The criteria to determine the "defect in the construction and management of public structures" under Article 5 (1) of the State Compensation Act and the criteria to determine the defects in the construction and management of public structures where such public structures are roads.

Article 5 (1) of the State Compensation Act

[Plaintiff-Appellant] Plaintiff 2002Da9158 delivered on August 23, 2002 (Gong2002, 2211)

Samsung Fire and Marine Insurance Co., Ltd. (Law Firm Kimhae & World, Attorneys Hwang Tae-jin, Counsel for defendant-appellant)

Kim Sea-si (Attorney Choi Sung-sung et al., Counsel for defendant-appellant)

Changwon District Court Decision 2011Na11317 decided July 12, 2012

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined.

1. “Defects in the construction and management of public structures” under Article 5(1) of the State Compensation Act refers to a state in which the public structures offered for public purposes are not equipped with safety ordinarily required depending on their use. Whether such safety is satisfied should be determined based on whether the installer or manager of the public structures fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the danger of the public structures. Furthermore, financial, human, and physical restrictions, etc. on the installer or manager of the public structures should also be taken into account. Therefore, in the case of roads that are public structures, it cannot be readily concluded that there is a defect merely because the construction or management of the public structures does not have high level of safety to the extent that they maintain the complete and smooth state of construction and management, and it is sufficient to say that the method of use of the public structures is expected to have relative safety (see Supreme Court Decision 2002Da9158, Aug. 23, 2002).

2. 원심은 그 채용 증거를 종합하여, 소외인이 이 사건 차량을 운전하여 피고 관리의 대청지하차도를 지나던 중 전방에 불상의 물체를 발견하고 우측으로 핸들을 과다하게 조작한 과실로 차량의 전면 가운데 부분으로 이 사건 주차구역의 모서리 부분을 들이받은 사실, 이 사건 주차구역은 위 지하차도의 벽면에서 안으로 움푹 들어간 형태로서 길이 27.54m, 폭 2.9m인 직사각형 모양인데 각 모서리가 직각으로 형성되어 있는 사실 등을 인정하였다. 나아가 원심은, 위 지하차도를 통행하는 차량이 위 모서리를 충격할 경우 대형사고의 위험이 있음에도 불구하고 피고는 위 모서리를 대각선 형태로 만들거나 그 밖에 충격완화 보조물 등을 설치하지 않은 점, 이 사건 주차구역의 존재를 알리는 안내 표지판 내지 모서리 충격의 위험을 알리는 경고 표지판 등이 설치되어 있지도 않은 점 등 그 판시와 같은 사정들을 종합하여, 피고가 사회통념상 일반적으로 요구되는 정도의 방호조치의무를 다하였다고 보이지 아니하고 이 사건 주차구역은 도로로서 통상 갖추어야 할 안전성을 갖추지 못하여 도로의 설치나 관리상의 하자가 있다고 판단하였다.

3. However, in light of the above legal principles, it is difficult to accept the above judgment of the court below for the following reasons.

First of all, according to the reasoning of the lower judgment and the facts acknowledged by the evidence duly admitted by the lower court, the instant parking zone is not “emergency parking zone” as stipulated in the Rules on Standards for Road Structures and Facilities, but is a space for the management of electric facilities, etc. in the above underground parking zone. Thus, it is difficult to view that the above underground parking zone has to meet the facility standards as an emergency parking zone as stipulated in the said Rules. Moreover, the above underground parking zone is installed inside and outside, and there is no special visual obstacle, and the entire area of which is 380 meters in length and is 380 meters in length is a three-lane straight line, and thus, it cannot be ordinarily predicted even to the Defendant, the manager of the above underground parking zone, as the Defendant, who is the manager of the instant parking zone, would receive the wall of the instant parking zone. In addition, there was no data such as the fact that there was an accident similar to the instant parking zone until the instant accident occurred. Therefore, it is difficult for the Defendant to install the instant parking zone in the form of warning or management of the instant parking zone.

Nevertheless, the court below determined that there was a defect in the construction and management of the above underground street solely for the reasons stated in its holding. In such a case, the court below erred by misapprehending the legal principles as to the defect in the construction and management of public structures, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)