(영문) 서울중앙지방법원 2016.5.18.선고 2015가합572101 판결

1. The defendant shall pay to the plaintiff 149,481,85 won with 5% interest per annum from April 9, 2015 to May 18, 2016, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 50% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 292,721,760 won with 20% interest per annum from April 9, 2015 to September 30, 2015, and 15% interest per annum from the next day to the day of full payment.

Reasons

1. Basic facts

A. Status of the parties and the order of the instant project

1) The Plaintiff is a regional forestry cooperative with a district under the jurisdiction of B/C under the Forestry Cooperatives Act, and is organized by private forest owners and forestry workers as its members. A regional forestry cooperative is operating a forest project under the Creation and Management of Forest Resources Act with the competent local government.

2) (1) Group B was to carry out the D Project for a total of 1,050 hectares within the territory of B. D Project sets up a long-term policy in the Korea Forest Service and has been implemented since 2008.

As a result, activities such as tree planting, young trees planting, franchising, growing franchising, growing growing, and preventing blight and harmful insects are included.

(2) D projects implemented in Category B shall be conducted at the following stages. First of all, the Gun Office shall select a designer, conduct an on-site investigation into whether the designer is a project subject matter, and submit the results of the survey on the standard land based on an on-site investigation to the Gun Office. The Gun Office shall select a supervisor, and then confirm whether the design is appropriate based on the above relevant data submitted by the designer. The Gun Office shall determine whether to approve the project based on the supervision results, and shall select a contractor and enter into a construction contract upon approval for the project. The contractor shall perform the work within the area specified in the design drawings, such as specifications, and the supervisor shall supervise whether the construction is appropriate

3) On May 8, 2014, the Plaintiff entered into a construction contract with the content that D business with respect to forest land B and E is to be implemented from May 9, 2014 to December 4, 2014 (hereinafter “instant business”). F in the office of forest professional engineers was in charge of design work of the instant business as a design business entity, and G in the office of forest professional engineers was in charge of supervising the design and construction work of the said business.

B. Occurrence of the instant accident

1) From September 6, 2014 to October 6, 2014, the Plaintiff was scheduled to proceed with livering work as part of D business in E, the following accidents.

2) The Plaintiff temporarily employed the employees for the progress of the instant project. Among them, I, J, K, K, L, M, M, N,0, P, Q, Q, R, T, U,V, and W were put into the said prison work.

3) Around 11:30 on October 6, 2014, the said father entered the field after obtaining permission for access to the X unit located in E. In order to conduct livering operations. In the above unit, the information officer Y, who is in charge of managing the outside person’s access, asked H, who is the head of the working group, to ask him/her about the planned work site, and H, who works in the vicinity of the booming area. He/she instructed the said father to take contact first with the information officer, if he/she deviates voluntarily from the steel network set up in the vicinity of the said unit.

4) At around 14:30 of the same day, the above figures passed through a lost point of the steel network surrounding the area around the military unit, and then gone up to mountain after the military unit. During their work, there was an accident in which mines explosion by undergoing a large-scale mine buried near a 200-meter radius from the wall of the military unit (hereinafter referred to as “instant accident”).

5) Due to the instant accident, I cut off all knee and knee and knee, J was suffering from the credit of the mine soften, etc. eventually, I and J died due to an excessive outflow blood on the same day. In addition, K was suffering from the credit stress symptoms due to an accident, etc. on the right side side, M was suffering from the blue elbow, high-frequency heat, L was caused by a mine wave, and the other side was suffering from the credit stress symptoms due to an accident.

(d) Details of agreement on the amount of damages and its details;

1) On October 18, 2014, the Plaintiff agreed to pay KRW 473 million as compensation for damages arising from the instant accident between the deceased’s bereaved family members and the deceased’s bereaved family members on October 23, 2014, and KRW 260 million as compensation for damages arising from the instant accident. However, the Plaintiff agreed to pay the amount of industrial accident compensation that the bereaved family members would receive in accordance with the industrial accident compensation insurance and the worker’s accident compensation that the Plaintiff would receive from the LIG insurance company as compensation for damages, and provided that each of the above payments, etc. would be deducted from the agreed damages.

2) The amount paid by the Plaintiff to the victimized party as compensation for damages is as follows.

(1) 1: 322,510,890 won 1)

A person shall be appointed.

Persons who have completed the execution;

2. J: 109,510,880 won 2)

A person shall be appointed.

(3) Other victims: 15 million won in total.

A person shall be appointed.

E. Location of the accident site of this case and whether the mine area is displayed

1) The accident site of this case is the back of X unit, and constitutes restricted protection zones stipulated in Article 2 subparag. 6 (b) of the Protection of Military Bases and Installations Act (the areas necessary for the smooth conduct of military operations among the protected zones and the areas requiring the protection of military bases and installations or the safety of local residents).

2) The point at which the instant accident occurred is located is located 5-15 meters away from the primary steel network (blicker warning line) surrounding the mine zone located in the rear of the said unit, and there was no mine warning sign at the point at which the said accident occurred. The secondary steel network has been installed from the primary steel network to prevent the civilian’s access to the outer area located 200 to 500 meters away from the primary steel network, and there was a sign and a mine warning sign (1) around the secondary steel network (see, e.g., subparagraph 2).

[Ground of recognition] Evidence Nos. 1 through 12, Eul Nos. 1 through 14, 17, and 18, and the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

① Under Article 7(1) of the Act on the Regulation of Use and Transfer of Certain Traditional Weapons, the Defendant neglected the duty of care to manage the occurrence of an accident caused by the mine laid underground, such as setting up a warning sign, etc. around the mine area or around the mine area, and warning the victims of the possibility of an accident caused by the mine.

② The Plaintiff incurred the victims due to the instant accident, namely, KRW 473 million; KRW 260 million; KRW 50 million; KRW 20 million; KRW W ( KRW 200,000; KRW 2.5 million); Q, Q, U (not less than 3) KRW 1.5 million; KRW 477,521,770, out of the total damages equivalent to KRW 15.5 million; KRW 45 million ( KRW 322,510,890; + KRW 109,510,880 + KRW 15,550,00). The Plaintiff paid the victims instead of the Defendant.

③ The Defendant is obligated to pay to the Plaintiff the amount of indemnity paid in full to the Plaintiff KRW 292,721,760, which is a part of the amount of subrogation.

2) The defendant's assertion

① The instant accident is an accident caused by mine broken away in the nearby mine area. The Defendant, at the mine area and its place, was 200 to 500 meters long from the two sides of the steel network, installed a sign or a mine warning sign, etc. The victims entered the unit where the instant accident occurred, and went away from the planned work site notified in advance to the information officer, and was damaged by the instant accident. The Defendant did not have any probability of predicting the instant accident.

② Even if the Defendant’s liability for the instant accident is recognized, the fault of the victims shall be considered in calculating the amount of damages caused by the instant accident.

③ The instant accident is an accident occurred when the negligence of the Plaintiff, the designer, the Forest Professional Engineer Office F, the Forest Engineer Office G, and the Defendant was concurrently committed by the Defendant, and the scope of indemnity should be limited to the portion to be borne by the Defendant in accordance with the legal doctrine of indemnity among the joint tortfeasors.

B. Determination

1) The defendant's fault with respect to the occurrence of the instant accident

In full view of the following circumstances recognized by the purport of the above facts and the entire pleading, the defendant was negligent in neglecting his duty of care to prevent any damage to civilians caused by mines by safely managing mines near the site of the accident in this case, and the defendant's negligence is also recognized as also recognized as having contributed to the occurrence of the accident in this case. (A) Article 7 (1) of the Act on the Use and Transfer of Specific Traditional Weapons, such as Light, provides that the head of the military unit having jurisdiction over the area where the damage to civilians may be caused by mines (hereinafter referred to as "mining area") shall install a boundary mark meeting the requirements set forth in the attached Table in the vicinity of the mine area, but no such boundary mark is installed at the site of the accident in this case.

B) As a result of detection of explosives such as mines with a focus on the site of the instant accident, it was confirmed that 16 mines were laid underground. The Defendant: (a) obstructed a mine area with the primary steel network; (b) obstructed civilians’ access by installing secondary steel nets at a distance of 200 to 500 meters from the primary steel network in consideration of mine loss risks; (c) however, a large number of mines were washed out as they exceeded the primary steel network; (d) even though it could have been aware of the possibility of the occurrence of the instant accident, the Defendant failed to install a boundary mark or remove the mine for the purpose of the victims’ access to the mine; and (e) failed to prevent the victims from accessing the mine area, and (e) failed to take the back part of the reported mine area as a warning to the victims.

2) The establishment of joint tort

In the establishment of a joint tort, it is sufficient that there is a common intention or common perception among the joint tortfeasor, and there is an objective common relation to each act, so if damages were incurred by the related joint act, the liability for damages can not be exempted.

In full view of the purport of evidence Nos. 3 through 14 and video arguments of the victims of the instant accident, the Plaintiff shall have a field manager responsible for managing and supervising human resources at the site of the instant accident in connection with the occurrence of the instant accident. Despite the duty of care to prevent the risk factors such as the mine area from the workers at the nearby work site of the military unit, as stated in the design review report, the Defendant violated the duty of care to prevent the risk factors such as the mine area from the workers. While the office F of the forest professional engineer, who is the designing firm, has been obliged to consult with the military unit in advance in order to select the work site, it is reasonable to see that the office G of the forest supervising firm violated the duty of care to ensure that the risk factors such as the mine area was not included in the work site selected by the design firm, and that the construction firm violated the duty of care to inform the officers of the instant accident at the scene of the occurrence of the instant accident, and that it is reasonable to 1% of the likelihood of the instant accident to be included in the evidence and accident of each of the instant case.

4) Scope of liability for damages

A) In principle, the period for calculating the amount of damages shall be calculated on a monthly basis, but the amount less than the last month and less than won shall be discarded, and the calculation of the amount of damages at the time of the accident shall be based on the discount method that deducts the interim interest at the rate of 5/12 per month. The Plaintiff’s assertion on the amount of damages of the victims exceeding the amount of damages calculated as follows is rejected.

B) Damages suffered by victims due to the instant accident are as follows.

(1) I (Calculation details are as indicated in the attached Table 1 of the Damages Calculation Table): Actual income: 229,094,712 won, funeral expenses: 5,000,000 won after limitation of liability: 163,86,298 won [163,86,298 won x 70%): 62 million won: 225,86,298 won (=163,86,298 won + 62 million won).

② Damages amount of KRW 95,483,344, funeral expenses, KRW 5,00,00 after limitation of liability: 70,338,340 (daily income + funeral expenses) x 70%): 62,338,340, aggregate: 132,338,340 (=70,000 won + 70,000 won + 70,000 won)

③ Each consolation money for the remaining victims: N (5 million won), W (2 million won), Q, U (3) R, S, H, and V (one million and one million five million won for each of them), respectively, KRW 15.5 million in total.

[Reasons for Recognition] Facts without a partial dispute, entry in Gap evidence Nos. 3, 4, 8, 10 and the purport of the whole pleadings

5) Determination as to the claim for indemnity

A) Relevant legal principles

In relation to the joint tortfeasor, the joint tortfeasor shall be held jointly and severally liable to the creditor, but there are certain portions of the joint tortfeasor's liability in accordance with the degree of negligence of the joint tortfeasor. When one of the joint tortfeasor has paid more than part of his/her liability and has made the joint tortfeasor obtain immunity, the other joint tortfeasor may exercise his/her right to reimbursement in proportion to the portion of his/her liability. In cases where there are two or more joint tortfeasors who are liable to reimburse one of the joint tortfeasor, unless there are special circumstances, his/her obligation to the person who has the right to reimbursement shall not be deemed joint and several liability. Rather, the principle of division obligation between the majority parties shall be applied, and it shall be deemed as a divided obligation according to the portion of each joint tortfeasor's liability (see, e.g., Supreme Court Decision 2002Da15917, Sept. 2

In order to exercise the right to indemnity following the joint-liability among the joint-offenders, the ratio of the portion to be borne by the other party to the claim of reimbursement among the whole joint-offenders is set. Therefore, the relative burden ratio between the parties to the claim of reimbursement shall not be set simply. In addition, in cases where multiple victims are involved and there are different parts of each victim in the internal relationship among the joint-offenders or the joint-offenders, the relationship of reimbursement should be set differently by each victim (see, e.g., Supreme Court Decision 2000Da

B) Scope of claims for indemnity

As a joint tortfeasor, the plaintiff paid the victims a total of KRW 447,521,770 (-- KRW 322,510,890 + J: KRW 109,510,880 + the remainder of victims: KRW 15.5 million) as compensation for damages as set out in the above. Since the defendant was jointly indemnified, the plaintiff is entitled to exercise his/her right to indemnity against the defendant, who is a joint tortfeasor.

Furthermore, regarding the scope of the right to indemnity, according to the above Defendant’s fault ratio.

The defendant is obligated to pay the following amount of indemnity to each victim to the plaintiff:

① I: 90,346,519 won (=225,866,298 won x 40%)

② J: 52,935,336 won (=132,338,340 won x 40%) 6.2 million won (=15.5 million won x 40%) 6.2 million won

(4) In total: Determination as to the defendant's defenses of KRW 149,481,85 ( KRW 149,346,519 + 52,935,336 + 6.2 million)

The defendant asserts that the Korea Workers' Compensation & Welfare Corporation and LIG insurance claim against victims for the amount of the industrial accident compensation insurance and the amount of the compensation for workers' accident compensation, so that the amount of the compensation shall also be deducted from the lawsuit in this case.

However, since the materials submitted by the Defendant alone cannot recognize the fact that the Defendant actually paid the above indemnity amount, and the existence or amount of the above indemnity amount is not determined at present, the amount of the indemnity amount against the above Korea Labor Welfare Corporation, etc., which could be borne by the Defendant in calculating the amount of the indemnity amount, shall not be considered. The defendant's defense is rejected.

6) Sub-decisions

Therefore, the defendant is obligated to pay to the plaintiff the indemnity amount of KRW 149,481,85 with the amount of KRW 149,85 and the damages for delay at the rate of 5% per annum prescribed by the Civil Act from April 9, 2015 to May 18, 2016, which is the date when the judgment of this case is rendered by the defendant, and from May 18, 2016, which is the date when the plaintiff served a copy of the complaint of this case as requested by the plaintiff, as the substitute payment date for the victims. The plaintiff's remaining claims in excess are without merit.

3. Conclusion

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