2018 Ghana 3257911 Reimbursements

A Stock Company

B

September 6, 2019

October 11, 2019

1. The defendant shall pay to the plaintiff 1,687,50 won with 5% interest per annum from January 7, 2018 to October 11, 2019, and 12% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 3,875,00 won with 5% interest per annum from December 7, 2018 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

There is no dispute between the parties, or in full view of the purport of the records and the entire pleadings, the following facts may be acknowledged.

A. The Plaintiff is an insurer that entered into an automobile insurance contract with DK5 vehicles owned by C (hereinafter “instant vehicle”).

B. On October 6, 2018, C parked the instant vehicle at the parking lot of the building of reinforced concrete structure and the flub roof 7th floor (hereinafter “instant building”) located in C, a third party owned by the Defendant, but the instant vehicle was destroyed due to the lack of wind due to typhoon, bean, and the outer wall of the instant building and the signboard installed there was an accident where the instant vehicle was destroyed due to the shock of the instant vehicle (hereinafter “the instant accident”).

C. On December 6, 2018, the Plaintiff paid insurance proceeds of KRW 3,875,000,000, excluding its own charges, at the repair cost, to an enterprise repairing the instant vehicle.

2. The defendant's liability for damages and scope

(a) Occurrence of liability for damages;

1) In a case where a defect in the installation or preservation of a structure causes damage to another person, the possessor of the structure shall be liable for damages (Article 758(1) of the Civil Act). Meanwhile, in a case where a signboard installed on the outer wall of the building is crashed and is injured by the driver, the owner of the building shall be liable for damages under Article 758(1) of the Civil Act as the direct possessor of the outer wall of the building (see Supreme Court Decision 2002Da65516, Feb. 28, 2003).

Therefore, it is reasonable to view that the building of this case was caused by defects that the building of this case did not have safety requirements for its ordinary use in light of the circumstances surrounding the accident and the damaged parts of the building, etc., as seen earlier, in light of the outer wall of the building of this case and the fact that the installed signboard far away from the strong wind and damaged the vehicle of this case. Therefore, the Defendant, the owner of the building of this case, as the direct possessor of the outer wall of the building of this case, is liable to compensate for damages caused by the accident of this case pursuant to Article 758(1) of the Civil Act, unless there are special circumstances.

2) As to this, the Defendant asserts that the instant accident was caused by force majeure, such as typhoon and bean, and that the Defendant is not liable to the Defendant.

The defect in the installation or preservation of a structure under Article 758(1) of the Civil Act refers to a state in which the structure itself lacks ordinary safety, and there is the burden of proof as to the existence of the defect. However, as long as it is acknowledged that there is a defect, it is inevitable even if there was no such defect due to force majeure in a natural disaster, and it was inevitable even if there was no such defect, it shall be interpreted that the damage was caused by the defect in the installation or maintenance of a structure. In such cases, the possessor and the owner of the structure shall not be exempted from liability for damages regardless of the fault (see, e.g., Supreme Court Decision 2004Da66476, Apr. 29, 2005).

As seen earlier, it is insufficient to recognize that the instant accident was caused by the defect in the instant building, and the result of the fact-finding conducted with respect to the F Office of this Court, the Korea Meteorological Administration, the Korea Meteorological Administration, the C&C fire station, the G police station, and the H, as the result of the fact-finding conducted with respect to the instant accident was not sufficient to recognize that the instant accident was caused by force majeure in the natural disaster of typhoon, bean, and there is no other evidence to acknowledge that there was no defect in the instant building. Accordingly, the Defendant’s above assertion is without merit.

(b) limitation of liability

However, in a case of compensation for damages caused by defects in the installation and preservation of a structure, the scope of compensation for damages shall be limited to the remainder after deducting the part which is deemed to have contributed to the natural ability from the point of view of fair burden of damages (see, e.g., Supreme Court Decision 2004Da66476, Apr. 29, 2005). It is reasonable to limit the defendant's liability to 50% in consideration of these circumstances.

C. Scope of damages

Calculation: Total amount of damages 4,375,000 x 50% - Self-Payment 500,000 = 1,687,500 won

Judges Kim Yong-American

* The ruling of small-sum case may choose not to state the reasons in accordance with Article 11-2(3) of the Trial of Small Claims Act.