that the defendant should compensate for, since it was not enough to exempt the defendant's responsibility, it is not that the defendant's negligence was caused by the occurrence or expansion of the damage in this case, but it is reasonable to view that the plaintiff 1's negligence contributed to the occurrence and expansion of the accident in this case.

2. Scope of damages.

Except for the following parts, each corresponding column of the attached amount of damages calculation table shall be as follows (Provided, That in calculating the period for the convenience of calculation, less than the middle month shall be included in the side on which the appraised value is less than the last month, and less than the last month and less than the cost shall be discarded, and the present price calculation at the time of the accident shall be governed by the simple discount method which deducts intermediary interest at the rate of 5% per annum.).

A. The plaintiff 1's occupation and income

Since Plaintiff 1 had no particular occupation at the time of the accident, it is reasonable to view that after the accident, income equivalent to the unit price of the ordinary worker’s wage can be earned as follows.

From the date of accident to June 30, 2003, 50,683 won per day.

From that time to December 31, 2003 52,483 won per day.

52,374 won a day thereafter

B. The Plaintiff 1’s hospitalized treatment period, residual disability, and labor disability loss rate

(1) The rate of loss of labor ability during the period of hospitalized treatment

From the date of the accident to April 22, 2003, 100% of the loss of labor capacity

(ii)the rate of loss of occupational ability and labor disability;

(a) Elivaluating of friendly vision and reduction in the field: Permanent disability of 24 percent;

(B) The plaintiffs alleged that the plaintiff 1 suffered from the aftermatho typology typology typology typism in the telegraph due to the above accident other than the aftermath disability, but there is no evidence to prove that there was a causal link between the above accident and the occurrence of the toxic typology typology typology typology typology typology typology typ

(c) Medical expenses for plaintiff 1: 6,282,940 won;

(d) Contributory negligence: 40%;

(e) consolation money;

The plaintiffs' age, occupation, family relationship, the part and degree of the plaintiffs 1' disability, the degree of negligence, and the circumstances shown in the arguments in this case, such as the occurrence of the accident.

[Based on recognition] The results of physical examination of Gap's Head of the Nlock University Nos. 1, 4, 5, 6, 8, 10, and Gap's Head of Nlock University Nos. 7-1 through 25, and the purpose of the rule of experience and the whole pleadings.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1 45,468,421 won (property damage 35,468,421 won + consolation money 10,00,000 won) and damages for delay calculated at the rate of 5% per annum under the Civil Act from April 7, 2003, which is the date of the occurrence of the above accident until July 20, 2006, and 20% per annum under the Special Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings until the date of full payment. The defendant is obligated to pay damages for delay calculated at the rate of 1,00,000 won and 20% per annum from the following day to Nov. 1, 2005, which is the date of the judgment of first instance on which the plaintiffs seek from Apr. 7, 2003 to the date of full payment.

Therefore, the plaintiffs' claim against the defendant of this case against the defendant is accepted within the scope of the above recognition, and the remaining claims are dismissed for each reason. Since the part against the defendant of the judgment of the court of first instance which partially different conclusions against the defendant ordering the plaintiff 1 to pay in excess of the above acceptance scope is unfair, part of the defendant's appeal against the plaintiff 1 is accepted, and it is revoked, and the plaintiff 1's claim corresponding to the revoked part is dismissed. The remaining appeal against the plaintiff 1, the appeal against the plaintiff 2 and 3 against the plaintiff 1, and the incidental appeal against the plaintiff 2 and 3 are all justified, and it is so decided as per

[Attachment] : omitted in calculating damages]

Judges Kim Jong-soo (Presiding Judge)