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

[2] The requirements to recognize that there is no defect in the special characteristics and the construction and management of banks, which is a natural structure, in the management of rivers

[3] The standards for determining whether a bank has a stability to be prepared in commerce

[4] The case holding that the river management agency is liable to compensate for damage caused by the flood damage with the recognition of the defects in the installation or management of the bank and the damage caused by the flood with respect to the occurrence of flood damage caused by inundation of the river due to typhoons and heavy rains

[5] In a case where a natural event and the tortfeasor's negligence conflict with each other, the scope of the tortfeasor's compensation (=the remainder after deducting the contributory portion of the natural event)

[6] The case holding that the river management agency's liability to compensate for damages is limited to 30% of the amount of damage, considering the nature history of floods caused by heavy rain accompanied by typhoons and defects in the installation and management of banks, etc.

[1] The 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 fails to have safety ordinarily required for its use. In determining whether such safety has been secured, the criteria for determining whether the construction or management 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, by comprehensively taking into account all circumstances such as the purpose of use of the public structure in question, the present state of the installation site, and the situation of its use.

[2] The bank works as a public structure of river appurtenances, which is a river appurtenances, play an role in preventing water damage due to flooding of a river. A river as a natural public structure has no choice about whether to install it originally, there is no choice about whether to install it for a long time, and there are many natural phenomena where it is impossible to remove risks in a simple manner, and it is difficult to predict the source of the flowing water, such as the size and scope of the river, the occurrence time, and the occurrence of flood. In fact, it is almost impossible to grasp any flood by experiment, and it is very impossible to grasp it by actual flood, and eventually, it is unique to prevent river management based on past flood experience, and the installation of a long-term budget is required to complete large-scale construction works, and the installation of a river with its goal can be completed for a long time, and the installation of a river can not be seen as having the characteristics of the river due to the nature of the river, such as the nature and nature of the river, and the installation of a long-term flood-free method to manage it.

[3] Whether the bank usually satisfies the stability should be determined by whether the river management agency has established an appropriate plan for river maintenance in accordance with the River Act and the standards for river design, and whether the bank has installed and managed the bank at a height exceeding the planned flood.

[4] The case holding that with respect to the occurrence of flood damage caused by typhoons and heavy rain, the river management agency failed to establish a basic plan for river maintenance which serves as the basis for the installation and management of the bank, and since the bank was installed at a level lower than the planned flood level and failed to meet the objective stability that is to be equipped with the ordinary bank, the above bank was defective in the installation and management, and the flood damage caused by the defect, and the river management agency is liable to compensate for damage caused by flood.

[5] Where the damage suffered by the victim is caused by competition between natural power and the tortfeasor's negligence in a tort compensation case, the extent of the tortfeasor's compensation shall be limited to the remaining part which deducts the part which is deemed to have contributed to the natural power in relation to the damage from the perspective of fair burden of damage

[6] The case holding that the river management agency's liability to compensate for damages is limited to 30% of the amount of damage, considering the nature history of floods caused by heavy rain accompanied by typhoons and defects in the installation and management of banks, etc.

[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, Article 17 (1) of the River Act (wholly amended by Act No. 8338 of Apr. 6, 2007), Article 10 (1) 2 of the former Enforcement Decree of the River Act (amended by Presidential Decree No. 18475 of Jul. 20, 2004), Article 34 of the former Construction Technology Management Act (amended by Act No. 6956 of Jul. 29, 2003) / [4] Article 5 (1) of the State Compensation Act, Article 17 (1) of the River Act, Article 36 (3) of the former Enforcement Decree of the River Act (amended by Act No. 8338 of Apr. 6, 2007), Article 36 (1) of the former Construction Technology Management Act (amended by Presidential Decree No. 975360 of the Civil Act No. 975 of Jul. 169, 275 of the former Act)

[1] Supreme Court Decision 99Da54004 delivered on February 25, 2000 (Gong2000Sang, 830) Supreme Court Decision 2000Da56822 delivered on July 27, 2001 (Gong2001Ha, 1937) / [2] Supreme Court Decision 2001Da48057 delivered on October 23, 2003 (Gong2003Ha, 2219) / [5] Supreme Court Decision 2001Da734 delivered on June 27, 2003 (Gong2003Ha, 1592)

Plaintiff 1 and one other (Attorney Lee In-bok, Counsel for the plaintiff-appellant)

Gyeong-do (Attorney Nam-jin, Counsel for the defendant-appellant)

March 15, 2007

1. The defendant,

(a) 5% per annum from September 1, 2002 to May 3, 2007 and 20% per annum from the next day to the day of full payment to the Plaintiff 1 corporation;

B. The amount of 52,357,483 won and 5% per annum from September 1, 2002 to May 3, 2007 and 20% per annum from the next day to the day of full payment to the day of full payment.

sub-payment.

2. Each of the plaintiffs' remaining claims is dismissed.

3. 7/10 of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The Defendant pays to Plaintiff 1 Co., Ltd. (hereinafter “Plaintiff 1”) 3,250,736,738 won, Plaintiff 2 Co., Ltd. (hereinafter “Plaintiff 2”) 197,415,676 won, and each of the above amounts, 5% per annum from September 1, 2002 to December 18, 2006, and 20% per annum from the next day to the date of full payment.

1. Basic facts

The following facts can be acknowledged in full view of the evidence Nos. 1-1 to 2-3, 5 through 7-14, the evidence Nos. 1-5, the evidence Nos. 1 to 5, the each of the evidence Nos. 24, the photographic image, the witness Kim-ho, Kim-ho, the testimony of Lee Jong-ho, the appraiser Lee Jong-young, the evaluation results of the appraiser Lee Jong-young and each of the supplementary appraisal results, and the purport of the whole pleadings.

A. North Korea is a river designated as a river to which Article 536 of the Presidential Decree on April 22, 1966 applies mutatis mutandis, and is a local level 2 river under the current River Act. The section is 14.5km from the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the eth of the.

B. Under Article 12(2) of the River Act, the Defendant establishes and manages the instant bank, which is an accessory thereto, pursuant to Article 12(2) of the same Act, and the Plaintiff Company established and manages the instant bank on the ground, such as the Seocheon-si, Yongcheon-si (Seongcheon-si, 1 omitted) northwest-si, 1996, and newly constructed the damaged factory (3) and carried on the manufacturing and sales business of direct materials by constructing the damaged factory, and around May 4, 2001, Plaintiff Company 2 carries on the processing, manufacturing, and sales business related to the annual and vertical work upon the bid of the factory (2 omitted on the upper lot No. 2 omitted), and the above Plaintiffs’ factories are inside the bank of this case, such as the indication of the attached drawing.

C. On August 31, 2002, the typhoon dust passed through the Youngcheon City and caused a heavy concentration in the discharge of the Defendant’s factories, including the northancheon City. The rapid increase due to the typhoon and concentrated heavy rain, and the flow of the northancheon City was collapsed or washed out due to flood, among the instant embankments, there was a flood. The Plaintiffs’ factories located within the bank of this case where river water was pushed down and washed out (hereinafter “the instant flood flood”).

D. On Aug. 202, 2002, when the amount of the hydrocheon Hycheon Madial Madial Madial Madial Madial Madial Madial Madial Madial Madial Madal 415.5mm on Aug. 31, 2002, the daily heavy rain around the northan river was recorded on August 31, 2002 by means of typhoons 135.5mm in the Youngcheon Madial Madial Madial Madial Madal Madal 94mm in the Geumcheon-gu Office, 142.0mm in the office in the northan area (in light of the results of fact-finding in the Youngcheon City, it is difficult to believe that Eul evidence 14mm in the office in the northan area was 109mm in terms of the fact-finding in light of the fact-finding with regard to the plaintiffs' factories.

E. Comprehensively taking account of the foregoing daily rain, water leakage, and maximum flood level as above, AMC-III conditions (as soil in the basin has almost been spreaded into several parts, among the conditions of water booming soil, the status of leakage is very high, 38 pages, 8 pages) ① The maximum flood discharge (the combined point of the Northwestan river) in the northan as at the time of the instant flood damage is 482 / joint 482 cubic meters, ② the flood discharge of the branch A, B, and C is 324.51/cc. ③ The flood discharge is 324.90m, EL.3.90m, EL.97m, and 60m, close to the C branch, 7.6m, 7.6m, 784m, 7.6m, 87m, 7.78m, 784m, 87.6m, 87m, 784m, 78.6m.

F. Ultimately, in the case of the annexed drawings A branch at the time of typhoons (72.8m) with low water level (73.90m) and low water level (74.18m) compared to water level (73.97m) at the time of typhoons (73.90m), the bank was flown down (73.97m) and the river was flown down around the river due to low water level (73.97m), and the river was flown down at the end, and the river was flown down. C branch had higher water level than the water level of the river water level, but it is presumed that the bank collapses gradually, and the river was flown into the river by a monthly flow (74.97m).

G. Meanwhile, relevant Acts and subordinate statutes, such as the River Act, provide for the installation and management of a river bank as follows.

(1) The river management agency shall establish a basic plan for the maintenance of rivers (hereinafter “basic plan for the maintenance of rivers”) for the rivers under its management (Article 17(1) of the River Act (wholly amended by Act No. 8338 of Apr. 6, 2007)) as prescribed by the Presidential Decree.

(2) In formulating a basic river improvement plan, ① basic flood discharge (referring to the flood discharge which serves as the basis for the plan to protect human life and property from flood damage), ② planned flood discharge (referring to the flood discharge that serves as the basis for establishing a plan to establish river appurtenances) at major points, ③ planned flood discharge (referring to the planned flood discharge that falls under the planned flood discharge) at major points (Article 10(1)2 of the former Enforcement Decree of the River Act (amended by Presidential Decree No. 17816, Dec. 26, 2002)) shall be included in the implementation of river maintenance plan.

H. Article 34 of the former Construction Technology Management Act (amended by Act No. 6956 of Jul. 29, 2003) provides that ① in the case of a local second-class river, the frequency of design of banks and river improvement plans shall be from 50 to 100 in the case of a local second-class river, and the frequency of design of bank and river improvement plans shall be from 50 to 100 in the case of a local second-class river (No. 245 in the case of a certificate of evidence No. 24), ② the bank height shall be higher than that calculated on the basis of the planned flood level, and ③ the surplus height shall be higher than 0.8 meters in the case of a planned flood discharge of less than 200 cubic meters from the planning flood volume of 200 cubic meters/s (No. 538 in the case of a certificate No. 24-24).

I. Meanwhile, notwithstanding the aforementioned relevant provisions such as the River Act, the Defendant did not establish a basic plan for river maintenance for the North Korea's river even at the time of the flood disaster of this case. Since the establishment of the bank of this case around 1969, the Defendant did not perform the bank repair work except for the implementation of festivals and bank protection works for the bank of this case (appraisals, the river bank register).

(j) On February 3, 2003, after the instant flood year, the Defendant published the River Maintenance Master Plan for the Northern River on February 3, 2003 (Public Notice No. 2003-38 of the Gyeongbuk-do), based on the frequency of flood in 80 years, the Defendant set the planned flood discharge at 55 points in the table A, adjacent to the point B, 56 points in the table B, and 60 points adjacent to the point C, 430 cubic meters, 55 points EL. 74.08 meters in the surveying point, 56 points E. 74.22 meters in the surveying point, 60 EL.74.87 meters in the surveying point, and 60 points in the table below, as seen in the annex A, B, C, 50 points in the vicinity and 65 points in the table A, and 60 points in the direction of the above river maintenance.

* The height of the Class A, B, and C branch and the comparison of the planned flood level

본문내 포함된 표 ？ 제방고(EL.m) 이 사건 당시 유량(㎥/sec) 이 사건 당시 홍수위(EL.m) 계획홍수량 (㎥/sec) 계획홍수위(EL.m) A 지점 72.88 324.51 73.90 430 74.08 B 지점 74.18 324.51 73.97 430 74.22(측점 56) C 지점 74.74(측점 60) 324.51 74.66(측점 60) 430 74.87(측점 60)

(k) In addition, the Defendant did not perform the riverbed rearrangement work for the areas A, B, and C adjacent to the instant water surface before the instant water surface, and it is presumed that the water level at the point A, B, and C was lower than 0.37m or 0.45m as at the time of the instant water surface inspection, and that the possibility that river water was discharged from the said point was lower (section 93 of the appraisal report).

2. Defect in the construction and management of the bank of this case and the occurrence of liability for damages

The defects in the construction or management of public structures stipulated in Article 5(1) of the State Compensation Act refer to the state in which the public structures do not have ordinary safety according to their use. In determining whether such construction or management has been equipped, the criteria for determining whether the construction or management has fulfilled the duty to take measures for protection in proportion to the danger of such public structures by social norms, comprehensively taking into account all the circumstances such as the use of the public structures in question, the present state of the installation site and the situation of the use thereof, etc. (see Supreme Court Decision 2000Da56822, Jul. 27, 2001). The bank is one of the public structures attached to a river, which makes it difficult for the public to prevent damage due to the flood of the land in the river as water, and it is difficult for the river management agency to determine whether the river as a natural public structure has originally installed it, and there is no choice for a long time to remove any potential disaster due to the nature of the river, such as flood, and it is difficult for it to find out the river water level and its potential.

In light of the special characteristics and characteristics of river management, the installation and management of the bank must be kept perfect stability to the extent that the bank does not collapse at any time, and it cannot be deemed that there is no defect in the installation and management of the bank. It cannot be said that there is a defect in the installation and management of the bank if the inside of the bank functions to prevent flood by preventing flood from flooding in the water at the time of a normally predicted flood, and that there is a defect in the installation and management of the bank. In the relevant provisions such as the river design standards, the management agency must establish a basic plan for river maintenance such as planned flood and planned flood level in the major branch for river construction, such as the bank, for river construction, and the height of the bank shall be more than the planned flood level. In light of the original function of the bank that protects the prevention of river inundation, in light of the inherent function of the bank that protects the prevention of flood, the related provisions such as the River Act are established for the purpose of protecting the lives and property of the people through the prevention of flood, and whether the river management agency is in excess of the basic plan.

According to the above facts, the defendant did not establish a basic plan for river maintenance, which is a guideline for the determination of the stability of the bank until the flood of this case, and the defendant did not completely implement the maintenance work and the river maintenance work of the bank of this case except for the implementation of some reinforcement work in 194. ② The bank section of the attached drawings A, B, and C was lower than the planned flood level of 5,56,60 on the basic plan for river maintenance established by the defendant on 203. The flood caused by typhoons did not fall short of the planned flood and planned flood level under the above basic plan for river maintenance. Thus, even if the flood caused by typhoons falls short of the planned flood and planned flood level under the above basic plan for river maintenance, it was lower than the flood level caused by typhoons. ③ The plaintiffs were not obliged to install and maintain the river of this case due to the installation of the river of this case. Thus, the defendant failed to meet the objective standards for the installation and management of the river of this case.

Although the defendant asserts that the damage caused by the flood damage of this case solely was caused by the above concentration, or that the concentration of damage at the time was caused by force majeure as much as possible, the defendant's above assertion is not acceptable since there is insufficient evidence to acknowledge it.

3. Scope of damages.

A. Damage of the plaintiff 1

The amount of damages suffered by Plaintiff 1 due to the flood damage of this case is 3,126,52,250 won (=21,221,238 won + 153,347,670 won + 44,396,740 won + 111,539,539,000 + 686,478,687 won + 2,079,687 won + 153,396,740 won + 111,539,000 + 686,478,687 won + 2,079,517,746 won -153,061,211 won).

(1) The costs of repairing or replacing the Plaintiff Company 1’s factory inasmuch as the Plaintiff Company 1’s reproduction equipment, cooling equipment, and VCB were damaged by flooding, and thus, the repair or replacement of the foregoing factory hold, factory floor, etc. was damaged by flood, and the cost of repairing or replacing the same and the user fee of the factory cleaning equipment: 21,221,238 won in total;

[Reasons for Recognition] Gap No. 12-9 to 16

(2) The cost of repairing and re-installationd, and the cost of replacing parts destroyed by flooding, such as beerling, old leases, and labeling, inasmuch as all of the vertical machinery in the factory does not operate by inundation, and the total cost of replacing parts destroyed by flooding: 153,347,670 won;

[Reasons for Recognition] Gap evidence 12 17 to 50

(3) The costs of repairing and replacing the precise parts of the production machinery, such as a pipeing, etc., due to defects that may have occurred in the upper part of the production machinery, during the process of testing operation after repairing the above chemical machinery, which are 4,396,740 won in total;

[Reasons for Recognition] Gap evidence 12-51 to 64

(4) Since annual and preparatory machinery in the factory does not operate by flooding, the cost of repairing it and replacing its parts: 183,117,380 won in total; KRW 183,082,380 claimed by the Plaintiff Young-dong Machinery

[Based on Recognition] Gap evidence 12 65 to 78, 80 to 82, 85 to 88, 91, 92

(5) From among the smoke and preparatory machines inside a factory, Twro Stacker, Gouble Winer, etc., whose use is impossible due to flooding, sales loss after deducting the sale price from the above mechanical price: KRW 11,539,00 (6,024,000 x 25) + (6,275,000 x 3) ＋ (Duble Winer's appraisal) - (3,514,00 won) - (Two's appraisal - 25 - 34,500,000 won + 230,000 won + 230,000 won - 30,000 So-Wer's sale at the price of the above machinery

[Reasons for Recognition] Gap evidence 12-93, 94

(6) Damage caused by sale or destruction at low-priced prices due to the loss of raw materials stored in the factory or the impossibility of using them due to flooding (i.e., KRW 693,86,478,687)

[Reasons for Recognition] Evidence No. 12 95 to 97, and Evidence No. 39-1

(7) All the originals stored in the factory have been flooded, making it impossible to sell the product or making it impossible to sell the product: 2,079,517,746 won [2,07,746 won = 1,511,607,746 won (the damage arising from the sale of the originals with the low value of the product at 50% or 10% of the market price) + 567,910,000 won (the average purchase price of the closed source 610,000 won which is impossible to sell)];

[Reasons for Recognition] Evidence No. 12-106, No. 39-1

(8) The Plaintiff Company discontinued the operation of a factory due to flood from September 1, 2002 to October 15, 2002 due to the flood disaster of this case. While during the period of suspension of operation, the Plaintiff Company is responsible for compensating for damages as a result of payment of the total amount of wages of 124,214,488 won. However, there is no proximate causal relation between the flood damage of this case and the Plaintiff Company 1’s damages equivalent to the above wages. Thus, the above assertion is without merit.

B. Damage of Plaintiff 2

The damages suffered by Plaintiff 2 due to the instant damages are KRW 174,524,94 (=34,484,908 + 60,364,00 + 10,56,70 + 59,266,260 + 9,853,076).

(1) 원고 2 회사의 공장 내 셋팅기 진공펌프, 국선단자함 및 키폰 배선, 웜박스, 전기밥솥 등 가전제품 및 공장 담장이 침수로 파손되었으므로 이를 수리하거나 교체한 비용 : 합계 34,484,908원

[Reasons for Recognition] Gap No. 13-6-12

(2) The repair cost and replacement cost, on the ground that the electric vehicles and electric vehicles parked in the factory, such as the ornamental boiler, punch-type boiler, sinfin, scin-type external motor, cze-type motor, set-type type motor, crating rooms, septic tank, septic tank, cream tank, cream, electric installations, etc., and the electric vehicles and electric vehicles parked in the factory are destroyed or operated by flooding, and thus the repairs cost and replacement cost are a total of 60,36

[Reasons for Recognition] Gap No. 13-22

(3) 위와 같이 웜박스, 연사기 벨트 등을 수리하거나 교체한 후에도 고장이 발생하여, 위에서 수리하거나 교체하지 않은 웜박스, 전자변, 벨트, 스핀들, 스텐볼 등을 다시 수리하거나 교체한 비용 : 합계 10,556,700원

[Reasons for Recognition] Gap 13-23-33

(4) The amount of damages paid by the Plaintiff 2 to the on-site fiber Co., Ltd. due to the loss of 3,175 kilograms or the inundation of the raw yarns kept in the factory upon request of processing from the on-site fiber Co., Ltd., and due to the lack of commercial value: 59,266,260 won

[Reasons for Recognition] Gap 13-34

(5) Of the raw yarns that were flooded as referred to in the above paragraph (4), 10,80 kilograms, which were lost after the process was completed, etc., and were not collected from the upper fiber Textiles Co., Ltd.: KRW 10,584,000, which was sought by the Plaintiff 2 Co., Ltd. 9,853,076

[Reasons for Recognition] Gap 39-2

(6) The plaintiff 2 discontinued the operation of a factory due to flood from September 1, 2002 to October 15, 2002 due to the flood disaster of this case. The plaintiff 2 claimed that even during the period of suspension of operation, it is liable to compensate for damages since it paid the total amount of wages of 22,890,732 won to workers. However, there is no proximate causal relation between the flood disaster of this case and the damage suffered by the plaintiff 2. Thus, the above assertion is without merit.

4. Limitation on liability; and

(3) In full view of the above-mentioned facts and evidence Nos. 2 and 11-1 and 2, it is reasonable to limit the amount of damages caused by the tortfeasor's negligence to the remainder after deducting the portion deemed to have contributed to natural ability from the point of fair burden of damages (see, e.g., Supreme Court Decision 2001Da734, Jun. 27, 2003). In full view of the above-mentioned facts and evidence No. 2, No. 2, and No. 11-2, it is reasonable to limit the amount of damages caused by the typhoon's damage to the whole country due to the heavy concentration of 246 people from August 30, 202 to September 1, 202, it was difficult for the Plaintiffs to take measures to prevent the heavy damage caused by the typhoon's damage to the life and the property damage caused by the storm, etc., which was caused by the heavy quantity of damage caused by the storm, which was caused by the Defendant's large quantity of damage to the area of the immediately preceding 700 million.

5. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1 company 937,956,675 won (=3,126,522,250 won x 0.3), to the plaintiff 2 company 52,357,483 won (=174,524,94 won x 0.3, and less than won) and to pay damages for delay calculated at the rate of 20% per annum under the Civil Act from September 1, 2002 that the defendant sought after the date of the tort of this case, which is deemed reasonable to dispute about the existence and scope of the above obligation, from September 1, 2002 to May 3, 2007, and from the next day to the date of the decision of this case, 5% per annum under the Civil Act, and 20% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

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

Judges Jin Sung-sung (Presiding Judge) Kim Young-American