[1] The meaning of "defect in the construction and preservation of a structure" under Article 758 (1) of the Civil Code and the standard for determining its existence

[2] In a case where Gap local government was unable to be provided with tap water agreed upon by the Korea Water Resources Corporation due to an accident involving temporary blocking, and due to which Gap local government claimed damages against the Korea Water Resources Corporation pursuant to Article 758(1) of the Civil Act on the ground that additional expenses, etc. were incurred in the course of performing the duty to supply tap water to citizens, the case holding that the damages claimed by Gap local government cannot be deemed as damages related to the legal interests to be protected from the responsibility for

[1] Article 758 (1) of the Civil Act / [2] Article 758 (1) of the Civil Act

[1] Supreme Court Decision 2008Da61615 decided Feb. 11, 2010 (Gong2010Sang, 507)

Gu-Si (Law Firm Han-ro et al., Counsel for the defendant-appellant)

Korea Water Resources Corporation (Law Firm Sejong, Attorneys Kang Shin-sok et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 2013Na20404 decided October 14, 2015

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Claim for damages due to nonperformance

A. As to the grounds of appeal Nos. 1, 2, and 3

At the lower court, the Defendant failed to perform its duty to supply tap water to the Plaintiff due to the instant accident involving which the temporary block of this case is set up, which constitutes the Defendant’s tap water supply provision or the grounds for exemption stipulated under the instant agreement, and thus, the Defendant asserted that the Defendant is exempted from the duty to supply tap water pursuant to the aforementioned exemption provision. Specifically, according to Articles 56 subparag. 1, 19(2)1 and 3 of the Water Supply Regulation, in the event of a breakdown in the Defendant’s water supply facilities, the Defendant may suspend or restrict the supply of tap water, and in this case, the Defendant shall not be liable for damages suffered by the customer. ② According to Article 10(2) of the instant Convention, the Defendant shall compensate the Plaintiff for a certain amount set forth in the water supply provision, but it shall not apply where it is inevitable to restrict the supply of tap water due to unexpected accidents, etc.

On the premise that the contents of each of the above provisions are exemption clauses, the court below determined that the accident of this case constitutes "accident of water supply facilities" in accordance with the above water supply provision or "accident" in the agreement of this case, on the ground that it was impossible for the defendant to supply tap water to the plaintiff on the wind that the water intake level is lower due to the sudden transfer of temporary water in this case, based on the circumstances set forth in its reasoning.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine or exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

B. Regarding ground of appeal No. 4

For the reasons indicated in its holding, the court below held that the tap water supply provision and the exemption provision of this Convention apply only to the case except for the case caused by the defendant's intentional or gross negligence, and that the concept of gross negligence equivalent to intentional intent has significantly fulfilled the duty of care of a good manager who should be in light of the defendant's special status, and determined that the defendant's default liability due to the accident of this case is exempted in accordance with the above exemption provision, in full view of various circumstances, including the nature of the temporary injunction of this case, design and construction details, the process and contents of the previous repair work after the accident of this case, the defendant's management and inspection of the temporary injunction of this case, and the defendant's measures after the accident of this case.

Examining the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2. Claim for damages due to defects in structures

A. Article 758(1) of the Civil Act provides, “If any damage is inflicted on another person due to a defect in the construction or preservation of a structure, the possessor of the structure shall be liable for the damage. However, if the possessor does not neglect due care necessary for the prevention of damage, the owner shall be liable for the damage.”

Unlike the above general tort, it is based on the legal principle of risk liability to impose interim liability on the possessor with the burden of proof of negligence on the possessor, and to increase liability on the owner by imposing strict liability. In other words, the manager or possessor of a dangerous structure shall exercise due care necessary for the prevention of danger, and if damage is incurred due to the realization of risk, it is fair to impose liability on the manager or possessor of the dangerous structure. Therefore, “defect in the installation or preservation of a structure” refers to the state in which the structure does not have safety ordinarily required according to its use. Determination of whether safety requirements are met should be made based on whether the installer or custodian of the structure has fulfilled his/her duty to take protective measures in proportion to the risk of the structure (see, e.g., Supreme Court Decision 2008Da61615, Feb. 11, 2010).

In light of the contents and legislative purport of the foregoing structure liability provision, and the standard for determining the “defect in the installation or preservation of a structure,” even if any damage was incurred due to a defect in a structure, if the damage was not caused by a realistic realization of the risk related to the defect in the structure, it cannot be deemed as “damage caused by a defect in the installation or preservation of a structure”.

B. According to the records, the Plaintiff did not receive the agreed tap water from the Defendant due to the instant accident, and accordingly, the Plaintiff claimed damages against the Defendant for structural liability under Article 758(1) of the Civil Act on the ground that additional costs, etc. were incurred in the course of performing the duty to supply tap water to the Gu and American citizens.

However, according to the legal principles as seen earlier, it is difficult to view the above damages asserted by the Plaintiff as damages related to the legal interests to be protected at the responsibility of structure. Thus, this part of the Plaintiff’s claim cannot be accepted without further review.

In contrast, the lower court’s determination on the establishment of structure liability and the exemption of the Defendant’s liability on the premise that such damage was caused by the realization of the risks associated with the defect of a structure is erroneous, but the conclusion of rejecting the Plaintiff’s claim on the ground that the liability for the structure is not recognized is justifiable. In so determining, the lower court did not err by misapprehending the relevant legal doctrine or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, contrary to what is alleged in the grounds of

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)