(영문) 서울중앙지방법원 2014.2.21.선고 2012가합24038 판결

1. The defendant shall pay to the plaintiff 140,00,000 won with 5% interest per annum from April 5, 2012 to February 21, 2014, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall serve 155,00,000 won on the plaintiff and a copy of the complaint of this case shall be served on the plaintiff from the next day.

It shall pay 20% interest per annum from the date of full payment.

Reasons

1. Basic facts

A. Status of the parties

The plaintiff is a person who runs a fish farm (hereinafter referred to as the "fish farm of this case") that collects from the house of the head of Si/Gun/Gu in the vicinity of the bend of the bend of the bend of the bend of Si/Gun/Gu (hereinafter referred to as the "the house of this case") and raises the bend of the public water, and the defendant is a construction company that executes three tools of river work in the vicinity of the above fish farm in accordance with the 4th river of the Ministry of Land, Transport and Maritime Affairs according to the 4th river master plan of the Ministry of Land, Transport and Maritime Affairs.

B. Plaintiff’s operation of fish farms

From around September 195, the Plaintiff installed and used the instant fish farm for the purpose of collecting water to cultivate large-scale pit, etc. while operating the instant fish farm. While large-scale farming pits do not drink in the middle of 6 to 7 months, they go to winter in the middle of 2000, the Plaintiff came to grow in September of the next year. The Plaintiff first shipped the fish farm into the middle of 50 meters if large-scale farming pits were to grow in the middle of 200cm, or operated the instant fish farm in the manner of selling large-scale farming pits to farmers at September of the next year. Meanwhile, while large-scale farming pits did not drink in the middle of 200cm, the Plaintiff is likely to clean the fish farm in the middle of this case on a regular basis because it is likely to cause large-scale pits to leak by water excreta and microbials.

C. The Ministry of Land, Transport and Maritime Affairs planned and decided a four-way water storage and flood damage, and for the purpose of creating a healthy aquatic ecosystem through the improvement of water quality and river restoration. The Defendant contracted and constructed the three sections of the Han River Section 3 of the Han River among the four-way water storage franchise from the Ministry of Land, Transport and Maritime Affairs (Seoul Regional Land Management Office) with the aim of using it as an unclaimed ecological park in the vicinity of the instant house correction and the Yang Fishing Ground, and using it as a reservoir in the event of flood. The construction of the instant land was in progress with the aim of using it as an unclaimed ecological park in the vicinity of the instant house correction and the Yang Fishing Ground as a reservoir. The construction of the instant land was in progress as shown in the attached Table 1 comprehensive plan, including the area of the dam water storage site, the size of the river water storage area, the size of the river area and the size of the river area, the size of the river area and the size of the river area, 30 meters of the river area, 40 meters of the river area and the river area.

3) The Defendant, while carrying out the instant construction, performed the excavation work of the said reservoir from March 201 to June 201, 201, from October 201 to March 201, from around March 201, to around March 201, and from around October 201, from around March 201 to around March 201, to the pottery work.

D. Around February 15, 2011, when the Defendant had continued to perform the instant construction, water still passed in the valley of the two villages located in the upstream of the instant colon, but the water coming from the upstream of the instant colon around February 201 was issued a dried phenomenon where the water coming from the upstream of the instant colon due to the decline in the groundwater level of the instant colon, making it impossible for the Plaintiff to draw water from the instant colon, and accordingly, it was impossible for the Plaintiff to draw water from the instant colon due to the decline in the groundwater level of the instant colon. Accordingly, as the Plaintiff failed to appropriately supply clean water to the fish farms of the instant case, the large-scale colon cultivated in the fish farm by the Plaintiff from February 15, 201 and was closed to the end of February 20, 2011.

[Ground of recognition] A without dispute; Gap evidence Nos. 2, 4, Eul evidence Nos. 1 and 2; Gap evidence Nos. 1; Gap's video; the result of on-site verification by this court; the result of appraisal by an appraiser Park Jung-gu; the purport of the whole pleadings

2. Judgment on the plaintiff's claim

A. Whether the liability for damages occurred

1) The parties’ assertion

Although the Defendant performing the instant construction works had a duty of care to predict changes in groundwater due to river works, the drying of rivers, etc., and to prevent damage to neighboring residents, the Defendant performed the instant construction works without neglecting such duty, and thus, the said construction was dried up and the water level of the instant house modification was lowered. Accordingly, the Plaintiff was unable to draw water from the instant house modification and the large-scale farmers engaged in cultivating in the fish farm area in the instant fish farm collectively closed down. The Defendant shall compensate the Plaintiff for damages caused by the said unlawful act.

B) Defendant’s assertion

The Defendant: (a) designed and executed the instant construction in accordance with the fourth River Pluter franchise determined by the Ministry of Land, Transport and Maritime Affairs, etc.; (b) there was no difference between the groundwater level in the vicinity of the instant construction before and after the instant construction; and (c) the decrease in the water level of the instant house conservation was not due to the construction of the instant construction, but due to the use of large numbers of groundwater in the block farming households nearby the instant house conservation; and (d) there was no installation of the instant house correction itself gravepa 1); and (e) there was a large number of the numbers of the instant house extractions. Accordingly, the Defendant is not liable for the Plaintiff’s discontinuance of the relevant house development.

2) Determination

In light of the purport of the argument as a whole, as to whether the Plaintiff’s large-scale farming pit was closed due to the Defendant’s negligent act, the Defendant engaged in the excavation work in the dry-water reservoir, e.g., g., g., g., g., g., g., g., g., g., 3-m., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g.

Furthermore, the following circumstances, which are acknowledged as a whole by the Defendant’s overall purport of pleadings, i.e., (i) there was no change in comparison of the two village water level around March 201, as alleged by the Defendant (No. 4) with around March 201, since the two village water level was installed at a point 1.2 km away from the e.g., the e., the e., g., 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., the e., the e. the e., the e., the e. the e., the e. the e., the e. the e. the e. the g. the e. the g. the e. the g. the e. the e. the g. the g. the e. the e.

1. In full view of the fact that a lower level of groundwater was excavated than 35 meters and a lower level of groundwater was affected by the lower level of groundwater of the instant aggregate extraction, and that the Plaintiff was unable to draw water as the water level of the instant aggregate extraction was lower than that of the instant aggregate extraction, the Defendant performed a precision construction to minimize vibration damage at the time of construction of the instant aggregate extraction foundation, but it is reasonable to deem that the instant aggregate extraction construction was discontinued by the Plaintiff as it was impossible for the Defendant to draw water in the instant aggregate development due to negligence, which was not predicted and prevented in advance, on the damages that may have on the instant aggregate correction, due to the Defendant’s failure to predict and prevent the instant construction in advance, due to the fact that the instant aggregate extraction level was lower than that of the instant aggregate extraction, and that the Plaintiff’s water level was lower than that of the instant aggregate extraction.

Therefore, the Defendant is liable to compensate the Plaintiff for damages that the Plaintiff sustained as a result of the closure of the large-scale farming village of the instant fish farm due to the instant construction work.

B. The plaintiff's assertion that the amount of damages relating to the closed farming pit is calculated as follows: 1) The plaintiff's assertion that the closed farming pit is liable for damages

Since large-scale farming pits owned by the Plaintiff around July 2010 are 242,00 mar and survival rate is 95%, it is estimated that large-scale farming pits closed around February 201 are 230,000 mar. The price of large-scale farming pits plus 20,000 mar average of 12,50 marg, and 100 mar average of 10,60 mar 1,60 mar 1,60 (=20,000 mar 5: 368,000 mar 960,500 mar 960,60 mar 960,50 mar 96,50 mar 2,605 mar mar 9,605 mar mar 2,605 mar mar 2,600 mar.

B) Determination

(1) As for the method of calculating the amount of damages suffered by the Plaintiff due to the closure of large-scale farming pits in the fish farm in this case due to the instant construction work, deeming that the amount calculated by multiplying the amount of damages suffered by the Plaintiff by the number of the 1st head of the large-scale farming pit at the time of the closure of the fish farm according to the appraiser’s appraisal result as claimed by the Defendant as follows: (a) judged that the appraiser’s yellow dust did not form the market price for the large-scale farming pit at the time of the closure of the fish farm and did not have any significant meaning of the presumption because it did not have any adequate purposes; (b) while the appraiser’s yellow dust did not have any significant meaning for the reason that there was no reasonable use for the price of the large-scale farming pit at the time of the closure of the fish farm; (c) in light of the fact that the size of large-scale farming pit at the time of the closure of the fish farm at the time of the closure of the fish farm, the price of the large-scale farming 20.

Meanwhile, property damage caused by a tort refers to the difference between the property disadvantage caused by an illegal harmful act, that is, the property condition that would have existed without such illegal act and the current property condition that caused such illegal act. If the Plaintiff’s large farm pit was not closed due to the construction of this case, the Plaintiff would have cultivated the large farm pit, and then profit (sale) would have accrued from the sale thereof. From the pertinent profit, the Plaintiff could have obtained profit equivalent to the amount calculated by subtracting the expenses incurred from the time of the death of the Plaintiff from the time of the death of the large farm pit until the time of the sale of the large farm pit mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar s

(2) The calculation of the specific amount of damages (A) the statement in Gap evidence No. 8 of the estimated sales amount of the sexual farming pit, and the appraisal result of appraiser Y, as a whole, the purport of the entire pleadings as to the fact inquiry results on the head of the Gyeonggi-do Marine Resources Research Institute.

24. From July 4, 2010 to July 25, 2010, the head of the Gyeonggi-do Public Water High-Tech Research Institute shall be from the fish farm in this case.

Before the end, large-scale farming pits have 242,00 maws, which were boomed in the field of this case.

the facts confirmed and the fact that the price per 1,400 won per 730 won per maul is between the 1,400 won and the 1,400 won per maul (if the amount is calculated on an average, 1,065 won per maul) may be recognized.

On the other hand, the plaintiff asserts that the price of the large farm pit is 20,00 won per 1 km, 00 won per 1 mari, 1,600 won per 1 mari. However, the above facts acknowledged after considering the overall purport of the arguments, namely, ① the direct sales store in transactions with the plaintiff in order to maintain impartiality in the process of the price investigation, ② the transaction price of the large farm pit 18,00 won per 1 g and 20,000 won per 1 g, but the above appraiser is unreasonable to determine it as the representative price at the time of 201, ③ The above appraiser's additional market price investigation is difficult to determine the price of the large farm pit 11,00 won per 1 g, 100,000 won per 1 g,000 won, and 00 won per 130,000 won per mari 14,70.

Furthermore, at the time of the death of the fish farm in this case, it is deemed that there was a large farm 230,000 maris by applying the survival rate of approximately 95% from the above 242,00 maris to the above 242,00 maris as claimed by the Plaintiff.

If, by the Defendant’s negligence carrying out the construction of the instant fish farm, the Plaintiff’s profit (sale) that the Plaintiff could have accrued from cultivating and selling large-scale fish farms, 244,950,000 won ( = 230,000 x 1,065 won) is expected to be incurred until the sale of large-scale fish farms, if the large-scale fishing village of the instant fish farm was not closed.

In the absence of the closing physician of the large farm pit, the costs anticipated for the Plaintiff to cultivate the large farm pit from the fish farm in this case until the time of sale are the feed expenses, heating expenses, electricity charges, and personnel expenses.

However, in light of the following: (a) in the case of personnel expenses, the Plaintiff employed other persons and did not operate the fish farm of this case; (b) there was no separate personnel expenses; (c) the Plaintiff’s profits that the Plaintiff could have earned by providing labor in the fish farm of this case should also be included in the Plaintiff’s amount of damages; and (d) there was no circumstance to deem that the Plaintiff had profits from providing labor in other places due to the closing of the fish farm of this case; and (b) there was no circumstance to deem that the Plaintiff had profits from providing labor

In the case of feed costs, the following facts and circumstances acknowledged as a whole by adding Gap evidence 11 to the overall purport of argument, namely, the feed efficiency of large-scale agricultural pits means 90% of the weight increased by large-scale agricultural pits when drinking feed per unit, and the average of 1kg of large-scale agricultural pits is 12.5 g, and so if large-scale agricultural pits cultivated by the plaintiff become fat, the total weight anticipated to be 18,40 kilograms ( = 230,00 M: 5 g: 12.20 g) and the plaintiff cultivated large-scale agricultural feed by supplying large-scale agricultural feed by 00 g, 100 g, 200 g, 30 g, 200 g, 30 g, 40 g, 200 g, and 80 g, g, 200 g., g., the plaintiff's total weight is 80 g.

In the case of heating costs, the following facts and circumstances are acknowledged by adding up the overall purport of the pleadings in Gap evidence 12, namely, the plaintiff put a heating to supply hot water to the fish farm in the instant case from middleman of February 2, 2011 to end of March 2011, when the closing company of the large-scale farming village started, and then moved to a fish farm for which heating is not required, so the large-scale farming pit should be put to heating for about 45 days from the closing company. The plaintiff needs to use the boiler for heating in the instant fish farm. The plaintiff used the boiler for heating in the instant fish farm, requiring light oil for about 70 liters per day while using the boiler, and the price of tax exemption through agriculture around March 201 requires 1,072 per liter, it is reasonable to see that the plaintiff's expenses for heating for 3,376,80 won x 705 days x 705 days x 705 days x 705 won.

In the case of electricity charges, when considering the fact that the Plaintiff had to operate four electric mortars for the supply of oxygen for a period of approximately 8.5 months until the end of the large-scale farming mine after the end of the death and the average electricity charges of KRW 27,300 per month are generated, the electricity charges out of the costs anticipated to be incurred by the Plaintiff until the time of the sale of sexual language shall be deemed to be KRW 928,200 ( = 27,300 x 4 x 5 months).

Ultimately, if the Plaintiff’s total expenses anticipated to be incurred until the time of sale of e.g., KRW 35,585,00 ( = 31,280,00 + KRW 3,376,80 + KRW 928,200 + KRW 200) were to be deducted from the estimated sales of e.g., 209,365,000 ( = 244,950,000 - KRW 35,585,00). However, even according to the Plaintiff’s assertion, it appears that it was impossible for the Plaintiff to immediately inform the Defendant of the overall purport of arguments on the e.g., 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., the g., the e., the e., the 12).

Therefore, it shall be considered in calculating the defendant's amount of damages to the plaintiff, but the ratio of the defendant's liability is limited to 70% of the total amount of damages by taking into account all the circumstances shown in the argument of this case including the above circumstances.

(D) If so, the Defendant: (a) out of KRW 146,55,50 (=209, 365, 000 x 70%) as part of the Plaintiff’s claim for damages arising from a tort; and (b) as to KRW 140,00,000, and the following day after the copy of the instant complaint was served on the Defendant, as sought by the Plaintiff.

5. From February 21, 2014, the Defendant is obligated to pay 5% per annum until February 21, 2014, and 20% per annum from the next day to the day of full payment, to dispute over the existence or scope of the Defendant’s obligation.

2) The loss equivalent to the relocation installation cost due to the loss of the integrated modification utility.

The plaintiff could not use the collection and modification of this case for its original purpose due to the construction of this case. The defendant asserts that the plaintiff is liable to compensate the plaintiff for damages equivalent to KRW 15,000,000, which is the transfer installation cost due to the loss of utility of the collection of this case.

According to Gap evidence No. 7, the plaintiff received a written estimate to perform a construction work for installing a collection in another place to replace the collection of this case, and as a result, it can be acknowledged that the plaintiff requires 15,000,000 won for construction expenses, such as groundwater drilling work.

However, in light of the following circumstances, which are acknowledged as comprehensively considering the purport of the entire pleadings in Gap evidence No. 13, it is insufficient to recognize that the plaintiff suffered damage equivalent to the construction cost incurred by relocating the house of this case to another place where the plaintiff was unable to use the house of this case for its original purpose due to the defendant's negligence while performing the construction work of this case, and there is no other evidence to acknowledge this otherwise, and thus, the plaintiff's assertion in this part is without merit.

3. Conclusion

Thus, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit.

Judges

Judges Kang Jae-chul

Judges Dogman

Judges Kim Gin-han

Note tin

1) In order to prevent sand from entering the well, when calculating water at the well, from entering the well, the well-owned sand shall be left in and around the well-owned.

means the manner in which it is reasonable to do so.

Site of separate sheet

A person shall be appointed.

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