(영문) 서울고등법원 2014.6.23.선고 2013나2008425 판결

A. The defendant shall pay to the plaintiff A 5,00,00 won each of the above amounts of 118, 271, 875 won, plaintiff B, and C, and 20% interest per annum from April 16, 2012 to June 23, 2014, and 5% interest per annum from the next day to the date of full payment.

B. The plaintiffs' remaining claims are dismissed.

2. 1/3 of the total litigation costs is assessed against the Plaintiffs, and the remainder is assessed against the Defendant.

3. The above paragraph 1(a) may be provisionally executed.

Purport of claim and appeal

1. Purport of claim

The defendant 180,00,000 won, 10,000 won, 10,000, 000 won and each of the above amounts to the plaintiff Eul and C

From April 16, 2012 to the date this judgment is rendered, 5% per annum; and 5% per annum from the following day to the date of this judgment; and

shall pay 20% interest per annum to each of the 20% interest.

2. Purport of appeal

The part of the first instance judgment against the defendant shall be revoked, and the plaintiffs' claims corresponding to the above revocation shall be revoked.

The dismissal is dismissed.

Reasons

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings as set forth in Gap evidence 1, Gap evidence 5-1 to 14, Eul evidence 4-1 and 2.

A. D (a man who was born on August 7, 1975) concluded a contract with a state forest management office to work as a forest fire supervisor during the spring forest fire trial period (2 months to May) from 2009.

B. On April 15, 2012, 09: From 00 to 00, D discovered a "one low-explosible coal (hereinafter referred to as the "non-explosive coal in this case") around the 190m radius around the ○○○○ Group (hereinafter referred to as the "Seoul ○○ Group") affiliated with the Defendant while working as a surveillance duty for the prevention of forest fires at the reservoir located in ○○○○-gun, ○○○○○, located in △△△-ri, located in the △△△△-ri located in Gangwon-do, and found it as its house located in the ○○○○-ri located in the ○○○○.

C. D around April 15, 2012: around 40, 2012: Around 40, at the end of his house, died of multiple prolonged damage due to the wind explosion of the instant incombustible coal (hereinafter “instant accident”).

D. The plaintiff A is the mother of D, and the plaintiff B and C are their children.

2. Occurrence of liability for damages;

(a) The basis for recognition of responsibility 1) The Bhutan of this case is not used at the time of war on June 25, 200, but used recently. 1)

B) There is a direct fire-fighting range (hereinafter referred to as “△△ shooting range”) in the vicinity of the △△△△△△ Reservoir reservoir located in the Dongwon-gun located in D, and there is a lux in the lux of the military shooting range (hereinafter referred to as “Dolsan shooting range”) in the △△△△△△△△ Hospital, while all the above two shooting ranges are managed by the ○○○○○○ Group in the Army. 2)

C) It is not clear whether D found the place where D discovered the instant fire fighting range is △△ shooting range or △△ shooting range (the Plaintiffs stated that D was unable to make the instant fire fighting in the △△ shooting range, and that D discovered the instant fire fighting in the △ shooting range, since D was witnessed at the scene of the instant fire fighting range around the time of the occupation of the day of the instant accident, it is difficult to recognize the fact by only the descriptions of evidence Nos. 5-7 through 19, 14, 9, and 10, respectively. Meanwhile, the Defendant asserted that D was not found in the △△△ shooting range, since the shooting range using the fire fighting range using the fire fighting range located 90 meters in the area of the ○○○○○○ Military, Gangwon-gun, the Defendant did not find the instant fire fighting range and did not find it in the △△△ shooting range. However, the evidence No. 4-2 of subparagraph 4-2 alone.

D) The size of △△ shooting range runs up to 355,000 meters. At the time of the instant accident, △△△ shooting ranges installed double locking doors to control the entry of civilians. Based on the above entrance, 800 meters on the left side and 100 meters on the right side were installed.

At the time of the instant accident, the education and training support officer E, who belongs to the Army ○○ Group, only patroled the △△△ shooting range once a week, and did not have a control soldier to control the entry of civilians every day. 3) On the other hand, the military personnel belonging to the Army ○○ Group controlled the entrance of the △△ shooting range only on the day of shooting training. 4)

E) At the time of July 5, 2006, eight warning signboards that control the entry of civilians in the vicinity of the shooting range were installed in the two straight-use firer shooting range, including △△△ shooting range, and 12 (6 on the surface of the shooting range, six adjacent to the shooting area, and six on the surface side of the floating area), the head of the ○○○○ Group at the Army, on March 17, 2007, issued a direction to strengthen the entry control measures against civilians in the shooting range at the entrance of the area where the private access of the shooting range is frequent to strengthen the installation of warning signboards and ice rinks at the entrance of the area where the private access of the shooting range is frequent, and "this area is scattered in the military installation protection zone," and "the military installation protection zone is excavated in this area, so it is necessary to obtain the approval of all the above activities including permission to enter the area without permission of the commander of the jurisdictional unit."

G) Since 2008, the Army ○○○○○ Group performed public relations activities with the residents of the Gangwon-do residents on the guidelines for countermeasures against the detection of explosives. As a result, education was provided to the employees of the Myeon Office and the heads of villages, distributed leaflets to the government offices, schools, etc., and installed fla cards at the entrance of the military unit. In the event that the aforementioned explosives are discovered, the guidelines for measures were stored at the location where they were discovered and reported to the military unit, and as such, the risk of explosion is likely to occur, the act of spreading, moving or dismantling the explosives is entirely prohibited.

H) In the instant case, the incombustible coal in transit is sensitive to external shocks to the extent that it can be explosiond even in a case where it is fall into the ground when it was damaged on the ground. 8)

I) On April 201 and around two occasions on November 201, 201, the Army ○○○○ Group performed the work of removing bombs on a semi-annual basis, such as conducting the work of removing bombs. Of the bombs removed from the said work, the quantity of the same bombs as the bombs of the instant bombs in 2011 and 4, 2010. Meanwhile, since 2009, the Army bombs performed the act of searching or concealing the bombs of the military unit on a semi-annual basis, as well as on a storage, and on a daily basis, the bombs of considerable amount of carbon was colored. 9)

차 ) 이 사건 사고 발생 이전인 2006. 6. 강원 ○○군 ◎◎리에 위치한 고물상에서 폭발물을 분해하다가 그 폭발물이 폭발하는 바람에 1명이 사망하고 1명이 중상을 입는 사고가 발생하였고, 10 ) 2011. 7. 경 강원 ○○군 ○면 ◎◎리에 있는 ▲▲사격장 인근 계곡에서 민간인이 40mm 연습탄 5발 및 60mm 고폭탄 1발을 습득하여 신고하지 않고 보관하였다가 군검찰로부터 점유이탈군용물횡령죄로 기소유예 처분을 받은 적도 있다. 11 ) 육군 ○○사단이 관리하는 사격장 주변에 거주하던 농민들은 나물채취 등을 하기 위하여 사격장을 출입하기도 하였다. 12 )

l) D is a farmer who has continuously resided in the ○○○○-gun of Gangwon-do, and D is a leader of Pyeongtaek-gun's village residents' movement warning "in the shooting range, such as shot shot shot shot shot shot shot shot shots". 13)

[Ground of recognition] Relevant facts, Gap evidence 5-2, 7, 13, Gap evidence 10-1, Eul evidence 1-1, Eul evidence 2-1 through 5, Eul evidence 2-3, Eul evidence 4-1 and Eul evidence 4-2, Eul's whole purport of oral argument) of the former Protection of Military Bases and Installations Act (amended by Act No. 12557, May 9, 2014)

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

2. The term "military installations" means combat areas, obstacles for military purposes, explosives-related facilities, shooting ranges, training grounds, military telecommunications equipment and facilities, and other facilities directly and officially used for military purposes;

Article 5 (Areas to be Designated as Protection Zones and Civilian Control Line, etc.)

(1) The scope of designation of a protection zone shall be as follows:

2. Restricted protection zones:

(c) In cases of explosives-related facilities, air defense bases, shooting ranges and training grounds, areas within one kilometer radius from the outermost boundary line of the relevant military base and installation. Article 9 (Prohibition or Restriction in Protection Zones)

(1) No one shall engage in any of the following activities in a protection zone: Provided, That in cases falling under subparagraph 1, 3, 7, 8, 11, or 12, the same shall not apply to any person who has obtained permission for such activities in advance as a commander of the competent unit (including the commander of the competent unit in cases falling under subparagraph 1), etc.:

1. Entry into zones or military bases and installations falling under any of the following items: Provided, That areas prescribed by Presidential Decree within the scope not interfering with military operations may be entered without permission:

(b) Military bases and installations installed with fences or entry control marks;

(6) Any of the following persons shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding three million won:

1. The definitions of terms used in this Directive under Article 3 (Definition of Terms) of the Guidelines for Treatment of Explosives (No. 1295 of the Ministry of National Defense Directive No. 1295 of December 27, 2010) are as follows:

1. The term "explos processing of explosives" means activities to prevent human and material damage in advance by removing dangerous factors by appropriate methods, such as identification, safety measures, on-site treatment, etc. with respect to all kinds of explosives;

5. The term "UO" means ammunition that remains in unstable state, even though it should have been explosiond by administration, launch, or promotion;

Article 5 (Basic Policy)

(1) The Ministry of National Defense (each of the Armed Forces) shall take measures to secure explosives treatment technology, books and explosives treatment equipment.

Article 7 (Installation and Operation of Explosives Disposal Team) Each performance ledger below the military team level (the ammunition, ammunition, boom, Ambassador, Dialmar, Dialmar, Flight Forces, and other independent units) shall be established and operated by the explosive treatment team.

Article 8 (Duties of Explosives Treatment Teams)

(1) The duties of a explosives treatment team shall be as follows at ordinary times:

3. Support for the disposal of unexplosion of a shooting range. Article 11 (Procedures for Handling Detection of Amhots)

(1) After taking measures to prevent accidents, such as position marks, and indications prohibiting access, a person who finds a non-explosion shall report the location, quantity, carbon species, size, diameter, diameter, shape, etc. to the explosive treatment team.

Article 19 (Support for Disposal of Unexploded Coal of Shooting Range)

(1) Where any risk, location marks, boundaries, etc. are conducted after the shooting unit or shooting range management unit finds a fire, and a request for notification or support including the type, location, quantity, etc. is made, the following support shall be provided:

1. Anthrax which has occurred during shooting;

(a) On-site processing (in principle, BIP) in the event of launch or discharge;

(b)in the event of a non-exploitation, it shall be processed in accordance with the guidelines for treatment of incombustible coal for each equipment, or, in the event of a bonitch,

C) Relevant provisions of the Ministry of National Defense’s directives on the safety management of military ammunition and explosives (No. 1486, Dec. 26, 2012)

Article 1 (Purpose)

The purpose of this Directive is to ultimately protect the lives and property of the people by prescribing matters concerning the standards for the safety management of military ammunition and explosives, related equipment, and ammunition facilities for the prevention and efficient management of safety accidents involving military ammunition and explosives.

Article 3 (Scope of Application, etc.)

(1) This provision shall apply to the following institutions and facilities:

1. The headquarters of the Ministry of National Defense, agencies under the direct control of the Ministry of National Defense (including military units), the Army, Navy, Air Force, the Defense Acquisition Program Administration, and other research institutions related to national defense;

Article 7 (Policies)

(1) Each Gun and agency shall establish a safety prevention plan annually in accordance with the detailed regulations concerning safety standards, and shall appoint safety inspectors to conduct safety prevention activities.

(2) Each Gun and institution shall handle and manage ammunitions in accordance with the Safety Standards Ordinance.

Article 8 (Direction and Responsibility)

The head of each Gun and agency shall establish, manage, and supervise a safety management plan for the management of ammunition, ammunition facilities, and related equipment.

3) In order to recognize the State’s liability for damages caused by the omission by a public official’s negligence in the line of duty by the Defendant’s military personnel, the requirements of Article 2(1) of the State Compensation Act, i.e., “when a public official inflicts damage on another person by intention or negligence in the course of performing his/her duties,” should be met. Here, the requirement of “in violation of the statute,” does not mean only where a public official clearly violates his/her duty to act in violation of the statute within a formal meaning. The State’s primary mission is to protect the lives, bodies, property, etc. of the people. As such, in a case where the State’s primary mission is to protect the lives, bodies, property, etc. of the people, or where it is difficult for the State to protect them unless it takes place in the first place, it may be recognized that the State or the relevant public official has the duty to act in violation of the statute within a formal meaning without any explicit grounds (see, e.g., Supreme Court Decisions 98Da18520, Oct. 13, 1998>

In light of the relevant provisions and legal principles as seen earlier, soldiers belonging to the Army ○○○ Team are obligated to take safety measures such as checking and collecting a shot after completing shooting training in the shooting range, and controlling civilians from approaching the surrounding area of the shooting range. It is also possible to anticipate that if the military personnel neglected a shot light of such duty, it may result in the explosion of human life.

Furthermore, the following circumstances are as follows: ① the military personnel belonging to the Army was aware of the existence of a fluence in the vicinity of the △△○○○○○○○ shooting range or the Birire shooting range; ② the △△△△ shooting range and △△△ shooting range presumed to be the place where the accident occurred are controlled by the private citizens; the above military personnel did not have a fluoring net indicating the boundaries of the shooting range; the military personnel did not have a control soldier to control the private shooting range; once a week did not have a shooting range; the military personnel patrol the surrounding the shooting range; the number of warning signs is less than the size of the shooting range; ③ regardless of the public relations activities conducted by the citizens of the Army○○○○○○○ Group, the military personnel belonging to the Army○○○ Group did not report explosives such as the fluort, etc. to the military unit, etc., but did not negligently violate the laws and regulations of this case.

B) If the content of the official duty imposed on a public official in proximate causal relation is entirely or incidentally established to protect the safety and interest of an individual member of society, the State shall be liable to compensate for the damage inflicted on the victim by breaching such duty to the extent that the proximate causal relation is acknowledged. In this case, the State shall comprehensively consider the probability of occurrence of the result, the purpose of the statute and other rules of conduct imposing official duties, the form of harmful act, degree of damage, etc. (see, e.g., Supreme Court Decisions 91Da43466, Feb. 12, 1993; 2012Da1297, May 24, 2012).

The purpose of imposing an obligation to take safety measures, such as collecting high explosible coal from military personnel belonging to the defendant is to protect the lives and property of the people. As seen earlier, the instant explosible coal is a sensitive substance that explosions at small shock levels, and thus, it may be recognized that there is a possibility that serious damage to human death would occur if it is violated the above obligation. Therefore, even if D intervene in the act of taking the instant explosible coal into the dwelling at the place of residence due to the occurrence of the result of the instant accident, the result of D’s death is the inherent risk in the high explostan itself, and it is recognized that there is a proximate causal relation with the negligence on duty that the military personnel belonging to the defendant did not take

C) Sub-determination

Therefore, the defendant is liable for damages suffered by the plaintiffs who are D and their family members pursuant to Article 2 of the State Compensation Act.

B. According to the facts acknowledged earlier, D’s finding of explosives as a farmer who had been residing in the ○○ Military Branch of Gangwon-do, it is necessary to report it to the military unit, etc., or take safety measures, such as avoiding the place of such explosives. Despite the fact that the instant incombustible coal was well aware of the fact that it was an object easily explosion, it was found that it did not take such safety measures as above after finding the incombustible coal, but rather carried it at one’s own house. Since the error of D caused the occurrence and expansion of damages, it is limited to the Defendant’s liability by 30%.

2) As to this, the Defendant asserts that the Defendant’s liability should be more limited on the ground that the instant accident was not attributable to, or even if there were liability, D’s unauthorized intrusion into the shooting range, or the act of taking the instant incombustible coal into the house was a criminal act; D’s discovery was not reported; and D’s explosion was due to D’s decomposition of incombustible coal. However, there was no evidence to acknowledge that the instant incombustible coal explosion occurred while it was decomposed, and even if D’s act of taking the incombustible coal into the house constitutes a criminal act prescribed in the Military Criminal Act, it is difficult to view that the Defendant’s military personnel’s duty to take safety measures, such as removal of incombustible coal and control of the civilian’s access to the shooting range, etc., was exempted or mitigated in the course of performing their duties (Articles 75(1)1 and 1(4)5 of the Military Criminal Act).

The Defendant’s above assertion is difficult to accept.

3. Scope of liability for damages

For the convenience of calculating the amount of damages, less than a month and less than a cost shall be discarded, and the current calculation of the amount of damages shall be based on the discount method that deducts the interim interest at the rate of 5/12 per month.

(a) The fact that the lost income of D is recognized (1)

(1) Gender: The male and the date of birth on August 7, 1975, the age of 36 years and 8 months at the time of an accident ( April 15, 2012): The remaining date and time of death; April 15, 2012; and the life expectancy: 42.76 years.

② At the time of the instant accident, occupation and income D resided in the ○○○○○-gun, a rural community area at the time of the instant accident, and engaged in agriculture. There is no data to know the actual amount of D’s income, but D appears to have been able to obtain income equivalent to the agricultural labor wages on the farm purchase price index at the Statistics Korea’s National Statistical Office’s daily wage as the average monthly wage for at least 25 days. According to the farm purchase price index, male’s agricultural labor wages are 85,426 won in the second quarter of February 2/4, 2012, 86,606 won in the fourth quarter of March 3/4, 2012, and 86,989 won in the fourth quarter of April 4, 2012. Therefore, it is calculated based on the amount calculated by multiplying each of the said agricultural labor wages by 25 days on the average monthly wage.

The Plaintiffs asserted that D’s lost income should be calculated on the basis of monthly wage in agricultural skilled craftsmen listed in the report on the survey of actual employment by employment type published by the Ministry of Employment and Labor in 201. However, the above survey report was prepared by investigating the wages of regular skilled workers working in a company with a scale of at least five regular workers, and as a matter of principle, it is merely the basis for estimating the employee’s income. As such, it cannot be recognized as a lost income of self-employed farmer immediately after raising the statistical income of the said report. However, it may be deemed that the contents of duties performed by the self-employed farmer are similar to those of the self-employed skilled farmer in the above report, taking into account the scale, type, number of farming workers, and performance of farming, etc. (see Supreme Court Decisions 2006Da50499, Mar. 29, 2007; 5-3, 8, and 14-200, no evidence exists to acknowledge that the contents of the work and labor report are similar to those of the above self-employed or self-employed.

(3) Minimum working age

D was engaged in agriculture near the ○○○○ Military Branch of Gangwonwon. Meanwhile, the maximum working age, which serves as the basis for calculating the lost income of a person engaging in agricultural or agricultural labor, shall be deemed to be until he/she reaches 60 years of age in accordance with the empirical rule. However, in light of the specific circumstances, such as age, occupation, career, and health condition, if there are special circumstances excluding the foregoing empirical rule, the maximum working age may be deemed to be more than 60 years of age (see Supreme Court Decision 96Da25852, Dec. 26, 1997). However, inasmuch as there are no special circumstances to deem that D can be operated beyond 60 years of age, it is reasonable to view that D may be engaged in daily work in rural communities until August 6, 2035, when he/she reaches 60 years of age.

④ Cost of living: Calculation of one-third (founded ground for recognition) of the amount of income in the absence of dispute, calculation of evidence No. 1-1, evidence No. 5-3, 8, 14, and the purport or purport of the pleadings as a whole (the first instance judgment calculated the amount of actual income in the same formula as below, but erroneously calculated the amount of income in the same manner as below, 267, 919, 648).

① From April 15, 2012 to June 30, 2012, KRW 2,829, 736 = 85,426 won ¡¿ 25 days x 2/3 ( = 1 1/3 of the living cost) x 2/3 ( = 4,259, 427 won from July 1, 2012 to September 30, 2012 = 86,606 won x 2/3 ( = 1- living cost) x 9509 ( = 9344 April 9384) x 9502.

(3) From October 1, 2012 to August 6, 2035, 260, 817, 088 won = 86,9 won x 25 days x 25 days x 2/3 ( = 1 - 1/3 of living expenses) x 8966 ( = 8350- - 9384 April 184) x 179

(4) Total sum: Funeral expenses of KRW 267,906, 251 ( = 2,829, 736 + KRW 4,259, 427 + 260, 817, 088).

3,000,000 won paid by the Plaintiff A

[Grounds for Recognition] 30% of the defendant's liability ratio or 30% of the defendant's liability ratio

① Property damage of D: 80,371,875 won [ = 267,906, 251 won (daily income x 30%] ② Property damage of Plaintiff A: 900,000 won [ = 3,000,000 won X 30%]. (b) Reasons for considering consolation money 1: The developments and results of the instant accident, the degree of the age and negligence of D, the relation between D and the Plaintiffs, and all other circumstances shown in the instant argument are considered).

(1) D: 20 million won

② Plaintiff A: 10 million won

③ The amount to be inherited by Plaintiff B and C is KRW 5 million, respectively: KRW 105,371,875 ( = 80,371,875 won = 80,375 won for property damage of D + 25,00,000 won for consolation money of D)

B) Inheritance amount and calculation: Plaintiff A as a sole heir of D, and all of the above inheritance amounts.

D. Sub-committee

Therefore, the defendant is obligated to pay the plaintiff A the consolation money of KRW 118,271,875 ( = KRW 900,000 for the above plaintiff's property damage + KRW 12,000 for the above plaintiff's property damage + KRW 105,371,875 for D inheritance amount + KRW 5,000 for each plaintiff Eul, and KRW 875 for each of the above amounts (each of the above plaintiffs' consolation money) and damages for delay calculated at the rate of 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from April 16, 2012 for which the plaintiffs sought after the date of the accident in this case, to dispute about the existence and scope of the payment obligation of the defendant from April 16, 201 to June 23, 2014, which is the date the judgment of the court of first instance, which is the date following the day of complete payment.

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed without justifiable reasons. Since the part of the judgment of the court of first instance which suffered property loss is partially different from this conclusion, it is unfair to accept the defendant's appeal in part and to modify it as ordered in the judgment of the court of first instance.

Judges

Judges Kim Jong-chul

Judges Kim Gung-sik

Judges Lee Young-young

Note tin

1) The fact that there is no dispute.

2) Evidence No. 5-7 (Statement of Statement), Evidence No. 2-2 (Establishment status and guidance of Access Control Facilities), and Evidence No. 4

1. (Report Data)

3) Evidence No. 4-1 (Report Data), Evidence No. 4-2 (Military Police Assistants)

4) Evidence A No. 10-1 (Certificate)

5) Eul evidence 2-2 (Status and Guidance of Installation of Access Control Facilities)

6) Evidence B 2-3 (Guidelines for Control and Reinforcement of Access to Training Places, Warning Signboards

7) Evidence No. 2-4 (Materials Materials Related to Explosives) and evidence No. 2-5 (Public Relations Activities Materials Related to Explosives)

Data (A third group of groups).

8) Evidence A No. 5-13 (Investigation Report)

9) Evidence B No. 1-1 (data related to the activities of removing concealed and buried ammunition) and Evidence B No. 4-2 (Military Police Assistants)

10) Evidence B No. 2-4 (Materials-Related Data, Two pages)

11) Evidence B No. 3 of the Prosecutor’s Office (the Prosecutor’s Office (○○○ Office))

12) Evidence A No. 10-1 (A) and Evidence B No. 2-1 / [Attachment to Prosecution and Reference Report (2006)]

13) Evidence No. 5-7 (Statement of Evidence No. 5-7 (Statement of Statement), Evidence No. 4-1 (Report Data), and Evidence No. 4-2 (Attachment of Military Police)

심급 사건

-서울중앙지방법원 2013.4.30.선고 2012가합51252

서울고등법원 2014.6.23.선고 2013나2008425

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