(영문) 서울중앙지방법원 2007.6.29.선고 2006가합43014 판결

1. The Defendants shall pay to each of the plaintiffs 108, 894, 573 won and the amount calculated at the rate of 5% per annum from February 20, 2006 to June 29, 2007, and 20% per annum from June 30, 2007 to the date of full payment.

2. Each of the remaining claims against the Defendants by Plaintiff ○○○, and each of the claims against the Defendants by Plaintiff ○○, the largest ○○, the civil citizens, and the private insurance company, shall be dismissed.

3. Of the litigation costs, 70% of the portion arising between the Plaintiff ○○ and the Defendants shall be borne by Plaintiff ○○○, and 30 shall be borne by the Defendants respectively. The part arising between Plaintiff ○○, ○○, Civil, △ and the Defendants shall be borne by the Plaintiff ○○, ○, Civil, and △△.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The Defendants each of the plaintiffs 316, 089, 777 won against each of them to the plaintiffs ○○, the plaintiffs ○○, the private sector, and the private sector, respectively.

5,00,000 per annum for each of the above amounts and 5% per annum for the period from February 20, 2006 to the date of this Judgment;

The amount shall be paid at the rate of 20% per annum from the following day to the date of full payment.

Reasons

1. Basic facts

A. On February 20, 2006, the Plaintiff ○○ was registered as a member of the Dong-gu-dong operated by the Defendants as joint business operators - located golf driving range (hereinafter “the instant golf driving range”): around 30:30, the Plaintiff ○ was a person who was involved in an accident where the deceased and the deceased were at the 31st floor of the instant golf driving range (hereinafter “the instant accident”). The Plaintiff ○○○ is the wife, and the Plaintiff ○○ and the Nonparty ○ was his child.

B. On February 21, 2006, the day following the accident of this case, the plaintiff ○○ was diagnosed with the opportune fever, the opportunegy, and the opportune flue disease caused by credit at the ○○ University Hospital on February 23, 2006, and was hospitalized in the inner opportune and the net flue flue fluece (other) disease at the ○○ University Hospital on February 23, 2006, and was hospitalized in the inner opportunection surgery, the opportunection surgery, the removal of modified body, and the opportune oil insertion operation (the opportun) on March 4, 2006, and was discharged on March 4, 2006. At present due to the opporte symptoms symptoms, there is no possibility that the opporte flue flue symptoms was in the state of the opport in the front.

C. The instant golf driving range is a 4th floor and has annexed facilities, such as a set, golf shop, and coffee shop, on each floor, and 20 to 4th floor, composed of 60 seats in total. The instant golf driving range is composed of 31 strings on each floor. The 31st strings in which the instant accident occurred, based on the front side, are located at the middle of 21 strings to 40 strings at the right end, and the width is 257 cm, and the protection strings at the above strings at the right end of 21 strings at the right end, and the protection strings are installed at the above strings at the right end of 40 cm. The protection strings are installed at the lower end of strings rather than at the strings.

D. Meanwhile, in the front part of a hallway of a corridor with a height of at least 3m 20m 20m m (3m) from 31m (hereinafter referred to as “Tin”) on the back of 3m (3m) m (hereinafter referred to as the “Tin”) of the kinite of a corridor, the string of a shock by golf holes is about 4m (4m) and there is a s

E. According to the Enforcement Rule of the Installation and Utilization of Sports Facilities Act [Attachment 4] 2, a person who manages and operates a golf-related habit shall install the water, protective network, etc. so that safety accidents may not occur due to other districts during the practice. [Attachment 7] 1-2(2) provides that a person who manages and operates a sports facility shall either provide the sports activities of users or maintain the state of safe use of various facilities, facilities, equipment, instruments, etc. for the safety of users.

[Ground of Recognition: In the absence of dispute, Gap evidence 1-2, Gap evidence 2-2, Gap evidence 3-1, 2-2, Eul evidence 5-1, 5-2, the result of the on-site verification by this court, the result of the physical examination by this court for the head of a hospital affiliated with a university of a university, the purport of the whole pleadings as a whole]

2. Determination as to each claim against the Defendants by Plaintiff private ○○

A. (1) The occurrence of liability for damages and restriction (a) liability for damages to a golf driving range (A) and the agreement on the use of a golf driving range concluded with a person who operates a golf driving range with customers is a lease agreement for the use of golf rocks and related auxiliary facilities by providing them to customers and allowing them to use them and for the temporary use of them. Since golf rocks and related facilities in a golf driving range are placed under the operator's control, the operator is obliged to provide golf stones and related auxiliary facilities, such as ordinary lease, to make customers use and benefit from them. Furthermore, the operator bears the duty to protect the safety of customers by providing them with safe and comfortable golf stones and related auxiliary facilities without danger to customers. Such duty is an incidental duty recognized under the good faith principle, even if the operator breached the duty to provide facilities, the performance of which is a contractual obligation is ultimately not complied with, and thus constitutes a breach of the duty to provide facilities, and thus, constitutes a breach of the duty to protect the safety of customers.

Therefore, according to the above facts, at least the accident of this case is not caused by Plaintiff ○○, but caused by the golf-friendly golf hole controlled by the Defendants. As such, the Defendants were unable to perform their duty to protect the Defendants under the agreement on the use of a golf driving range for Plaintiff ○○ as a result, and there is insufficient evidence to support the Defendants’ assertion that the Defendants did not commit any breach of duty or negligence, so the Defendants are liable to compensate for damages caused by the accident of this case ( Plaintiff ○○ is liable for damages caused by the Defendants’ violation of the duty to install and maintain the safety facilities, etc.). The above assertion is reasonable to interpret that each of the above arguments included the tort liability and non-performance liability based on the contractual relationship under Article 758 of the Civil Act as grounds for selective claims. As such, each of the above arguments is deemed to have a relation to the grounds for selective claims. Accordingly, as long as the Defendants recognized the Defendants’ non-performance liability based on the contractual relationship as above, it is unnecessary to further determine tort liability. (b) As to this, the Defendants alleged that they were responsible for the instant golf driving range.

In addition, there is no evidence to acknowledge the Defendants’ assertion that the instant accident occurred due to Plaintiff ○○’s own golf machine, and according to Plaintiff 11’s evidence 1, 2, and 12’s testimony, Plaintiff ○○’s career 10 years, and Plaintiff 1’s 10 years’ experience, and Plaintiff 1’s 10-year experience, and Plaintiff 1’s 1, 2, and 9’s witness Kim Young-ri’s testimony, it can be acknowledged that Plaintiff ○ ○ was flick with Plaintiff ○○’s snow flick at the time of the instant accident, and Plaintiff ○○ flick with Plaintiff ○○’s snow flick, and it appears that Plaintiff 1’s internal golf driving range was extremely unlikely to face flive with Plaintiff ○○○’s face. However, in light of the above circumstances at the time of the instant accident, the Defendants’ assertion that the instant golf driving range was installed in the instant case’s safety facility as well as 3’s name flick.

(2) Limitation on liability for damages

On the other hand, the accident site of this case is where the risk of an accident is inherent in a certain degree without direct fault between the facility provider and the user. While recognizing such circumstance, it is reasonable to view that the user of this facility voluntarily bears a certain ratio of the damage to the victim due to the unexpected circumstances in the course of using the facility. It does not conform to the basic principle of the compensation for damages, which is fair sharing of the damage, and the principle of good faith, that all the damage incurred to the facility provider is attributable to the provider.

Therefore, the Defendants’ scope of liability due to the instant accident shall be mitigated to a certain extent. However, the Defendants’ scope of liability shall be limited to 70% in consideration of the following: (a) the involvement of a third party in the occurrence of the instant accident; and (b) the likelihood of other visitors to the instant accident is extremely rare; and (c) the likelihood of other visitors to the golf machine is extremely rare.

(b) Scope of damages;

Based on the following facts and the contents of evaluation as follows, it shall be calculated at the present price at the time of the accident of this case (the amount below the won and the period below the month shall be discarded, and the same shall apply to the attached table of calculation of damages, except as otherwise stated in the attached table of calculation of damages) in accordance with the Hofman Accounting Act that deducts interim interest at 5/12 per month.

(1) Gender (a) gender: male (a) fact of recognition and evaluation; (b) gender;

2) Date of birth: The age of 37 years and 7 months and 4 years respectively at the time of the accident: the maximum working age of 60 years (the original maximum working age was claimed as 65 years, but it is deemed that there is no dispute as to the maximum working age of 60 years in the application form for expansion of claim and alteration of the cause of claim. (b) The victim’s actual income loss amount of 30 years from the date of the accident should be determined by establishing the amount of income actually earned at the time of the accident and calculating it based on objective and reasonable materials. In such cases, the victim’s actual income amount of 30 years from the date of the accident should be determined as the amount of income at the time of the accident, and the reported amount of income at the time of the accident should be deemed as the amount of income at the time of the accident (see Supreme Court Decision 200Da560, Feb. 28, 1997; 2000, 2000Da56750, Feb. 28, 2000, etc.).

2) Plaintiff ○○○ claimed that the actual income should be calculated on the basis of the monthly income of KRW 6,00,00. However, the tax office’s reported income based on Plaintiff ○○ shall be calculated on the daily income of KRW 20 from January 2006 to March 2006, when Plaintiff ○○ reported the income of KRW 20 to 20 times in 204 and 205 respectively at the tax office, and it is evident that Plaintiff ○○ was 6% of the total operating income of KRW 20 to 20.6% of the day after January 1, 2006 (see, e.g., Supreme Court Decision 96Da5460, Feb. 28, 1997) 20% of the total operating income of KRW 20 to 30% of the day after 206.6% of the total operating income of KRW 20,67.6% of the day after the date of the instant accident.

[Grounds for Recognition: Facts without dispute; entry of Gap evidence 7; fact-finding with respect to this court's violation of the law of tolerance, purport of the whole pleadings] (2) daily retirement allowance

Plaintiff ○○○ seeking the payment of KRW 17,51,80 with the daily retirement allowance. However, the daily retirement allowance is considered as a retirement allowance system under the collective agreement or the rules of employment, or as an employee who employs five or more regular employees, etc. In the case of Plaintiff ○○○, it cannot be considered as a representative director of the corporation at the time of the instant accident, who is an employer and substantial private employee under the Labor Standards Act, as well as as as an employee who is entitled to receive a retirement allowance in addition to handling the affairs delegated by the above company and receiving a certain amount of remuneration in return. Thus, the above argument by Plaintiff ○○○ is without merit. (A) Medical treatment expenses (4,979, 429 won (4,581, 529 won + 397, 900 won) (b) medical treatment expenses (4, 529 won + 397, 900 won) and treatment expenses for each of the above companies.

2) The treatment costs of 1,100,000 won are required for anti-marcing plastic surgery on the right side of the sex part of the sexual traffic.

3) On June 2, 2007, June 2, 2007, on the day following the day of the present argument, deeming that the above practical container removal surgery and reflective surgery were spent, and calculating the present price, the total amount of KRW 2,917,410 ( KRW 1,882,200 + 1,035,210). (c) The total amount: KRW 7,896,839 ( KRW 4,979,429 + 2,917,410) [this ground for recognition: KRW 8-1 and 2-3, KRW 70, KRW 50, KRW 50, KRW 36, KRW 379, KRW 429, KRW 410, KRW 500, KRW 75, KRW 50, KRW 586, KRW 375, KRW 586, KRW 475, KRW 1965, KRW 475, KRW 5375,5765.

C. Sub-committee

Therefore, the Defendants are liable to pay the Plaintiff’s ○○○ for damages at the rate of 108,894,573 won (93,894,573 won + 15,000,000 won) and the damages for delay calculated by the rate of 20% per annum under the Civil Act from February 20, 2006, which is the date of the instant accident, until June 29, 2007, when the Defendants dispute over the scope of their respective obligations, from February 20, 2006, the date of the instant judgment, until June 29, 2007, and the next day from June 30, 2007, to the date of full payment.

3. Determination as to each claim against the Defendants of the Plaintiff ○○○, Civil, and △△△

A. The plaintiff ○○, the civil servant, and the civil servant's assertion

As the wife or children of the Plaintiff ○○, the private citizen, and the private sector, the Plaintiff ○○, as the consolation money for mental suffering from the injury of the Plaintiff ○○ caused by the instant accident, and sought payment of KRW 5,00,000,000 against the Defendants.

However, even if the Defendants suffered considerable mental distress due to the Defendants’ nonperformance, it cannot be deemed that the above Plaintiffs, who are not the parties to a golf practice range use contract between the Plaintiff ○○ and the Defendants, have acquired the Defendant’s claim for consolation money under the Defendants’ nonperformance of obligation under the golf practice range use contract. Furthermore, the above Plaintiffs asserted as one of the causes of claim for damages by the possessor of a structure, etc. and the owner’s tort liability under Article 758 of the Civil Act. However, the above Plaintiffs asserted as one of the causes of claim. However, it is insufficient to find that the images of the Plaintiff 10 evidence, the evidence No. 11-2, the evidence No. 11-2, and the evidence No. 4-1 through No. 3 are defects in the installation and preservation of structures in the instant golf practice range, or that the accident of this case occurred due to them, and there is no other evidence to find otherwise. Therefore, the above Plaintiffs’ assertion

4. Conclusion

그렇다면 원고 민○○의 피고들에 대한 각 청구는 위 각 인정범위 내에서 이유 있어 이를 인용하고, 원고 민○○의 피고들에 대한 각 나머지 청구 및 원고 최○○, 민◇, 민□□의 피고들에 대한 각 청구는 모두 이유 없으므로 이를 각 기각하기로 하여 주문과 같이 판결한다 .