[1] The meaning of "defects in the construction and preservation of public structures or structures" under Article 5 (1) of the State Compensation Act or Article 758 (1) of the Civil Act, and matters to be considered in determining whether safety is satisfied

[2] Whether the position of disabled persons, etc. should also be considered in determining whether the subway or the platform of the national railroad satisfies safety as a public structure (affirmative)

[3] In a case where Gap claimed damages against the Korea Railroad Corporation (the injured) due to an accident falling from the steel platform to the railroad station due to visual impairment, the case holding that Gap's claim was accepted on the ground that the platform lacks ordinary safety requirements to protect the safety of passengers including the disabled, and there is a defect in installation and preservation

[1] The defect in the construction and preservation of a public structure or structure under Article 5(1) of the State Compensation Act or Article 758(1) of the Civil Act refers to a state in which the public structure has failed to have safety ordinarily required for its use. In determining whether such safety has been secured, it shall be based on whether the construction and preservation manager of the public structure has fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the danger of the public structure. Specifically, it shall be determined by comprehensively taking into account the purpose and actual use of the public structure, financial burden necessary for protective measures, possibility of accident prevention, and other relevant laws and regulations.

[2] A subway platform or a station platform is likely to cause a serious damage compared to an accident in other public facilities as much as the general public uses the means of public transportation. As such, the above platform must be equipped with a safe equipment more than other public facilities. In addition, the above platform also has high frequency of utilization of the socially weak who lacks the ability to cope with contingent accidents or risks such as the disabled and the elderly, as well as the above platform is determined whether it meets the safety of public facilities, the above position of the disabled as well as the disabled should be taken into account.

[3] In a case where Gap filed a claim for damages against the Korea Railroad Corporation, who sustained the injury, due to an accident falling from the subway platform due to visual impairment, the case holding that the above platform has not installed a standard type block or a safety gate as stipulated in the "Act on the Promotion and Guarantee of Convenience of Persons with Disabilities, the Aged, Pregnant Women, Etc." although some safety facilities were installed at the time of the accident, and it is reasonable to prevent the above accident by allowing safety personnel, such as service personnel or public duty personnel, to work on the platform in order to prevent safety accidents such as passengers' satisfaction, although it is not stipulated in the law, etc., although it is reasonable to prevent the above accident, the above safety measures were not implemented, and considering the possibility of preventing the accident caused by the safety facilities or safety measures as well as the possibility of preventing the accident caused by such safety measures and the cost of facilities being used therefor, the above platform platform lacks ordinary financial burden to protect the safety of passengers including the disabled.

[1] Article 5(1) of the State Compensation Act, Article 758(1) of the Civil Act / [2] Article 5(1) of the State Compensation Act, Article 758(1) of the Civil Act / [3] Article 5(1) of the State Compensation Act, Article 758(1) of the Civil Act, Article 34(5) of the Constitution, Article 22 of the Welfare of Disabled Persons Act, Article 1 of the Act on Guarantee of Convenience Promotion of Persons with Disabilities, the Aged, Pregnant Women, etc., Article 1 of the Enforcement Decree of the Act on Guarantee of Convenience Promotion of Persons with Disabilities, the Aged, Pregnant Women, etc., [Attachment 1]

Plaintiff 1 and 3 others (Attorney Lee Ho-hoon et al., Counsel for the plaintiff-appellant)

Korea Railroad Corporation, a litigation taking over a lawsuit in Korea

Incheon District Court Decision 2004Gahap4511 Delivered on October 7, 2004

August 16, 2005

1. Of the judgment of the court of first instance, the part against the plaintiffs, which ordered payment, shall be revoked.

The defendant shall pay to the plaintiff 1 5,034,570 won, 1,500,000 won to the plaintiff 2, and 5,000 won to the plaintiff 3, and 4 respectively, 50 million won per annum from January 9, 200 to September 27, 2005, and 20% per annum from the next day to September 27, 2005.

2. All remaining appeals by the plaintiffs are dismissed.

3. The total cost of the lawsuit is ten minutes, which is seven out of which is the plaintiffs, and the remainder is the defendant's each.

4. Paragraph 1 can be provisionally executed.

The judgment of the court of first instance is revoked. The defendant shall pay to the plaintiff 1 224,602,473 won, 3,000,000 won to the plaintiff 2, and 1,000,000 won to the plaintiff 3, and 4 respectively, and 5% per annum from January 9, 200 to the date of pronouncement of the judgment of first instance, and 20% per annum from the next day to the date of full payment.

1. Facts of recognition;

The following facts are either not disputed between the parties, or acknowledged in full view of the overall purport of the pleadings and videos of Gap evidence 12-1, 2, 3, Eul evidence 1, 2, 4, 5, 7 through 10 (including paper numbers), and there is no counter-proof.

A. At around 18:35 on January 9, 200, Plaintiff 1 was a disabled person of Grade 1, who suffered from a visual disorder in the platform platform No. 2 in the e.g., Jeon Young-gun 1, ae., e., e., e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e.,

B. At the time of the accident, the platform of this case was installed from the entrance stairs connected to the platform to the boarding location, and the closed-circuit television which enables passengers to verify their attitudes was installed, and the safety line of yellow and yellow was marked on the side inside about 1m from the edge of the steel side of the platform. However, the safety line was set up on the remaining platform, excluding approximately 30cm in the boarding location and approximately 20cm in the width for the visually disabled.

In addition, the platform was not fixed by the service personnel, but the 1-2 public interest service personnel served in the platform for the maintenance of order and facility management of passengers, and there was no safety pen to prevent the platform fall.

C. Since November 24, 2003, from November 24, 2003 to December 31, 2003, the construction of the facility to supplement the safety of the platform in the Yeongdeungpo Station was implemented, and the width of the safety line block increased to 30cm in whole, and safety fences were installed to prevent the fall of passengers.

D. Plaintiff 2’s wife, Plaintiff 3, and Plaintiff 4 are Plaintiff 1’s children.

E. The Korea Railroad Corporation established on January 1, 2005 and comprehensively succeeded to the rights and obligations of the Korea Railroad or the Korea High-Speed Rail Construction Authority prior to the establishment of the Corporation (the management entity of the platform of this case, regardless of whether before or after succession).

2. Relevant Acts and subordinate statutes at the time of accident.

A. Article 34(5) of the Constitution provides that a physically handicapped person has the right to be protected by the State as stated above. Article 22 of the Act on Welfare of Persons with Disabilities provides that the State and local governments shall take necessary measures, such as safety measures, etc. taking into account the characteristics of the disabled, such as securing refuge paths, installation of braille, voice, and text signs, emergency notification system, etc. for the disabled who experience inconvenience in visual, hearing, and moving in preparation for safety accidents, such as falling accidents, and emergency disasters, etc.

B. In addition, the Act on the Guarantee of Promotion of Convenience of Persons with Disabilities, the Aged, Pregnant Women, Etc. (amended by Act No. 5332 of Apr. 10, 1997, and enforced from Apr. 11, 1998) and its Enforcement Decree stipulate that the owner and manager of public use facilities, such as railroad stations, shall have the owner and manager of such facilities, install convenience facilities to promote the convenience of mobility and use of such facilities in living for the disabled, and shall impose fines, charges for compelling the performance, etc. in the event of violation.

Furthermore, the Enforcement Rule of the above Act (amended by Ordinance of the Ministry of Health and Welfare No. 117, Jun. 8, 1999), [Attachment 1] [Attachment 1] provides that, in the case of platforms that are likely to fall with respect to traffic facility facilities used by persons with disabilities, a rail for the prevention of falling at least 1.1m but not more than 1.5m high from the floor surface of the platform shall be installed at the end of the platform (23-B-5), and in the places where the inducement of visually impaired, such as the platform, is necessary or dangerous, it shall be installed with braille block, such as a type block for the purpose of identification and an inducement block (16-B-1), and the standard size of braille block x 30cm or more (16-A-2).

3. Occurrence of liability for damages;

A. Grounds for liability

(1) The defect in the construction and preservation of a public structure or structure under Article 5(1) of the State Compensation Act or Article 758(1) of the Civil Act refers to a state in which the public structure has failed to have safety ordinarily required for its use. In determining whether such a safety has been secured, it shall be based on whether the construction and preservation manager of the public structure has fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the danger of the public structure. Specifically, it shall be determined by comprehensively taking into account the purpose and actual use of the public structure, financial burden necessary for protective measures, possibility of accident prevention, and other relevant laws and regulations.

(2) On the other hand, subways and station platforms are likely to cause a serious damage compared to safety accidents in other public facilities as much as the general public use widely by means of public transportation, and as such, the above platform must have more safe facilities than other public facilities. In addition, the above platform platform has a high frequency of utilization of the socially weak who lacks the ability to cope with unexpected accidents or risks, such as the disabled and the elderly, as well as the disabled, in determining whether the platform is equipped with safety of public facilities, the above position of the disabled as well as the disabled should be taken into account.

(3) In this case, the platform of this case with a large flat population as a health team and transfer station had some safety facilities at the time of the accident, but in consideration of the possibility of preventing accidents caused by the above safety facilities or the possibility of taking safety measures and the costs of installation of the above protective measures, the defendant is not obliged to protect the safety of the disabled in light of the following factors: (a) he did not have a string block (the fact that the string block, which falls short of the standards specified in the Enforcement Rule of the above Act at the time of the accident, was repaired to meet the standards after the accident) or a safety string; and (b) although it is not stipulated in the law, the defendant does not have any duty to protect the safety of the disabled in light of the fact that the above string block is not excessive financial burden on the defendant; and (c) even though the defendant does not have any duty to protect the safety of the disabled in this case, he did not have any duty to protect the safety of the disabled in this case.

B. Limitation on liability

However, in using the platform of this case where the risk of safety accidents as the visually impaired is likely, there was negligence such as re-verification of the safety line-type block or demanding the safe boarding of the service personnel, etc. (the plaintiff did not assert that the accident of this case occurred due to Plaintiff 1's leaving the other passengers and that it was not due to Plaintiff 1's satisfaction). In addition, the plaintiff 1's negligence was enacted at the time of the accident of this case, while the relevant provisions were enacted at the time of the accident of this case, the demand for the safety and convenience of the disabled in the public facilities has become relatively recent, and the defendant's responsibility for the accident of this case has been limited to 30% by taking into account the situation that is relatively recent, and the time and financial burden following the construction of the safety facilities in accordance with the relevant laws and regulations under the national history managed by the defendant.

4. Scope of damages.

(a) passive damage;

The loss of lost income equivalent to the monetary total appraised value of the capacity to operate in the instant accident is 170,598,297 won calculated at the present price at the time of the instant accident, based on the method of deducting intermediate interest at the rate of 5/12 per month, such as written in the attached Form for Calculation of Compensation for Damages, based on the following facts and assessment.

(1) Facts and evaluation of recognition

(A) Gender: male and birth date: August 16, 1954

·Age: 45 years of age and 4 months of age at the time of an accident;

(B) The occupation and income of Plaintiff 1: from May 198 to May 198, the monthly average of KRW 4 million was paid to Plaintiff 1 as an employee of ○○ church, and thus, it is anticipated that at least the above monthly income will be earned while engaging in the same occupation until he reaches 70 years of age.

(C) Aftermath disability and labor ability loss rate: Plaintiff 1 was in an emergency operation on the alley of the brupt, etc. after the instant accident, but the labor ability was reduced by 22.2% due to the high brucated part of the work, etc.

· Potable 14, Page 73, II-B-2, or II-C-2, vocational coefficient 5: 9%

·verte damage (page 14, 79, 1-A-1-d, occupational coefficient 5): 14.5% (age 50%)

[Evidence] In the absence of dispute, empirical rule, and the result of the commission of physical appraisal to the head of the Katol University at the first instance court, the purport of the entire pleadings

(2) Calculation: In the same manner as indicated in the attached table for calculation of damages (less than a month and less than a won for the convenience of calculation)

(b) aggressive damage;

(1) Written treatment: 1,200,000 won in operating expenses;

(2) Future medical treatment costs: Medical treatment costs and pharmacologic treatment costs of KRW 2,504,400 (which shall be deemed to have been disbursed on August 17, 2005, which was after the date of closing argument in the trial for the convenience of accounting, and which is calculated at the present price at the time of the accident, it shall be deemed to have been paid on August 17, 2005, as shown in the attached table of

[Evidence] The result of the above physical appraisal commission, the purport of the whole argument

(c) Set-off of negligence;

(a) Property damage: 173,755,986 won =170,598,297 won +1,200,000 +1,957,689 won); and

(b) Contributory negligence: 70%;

(c) Property damage after offsetting negligence: 52,126,795 won;

(d) Mutual aid:

Emergency treatment costs paid by the Defendant 131,750 won for the Plaintiff 92,225 won for the negligence of the Plaintiff (Evidence No. 3)

(e) consolation money;

(1) Reasons for taking into account: the background and result of the instant accident, the level of the Plaintiffs’ property, and other various circumstances shown in the present argument.

(2) The amount of decision

(A) Plaintiff 1: 3,000,000 won

(B) Plaintiff 2: 1,500,000 won

(C) Plaintiffs 3 and 4: 500,000 won, respectively.

5. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1 5,034,570 won = 52,034,570 won + 3,000,000 won + 3,000,000 won each of the above amounts to the plaintiff 2, 500,000 won and each of the above amounts to the plaintiff 3 and 4 from January 9, 2000, which is the date of the accident of this case, until September 27, 2005, which is the date of the appellate judgment, the defendant raised a dispute as to the existence and scope of the defendant's obligation to perform, and 5% per annum from the next day to the date of full payment, under the provisions of the Civil Act concerning the promotion, etc. of Legal Proceedings until September 27, 2005. Thus, the plaintiffs' claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed. Each of the judgment of the court of first instance is dismissed, and each of the above part of the plaintiffs's appeal is dismissed.

Judges Lee Sang-hoon (Presiding Judge)