2012Na3679 Claims

Hyundai Marine Fire Insurance Corporation

Seoul Jongno-ro 178

O ○O

Attorney Park Yong-ok, Counsel for the defendant-appellant

Chungcheongbuk-do

The legal representative of the Do Governor is transferred

Law Firm C&A, Counsel for the defendant-appellant

[Defendant-Appellant]

Cheongju District Court Decision 2012Kadan788 decided June 20, 2012

December 14, 2012

January 22, 2013

1. Of the judgment of the court of first instance, the part against the defendant in excess of the money ordered to be paid below shall be revoked, and the plaintiff's claim corresponding to the revoked

The defendant shall pay to the plaintiff 7,107,00 won with 5% interest per annum from July 21, 201 to January 22, 2013, and 20% interest per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. Of the total litigation costs, 70% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. Of the purport of the judgment of the court of first instance, ‘28,424,00 won' shall be corrected to ‘28,428,000 won'.

1. Purport of claim

The defendant shall pay to the plaintiff 28,428,00 won with 5% interest per annum from July 21, 201 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

In the judgment of the court of first instance, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each description or image of Gap evidence 1 through 5, 7 through 10, 12 through 14 (including paper numbers, hereinafter the same shall apply), Eul evidence 1 through 3, and 8:

A. Status of the parties

The Plaintiff is an insurer who entered into a contract with the dedicated unit insurance with respect to the motor vehicle unit insurance between September 29, 2010 and September 29, 201, and the Defendant is the manager of a local road No. 531.

(b) Occurrence of accidents and payment of insurance proceeds;

(1) On May 25, 201, at around 09:25, 201, the dedicated to the instant car and driving the instant car and driving the 531 local road in front of the restaurant ○○○○○○○○○, which is located in the East East-si at the time of Chungcheongju, from the middle school to the seat of the East-do area, the event that the opposite vehicle going beyond the central line overlaps with the opposite vehicle and falls into South Korea by the left-hand side of the running direction (hereinafter referred to as the “instant accident”). Accordingly, the dedicated to the instant accident was killed.

(2) The Plaintiff paid KRW 710,070,000 won in total, including KRW 210,770,000 and KRW 50,000,000,000,000 of the vehicle insurance money, until July 20, 2011, pursuant to the automobile comprehensive insurance contract concluded with the dedicated deposit.

C. The situation of the accident point of this case

(1) On the road at the instant accident point, the right-hand side of the instant vehicle as the first line road is cut down by mountain, and there is a very urgent slope toward the left-hand side, and there is a strong sloping course below the sloping.

(2) Before and after the point of the instant accident, the instant road was set up on the left-hand side of the instant road, but the instant road was not set up on about 67 meters including the instant accident point. Moreover, the distance from the edge of the opposite road of the instant accident point to the left-hand slope is about 4.5-6.0 meters, and the distance from the opposite side of the instant road to the left-hand slope is about 4.5-6.0 meters, and in the space between the two, the roadside trees are planted.

(3) At the instant accident point, there is a sign informing that the width of the road is narrow on the right side of the road between about 10 meters and about 10 meters in the future at the instant accident point (hereinafter referred to as “instant sign”). The width is connected to the road by the access road (hereinafter referred to as “the access road of this case”). The road at the instant accident point maintains the form of straight line and exceeds about 10 meters in the vicinity of the instant access road, and the road at the instant accident point is a small amount of SS in the shape of “S.”

(4) At the time of the instant accident, the weather conditions of the instant accident site were improved.

(d) the relevant provisions;

(1) Article 39(1) of the Road Act provides, “The structure, facilities, and maintenance, safety inspection, and repair of roads shall be in accordance with the standards prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs.” Article 38(1) of the Rules on the Structure, Facilities, and Equipment of Roads (Ordinance of the Ministry of Land, Transport and Maritime Affairs) provides, “The Minister of Land, Transport and Maritime Affairs may, if deemed necessary for the prevention of traffic accidents, install traffic safety facilities,

In addition, Part III of the Guidelines for Installation and Management of Road Safety Facilities, which is the Ministry of Land, Transport and Maritime Affairs, 2.1.1. (1) of the Road Safety Facilities in Part III of the Ministry of Land, Transport and Maritime Affairs, provides that "the bank protection fence shall, in principle, install the bank protection fence to prevent vehicles out of the road route while driving along, by reducing passengers' injuries and damage to automobiles to minimum level and returning vehicles to normal driving direction, and incidental facilities are facilities with functions such as inducing drivers' starting lines and preventing pedestrians' unauthorized crossings, etc." and 2.2.1. (3) of the same Part II of the same Act provides that "the bank protection fence shall, in principle, be installed outside the bank protection fence to ensure the safety of vehicles outside the road if it is deemed necessary in the sections adjacent to the road, lake, river, marsh, waterway, etc."

(2) Meanwhile, according to the Enforcement Rule of the Road Traffic Act [Attachment 6], a ground board informing the narrow speed of the road is to be installed on the right side of the road at a distance of 50 m to 200m prior to the point where the width of the road is narrow.

2. The assertion and judgment

A. Party’s assertion

(1) Summary of the Plaintiff’s assertion

(A) On the road at the location of the instant accident, there is a defect in the installation and management as follows:

1) A road near the instant accident site seems to have been widened due to the impact of the instant access road. The instant sign is installed more than 50 meters or more than 200 meters, as set forth in the relevant regulations, from the point where the width of the road is narrow, not from the point where it appears to be narrow.

2) In addition, around 67 meters before and after the instant accident site including the instant accident site, the protective fence was not installed, but was cut off.

(B) As above, defects in the construction and management of the Defendant’s road were caused by the occurrence of the instant accident and the expansion of damages, and the Defendant’s liability ratio therefrom should be 40%. As such, the Defendant is obliged to pay the Plaintiff the amount of KRW 28,428,00 equivalent to the Defendant’s liability ratio out of the amount of damages paid by the Plaintiff to the bereaved families of the instant accident 7,1070,000 (=7,1070 x 40/100) due to the Plaintiff’s indemnity.

(2) The defendant's argument

(A) Since the road at a point connected to the instant access road is not a section whose substantial width is narrow, it cannot be deemed as a defect in the construction and management of the instant access road even if the instant signboard was not installed at a distance of 50 meters or 200 meters from the access road.

(B) The road at the instant accident point is a straight line that does not obstruct the front direction at all times. The road at the instant accident point is a straight line that does not have any strings or ices frequently. In addition, traffic accidents have not occurred for the last three years, and there is sufficient time space between the left edge of the road at the instant accident point and the slope of the road at the instant accident point. In addition, the protective fence is installed to prevent vehicles from leaving the right edge of the normal running direction, such as the instant accident, to prevent vehicles from leaving the opposite lane beyond the center, and to prevent the opposite lane from leaving the right edge of the road at the right edge of the road at approximately 67 meters including the instant accident point, it does not constitute a defect in the construction and management of the road. Therefore, it cannot be deemed that the Defendant did not install the protective fence at the edge of the road at the right edge of the road at approximately 67 meters including the instant accident point.

(C) Even if there is any defect in the construction and management of the instant road at the instant location, the instant accident was caused by the intention or gross negligence of the dedicated to the dedicated to the dedicated to the dedicated to the construction and management of the road, so there is no proximate causal relation with the defect in the construction and management of the road

B. Determination

(1) Occurrence of damages liability

(A) Grounds for liability

1) Whether the installation and management of the instant sign was defective

The defects in the construction or management of a public structure under Article 5 (1) of the State Compensation Act refer to the state in which the public structure is not equipped with safety ordinarily required for its use. However, it cannot be said that there is any defect in the construction or management of the public structure merely because the public structure is not completely in a state of completeness and has any defect in its function. In determining whether the public structure is fully safe, the standard should be to determine whether the construction or management manager fulfills 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 the circumstances, such as the purpose of use of the public structure in question, the current state of the place of installation and the situation of the use thereof, etc.

Although the instant sign is installed to inform the right side of the road where the width of the road is narrow at approximately 10 meters in the future at the point of the instant accident, it appears that the width of the road is wider due to visual influence of the part connecting the instant access road with the access road. In fact, the instant accident appears not to narrow the width of the road. In light of the fact that the instant sign appears to be narrow, as seen above, at the point where the width of the road is installed or the point where the instant sign is installed, there is a defect in the installation and management of the instant sign, or there is no other evidence to acknowledge it differently, in view of the fact and the relevant provisions alone, which are recognized above, and there is no other error in the construction and management of the instant sign, or there is no other evidence to acknowledge it differently.

Therefore, this part of the Plaintiff’s assertion is without merit.

2) Whether there is a defect in the installation and management of a protective fence

The construction and management defects of a road, which are public structures, shall be determined physically according to social norms by comprehensively taking into account all the circumstances, such as the location and location of the road, road aid, traffic volume in the event of an accident, and the original purpose of use, and the location, shape, etc. of physical defects (see Supreme Court Decision 97Da49800, Feb. 13, 1998).

The road at the instant accident point is located in the straight line that does not obstruct the night. The fact that there is a space of about 4.5 to 6 meters between the edge of the opposite lane of the instant accident point and the left-hand slope is as seen earlier. In full view of the overall purport of pleadings and arguments in each description or image of the evidence Nos. 3, 5, and 7 from January 1, 2008 to May 24, 201, the day before the instant accident occurred, the instant accident point was not traffic accident occurred on the road. The Ministry of Land, Transport and Maritime Affairs established the installation standards based on the cases where a vehicle driving in the normal direction according to the protective fence, such as Drriday, conflicts between the vehicle driving in the opposite direction and the center line of the vehicle driving in the opposite direction, and it is recognized that there is no conflict between the two main lines and the vehicle driving in the opposite direction.

However, in full view of the aforementioned facts, Article 38(1) of the Rules on Standards for Structure and Facilities of Roads provides that traffic safety facilities, such as protective fences, shall be installed if deemed necessary to prevent traffic accidents. "Road safety facilities installation and management guidelines, which are guidelines with the Ministry of Land, Transport and Maritime Affairs, are to be installed in order to prevent vehicle from escaping from the road outside of the road, and to reduce damage to the road. In principle, the installation of protective fences should be limited to the section where the road is adjacent to the river, etc., and the need for such protective fences is not limited only to the removal and accident prevention, and it is reasonable to view that the Defendant’s installation of the protective fences does not go beyond the central line and the road manager at the opposite direction, even if it is difficult to install the protective fences at the time of the instant accident, and it is reasonable to view that the Defendant’s installation of the protective fences at the time of the instant accident, including the road to the extent that there is an excessive flow of the road following the instant accident.

3) Whether the dedicated unit was intentional

In full view of the overall purport of the pleadings, the facts that the road at the point of the instant accident occurred in the form of straight lines that do not obstruct the night, and that the weather condition was improved on the day of the instant accident are as seen earlier. In full view of the video of the evidence Nos. 8 and No. 8, the fact that the instant accident occurred on the road at and near the instant accident site, but it is not recognized that there was no quimonal sk of the instant car in the road at and near the instant accident site. However, it is insufficient to confirm the fact that the instant accident was caused by the intention of the broadband, and there is no other evidence to acknowledge it otherwise.

Therefore, this part of the defendant's argument is without merit.

4) Sub-determination

Thus, the defendant is liable to compensate for the damage caused by the accident of this case to the dedicated unit and its bereaved family members.

(B) Limitation of liability

However, as seen earlier, the road at the point of the accident in this case is turned into a straight line with no obstacle to the view of the night, and the meteorological condition was also improved on the day of the accident in this case, and the road and its surrounding area of the site of the accident in this case where the wheels of the vehicle in this case does not remain. In light of the fact that the dedicated to the vehicle in this case was negligent by neglecting the steering gear (Hand) while driving the vehicle in this case, and the dedicated to the dedicated to the operation of the vehicle in this case, the dedicated to the dedicated to the operation of the vehicle in this case is deemed to have a large amount of negligence. The degree of such negligence is not to be exempted from the defendant's responsibility, but it was caused by the occurrence of the accident in this case and the expansion of damage, it is reasonable to consider it in calculating the amount of the damage in this case, and it is reasonable to view that the rate of negligence exceeds 90% in light of the above points and various circumstances indicated

(2) Scope of the right to indemnity

⑥ The Plaintiff paid KRW 71,070,00 as insurance money to his bereaved family members is as seen earlier, and in light of the developments leading up to the instant accident, and the degree of damage suffered by the dedicated unit due to the instant accident, the said amount appears to be within the scope of actual damage caused by the instant accident. As long as the amount that the Plaintiff could recover to the Defendant is deemed to be within the scope of actual damage caused by the instant accident, the amount that the Plaintiff could recover should be deemed to be KRW 7,107,00 (=70,000) according to the Defendant’s ratio of liability, unless there are other special circumstances.

3. Conclusion

Therefore, the defendant is obligated to pay damages to the plaintiff at a rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings until the day of full payment, which is the day following the last day of July 21, 2011, which is the day following the day on which the plaintiff's claim is made for the payment of the insurance money that the defendant seeks to pay to the plaintiff, from the day after July 21, 201, to the day when the judgment of the court is rendered, and from January 22, 2013, to the day when the defendant makes a decision on Jan. 22, 2013, which is the day when the defendant paid the insurance money that the plaintiff paid to him.

However, the judgment of the court of first instance is unfair in some different conclusions, so the part against the defendant ordering payment exceeding the above fixed amount among the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the cancelled part is dismissed, and the remaining appeal of the defendant is dismissed as it is without merit.

In addition, "28,424,00 won" in the judgment of the court of first instance is clear that it is a clerical error of "28,428,00 won", and it is corrected.

Dog-Appellee (Presiding Judge)

Kim Jong-Ma

Park Jong-jin