1. Part of the building not leased (hereinafter referred to as "part of building other than leased building") due to fire in the part of a leased building that a lessee leased for use and profit-making;

In the event that property damage has occurred to a lessor due to the nonperformance of the duty to preserve and manage the leased property, it is proved that the lessee breached the duty to preserve and manage the leased property and the lessee has breached the contractual duty of the lessee related to the occurrence of the fire, and proximate causation exists between the breach of the duty to preserve and manage the leased property and the damage to the non-leased premises, and the damage to the non-leased premises falls under ordinary damages due to the breach of such duty, or the lessee has

If it can be seen as damages due to the circumstances, the lessee is liable for damages to the lessor pursuant to Article 390 and Article 393 of the Civil Code for the damages incurred to the non-leased premises.

In such a case, a lessee violated the duty of preservation and management to provide the cause of a fire, etc., and there was a proximate causal relationship between such breach of duty and the damage to the non-leased premises, and the damage to the non-leased premises is within the scope of damage to be compensated pursuant to Article 393 of the Civil Act due to such breach of duty (see Supreme Court en banc Decision 2012Da86895, 86901, May 18, 2017).

2. A. The judgment of the court of first instance cited by the court below, on the grounds as stated in its reasoning, is insufficient to recognize that the fire in this case occurred in the instant restaurant, one of the parts of the instant commercial building, but the cause of fire was not revealed, and the evidence alone, which was submitted, was insufficient to recognize that the co-defendant A (hereinafter referred to as "A") of the first instance court, the lessee of the instant restaurant, performed the duty of care as a good manager for the preservation of the instant restaurant. Since each store in the instant commercial building was in an indivisible relationship with the maintenance and existence of the instant commercial building, the said stores in the instant commercial building have a duty to compensate the lessor for the damages incurred to the lessor due to the fire in the instant coffee shop, which is the part other than the leased building, due to the nonperformance of the liability, and the Defendant also has the duty to compensate for the damages incurred to the said part as the insurer of the instant restaurant.

B. Examining the reasoning of the first instance judgment cited by the lower court in light of the evidence duly admitted, the lower court’s determination that the instant fire occurred in the restaurant, but the cause of the fire was not revealed is justifiable.

C. Furthermore, examining these circumstances in light of the legal principles as seen earlier, there is no evidence to prove that A, a lessee of the instant restaurant, breached its duty to preserve and manage, thereby providing the cause of the instant fire, etc., and breached its contractual duty to A related to the occurrence of the instant fire, and thus, there is no liability to compensate A for damages incurred to the instant coffee shop, which is a non-leased part of the instant commercial building.

Nevertheless, solely based on the circumstances indicated in its holding, the lower court affirmed the first instance judgment that determined that A is liable for damages incurred to the non-leased premises of a building, and on such premise, the Defendant also is liable for the same damages. In so determining, the lower court erred by failing to exhaust all necessary deliberations as to the lessee’s liability for damages incurred to the non-leased premises of a building where the non-leased premises were destroyed by a fire that occurred in the leased building. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

The lower judgment is reversed without further proceeding to decide on the remaining grounds of appeal, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young

Justices Kim Jae-tae

Justices Kim Jae-in