In a case where: (a) an execution officer, in accordance with the decision of a provisional disposition on the provisional disposition with respect to dredging vessels owned by Party A, laid the possession of Party A and kept the dredging vessels in custody of the creditor; (b) the dredging vessels have broken the glass door due to the typhoon’s influence while being kept in a fixed land; and (c) Party A filed a claim against the State for damages against the State, the case affirming the judgment below which recognized the State’s liability on the ground that there was negligence on the part of the enforcement officer, considering the shape of dredging vessels, the course of typhoons, morals and wind direction, and the possibility of flooding caused by typhoon’s influence, etc., and thus, the execution officer

Article 2(1) of the State Compensation Act, Articles 115, 118, 130(1), 137, and 215 of the Civil Execution Rule

Plaintiff (Attorney Kim Young-soo, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2016Na2002916 decided September 27, 2016

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

The lower court acknowledged the following facts: (a) in accordance with the instant provisional disposition order as to the dredging vessel of this case, the enforcement officer affiliated with the Gwangju District Court laid the Plaintiff’s possession at Naju City and received the dredging vessel to the creditor; and (b) in accordance with the creditor’s application for transfer of the place of seizure, the enforcement officer affiliated with the Gwangju District Court, moving the dredging vessel of this case to Ynam-gun, and then again stored the creditor; (c) while the dredging vessel of this case was kept on the land at the bottom of the land, the lower court acknowledged the fact that the dredging vessel of this case fell into a glass window due to the influence of typhoon Chovab, and caused water and flood by its windows.

Then, based on its stated reasoning, the lower court determined that the Defendant’s liability for damages was recognized by negligence, even though the enforcement officer, who belongs to the above wooden support, has a duty to examine the shape of the dredging boat of this case, the course of typhoons, morals and wind, and the possibility of flooding of the dredging boat due to the influence of typhoons, etc., and neglected his/her duty of care to determine whether to avoid collision. In addition, in cases of a provisional disposition prohibiting the transfer of possession of construction machinery, etc., if the enforcement officer, in principle, directly keeps the object and, in cases of a provisional disposition ordering a third party to keep it, he/she has the duty of care to check so that the object

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the duty of good manager in its judgment, thereby failing to exhaust all necessary deliberation. There was no error in the misapprehension of legal doctrine on the creditor’s deposit contract under an agreement with the enforcement officer, the relationship between the creditor’s deposit contract for storage, the liability of indirect occupant and the liability for non-joint and several liability

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)