[2] The case holding that the burden of proving the cause attributable to the nonperformance under the entrusted management contract exists on the part of the entrusted manager where the entrusted manager who is obligated to collect management expenses from the occupants and pay electricity, water, and water fees on behalf of others fails to perform his/her duties properly, and the owner of the building directly pays electricity and water rates to avoid electricity and water supply and seeks compensation for damages caused thereby

1. Generally, in a claim for damages due to nonperformance, the obligor bears the burden of proving the cause attributable to the nonperformance. Thus, in a case where the entrusted manager’s management work is performed in accordance with the terms and conditions of the entrusted management contract in accordance with the good manager’s duty of care in managing the entrusted management work, thereby causing damage to the delegating person, the burden of proving the cause attributable to the failure to perform the management work under the entrusted management contract is borne by the entrusted manager (see Supreme Court Decision 84Meu1864, Mar. 26, 1985).

The court below acknowledged the facts of the judgment based on its adopted evidence, and found that the plaintiff (Counterclaim defendant; hereinafter the plaintiff only) paid the above money and damages for delay on the ground that the defendant did not properly perform the business of collecting management fees from the occupants of officetels and neighborhood living facilities (building name omitted; hereinafter the building of this case) located in the Nam-gu Incheon Metropolitan City, Nam-gu, Incheon, which is in charge of entrusted management under the entrusted management contract of this case (hereinafter the plaintiff only), and did not pay public charges, such as electricity and water rates, from March 2004 to June, 204, the defendant paid the above money and damages for delay to the plaintiff, while recognizing that the defendant paid the above electricity and water charges incurred during the entrusted management period of the building of this case as the owner of the building of this case, the court below determined that the defendant did not accept the defendant's assertion that the plaintiff did not receive management fees from the tenant and did not have any other evidence to acknowledge that the plaintiff did not pay them.

However, in light of the above legal principles and records, the plaintiff is obligated to impose and collect management expenses, such as electricity and water rates, etc., from the occupants under the entrusted management contract for the building of this case, to pay and collect them on behalf of the occupants, and to claim and receive management expenses and other charges, and to collect management expenses and to use the collected management expenses for the payment of public charges, etc., even though it is obligated to first pay public charges after the collection of management expenses, so that it does not properly perform the duties, such as using the collected management expenses for the entrusted management of the building of this case. Thus, if the plaintiff neglected the entrusted management of the building of this case due to the failure of the plaintiff to pay electricity and water rates for the entrusted management of the building of this case, and the damage was incurred by the defendant due to the payment of electricity and water rates for the purpose of avoiding

Nevertheless, the court below rejected the defendant's assertion on the premise that the burden of proof of the cause for failure under the above entrusted management contract lies in the defendant who is the owner of the building. In so doing, the court below erred in the misapprehension of legal principles as to the allocation of burden of proof or incomplete hearing, which affected the conclusion of the judgment. The ground of appeal on this point has merit.

2. Next, the court below rejected the defendant's assertion as to this part, on the ground that the defendant paid 4,529,830 won for the electricity charge of July 8, 2003 and the electricity charge of August 8, 2003 as the owner of the building, even after the plaintiff commenced the management of the building of this case, it can be recognized that the defendant received management expenses directly from the tenant and managed them until October 2003, since the above management expenses are merely the substitute payment for the management expenses received from the tenant.

However, even according to the evidence adopted by the court below, it is recognized only that the management expenses of the shop occupants have been paid to the head of passbook ( bank account number omitted) in the name of the defendant from October 2003 after the plaintiff commenced the management of the building of this case, and further, even though it is not recognized that the defendant received the management expenses directly from the shop occupants, the court below recognized the facts as stated in its decision and decided as such by the court below was erroneous in the violation of the rules of evidence and in violation of the rules of evidence. The appeal pointing this out also affected the conclusion of the judgment.

3. Finally, the court below rejected the defendant's assertion on this part because the evidence of the judgment alone is insufficient to acknowledge the fact that the defendant lent KRW 2,00,000 to the plaintiff, and there is no other evidence to acknowledge it. In light of relevant evidence and records, the court below's above fact-finding and judgment are just and acceptable, and there is no violation of the rules of evidence, misunderstanding of legal principles, or incomplete hearing as otherwise alleged in the ground of appeal. The appeal on this point is without merit.

4. Therefore, the part concerning the counterclaim of the lower judgment, excluding the loan portion, is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)