Plaintiff 1 and 3 others (Law Firm Sim Law, Attorney Lee Lee-soo, Counsel for the plaintiff-appellant)

Defendant 1 and three others (Attorneys Kim Young-chul et al., Counsel for the defendant-appellant)

December 13, 2007

1. The plaintiffs' claims against the defendants are all dismissed.

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

The defendants jointly and severally pay to plaintiffs 118,451,130 won, and 111,483,050 won to plaintiffs 3, and 4 respectively, and 5,000,000 won to plaintiffs 1, 111,483,050 won, and 5% per annum from September 2, 2004 to the date of the pronouncement of this case, and 20% per annum from the following to the date of full payment.

1. Basic facts

The following facts may be acknowledged by taking into account each part of Gap 1, 24, 6, 7, 10, 11, 12, 13, 14-1, 14-2, 14-7, 14-11, 14-20, and 14-20, Gap 14-16, 15 through 17 (including each number of 15 through 17), Gap 14-16, and 17 (including each number of 11, 13, 14-13, 15 through 17), Gap 9-1 through 9-6, the entire purport of arguments in the field inspection of this court, and any part of Gap 14-16, 15 through 17 (including each number of 17), and each part of Gap 18 through 217 (including each number of 15 through 17), contrary thereto.

A. The occurrence of the instant accident

(1) The non-party 1 (the deceased) who was enrolled in the second grade of the public college of ○○ University (hereinafter referred to as “the non-party 3”) entered the main shop of “○○○○○○○” (hereinafter referred to as the “the building of this case”) in which the members of his university of ○ University were 10 (the president non-party 3, non-party 4, non-party 5, non-party 6, 7, 8, 9, 10, 11), together with the members of his university of ○○○○ University of ○ University of ○○ University of 200 on September 2, 200 on the 17th floor where he was living together with approximately 17 soldiers at a meeting, and she was drinking at the 17th floor of the building of ○○○○○○ (hereinafter referred to as “the main shop of this case”) which was operated by Defendant 1 (hereinafter referred to as “the non-party 1”).

(2) While drinking while drinking alcohol, she was playing a breath, she was able to find a brue who she was her bath to her, and she was able to do so by doing scam, Nonparty 9, who was on duty of the Deceased, calculated a brue at the accounting unit, and other members are separate doors leading to the outside stairs of the building, which are installed outside stairs of the building (the main points of this case are the doors leading to the interior stairs of the building; hereinafter referred to as the stairs of this case) through the entrance leading to the outside stairs of the building, other than the entrance leading to the deceased and leading to the outside stairs of the building at the above main points (the main points of this case are the stairs of this case).

(3) Even after the Deceased’s unloading into the first floor, the defect in which Nonparty 2 tried to find out a person for a trial cost and re-influenced the Deceased, but at around 22:50 on the same day, the Deceased again turned into the main place through the instant stairs on the same day, and Defendant 1 took a trial expense ( Nonparty 2 knew that Nonparty 2 was re-influored into the second floor, and was fluored by the Deceased), and Defendant 1 took a trial expense ( Nonparty 2 knew that he was her re-influored into the second floor), and Defendant 1 also 1 took a fluorous fluor between them, such as at the time of bucking the decedent’s chilling at two times.

(4) As above, Defendant 2, who was the wife of Defendant 1, 1, was the deceased’s hand and went to the outside of the main entrance through the entrance leading the deceased to the instant stairs. The deceased was at the top of the stairs, and Nonparty 2 was off the entrance in order to prevent the collision between the deceased and Defendant 1 again. At this time, the deceased was down on the top of the stairs, and the deceased was down on the first stairs, and Nonparty 2 was down on the top of the stairs, and was down to prevent the collision between the deceased and Defendant 1. At this time, the deceased was down to the first floor beyond the rail of the instant stairs of the instant building (hereinafter “the instant rail”). Accordingly, the deceased died due to the brain diversophys and the death of the deceased on the seventh of the same month.

(5) Defendant 1 was prosecuted on the charge of assault and injury that Nonparty 2 got out of the entrance, and had Nonparty 2 fall down on the first floor due to Nonparty 2’s shoulder outside the shoulder, and had the Deceased do so due to the shock of Defendant 1’s hand (the Busan District Court Decision 2005No301). The above court found Defendant 1 guilty of the charges of assault and injury on November 25, 2005, each of the statements made by Nonparty 2, 3, 9, and 10 investigation agencies and courts, which correspond to the facts charged, and written statements made by Nonparty 5, 12 to investigation agencies, and written statements made by Nonparty 6, 7, and 8 was inconsistent with each other or based on the subjective judgment of the person who made the statement, and it was difficult for the appellate court to find Defendant 1 guilty of the facts charged on the ground that Defendant 1’s assault and assault against Defendant 1 was found guilty on the ground that it became final and conclusive within 1000 tons.

B. Structure of the main entrance and stairs of this case

(1) The instant building is jointly owned by Defendant 3 and 4. At the time of the instant accident, Defendant 1 was running a business by leasing the instant main points located on the second floor of the said building, and there were two entrance doors of the instant main points via the interior stairs of the instant building and having access to the calculation unit through the instant stairs.

(2) The width of the instant stairs is 86 cm, the height of a rail is 76 cm from the first stairs above, 86 cm from the first stairs above, 92 cm from the second stairs, and the height of a rectangular rail support unit installed on the top of stairs above is 99 cm, and the height from the first passage floor above the stairs to the knife is 94 cm.

C. The plaintiff 1 is the father of the deceased, and the plaintiff 2 is the mother of the deceased, and the plaintiff 3 and 4 are the children of each deceased.

2. Judgment on the plaintiffs' assertion

A. The plaintiffs' assertion

(1) Violation of the duty to protect the customer against Defendant 1 and 2

Defendant 1 and 2 have a duty of care to take into account the safety of customers so that customers can drink alcohol safely within the main place and have customers enter the main place of the building safely. While Defendant 1 and 2 should have taken measures to stabilize the deceased who was under the influence of alcohol so that they can do so, Defendant 1 and 2 did not take such measures, and Defendant 2 did assault the deceased, such as a shocking the deceased’s breath, and Defendant 2 did so with the stairs at a fall risk of falling. Since Defendant 1 continued to fall near the stairs even after the Deceased left the stairs, and Defendant 1 was responsible for installing the above safety signs or installing the above safety signs due to the death of the deceased, Defendant 1 and 2 did not have any negligence.

(2) The owner's liability against Defendant 3 and 4

According to Article 18(2) of the Regulations on Standards, etc. for Housing Construction, the railing of external stairs outside the building of this case should be installed at a height of 120 cm. The height is limited to 80 cm, and the protective devices, safety signs, warning signs, etc. for the prevention of fall are not installed. These defects constitute defects in the installation and preservation of structures, and thus, the accident of this case, under the influence of alcohol, occurred, Defendant 3 and 4 are liable to compensate for damages caused by the death of the deceased as the owner of the building of this case.

B. Determination as to the claim against Defendant 1 and 2

In light of the following circumstances, it is difficult to view that Defendant 1 and Nonparty 2 had the duty to protect the deceased from the above stairs, and thus, it is difficult to view the deceased as the Defendant 1’s scambling and scambling of the deceased’s scambling of tobacco at the time of the death’s scambling of tobacco again. However, it is difficult to view the deceased’s scambling of the deceased’s scambling of scambling of scam to the extent that it would have been difficult to view the deceased’s scambling and scambling of the deceased’s scambling of scambling, and it is difficult to view the deceased’s scambling of this case’s scambling of scambling of the deceased’s scambling of this case’s criminal case.

C. Determination as to the assertion of the owner’s liability against Defendant 3 and 4

(1) The provisions related to the building of this case are as follows (the plaintiffs claim that the provisions on the housing construction standards, etc. should be applied, but Article 3 of the Regulations on the Housing Construction Standards, etc., which had been in force at the time, applies to the housing, etc. to be built by the project proprietor under the provisions of subparagraph 5 of Article 2 of the Housing Act after obtaining approval for the housing construction project plan under the provisions of Article 16 (1) of the same Act. Under the provisions of subparagraph 5 of Article 2 of the Housing Act, the term “project proprietor” means the State, local government, the Korea National Housing Corporation, the Korea Land Corporation, the housing site developer registered under the provisions of Article 9, the housing site developer registered under the provisions of this Act or the housing site preparation project executor under the provisions of this Act, and Article 16 of the same Act means the person who intends to implement the housing construction project of not less than the number of houses as prescribed by the Presidential Decree, or who intends to implement the housing site preparation project of not less than the area as prescribed by the Presidential Decree, and the provisions of Article 2015 (2).

The Building Act (amended by Act No. 7511 of May 26, 2005)

Article 39 (Egresses from Buildings, Restriction on their Use)

(1) Buildings and their sites the use and scale of which are determined by the Presidential Decree shall be equipped with corridors, stairs, entrance exits, and other escape facilities, fire hydrants, water tanks, and other fire extinguishing equipment in the sites, and passages necessary for evacuation and fire extinguishing.

(2) Necessary matters concerning the restriction on the use and structure necessary for the safety, sanitation, and fire prevention, etc. of buildings for the use and of scale prescribed by Presidential Decree, fire partition, structure of toilets, stairs and entrances, ceiling height of living rooms, lighting and ventilation of living rooms, and damp-proofing of floors shall be prescribed by Ordinance of the Ministry of Construction and Transportation.

Enforcement Decree

Article 48 (Installation of stairs, Corridors and Doorway)

(1) A stairs and corridor installed in a building of which total floor area exceeds 200 square meters pursuant to Article 39 (2) of the Act shall meet the standards as determined by the Ordinance of the Ministry of Construction and Transportation.

(2) Pursuant to Article 39 (2) of the Act, the entrances of buildings falling under any subparagraph of Article 39 (1) shall be installed in conformity with the standards as determined by the Ordinance of the Ministry of Construction and Transportation.

Rules on the Standards for Evacuation and Fire-Fighting Structures, etc. of Buildings

Article 15 (Standards for Installation of stairs and Corridors)

(1) The stairs installed in a building pursuant to Article 48 of the Decree shall meet the following standards:

2. Handrails (including walls and substitutes therefor) shall be installed on each side of stairs and stairs staff the height of which exceeds 1 meters;

(3) Handrails and floors installed in multi-family housing (excluding dormitories), Class I neighborhood living facilities, Class II neighborhood living facilities, cultural and assembly facilities, sales facilities, medical facilities (excluding funeral parlors), educational research and welfare facilities (limited to social welfare facilities and workers’ welfare facilities not classified into other purposes than children-related facilities and welfare facilities for the aged), office facilities, lodging facilities, amusement facilities, or tourism resting facilities of a building used for the use of main stairs, escape stairs, or special escape stairs of a building used for the use of facilities for the elderly, the aged, and the physically handicapped, and where there is no rail on both sides, a knife shall be installed.

(4) Miscellaneouss and floor finishings, such as railing and walls, under the provisions of paragraph (3) shall be installed in conformity with the following standards:

2. The miscellaneous building shall be at least 5 centimeters away from the wall, etc., and the height from the stairs shall be at least 85 centimeters;

(2) According to the above provisions, the height of the rail of this case should be 85 cm. It is recognized that the height of the rail of this case is 76 cm from the front of the stairs, 86 cm from the first stairs above, 86 cm from the second stairs, and 92 cm from the second stairs, and that the deceased fell beyond the railing from the first upper part of the stairs above and the first stairs above. As seen earlier, it is recognized that only the height from the first stairs first where the deceased was one of the stairs outside stairs of this case among the rail of the building of this case was somewhat lower than the criteria for the relevant regulations.

However, the defect in the installation and preservation of a structure under Article 758 (1) of the Civil Act refers to a state in which the structure is in a state of failing to meet normal safety according to its use. In determining the safety of the structure, it shall be based on whether the installer and custodian of the structure has fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the danger of the structure. Thus, even if an accident occurred from a structure, unless there are special circumstances, if the accident occurred as a result of an exceptional behavior not in compliance with the ordinary usage of the structure, it shall not be deemed that the installer and custodian of the structure has the duty to take protective measures against such accident (see Supreme Court Decision 2004Da21053, Jan. 26, 2006). Thus, it is difficult to see that the accident in question falls short of the above criteria, and thus, it is difficult to see that there is a concern that only one person, who was balk of tobacco under the influence of alcohol, can not be seen as falling short of the criteria for one owner's.

3. Conclusion

Therefore, the plaintiffs' claims against the defendants are dismissed in its entirety as it is without merit, and it is so decided as per Disposition.

Judges Kim Sang-hoon (Presiding Justice)