[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 peculiar and unique nature of river management as a natural structure and the standard for determining whether there is a defect in the river management

[3] Whether safety can be acknowledged in a case where a river, which has been repaired in accordance with the river maintenance master plan set by the management agency in accordance with the relevant provisions, such as the River Act, is managed by meeting the planned flood discharge, etc. as stipulated in the above master plan (affirmative in principle)

[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 is not equipped with safety ordinarily required for its use. Thus, the defect in the construction or management of the public structure can not be deemed to be a defect in the construction or management of the public structure merely because the public structure is not completely in a state and has any defect in its function. In determining whether the safety is satisfied, the standard should be to determine whether the construction manager 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 the circumstances such as the purpose of use of the public structure in question, the present state of the place of installation and the situation of its use. In case where there is no possibility and possibility of expectation of damage caused by the defect in the function of the public structure objectively and externally, in other words, the defect in the construction or management of the public structure can not be acknowledged if the defect in the public structure is under circumstances where the

[2] There is no choice as to whether a river as a natural structure is originally installed, there is a lot of natural and technological problems in the state of spreading risks, and there are many cases where it is impossible to remove dangerous conditions in a simple manner. It is difficult to predict natural phenomena, which are the source of flowing water, such as the size and scope of rainfall, time of occurrence, etc., or the occurrence of flood. In fact, there is little special circumstance that a river management is inevitable on the basis of flood experience in the past, and it is inevitable to grasp by actual flood, and eventually, it is necessary to complete the repair work of a river aimed at by the State or a river management agency, and it requires a large-scale construction and completion of such work. Since the flood control means are determined by the characteristics of a river basin, it is necessary to have long experience, and it is difficult to find the method suitable for such nature of a river, in light of social and technological characteristics of the river, such as the scale and frequency of the river basin, and other factors that occur in the past, such as the occurrence and management of the river.

[3] Even if a river or a river still has been repaired in accordance with the river maintenance master plan, etc. set by the management agency in accordance with the relevant provisions such as the River Act, it is reasonable to deem that the river has a safety ordinarily in accordance with its intended purpose, unless there are special circumstances, such as the failure to set the planned flood discharge and the planned flood discharge or to urgently change the plan, if the river is under management by satisfying the planned flood discharge and the planned flood discharge stipulated in the above river maintenance master plan, 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 of the River Act

[1] Supreme Court Decision 99Da54004 delivered on February 25, 2000 (Gong2000Sang, 830) Supreme Court Decision 2000Da56822 Delivered on July 27, 2001 (Gong2001Ha, 1937) / [2/3] Supreme Court Decision 2001Da48057 Delivered on October 23, 2003 (Gong2003Ha, 2219)

Plaintiff 1 and 96 others (Attorney Kang Jong-soo, Counsel for the plaintiff-appellant)

Ansan-si et al. (Law Firm KS, Attorneys Kim Yong-hoon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2004Na65956 delivered on August 26, 2005

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

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 in accordance with its use. Thus, the defects in the construction or management of the public structure can not be deemed to be defects in the construction or management of the public structure only with any defects in its function without any complete condition. In determining whether the construction or management of the public structure is equipped with safety above, the criteria for determining whether the construction manager has fulfilled the duty to take protective measures to the extent generally required in proportion to the danger of the public structure by comprehensively taking into account all the circumstances, such as the use of the public structure in question, the current status of the site in question, and the situation of the use thereof, etc., shall be taken into account. In a case where there is no possibility and possibility of a loss due to the defects in the construction or management of the public structure objectively and at a time, in other words, the defects in the construction or management of the public structure can not be recognized if the defects in the public structure are under circumstances where the construction manager cannot exercise any management of the public structure.

On the other hand, there is no choice as to whether a river as a natural structure is originally installed, there is no possibility for it to be naturally existing in the state of flood, and there are many cases where it is impossible to remove dangerous conditions in a simple manner. It is difficult to predict natural phenomena, which are the source of flowing water, such as the size and scope of rainfall, time of generation, etc. while it is difficult to predict the generation of floods, etc., which are the source of flowing water, and in fact, it is difficult to grasp possible and it is inevitable to grasp the river due to experiments which have a certain effect by actual flood, and ultimately, it is necessary to manage the river based on past flood experience. In addition, it is necessary for a long time to complete the repair and maintenance of a river with a large-scale construction work and its completion, and it is reasonable for the management agency to find a method suitable for its characteristics based on the characteristics of the river basin and the nature of the river plan to maintain and manage the river, and it is also reasonable to consider the safety of the river as well as the nature of the plan to manage and manage the river by the river.

According to the records, the facts alleged by the plaintiffs are insufficient to conclude that the height of the lower part of the Samsung 70s is not constructed as a design, and even if it is assumed that the actual height of the lower part of the Samsung 770s is 25.542m (the value obtained by adding 0.3m in thickness of the upper part to 25.242m marked on the cross-section of Samsung 7, among the evidence No. 77), the actual height of the lower part of the lower part of the Samsung 70s does not reach 25.86m for design, it can be seen that the planned flood level is above 25.26m, which is the planned flood level, exceeds 28.2m, and the volume of the lower part of the Samsung 70s as well as the planned flood volume exceeds 104m/s.

In light of the above legal principles and circumstances, in this case where there is no error in the determination of the planned flood discharge and the planned flood discharge from the beginning, or there is no error in the safety ordinarily required for the above bridge to raise the planned flood discharge and the planned flood discharge. Thus, the judgment below to the same purport is just, and there is no error in the violation of the rules of evidence, the ground for appeal, or the inconsistency in the reasoning, as otherwise alleged in the ground for appeal.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below and the records, it is just that the court below affected the flood accident of this case even though the strong rain that occurred between 03:00 on July 15, 2001 and 03:30 on the same day, and such judgment of the court below contains the purport of rejecting the plaintiffs' assertion that only the strong rain that occurred not later than 03:00 on the same day affects the flood accident of this case. Thus, the court below did not err in omission of judgment or by misapprehending the legal principles as to defects in the construction and management of public structures, as otherwise alleged in the ground of appeal.

3. As to the grounds of appeal Nos. 3 and 5

According to the reasoning of the judgment below and the records, as long as the basic plan for the improvement of the river of the Anyang River in 1991 was based on the maximum of 50-year flood frequency, barring any special circumstance, it is reasonable to view that the maximum of 1-hour flood rainfall is also based on the same frequency, barring any special circumstance. Thus, the court below did not determine that the river of the Samsung River was force majeure disaster since the 94.5mm, which was recognized as the 1-hour flood flood accident immediately preceding the river maintenance basic plan, exceeds the maximum of 1-hour flood rainfall per hour based on the above river maintenance basic plan, and the court below determined that the 1-hour flood rainfall immediately preceding the flood accident of the above case falls under the maximum 150-year flood storm, or that it was based on the plan flood calculated on the above basic plan for the improvement of the river of the above river, and that it was not necessary to determine that the flood accident of the above case was an inevitable natural disaster, such as the flood flood forecast and technological limitation in the past.

In light of the legal principles as seen in the ground of appeal No. 1, it cannot be deemed that there is any defect in the construction and management of public structures in the case of force majeure natural disasters without predictability and avoidance possibility as seen above. Thus, the above judgment of the court below is just and acceptable, and there are no errors in the rules of evidence, the misapprehension of legal principles as to defects in the construction and management of public structures, the violation of the duty of explanation, and the incomplete hearing.

4. As to the fourth ground for appeal

According to the reasoning of the judgment below and the records, the bank near Samsung 7, where the flood accident of this case occurred, was 25.4m in the east, 25.50m in the east 25.4m well, and 25.26m in the planned flood level of 50 years, which was set on the basis of the frequency of occurrence of 50m in the east 25.26m above the planned flood level. At the time of the flood accident of this case, the additional flood near Samsung 7, at the time of the flood accident of this case, exceeds 142m in the 142 cubic meters and the estimated flood level exceeds 38% in the planned flood volume, and the estimated flood level exceeds 26.8m in the 26.8m in the planned flood level, and there was no average of 1.2m through 2.1m in the flood area before the flood accident of this case.

Examining the reasoning of the judgment below in light of the legal principles and the above facts, in this case where there were no errors in the determination of the planned flood discharge and the planned flood discharge from the beginning, or there were no special circumstances to raise the planned flood discharge and the planned flood discharge. Thus, the court below's decision to the same purport is justifiable, and there were no errors in the misapprehension of legal principles as to defects in the construction and management of public structures, as otherwise alleged in the ground of appeal.

5. Regarding ground of appeal No. 6

Determination of the value of evidence under the principle of free evaluation of evidence is a matter belonging to the discretionary power of a fact-finding court unless it is against logical and empirical rules (see Supreme Court Decisions 97Meu513, Dec. 8, 1998; 2005Da77848, May 25, 2006, etc.).

In light of the above legal principles and records, the court below is justified in adopting Gap evidence 7 as evidence and not adopting Gap evidence 121 to Gap evidence 126-11 (No evidence No. 126-1 to 11 shall be legally submitted as evidence on the date for pleading) as evidence. It is not erroneous in the misapprehension of the rules of evidence.

6. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)