[1] Criteria for recognition of comparative negligence ratio

[2] The case holding that the ratio of negligence should be determined by considering the type and number of the shuttlers installed in the factory, including those attached to the shuttlers, whether the shuttlers with ordinary functions can be cut off by reactioning to a certain degree, a load, a short circuit, etc.

[1] Articles 396, 750, and 763 of the Civil Act / [2] Articles 396, 750, and 763 of the Civil Act

[1] Supreme Court Decision 2003Da6873 decided Feb. 27, 2004 (Gong2004Sang, 529)

Mez Fire Insurance Co., Ltd. (Law Firm N&W, Attorneys Kim Jong-Un, Counsel for the plaintiff-appellant)

Korea Comprehensive Engineering Co., Ltd.

Seoul Central District Court Decision 2010Na7880 Decided June 3, 2010

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. The defendant's appeal is dismissed.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

If the victim was negligent with regard to the occurrence or expansion of damage caused by a tort, such cause shall be considered as a matter of course in determining the scope of compensation for damage by the perpetrator. In relation to the inclusion of the ratio of negligence between the two parties, all circumstances related to the occurrence of the accident shall be sufficiently considered in light of the purpose of the system of fair burden of damage. The fact-finding or determination of the ratio of negligence should not be considerably unreasonable in light of the principle of equity even if it is the exclusive authority of the fact-finding court (see Supreme Court Decision 2003Da6873, Feb. 27, 2004).

The judgment of the court of first instance cited by the court below: (1) the shuttle system installed in the factory of this case was not operated at the time of the fire of this case; (2) the employees of Mana (hereinafter “Mana”) did not leave the factory at the time of the fire of this case while leaving the factory at the time of the fire of this case; (3) the factory of this case was limited to 15% of the defendant's negligence ratio, taking into account the following circumstances: (a) the shuttle system was operated properly; (b) the employees of Mana (hereinafter "Mana") did not have all facilities for fire prevention or prevention, such as the removal from the factory at the time of the fire of this case; and (c) the employees of the supporting country did not have all facilities for fire prevention or prevention, such as the fire of this case, if they fulfilled the safety rules.

그러나 제1심판결이 인정한 사실관계에 의하더라도, 이 사건 화재는 이 사건 공조기 앞부분 전원 인입부 뒷면(공조기 내부면)에 설치된 14㎟ 전기 배선이 공조기 시설 당시 형성된 절연 파괴로 말미암아, 부근 철제 프레임과 접촉함으로써 발생한 전기적 발열에 의해 발화된 것으로 그 주요 원인이 피고의 공조기 제작·설치 과정에서의 결함에 있고, 제1심이 들고 있는 찬나라 측의 잘못은 주로 발화 또는 화재 이후의 손해 확대를 막지 못하였다는 측면을 부각시킨 것에 해당할 뿐 아니라, 이 사건 화재와 같이 가해자와 피해자의 잘못이 경합하여 발생한 경우 어느 한 쪽의 잘못이 없었더라면 화재가 발생하지 않았으리라는 점만을 강조하여 어느 한 쪽의 과실비율을 높게 책정함은 옳지 않으므로(제1심은 찬나라 측의 잘못이 없었더라면 화재가 발생하지 않았거나 적어도 조기 진화되었으리라는 점을 강조하고 있지만, 앞서 본 이 사건 공조기 제작·설치 과정에서의 결함이 없었더라면 찬나라 측의 잘못에도 불구하고 화재가 발생하지 않았으리라는 논리가 성립함은 마찬가지이다), 피고의 과실은 찬나라 측의 과실에 비하여 결코 적다고 할 수 없다.

Nevertheless, the lower court’s determination that recognized the Defendant’s fault ratio as 15% and maintained the first instance court’s judgment, which maintained the comparative negligence in light of the principle of equity, is considerably unreasonable. Therefore, the allegation in the grounds of appeal assigning this error is with merit (after the transmission, a fact-finding court has further deliberated on the type and number of shuttlers installed in the factory of this case, including those attached to the instant mutual aid season, as well as the type and number of them, to a certain extent, and whether electric currents can be cut off by responding to the type of shuttlers installed in the factory of this case, including those attached to the mutual aid season

2. As to the Defendant’s ground of appeal

The defendant alleged in the grounds of appeal that the fire of this case was caused by the care due to the use of the assistance period on the side of Donara, and thus, the defendant is not responsible for the defendant or the defendant's negligence ratio is not less than 15%. However, in light of the relevant legal principles and records, the judgment of the court below that maintained the first instance court which recognized the defendant's tort liability is justifiable, and since the defendant's negligence ratio exceeds 15%, the above argument is not acceptable

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)