(영문) 부산지방법원 2008.10.10.선고 2008나8581 판결

1. The part of the judgment of the court of first instance against the plaintiff corresponding to the amount ordered to be paid below shall be revoked. 2. The defendant shall pay to the plaintiff 6,097,235 won with 5% interest per annum from February 1, 2006 to October 10, 2008 and 20% interest per annum from the next day to the day of full payment. 3. The plaintiff's remaining appeal is dismissed.

4. Of the total litigation costs, one-half of them shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 9,755,576 won with 5% interest per annum from February 1, 2006 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

Reasons

1. Facts of recognition;

A. At around 204, November 26, 2004, 12:20, Nonparty A1: (a) reported a free fluoral unit to the Bddrid (hereinafter the instant vehicle) for the repair of bend glass; and (b) proceeded on the side road with the house located in Busan Southern-gu 1 unit; (c) however, the cables (hereinafter the instant cable) increased between the utility poles installed on the road and the utility poles (the utility poles No. 46L3) were incurred in the said glass unit; (d) Nonparty A1 was driving the instant vehicle and towing the cables while driving the instant vehicle and towing the cables. The said cable exceeded the bridge of the victim B1 where the said cable was passing along the left side of the road; and (e) Nonparty B1 suffered injury, such as brains, pelles, and pelkes, etc. (hereinafter the instant accident).

B. At the time of the instant accident, the instant cable was lowered and increased up to the height of 2.35 meters above ground.

C. From December 22, 2004 to January 31, 2006, the Plaintiff, the insurer of the instant vehicle, paid KRW 12,194,470 to B1 for hospital treatment expenses and agreed amount.

D. Meanwhile, the above cable is not an electric cable installed by the Defendant for the purpose of supplying electricity, but a common telecommunications business operator installed between the telecommunications business operator and the telecommunications operator for the business (cable cable, etc.). It is not known until now who is the common telecommunications business operator who installed the above cable.

However, it is recognized that key communications business operators pay a certain amount of fees to the Defendant and install cable broadcasting cables such as the instant cable, and that such cable cables are managed by key communications business operators between the Defendant and key communications business operators.

[Ground of recognition] The non-contentious facts, Gap 1 through 7 evidence, Eul 1 evidence, fact-finding with the Korea Electric Power Corporation of the first instance court, the whole purport of the pleadings

2. The parties' assertion and judgment

A. The parties' assertion

(1) The plaintiff asserts that since the accident of this case occurred because the defendant had a duty to safely install and remove the cables for telegraph poles in spite of the defendant's failure to properly manage them, the defendant should pay 9,75,576 won remaining after deducting 20% of the total amount of A1's negligence ratio among the medical expenses, etc. paid by the plaintiff in accordance with Article 682 of the Commercial Act, as the installer of the above telegraph poles, etc., for damages caused by the accident of this case caused by the defects in preservation.

(2) As to this, the defendant asserts that the above cables were installed and managed by the common telecommunications business operators, and they are owned and occupied by them, the defendant is not responsible for managing them, and the utility poles in this case did not have any problems and cables did not have any intention or negligence on the part of the common telecommunications business operators.

B. Determination

(1) Whether the defendant is liable for damages

(A) The defect in the installation and preservation of a structure under Article 758(1) of the Civil Act refers to a situation where a structure does not have safety ordinarily according to its use. In determining whether such safety has been met, it shall be determined on the basis of whether the installer and custodian of the structure fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure (see Supreme Court Decision 99Da39548, Jan. 14, 200). The defect in the installation or preservation of a structure refers to a case where only the defect in the installation or preservation of the structure causes the damage, not a case where only the defect in the installation or maintenance of the structure causes the damage, and even if the defect in the installation or preservation of the structure occurs in concurrence with the act of another party or the act of the victim, it shall be deemed that the damage was caused by the defect in the installation and preservation of the structure, and the defect in the construction or maintenance of the structure shall be deemed to have occurred by the installation or maintenance of the structure (see Supreme Court Decision 2000Da32604, supra.).

(B) We examine whether the Defendant is liable for damages under Article 758(1) of the Civil Act as the possessor of cable that caused the instant accident in accordance with the foregoing legal doctrine.

1) First, we examine whether the Defendant can be seen as the above cable possession under Article 758(1) of the Civil Act.

Modles, installations prescribed in the above law shall have the meaning of "any articles made formally."

In addition, goods attached to any structure, which form the whole structure with the structure, must be treated the same as the structure. Thus, even if the cable of this case was installed by another common telecommunications business operator with the consent of the defendant, the cable of this case is connected through the telegraph pole and the telegraph pole, and the cable of this case, which is installed and preserved by the defendant, is also installed and preserved by the telegraph pole, and the cable of this case, which is installed and attached to the telegraph pole, is in de facto under the control of the defendant, and therefore, the defendant is responsible for repairing or managing the cable of this case externally, and the defendant is the direct possessor of the above cable.

2) We examine whether the following accident can be seen as a result of a defect in the installation and preservation of a structure.

Therefore, the defendant who owns or manages a health room or telegraph pole has a duty to manage the cable by maintaining the adequate height of the cable so that the person or vehicle passing through the lower part of the cable does not face an accident caused by the cable. As long as the instant cable has increased from the ground to the 2.35m above, and the instant accident occurred due to the cable in the instant vehicle that was passing due to this reason, the accident in this case shall be deemed an accident caused by the defect in the preservation of the telegraph system. The fact that the instant cable is not a wire installed by the defendant, but a cable manager in the defendant and the common telecommunications business operator is not the defendant (On the other hand, there is no evidence to acknowledge that the defendant fulfilled the patrol duty).

3) Therefore, the Defendant, as the possessor of the instant cable, is responsible for compensating the victim for the damages incurred to the instant accident caused by the defect in the preservation of the instant cable, and as the Plaintiff acquired by subrogation the victim’s right to claim damages, the Defendant is liable to compensate for the damages within the scope of the insurance money paid by the Plaintiff to the Plaintiff.

(2) Limitation of liability

However, as an AI driving the instant vehicle, it has the duty to drive the instant vehicle in good faith by checking the front side while driving it, which caused the instant accident, and such negligence in A1 has influenced the occurrence of the instant accident and the expansion of damage. In light of the location of the instant accident, the time of the occurrence, the occurrence of the accident, the circumstance of the occurrence of the accident, the degree of the accident, etc., it is reasonable to deem the negligence in A1 as 50%.

(3) Scope of liability

12,194,470 won paid by the Plaintiff to the victim B1 of the instant accident as hospital treatment expenses and agreed money is recognized as losses in proximate causal relation with the instant accident.

Therefore, pursuant to Article 682 of the Commercial Act, the Defendant is obligated to pay to the Plaintiff damages for delay at each rate of 6,097,235 won (12,194,470 won of insurance money paid by the Plaintiff to B1 x 50%) and at each rate of 20% per annum under the Civil Act from February 1, 2006, which is the day following the last day of the Plaintiff’s payment of insurance money, to the Plaintiff, for the existence or scope of the Defendant’s payment of insurance money.

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of recognition under Paragraph 2.b. (3) above, and the remaining claims are dismissed for lack of reason. The judgment of the court of first instance is unfair with different conclusions, and thus the court of first instance orders the defendant to pay the above amount by cancelling the part against the plaintiff as to the part which ordered the above payment among the judgment of the court of first instance. The plaintiff's remaining appeal is dismissed for lack of reason. It is so decided as per Disposition