(영문) 대법원 2015.8.27.선고 2012다42284 판결

1. “Defects in the installation or maintenance of a structure” under Article 758(1) of the Civil Act refer to situations in which a structure does not have safety ordinarily in accordance with its intended purpose. Determination of whether such safety is met must be made on the basis of whether the installer or custodian of the structure fulfilled his/her duty to take protective measures to the extent generally required in proportion to the risk of the structure (see, e.g., Supreme Court Decisions 2008Da61615, Feb. 11, 2010). Furthermore, an accident arising from a defect in the installation or maintenance of a structure does not mean only where only the defect in the installation or maintenance of the structure causes damages. As long as the defect in the installation or maintenance of the structure becomes one of the common causes of the accident, damage arising from an accident is deemed to have occurred due to the defect in the installation or maintenance of the structure (see, e.g., Supreme Court Decisions 2009Da101343, Apr. 29, 2010; 2016Da3616610.

2. Review of the reasoning of the lower judgment, the evidence duly admitted, and the record reveals the following facts.

A. On September 21, 2010, the strong rainfall 259.5m was concentrated in Seoul on September 21, 2010, and the underground school boiler rooms, etc. of Seocho-gu Seoul (hereinafter “Plaintiff’s Housing”) owned by the Plaintiff were flooded (hereinafter “the flood accident of this case”).

B. The Plaintiff’s housing is located between the lower end of the CG and the width of six meters. On the front of the Plaintiff’s housing, there is a communications owner installed by the Defendant for the provision of telecommunications services around 1982 (hereinafter “instant communications owner”).

C. Meanwhile, prior to the instant flood accident, the Plaintiff entered the flood accident due to heavy rain around July 2001. At that time, the Plaintiff filed a civil petition with the Defendant claiming the transfer of the instant communications principle and damages by asserting that the Defendant suffered flood damage due to the instant communications owner. The Defendant promised to investigate the accident site through E, an employee E, to pay KRW 1 million to the Plaintiff as compensation for damages, and to transfer the instant communications owner in the future. However, the Plaintiff failed to implement the investigation until the instant flood accident by the time of the flood accident.

3. Examining these facts in light of the aforementioned legal principles and the evidence duly admitted, the following circumstances are revealed.

A. The instant communications owner is set up immediately front of the Plaintiff’s small residential area, and if the small door exists, the flood accident of this case leads to the passage of the Plaintiff’s underground school room, which became a boiler room, leading to the passing of the instant communications room. If the objects, such as Gemangium and garbage, away from the time of the instant communications line, are coming to the instant communications line, the flow of rainwater is obstructed, and rainwater can be exceeded to the front front of the Plaintiff’s small residential area.

At the time of the intensive concentration that occurred around July 2001, the Defendant became aware of the circumstances where many rainwater flows into the Plaintiff’s housing and the flood damages were expanded due to the existence of the instant communicationsism. Accordingly, it seems that the Defendant promised to transfer the instant communicationsism while compensating the Plaintiff for the damages as above.

Therefore, as long as the existence of the instant communicationsism has been confirmed that rainwater inflows more than general cases in the Plaintiff’s housing and the flood damage may increase, the instant communications owner may be deemed to have failed to meet the safety requirements required by social norms in relation to the Plaintiff’s housing located immediately before that, and even if such situation was caused by natural or artificial changes in the surrounding natural or artificial environment that occurred after the installation of the instant communications owner, it does not change with regard to the flood damage thereafter. Furthermore, since the Defendant who owned or occupied the instant communications owner promised to transfer the instant communications owner as a measure to prevent flood damage, the Defendant failed to comply with the instant communications owner’s duty to protect the management of the instant communications owner, the Defendant did not fulfill its duty to protect the communications owner.

Therefore, in full view of these circumstances, it is reasonable to view that the communications owner of the instant communications at the time of the flood accident was defective in the installation or preservation of structures in a state of failing to meet the safety ordinarily required according to its intended purpose.

B. On the other hand, the day when the flood accident of this case occurred was 259.5mm concentrated in Seoul area, and the rainwater landed from C was flown into the front road of the plaintiff's housing, and the cost of the plaintiff's housing and its surrounding areas was flooded.

However, it is recognized that the above defects in installation or preservation exist in the communications stations of this case.

As long as the defendant does not prove that the flood damage of this case was inevitable due to the above concentration even without the defect, the defect is one of the joint causes of the flood accident of this case, along with the concentration rain, and the plaintiff's flood damage was expanded. The defendant cannot be exempted from liability for damages caused by the defect.

4. Nevertheless, on the erroneous premise that the foregoing defect in the installation or preservation of the instant communications carriers is not recognized, the lower court did not examine whether there was sufficient evidence to prove that the flood damage of this case was inevitable due to concentrated rain to the extent that it could be exempted from liability for damages caused by the defect, and instead denied liability for damages caused by the defect in the installation or preservation of the instant communications system solely on the ground that the flood accident of this case occurred due to concentrated rain.

Therefore, this judgment of the court below is erroneous in the misapprehension of legal principles as to the defect in the installation or preservation of a structure and the causal relationship between the defect in the structure and the damage, which led to the failure to exhaust all necessary deliberations, and thereby exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby adversely affecting the conclusion of

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.