2015Na14318 Claims for Damages

A

Korea Commercial Insurance Co., Ltd.

Daejeon District Court Decision 2013Gahap101344 (Main Office), 2013Gaz. decided September 23, 2015

101344 (Counterclaim) Judgment

May 31, 2017

September 6, 2017

1. Of the judgment of the court of first instance, the part against the counterclaim Defendant in excess of the following amount ordered to be paid shall be revoked, and the claim against the counterclaim in excess of the revoked part shall

The counterclaim Defendant shall pay to the counterclaim 15,723,506 won and the interest thereon at the rate of 5% per annum from April 8, 2012 to September 6, 2017, and 15% per annum from the next day to the date of full payment.

2. The remainder of the counterclaim Defendant’s appeal is dismissed.

3. 80% of the total costs of the lawsuit shall be borne by the Counterclaim Plaintiff, and the remainder by the Counterclaim Defendant, respectively.

[Claim]

From April 8, 2012 to the delivery date of a copy of the application for amendment of the purport of the claim of this case, the counterclaim Defendant shall pay to the counterclaim 1,00,000,000 won and the amount calculated by the rate of 5% per annum from the next day to the day of complete payment.

【Purpose of Appeal】

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. Conclusion of a comprehensive automobile insurance contract with the counterclaim Defendant B

A counterclaim defendant is a stock company running non-life insurance business, and entered into a comprehensive automobile insurance contract with B (hereinafter referred to as the "instant insurance contract") and received premiums from B.

○ Insurance Types: Consolidated Automobile Insurance

○ Insured Vehicle: C

○ Insured: B

○ Insurance period: From July 25, 2011 to July 7, 2012, and 25

○ Insurance Contents: Personal Compensation I. II. Larges (100 million won per accident) and personal physical accidents

(b) Occurrence of insurance accidents;

(1) On April 8, 2012, B, at the e station located in Seo-gu, Daejeon (hereinafter “instant gas station”), which is operated by the Lessee, requested H to pay gasoline equivalent to KRW 50,000,00 in the C Launta vehicle owned by B (hereinafter “accidented vehicle”). H began to pay gas to the vehicle involved in the accident and completed payment with the card from B.

(2) Since then, B started an accident vehicle even though it was not separated from the vehicle involved in the accident, it was found that the main ship connected to the main ship was cut off, and as a result, the main ship connected to the main ship was destroyed beyond the floor (hereinafter referred to as “accident”).

(3) On the following day of the instant accident, the State of the Accident was connected to the underground pipelines in the order of Singinging pipes, connecting devices, vertical pipes, and 2.2. The F, at the request of the counterclaim Defendant, has repaired the State of the Accident, was confirmed to confirm that the Na line of the JN ENE, which connects the vertical pipes connected to the State of the Accident and the horizontal pipes connected to the underground tank, was damaged, and replaced by the GNE, which was manufactured on December 2003 at the expense of the counterclaim Defendant.

(4) At the time of the instant accident, the main oil of the instant accident was also destroyed, but the heading supervisor connecting the main organic and piping was not cut, and gasoline was leaked out of the main organic and was not found to flow into the main gas station floor. On April 16, 2016, in the process of the instant accident, the assessment of conformity was conducted through an indirect method of a pressure test for three storage tanks and eight pipes.

C. The result of the first instance appraisal on the soil of the gas station of this case

(1) On February 25, 2014, appraiser G of the first instance trial (person who takes an appraiser oath under the Industry-Academic Cooperation Foundation of the Mailing University, an appraisal agency) collected samples from 13 points of gas stations of this case (hereinafter referred to as “soil of this case”) and investigated soil contamination. As a result, the soil contamination was detected in the area exceeding the soil contamination level at the point of eight points out of 13 points of the table of the annexed map Nos. 2 through 5, 5, 7, 5, 57, 5, 59, and 51 of the annexed map Nos. 13 and 13 of the E (B, E, X, and X1). In addition, the content of gasoline was discovered in the area exceeding the soil contamination level (hereinafter referred to as “B,T, E, X”).

(2) Meanwhile, it was anticipated that the cost required for the purification work of the entire soil of this case would be KRW 522,198,430.

[Ground of recognition] In the absence of dispute, Gap evidence 1, 2, Eul evidence 15, Eul evidence 12-12, Eul evidence 19-12, witness F of the first instance and the appellate court, witness H of the first instance court, the testimony of the first instance court witness H of the appellate court, the appraisal results of the first instance court's request for appraisal of S&T, the purport of the entire pleadings.

2. Determination

A. The assertion of the Counterclaim Plaintiff

In addition, due to the instant accident, the Plaintiff suffered not only damages caused by the destruction of the main pollutant owned by the Lessee that was the main vehicle of the accident, but also damages caused by the contamination of the soil of the gas station operated by the Lessee due to the leakage of gasoline of about 50 to 60 liters. The Defendant requires the expenses of KRW 522,198,430 for the purification of the contaminated soil. The Defendant was replaced by the main pollutant of 203 U.N. (E.N.E.), the difference between the market value of the two main components, but the two main components were 450,000 won, 40,000 won, 200 won, 200,000 won, 200,000 won, 250,000 won, 40,000 won, 250,000 won, 20,000 won, 40,000 won,00 won, 20,000 won.

B. Whether liability for damages was established

(1) Liability for damages caused by the destruction of the state of the accident.

The facts of the instant accident are as seen earlier, and according to the purport of the witness H’s testimony and oral argument, B may recognize the fact of arbitrarily starting an accident even though he did not receive a separate instruction from H to the fact that he was in significant oil (the testimony of witness B does not go against this), even though he did not receive a separate instruction from H to the fact that he was in significant oil (the testimony of witness B does not believe that he did not go against this). The counterclaim Defendant bears the duty to compensate the Lessee for the damage incurred due to the negligence in the instant accident.

(2) Liability for damages caused by the contamination of the soil of this case

In light of the following circumstances, it is reasonable to view that gasoline leaked out to the soil of this case due to the damage of pipes connected to the main amusement of the accident of this case due to the accident of this case and the damage of pipes connected to the main amusement of the accident of this case, and caused the contamination of gasoline in the soil of this case due to the leakage of the pipes connected to the main amusement of the accident of this case, and the leakage of gasoline leaked to the soil of this case by adding the whole purport of the pleadings to the testimony of Gap, Gap, 15, and 16 (including the main number), and the witness F of the court of first instance and the witness of the court of first instance, and the witness H of the court of first instance to the testimony of this case.

(A) The vertical piping connected to the main abandonment is connected to the main abandonment without any other support stand in the underground. In light of the shape of the main abandonment of the accident caused by the accident in question, if the main abandonment of the accident in question goes beyond the main abandonment of the accident, the power of the singing pipe connected to the main building and the vehicle moving into the mobile direction of the vehicle involved in the accident where the main abandonment of the accident occurred, and the vertical piping was also driven in accordance with the direction of the power. Therefore, it is presumed that the vertical piping was destroyed in the form of 2's 'b' type Lart, connected to the vertical pipeline existing in the underground.

(B) In light of the fact that the Plaintiff did not have been discharged from the outside to block all of the gas station of this case after the occurrence of the instant accident, and that the F, which had been repairing the gas station of this case after the date of the instant accident, did not regard the oil in the part of the water pipeline after the date of the instant accident, was inevitable to leak a certain amount of gasoline through the damaged LEL part.

(C) As a result of the appraisal of the Postal Service Industry-Academic Cooperation Foundation of the court of first instance (the soil of this case’s soil contamination survey), it was found that at least 17 times of the base value with the maximum of 775.8mg/km and 22.0mg/km of the base value with the location where the soil contamination level level is detected, the location where the Y, E, X is detected, is very close to the main abandonment of the accident. At that point, Clren was contaminated by at least 7 times of the base value with the maximum of 775.8mg/km.

C. Scope of liability for damages

(1) Scope of liability for damages caused by the main destruction of a facility

(A) Damages caused by a tort shall be deemed as ordinary damages, where the goods are destroyed, the market price at the time of their destruction; where the goods are damaged, the expenses incurred in repairing the goods or restoring them to their original state, or where the repair or restoration to their original state is impossible, or where the expenses are excessive (see Supreme Court Decision 2005Da44633, Apr. 28, 2006).

(B) Comprehensively taking account of the overall purport of the arguments in the statements in Eul evidence Nos. 1 and 8, the fact that it is impossible to repair as it goes beyond the main text of the argument, the market price of the main text of the accident (2003 Japanese No. Dasan) was 1,800,000 to 2,000,000, and the fact that the main text of the accident was the main text of the accident (E.N.E) was replaced by the counter-Defendant replacing the main text of the accident instead of repairing the main text of the accident (E.N.E) in the Republic of Korea, the market price of the main text was 1,300,000 to 1,60,000,000.

(C) Examining the above facts in light of the legal principles as seen earlier, since the damages suffered by the counterclaim due to the damage of the main abandonment of an accident constitute a case where restitution is impossible, the ordinary damages in such a case shall be deemed to be the part where the exchange value of the main abandonment of the accident has decreased. However, since the counterclaim Defendant could not seek a species such as the abandonment of the main abandonment of the accident, it was replaced by the main abandonment of the Republic of Korea in 2003. Thus, the damages suffered by the counterclaim is eventually KRW 450,000 after deducting the average market value of the main abandonment of the main abandonment from KRW 1,450,000, the market value of the main abandonment of the Republic of Korea in 203, which was replaced by the counterclaim Defendant at KRW 1,450,000, the average market value of the main abandonment of the Republic of Korea in 203.

(D) Therefore, the counterclaim Defendant is liable to compensate the Counterclaim Plaintiff for damages equivalent to KRW 450,000,000, which have been incurred due to the organic damage.

(2) The scope of damages liability due to soil contamination

(A) Whether the cost of purifying contaminated soil of this case is ordinary damages

1) Article 393(1) of the Civil Act provides that “The compensation for damages incurred by nonperformance shall be limited to ordinary damages,” and Article 393(2) provides that “The liability for damages arising from special circumstances shall be limited to the time the obligor knew or could have known of the damages.” The ordinary damages referred to in paragraph (1) refer to the damages that would normally arise in light of the transactional concept of the general society or the empirical rule of the general society if the obligor knew or could have known of the damages, barring any special circumstance. The damages arising from special circumstances referred to in paragraph (2) refer to the damages arising from tort by individual and specific circumstances of the parties (see Supreme Court Decision 2013Da66904, Feb. 27, 2014). As such, the above provisions apply mutatis mutandis to tort damages pursuant to Article 763 of the Civil Act, the damages arising from tort shall be limited to ordinary damages, and the damages arising from special circumstances shall be liable only when the tortfeasor knew or could have known

2) In the instant case, it is natural in light of the generally accepted rule of society that the pipes for supplying gasoline are connected to each liquor installed in the gas station, and it is also well-known that even if a vehicle moves under low speed, the degree of power to be terminated depending on the moving distance can be very big. As such, such as the instant accident, if a vehicle moves beyond the length of the main ship, such as the instant accident, directly damaging the main ship if the vehicle moves beyond the length of the main ship, as well as directly damaging the main ship if the underground pipelines connected to it become power, barring special circumstances such as the fact that there is a separate device to support the underground pipeline if the power is reached, the pipeline section connected to the main ship can also be destroyed, barring such special circumstances as the fact that there is a separate device to support the main oil pipeline, and therefore, if so, it is reasonable to deem that the occurrence of a reasonable proximate causal causal relation between the victim or the surrounding land through the lower part of the main oil is beyond the scope of the ordinary damages in light of the fact that the damage occurred between the victim’s natural or the damage.

(B) Specific damages calculation

1) In a claim for damages arising from a tort, where it is difficult to prove specific amount of damage due to the nature of the case, even though the maximum amount of property damage was recognized as having occurred, the court may determine the amount of damage which is the scope of proximate causal relation by comprehensively taking into account all the indirect facts related to the relationship between the parties as revealed by the result of examination of evidence and the purport of the entire pleadings, the background leading up to the occurrence of a tort and property damage therefrom, the nature of damage, and all the circumstances after the occurrence of damage (see, e.g., Supreme Court Decisions 2004Da48508, Nov. 24, 2005; 2004Da60447, Nov. 23, 2006; and Article 202-2 of the Civil Procedure Act newly established on March 29, 2016, also applies to this case).

2) The following facts may be acknowledged in light of the results of the fact-finding on Gap evidence Nos. 4, 5, 7, 9 through 15 (including each number number; hereinafter the same shall apply), Eul evidence Nos. 2, 4, 19, and 20; Eul evidence Nos. 2, 20, and 10; H’s testimony of a witness at the trial of the court of the first instance; the results of the on-site verification by the court of the first instance; the results of the appraisal by the court of the first instance on the mailing University, Industry-Academic Cooperation Foundation, and I; the results of the appraisal by the court of the first instance; the results of the fact-finding by the Korea Environment Corporation of the first instance, the Postal University of the Court, the Industry-Academic Cooperation Foundation of the Mailing University of the Republic of Korea; the results of the fact-finding

(A) the wide range and form of the polluted area expressed as a result of the appraisal;

- Based on the result of analyzing the quantity of samples collected in depth of 13 meters, 2 meters, and 3 meters for each location, among the site site of the instant gas station, the contaminated area of the instant soil was calculated based on ingredients exceeding the potential level using a program that visually expresses the degree of pollution and the distribution of depth-based pollution according to the site table and concentration, based on the result of analyzing the quantity of samples collected in depth of 13 meters for each location at each location (attached drawing number) among the site of the instant gas station, which was requested by the Lessee and the Counterclaim Defendant. The results of the appraisal are as follows: (a) under the premise that the results of the investigation conducted in accordance with the detailed guidelines of the Soil Environment Conservation Act may change the area and body of the contaminated soil if it were to take into account the progress of the impact of the contamination; (b) on the premise that each of B(g) B(g) 288.4 square meters, T(luene) 123.22 square meters, 340 square meters, and HH84.

① In the case of benent components, under the part of the oil tank connected to the principal abandonment of the accident from the cover to the direction of entrance of the gas station of this case (the opposite direction to the outlet where the oil tank is installed) from the principal abandonment of the accident. The scope of pollution has expanded to the entrance direction of the gas station of this case, which has a higher topography than the state of the accident. The lower limit of one meter from the ground to the oil tank of the accident was spread to the point where the lower limit was 2 meters, and the lower limit was 1m, up to 3m from the main abandonment of the accident. The lower limit was 3m from the accident to the point where the lower limit was 3m from the point at which the gas station of this case was located.

② In the case of Toluene, the lower part of the oil tank and the lower part of the oil tank up to one meter from the front part of the gas station of this case from the main part of the accident to the entrance of the gas station of this case were spreaded by concentration in the direction of the entrance of the gas station of this case. The lower part shows the pollution level on the main part of the accident and the lower part of the oil tank up to two meters. The lower part shows a large quantity of distribution around the oil tank and the lower part of the oil tank up to three meters from the lower part by one meter.

③ In the case of siren ingredients, similar to other ingredients, the lower part of the oil tank and the lower part of the oil tank are scattered in the direction of entrance from the entrance of the gas station of this case, centering on a place far away from the front of the gas station of this case, and the lower part are showing a pollution level connecting from the surrounding area of the accident to the surrounding area of the oil tank up to 2m. The lower part was spread to the lower part of the oil tank up to 3m from the lower part of the mark up to 1m. The lower part was higher than the upper part of the oil tank of this case, and the lower part was spread to the entrance of the gas station of this case.

④ 참고로, 휘발유 성분 중 우려기준을 초과하여 검출되지 않은 에틸벤젠(E)의 경우 2~3m 깊이에서만 기름 탱크 바로 앞부분에서 약한 정도의 오염도가 나타났을 뿐이고, TPH는 표지부터 1m 깊이까지는 오히려 휘발유가 들어있는 기름 탱크부분에서 약하게 나타나고, 그로부터 아래로 1m 더 내려가 2m 깊이까지는 사고 주유기 주변에서 높은 오염도를 보이면서 거기서부터 대각선 뒤의 주유기까지 이어지는 오염도를 보이고 있으며, 거기서부터 그보다 1m 더 내려간 3m 깊이까지는 사고 주유기 앞부분의 오염도가 조금 높고 대각선 뒤의 주유기까지 옅은 오염도를 보이며 퍼져있다.

- Of the 726.1 kilometer of the instant gas station site, the area and physical size contaminated only by TPH, excluding the area overlapping the said pollution cause, are 84.68 square meters, 84.68 square meters, B, E, X only, and physical size are 387.8 square meters, 387.8 square meters, and 387.8 square meters, respectively, and therefore, the total contaminated soil area and physical size of TPH, B, E, and X are presumed to be 421.4 square meters, and 421.4 square meters.

B) Analysis of the result of appraisal of pollution purification costs

According to the appraisal of the KOTTTTTT KUTT KUTT 421.4m2, 421.4m2, respectively, on the premise that the total contaminated soil area and the physical size of the gas station in this case are 421.4m2,198,430m2, and the purification purpose of the soil in this case is to be applied in accordance with the Land Environment Preservation Act and the Enforcement Decree of the same Act. However, the soil contamination concerns in three areas of the gas station can be applied in accordance with the provisions of the Land Environment Preservation Act and the Enforcement Decree of the same Act. However, the purification method used to purify contaminated soil within the site and redeem it into new soil is not to reduce the contamination density in principle, but to restore it to the site, it is to be basically removed from the soil station to the site, such as re-Proliferation by the remaining person and the excavation of all contaminated soil existing in the site, the installation of the contaminated soil to remove the contaminated soil to 300% of the contaminated soil to 4060% and the installation work (60640% of the contaminated soil).

C) Determination of the volume of gasoline leaked out of the instant accident

The Lessee asserts that the oil inside the pipeline is about 23 meters of the length of the pipeline from the main pollutant of the accident to the oil tank, and since the diameter of the pipeline is 4 cm (2 cm in radius), the quantity of oil inside the pipeline can be presumed to be 28.8 liter (2 cm x 2 cm x 3.14 x 2,300 cm). Since the oil inside the main pollutant of the accident is about 10 liter of the oil contained in the main pollutant of the accident, not only the oil acquired from the pipe inside the oil, but also the oil additionally leaked until the oil tank is closed after the accident in this case.

In ordinary, if a main oil is normally operated, oil will usually be released from the pipe connected to the main oil tank. The main oil is likely to be leaked from the point where the oil tank is damaged until the valve of the oil tank is closed, and if the oil is shocked to the large part of the main oil tank at the end of the proposal, the oil is automatically suspended, and the oil is not leaked outside the oil. As such, the oil will not flow out outside the oil unless the main oil connected to the main oil from the main oil tank is damaged, regardless of whether the time of the occurrence of the accident was completed, or whether the main oil connected to the main oil from the main oil tank is being damaged. In addition, in the case of pipelines connected to the main oil tank from the oil tank to the main oil tank, there is no possibility that oil leakage will continue from the point where the oil tank was damaged until the valve of the oil tank is closed. In light of the result of the accident after the accident in this case, the oil leakage would not be replaced from the main oil pipeline to the main oil tank.

Meanwhile, according to the witness F’s testimony at the trial, it is generally known that there was oil in the vertical pipeline at the time of replacing the vertical pipeline from the following day of the accident. At the time of replacing the vertical pipeline from the day of the accident, it was memoryed that there was no oil in the vertical pipeline, and it was not confirmed whether there was oil in the horizontal pipeline without memory or memory in the part connected to the horizontal pipeline at the time of replacing the EL newsletter, and as long as the oil was not distributed out due to pressure due to the height of the EL newsletter, the oil in the street pipeline cannot naturally be distributed through EL. Since oil at the time of repair or oil was not broken at the time of repair, it is difficult to see that there was a weak slope that the horizontal pipeline from the accident to the main tank from the damage to the oil tank from the oil tank to the natural presumption of oil in the entire site of the accident.

Therefore, since oil leakage outside the main place of the accident immediately after the accident occurred due to the main oil storage, at least 0.628 m. from the damaged EL, it can be presumed that the degree of oil (a small amount can be viewed as a small amount in consideration of the length of the main pipe, the land slope of the plaintiff's assertion, the time taken until the suspension of the power supply) can be presumed that the oil leakage in the soil of this case can be caused by pressure from the oil tank until the whole is closed due to the suspension of the main valve (2 cm x 23 x 3.14 m.).

D) Results of the soil contamination survey conducted before and after the instant accident

① Results before the instant accident

On September 14, 2009, which was 3 years prior to the instant accident, an industry-academic cooperation foundation established on September 14, 2009, and issued a corrective order to take measures to purify soil contaminated by the head of Seo-gu Daejeon Metropolitan City on Nov. 3, 2009. As part of the soil contamination inspection conducted on a regular basis every two years in accordance with the Soil Environment Conservation Act before taking measures to purify the contaminated soil, the Plaintiff was subject to both B, E, X, and TPH assessment at the soil contamination analysis center on Apr. 26, 2010. Meanwhile, the Lessee submitted an accurate report on completion of the soil contamination purification to the head of the Simna University on Nov. 25, 2010, which was 10 years prior to the said determination date, and 20 years prior to the said determination date, the 20th anniversary of the contaminated soil contamination level was 10 meters away from the soil contamination level and 34 meters of the contaminated soil contamination level.

(2) Results after the accident in this case

On June 5, 2012, two months after the date of the instant accident, the Lessee: (a) requested an industry-academic cooperation foundation of the Chungcheongnam-do University to inspect the level of contamination of the soil of this case on June 5, 2012; (b) as a result of the commission of an inspection on the level of contamination of the soil of this case to the industry-academic cooperation foundation of the Chungcheongnam-do University, the Plaintiff was found at one point (3m of a point in the direction of the oil tank from the front point of the accident 1m) of the soil sample at one point (3m of the point in the direction of the oil tank in the direction of the oil tank) exceeding two times (3.3mg/km) of the standard value was detected; and (c) at three points, TPP was found in excess of the soil contamination risk level.

In addition, on September 6 of the same year by the Industry-Academic Cooperation Foundation of the Daejeon Health University, the results of soil contamination inspection (regular inspection) in accordance with the Land Environment Conservation Act and the detailed collection point are not verifiable, but at one point among four points, the results of the benent composition exceeding 0.7mg/km and the result of the cenent composition was judged inappropriate.

On the other hand, for a period from September 26 to two months from the same year, the Lessee was inspected based on 36 samples collected in four different depths from 36 old oil stations and industrial facilities near the residential area, which the Korea Environment Corporation performed as an agent for the services of the Ministry of Environment. On September 14, 2015, 3 years after the occurrence of the instant case, the Lessee was assessed against all four samples collected from 4 locations (two surrounding the oil tank, one surrounding the pipes, one surrounding the pipes, and one surrounding soil) on September 14, 2015.

E) The period of operation, etc. of the gas station of this case

On August 15, 1994, the Lessee registered its business with the trade name "E gas station" and changed the category of the gas station site of this case into the gas station site of this case until the accident of this case occurred. The Lessee did not construct a replacement of pipes connecting oil tanks and oil tanks buried underground in the gas station of this case. In addition, around 1985, the Lessee acquired the ownership of 1/2 shares with others on the ground of auction when the land category of the gas station of this case is the site of this case, the Lessee acquired the ownership of 1/2 shares from others on the ground of auction and owned the entire share solely after transfer of ownership in around 2002, and then changed the land category of the gas station of this case to the gas station site of this case from the 1970s to the 1990s. According to the Lessee's assertion, the Lessee purchased the gas station site of this case and used it in the light of the light of the land of this case.

3) Examining the facts established above in light of the legal doctrine as seen earlier, the following conclusion is reached.

A) It is recognized that the insured Party B caused the instant accident during the operation of the vehicle involved in the accident and caused gasoline to flow into the gas station site, thereby causing property damage necessary for the restoration of soil contamination to the Counterclaim Plaintiff, and that the maximum amount was rare in the first instance court’s appraisal.

나) 그런데, ① 이 사건 사고가 발생한 곳은 이 사건 사고일로부터 약 18년전부터 반소원고가 주유소로 사업자등록을 하여 주유소 부지로 사용해 왔고, 반소원고의 주장대로라면 그 이전부터도 경운기 수리를 하면서 경유도 사용하였다고 하지만 사용했던 기름이 경유뿐이었는지는 밝혀진 바 없으며, 반소원고가 이 사건 주유소 부지를 취득한 무렵 전후로 부지의 토양오염 여부를 측정한 자료를 제출한 바도 없는 점, ② 이 사건 사고로 인하여 이 사건 토양으로 유출되었다고 추정되는 휘발유의 양은 위 2)의 다)항에서 본 바에 따르면 아무리 많이 잡아도 10리터 미만으로 보이는 점, ③ 이 사건 사고 직후에 이루어진 토양오염검사 결과 사고주유기 근처의 3m 깊이 1개 지점에서 휘발유의 구성성분 중 벤젠성분만이 기준치를 2배 정도 초과하게 검출됨과 동시에, 이 사건 사고와는 무관한 경유의 구성성분 역시 사고주유기 부근 3개 지점에서 검출된 점이라든지, 이 사건 사고일로부터 5개월 뒤에 이루어진 정기검사에서 4개의 검출지점 중 1곳에서만 역시 벤젠성분이 기준치를 약간 넘는 결과가 나왔는데, 다시 그로부터 3주 쯤 뒤에 이루어진 노후주유소 조사에서는 모두 적합판정을 받았고, 제1심 판결 선고 직전(이 사건 사고일로부터는 3년여 뒤) 이루어진 정기검사에서도 적합판정을 받은 사정들은, 아무리 측정지점이 다를 수 있다는 것을 감안한다 하더라도 제1심 법원의 우송대학교 산학협력단에 대한 감정결과(이 사건 사고일로부터 2년여 뒤에 이루어졌는데 사고 주유기 주변 토양에서 크실렌은 17배 이상, 벤젠은 7배 이상 검출)와 모순된다고 볼 근거가 되고, 과연 주유소용지로 사용되는 이 사건 부지에 대해 이 사건 사고 후 몇 번에 걸친 정기검사에서 적합 판정을 받았음에도 기존 주유소를 분해했다가 새로 짓는 것 못지않은 큰 공사를 하는 방식으로 정화를 할 만한 손해가 발생하였다고 볼 수 있는지 의문이 드는 점, ④ 비록 이 사건 사고지점과는 다른 위치에서 발생한 사고였다고는 하지만 이 사건 사고로부터 3년 전 옆 건물의 공사로 인하여 이 사건 주유소의 유수분리기(주유탱크 쪽에 가까움)가 파괴되면서 토양오염이 발생한 사고가 있었는데도 그 사고 발생 후 7개월 쯤 뒤에 있었던 정기검사에서 적합판정을 받았었고, 그 사고일로부터 1년 정도 지난 뒤에서야 오염토양을 화학적 방법으로 정화하는 방식으로 복구하였는데, 당시 오염토양의 분량은 평균 깊이가 0.4m에 불과하고 가로, 세로의 비율도 1.7m와 3.4m 정도였다고 보고하였던 점에다가 뒤 ⑤항에서 언급한 감정결과까지 보태어 보면, 제1심 법원의 우송대학교 산학협력단에 대한 감정결과 중 기름 탱크 주변의 오염은 이 사건 사고 전에 발생한 위 유수분리기 파괴 사고로 인하였을 가능성을 배제할 수 없는 점, ⑤ 제1심 법원의 우송대학교 산학협력단에 대한 감정결과에 따르면, 이 사건 토양의 오염 형태는 지하 1m 층에서는 사고 주유기 주변으로 B∙T∙E∙X가 분포되어 있고 1m 단위로 토양의 깊이가 깊어질수록 오염의 정도가 약화됨에 반하여, 기름 탱크가 위치한 쪽에서는 지표면에 가까울수록 B∙T∙E∙X가 약하게 검출되었으나 지하로 깊어질수록 오염의 정도가 강하게 검출되었고, 특히 지하 3m 깊이에서는 이 사건 토양의 전반에 걸쳐 B∙T∙E∙X가 넓게 분포하여 있었으며 사고 주유기 주변 지하 2, 3m 깊이에서는 TPH 또한 넓은 범위에서 검출되었는데, 이 법원의 같은 기관에 대한 사실조회회신에 따르면 발견된 깊이가 다르다는 것은 오염발생시점이 다르다는 것을 의미한다는 점, ⑥ 또한, 이 사건 주유소의 지반은 입구 쪽보다 출구(주유탱크) 쪽이 낮아지는 형태로 경사가 있다는 점을 고려하면, 지하 1m 층에서 나타나는 오염의 형태는 반대로 주유소 입구 쪽으로 퍼져가는 모습이어서 지반의 형태와 오염 분포 양상이 일치하지 않는데, 이 사건 주유소 부지가 반소원고가 주유소로 사용하기 전에도 유류를 취급하는 용도로 사용되었다는 것이 반소원고의 주장인 만큼 그 오염의 원인이 모두 이 사건 사고로 인하여 누출된 휘발유 때문이라고 단정하기 어려운 점 등을 종합할 때, 반소피고의 피보험자가 일으킨 이 사건 사고로 인하여 이 사건 토양에 유출된 휘발유 성분이 있기는 하나 그로 인하여 반소원고가 입은 토양오염의 정도를 명확하게 계산할 수 없는 사정이 있고, 그에 따라 이를 복구하는 데 드는 비용 역시 구체적으로 그 액수를 입증하는 것이 성질상 곤란하다 할 것이다. 따라서, 위에서 본 것과 같은 이 사건 토양오염 손해가 발생하게 된 경위, 제1심 법원의 감정결과 나타난 이 사건 토양의 오염 정도 및 분포, 이 사건 사고가 발생한 이후의 제반 정황 등의 관련된 모든 간접사실들을 종합하여 상당인과관계 있는 손해의 범위인 수액을 다음과 같이 판단한다.

C) Considering the volume of gasoline leaked from the pipes damaged by the instant accident to the soil of this case comprised of sand layers, and the time elapsed from the time of the instant accident to the time of appraisal, it would be reasonable to limit the soil contamination caused by the instant accident to the main land surrounding the instant accident (attached Form 29 to Ma11), and it would be reasonable to limit the pollution of soil to the main land surrounding the instant accident (the Lessee asserted that there was a part of the pollution caused by leaving the oil tank into the oil tank according to the oil pipe from the main abandoned of the accident). However, in full view of the aforementioned various circumstances, it is insufficient to recognize it only with the result of the appraisal by the court of the first instance, and there is no proviso to specify where the part is located).

Nevertheless, it is difficult to specify the contaminated area or volume of the part in specific figures only with the data so revealed so far, and it is also difficult to determine whether the appropriate method for purifying that part is the method (soil cultivation method) determined by Taelim A&T which has been appraised by the court of first instance. However, if the amount of damages is limited to the extent necessary for restoring the scope of contaminated soil in connection with the accident of this case (attached Form 29 through Ma11) recognized within the scope of the appraisal result, the amount of damages should be calculated only to the extent necessary for restoring the scope of contaminated soil in connection with the accident of this case (attached Form 29 through 11), it is difficult to recognize the necessity of removing, removing, installing and dismantling hazardous materials or soil fences, and reinforced concrete construction (65,630,40 won) among the results of the appraisal entrustment to the court of first instance.

Therefore, it can be sufficiently assessed to the extent that it is necessary to purify the area of 64 square meters [x width of 8(4+4+4m) x 8(4m) in length and physical size of 64m] from the main abandonment of the accident from the main abandonment of the accident and the area of 15,273,506 won (7, 767, 532 won) and the area of contamination and physical size as shown in the result of the appraisal of the 15,273,506 won (8, 207, 532 won), if the amount required to perform the purification work is calculated based on the area and area of contamination indicated in the result of the appraisal of the 1st instance court's industry and industry-academic cooperation foundation for the mailing university of the first instance.

(3) Sub-decisions

Therefore, the counterclaim Defendant is obligated to pay to the counterclaim 15,723,506 won (the destroyed main amount of KRW 450,000 + the amount of damages caused by soil contamination + damages of KRW 15,273,506) and to pay damages for delay calculated at each rate of 15% per annum as stipulated in the Civil Act from April 8, 2012, which is the date of the instant judgment, until September 6, 2017, where it is deemed reasonable for the counterclaim Defendant to dispute the existence and scope of his/her duty to perform.

3. Conclusion

Thus, the claim of this case against the counterclaim defendant against the counterclaim defendant is partly accepted within the scope of the above recognition and the remaining claim shall be dismissed as it is without merit. Since the part against the counterclaim defendant who ordered payment in excess of the above recognition amount among the judgment of the court of first instance that partially different conclusions is unfair, it is revoked and the plaintiff's claim corresponding to the revoked part is dismissed. The remaining appeal by the counterclaim defendant is dismissed as it is without merit.

The presiding judge shall be a judge leap

Judges Shin Dong-han

Judge Lee associate-hoon

1) It indicates whether gasoline is contaminated by gasoline among petroleum ingredients.

2) It indicates whether there is pollution caused by mitt oil, light oil, oil, mitt oil, and mitt oil among the oil ingredients.

3) The front part of the instant accident, the depth point from one meter earlier, the depth point from one meter earlier, the depth point from one meter later in the direction of the oil tank from one meter, and the opposite point from one meter earlier in the direction of the gas station at one meter earlier in the case of the instant accident, 4 meters above the entrance direction of the gas station.

4) Although the legal basis and purpose are different from that of the statutory inspection which is called a regular or occasional inspection, the result of the old-age gas station survey can substitute the result of the statutory inspection.

5) According to the appraisal result, according to the industrial accident insurance premium of 3.7% for each item, safety management expenses of 2.66%, and corporate profits of 10% for each item, each item of construction is included therein.

6) According to the appraisal result, although it appears that the depth of 3 meters has been contaminated, the same area from the surface to the depth of 3 meters has not been evaluated to have been uniformly polluted, so the same degree of area was found to be the same as the one response index for calculating the pollution ratio.

7) 이 사건 토양 중 B∙T∙E∙X에 의한 오염면적 및 체적 대비 사고 주유기 주변 토지 오염면적 및 체적의 비율을 계산하면 64㎡/387.8㎡ x 100 ≒ 16.5203%이 되나, 오염면적 및 체적의 범위가 불명확한 측면을 고려하여 그 비율을 20%로 본다.

A person shall be appointed.