In a case where a child playing water in a local second-class river was aware of the death, the local government's liability for damages was denied on the grounds that the child did not fulfill the duty to take safety measures required by social norms in proportion to the danger of the river, or that there was a duty to take special safety measures.

In a case where a child playing water in a local second-class river dynasium, the local government's liability for damages was denied on the grounds that the local government failed to perform its duty to take safety measures to the extent generally required by social norms in proportion to the danger of the river, or that there was no other duty to take other special safety measures.

Article 5 (1) of the State Compensation Act

Plaintiff 1 and two others (Law Firm Taeyang, Attorneys White-gu et al., Counsel for the plaintiff-appellant)

Gyeong-do (Attorney Nam-jin, Counsel for the defendant-appellant)

March 30, 2011

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiff 1 10 million won, 137 million won to the plaintiff 2, 3 million won to the plaintiff 3, and 5% per annum from July 27, 2010 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

A. Plaintiffs 1 and 2 are the parents of Nonparty 1 (the age of 9 at that time) and Nonparty 2 (the age of 7 at that time) who died due to the instant accident, and Plaintiff 3 is the deceased, and the Do governor is the managing authority of the 2nd-class river, which is the river of the 2nd-class local level, a river of the 2nd-class local level, where the Do governor flows in front of the 2nd-class village of the Gyeongsung-gun, the Gyeongbuk-gun, the Do governor under the River Act.

B. On July 27, 2010, Plaintiff 2 visited the said fluence village, which was the top of the direction of the river in order to take the Plaintiff 3 and the Deceased on the water and play the water, but the circumstances left to the lower direction of the river in order to do so but, on the road at the entrance of the said fluence village, the Plaintiff 2 got the Deceased to play the water at a place 600 meters away from the above fluent line to the lower direction of the said fluence village (hereinafter “the instant accident site”).

C. At around 15:40 on the same day, the Deceased, who was playing in water play, was missing from a river water, and the 119 rescue unit called the “instant accident” upon the Plaintiff’s report, discovered the Deceased, who was on the lower end of the search for a part of a time, 50 meters away from the lower end of the instant accident to the lower end of the search for a part of the 119 rescue unit called up.

[Reasons for Recognition] Facts without dispute, Gap 1 to 3 evidence, Eul 2, 21 and 22 (including additional numbers), the purport of the whole pleadings

2. The plaintiffs' assertion and judgment

A. The plaintiffs' assertion

The point of this case is about 10 years before the point of accident, since there was a high risk of accident, the defendant was in need of special safety management because there was a high risk of accident. Also, since the gravel and sand collected from the upstream are the place where the depth of the water is rapidly deep enough to the inside of the river, the defendant who occupies and manages the river of this case shall be responsible for the damage of the deceased's water by neglecting the direction of the river of this case, as the defendant who occupies and manages the river of this case shall be kept at the bottom of the river of this case so that the depth is no longer deep, or where it is difficult to take such measures, the safety personnel shall be assigned and the pedestrian may not enter the area where the depth is deep, and in particular, the defendant shall be responsible for the damage of the deceased's water of this case by neglecting the direction of the river of this case or the river of this case to the effect that "it is dangerous that the river of this case may suffer the damage of the deceased's water of this case."

B. Determination

1) The defects in the construction or management of a public structure under Article 5 (1) of the State Compensation Act refer to the state in which the public structure is not equipped with safety ordinarily required for its use. The defects in the construction or management of the public structure can not be deemed to be defects in the construction or management of the public structure merely with any defects in its function without the completeness of the public structure. In determining whether the safety is satisfied, the criteria should be taken to determine whether the construction manager has fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the danger of the public structure by comprehensively taking into account all the circumstances, such as the use of the public structure in question, the status of the installation site, the situation of its use, etc., in a case where the possibility and possibility of the occurrence of damages due to the defects in the construction or management of the public structure are objectively and objectively, in other words, if the defects in the construction or management of the public structure is under circumstances where the management of the construction manager of the public structure is not possible (see, e.g., Supreme Court Decision 2005Da6788, Sept.

2) First, as to whether the instant accident occurred at the point of accident, 3, 205, 208, and 2009, each of the statements with Evidence Nos. 13, and 14 was insufficient to acknowledge it, and there is no other evidence to acknowledge it. Rather, according to the statements and videos with Evidence Nos. 2, 3-1, and 4, the point of the instant accident occurred on July 17, 2005 is about 30 meters away from the instant accident point to the lowermost straight line from the instant accident point, and other relatively recently occurring in the Sung-gun jurisdiction, the fact that the point of the instant accident was about 300 meters away from the instant accident point to the lowermost straight line from the instant accident point, and the place of the instant accident, which is relatively recent in the Sung-gun jurisdiction, can only be acknowledged at the bottom of the above Han-ri lu, 1, 2000, 1,000 mal.

Therefore, the plaintiffs' above assertion that the defendant has a duty to take special safety measures on the premise that the following accidents occurred several times at the point of accident in this case during the recent years is without merit.

3) Next, as to whether the depth of the instant accident occurred due to the extraction of gravel, sand, etc. at the upstream of the upstream of the instant stream, the Defendant himself acknowledged the fact that the act of collecting aggregate was performed at the upstream of the instant river around 2002, but the instant accident occurred after about 8 years have passed since that time, and there were typhoons and heavy rains during that period, etc., it is difficult to view that the depth was formed rapidly due to the act of collecting aggregate at around 202, and there is no other evidence to acknowledge that the above topography was formed due to the act of collecting aggregate at the upstream of the instant stream and that there was a cause for the instant accident. Even if the above topography was naturally formed due to typhoons, etc. at the instant accident point, it cannot be said that the manager of a natural person has the duty to take measures to ensure the smooth maintenance of the river floor due to the nature of the river.

Therefore, the plaintiffs' above assertion is without merit under the premise that the defendant did not take safety measures to prevent the depth of water by leaving gravel, sand, etc. at the point of the accident of this case.

4) Finally, we examine whether the Defendant erred by failing to perform its duty of care, such as installing risk signs, no access-prohibited fences, etc., or assigning safety personnel at the point of the instant accident.

살피건대, 을 1 내지 26호증(가지번호 포함)의 각 기재 및 영상에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정들, 즉 ① 이 사건 사고지점은 지명도가 있거나 피고가 개발하여 홍보한 물놀이 장소가 아니고, 위 사고지점 인근에 일반 시민들이 이용하거나 왕래할만한 시설물도 전혀 없는 점, ② 박연마을 도로에서 위 사고지점 인근의 제방까지는 샛길을 이용하여야 하는 관계로 차량에 의한 접근이 용이한 곳이 아니었고, 행락객들이 이용할만한 시설이 전혀 없어 다수의 사람들이 왕래하면서 물놀이를 즐기는 곳이 아니었던 점, ③ 실제로도 이 사건 사고 당시는 휴가철 물놀이 성수기에 해당하는 7월 하순이었음에도 원고들 가족만이 이 사건 사고지점에서 물놀이를 하고 있었던 점, ④ 원고 2는 이 사건 하천 인근의 경북 의성군 비안면 서부2리가 자신의 고향인 관계로 인근 지리를 잘 알고 있어서 행락객들이 물놀이를 즐기지 않는 이 사건 사고지점을 찾아 갈 수 있었던 점, ⑤ 이 사건 사고 전날인 2007. 7. 26. 오후경 이 사건 사고지점의 상류지역에 국지성 폭우가 내려 이 사건 하천의 수위가 높아졌고 물은 상당히 혼탁하였음에도 망인들은 평상복 차림에 튜브나 안전조끼 등의 안전장구를 전혀 갖추지 않은 채 물놀이를 한 것으로 보이는 점, ⑥ 이 사건 사고지점을 기준으로 박연마을 입구와 그 부근 제방 등에 2개의 위험표지판(수영금지, 깊은 수심 주의)과 2개의 경고문, 2개의 인명구조함(구명로프, 구명환 비치 등)이 설치되어 있었고, 피고로부터 이 사건 하천에 대한 관리를 위임받은 의성군은 이 사건 사고 발생 전인 2010. 7. 16.과 같은 달 22일 위 인명구조함에 물놀이 예방 인명구조용품인 구명환, 구명조끼, 구명로프 등을 새로이 비치한 점, ⑦ 또한 의성군의 ‘물놀이 인명피해 절반 줄이기를 위한 종합대책’ 및 ‘2010년 물놀이 안전관리 휴일근무자 운영계획’에 따라 비안면은 2010. 7. 10.부터 같은 해 8. 26.까지 이 사건 사고지점을 포함한 여름철 재난취약지 7곳을 매일 2회에 걸쳐 순찰하였고, 2010. 7. 27.부터 같은 해 8. 30.까지 물놀이 휴일 비상근무반을 운영하기도 한 점, ⑧ 원고 2는 차량으로 박연마을 입구 도로를 통하여 이 사건 사고지점 인근 제방 쪽으로 이동하였으므로, 박연마을 입구 도로에 설치된 위험표지판을 보았거나 적어도 볼 수 있었을 것으로 예상되는 점 등에 비추어 보면, 피고에게 이 사건 하천이 갖는 위험성에 비례하여 사회통념상 일반적으로 요구되는 정도의 안전조치의무를 다하지 아니한 잘못이 있다거나 이 사건 하천을 관리함에 있어 원고가 주장하는 정도의 안전조치의무가 있다고 보기 어렵다.

5) Therefore, the above assertion by the plaintiffs on the premise that the accident of this case occurred due to the defects in the management of the river of this case is without merit.

3. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-ju (Presiding Judge)