[2] In a case where it is impossible to repair defects in the object of lease and the purpose of lease can not be achieved due to such impossibility, whether the lessee may cancel the lease contract's effect retroactively (affirmative with qualification)

[3] The scope of liability for damages to be borne by the lessor in a case where the lessor becomes aware of the defects requiring the repair of the leased object and the lessee fails to notify the lessor of the defects without delay

[4] The case holding that in a case where Gap sought damages against Eul on the ground that he suffered damages due to severe fung and myco, etc. while residing in a multi-family house leased by Eul from Eul, the case holding that Eul can claim damages against Eul for damages due to Gap's non-performance of the notification obligation under Article 634 of the Civil Code, since Gap notified Eul without delay and the repair was performed, even if Eul notified Eul without delay, even if the repair was done, it can not be avoided or removed

[2] In a case where a lessor delivers a defective object due to a cause attributable to the lessor, thereby failing to perform the duty to deliver the object, or delaying the duty to repair it, the lessee may claim damages against the lessor due to nonperformance (Article 390 of the Civil Code), and the lease contract may be terminated. In a case where the repair of the defective object is impossible and the purpose of the lease cannot be achieved due to such impossibility, the lease is immediately terminated without the lessee’s termination. It is also possible to cancel the lease agreement retroactively after the delivery of the object, rather than when the lessee continuously uses or benefits from the object to a certain extent.

[3] Even if there is a defect required for the lessor's repair of the leased object, if the lessor is aware of it and the lessee fails to notify the lessor of it without delay, it shall be interpreted that the lessor is not liable for damages due to the lessor's failure to perform the duty of repair as well as liability for damages due to the defect. In such a case, the lessor shall be liable for damages due to the failure to perform the duty of repair as well as liability for damages due to the defect, even if the lessee was notified of the defect without delay and the lessee was unable to avoid or remove the defect.

[4] The case holding that in a case where Gap filed a claim against Eul for damages against Eul on the ground that he suffered losses due to the severe damage due to mycoi in remote areas and households owned by Gap, clothes, and banks, etc. in remote areas and families owned by Gap, clothes, and banks, etc. from time to time while residing in a multi-family house leased by Eul from Eul, the case held that Gap could not be held liable for damages due to Gap's non-performance of the duty of notification under Article 634 of the Civil Code, although it was not impossible for Gap to use and make profits for the residence which is the object of the lease, and the above defect was possible, but Gap could not repair Eul's director's failure to perform the duty of notification under Article 634 of the Civil Code, and Gap could not be held liable for damages due to Gap's failure to perform the duty of repair due to the defect, and thus Gap could not be held liable for damages due to Gap's non-performance of the duty of notification or non-performance of the duty of repair.

2. The costs of appeal shall be borne by the Plaintiff.

A. On August 15, 2012, the Plaintiff leased from the Defendant (the Defendant’s mother, who is living together with the Defendant, Nonparty 1), the fourth floor of the multi-family house (the address omitted; hereinafter “multi-family house in this case”) owned by the Defendant from the Seocho-gu Seoul (the Defendant’s mother is a multi-family house with the approval for use on December 5, 201; hereinafter “the instant multi-family house”) for the purpose of living together with the Plaintiff and his family members (hereinafter “the instant object”). From September 30, 2012 to September 29, 2014, the lease deposit was leased in KRW 100,000,000 from September 30, 2012 to September 29, 2014 (hereinafter “the instant lease”).

B. The instant lease agreement contains a provision that “a lessor delivers the object of this case to a lessee in a condition that he can use it for the purpose of lease” (Article 2), and there is no content that exempt the lessor from the duty of repair or limits the scope of the duty of repair.

C. On October 10, 2012, the Plaintiff was a director of the instant object. On October 2012, the Plaintiff agreed to terminate the lease of this case (hereinafter “the instant agreement”) with the Defendant’s side on the following purport: “If the Plaintiff bears a brokerage fee and seeks a new lessee under its responsibility and entered the new lessee, the Plaintiff would be a director from the instant object, and at the same time, the Defendant would return the lease deposit to the Plaintiff.”

D. After the Plaintiff set up the instant object at a real estate intermediary, Nonparty 2 entered into a lease agreement on December 29, 2012, via a site visit to the instant object. On January 2, 2013, the Plaintiff received from the Defendant the return of KRW 10,000,000, out of the lease deposit, as the down payment for a new director house.

E. On February 15, 2013, the Plaintiff was a director of the instant object, and was returned from the Defendant the remainder after deducting the overdue rent, etc. from the instant lease deposit. On the same day, Nonparty 2 was a director of the instant object.

F. On October 10, 2012, the Plaintiff, who was a director of the instant subject matter, resided with his/her family in the instant subject matter during the period of four months from the instant subject matter to the moving-out of directors (hereinafter “instant period”).

G. At any time during the period of this case, the room of the subject matter of this case (in particular, a small room used by his daughters) and the ceiling of the living room are cut down, water flows out from the window, and water flows out from the window, and the remote area was sucked so as to be suck down. Accordingly, fung in remote areas of the subject matter of this case, furniture owned by the plaintiff, clothes, bags, bags, etc. of this case was significantly great.

H. Meanwhile, in addition to the termination of the instant agreement, the Plaintiff did not separately notify the Defendant of the cancellation or termination of the instant lease agreement.

[Reasons for Recognition] Facts without dispute, Gap 1 through 19 statements and images, the testimony of non-party 3 of the first instance trial witness, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

In the subject matter of this case, there were serious defects which require repair from time to time, and due to this, mycoa in the subject matter of this case, etc., the plaintiff and his family members were unable to live normally.

Therefore, although the plaintiff requested the defendant to take appropriate measures against defects in the subject matter of this case on several occasions, the defendant did not comply with such request.

The plaintiff has the duty to compensate the plaintiff for mental damage equivalent to KRW 3,188,700 in total due to the defect in the object of this case and the defendant's default ( KRW 630,00 in real estate brokerage commission, KRW 1,050,00 in directors' expenses, KRW 200,00 in household decomposition expenses, KRW 350,00 in real estate brokerage commission paid when the plaintiff moved out of the object of this case, and KRW 102,70 in laundry expenses, KRW 24,700 in the transfer and installation expenses of electric products, KRW 170,00 in the book replacing expenses, KRW 12,00 in the book replacing expenses, KRW 30,00 in the clothes, and KRW 200,00 in the total market value of golf banks, KRW 150,000 in the above market value, and KRW 150,000 in the above amount).

B. Defendant’s assertion

It appears that there was no water leakage in the subject matter of this case, and finico was caused by the failure to manage the subject matter of this case, not by the defect in the subject matter of this case, but by the defect in the subject matter of this case. If the conclusion that the subject matter of this case was caused by the defect in the subject matter of this case, if the Defendant notified the Plaintiff of this fact, the Plaintiff was sufficiently repaired. However, only when the director was to leave the subject matter of this case, the Plaintiff was in a partnership with the subject matter of this case on the part of the Defendant, and there was no notification that there was a connection with the subject matter of this case. Thus, the Plaintiff’s claim of this case is unreasonable.

3. Relevant legal principles

(a) A lessor's duty to deliver and repair the object;

On the other hand, Article 623 of the Civil Act provides, “The lessor is obligated to deliver the object to the lessee and to maintain the conditions necessary for the use and profit-making during the contractual existence,” and stipulates two obligations to deliver the object to the lessor and to maintain the conditions necessary for the use and profit-making during the contractual existence (hereinafter “repair obligations”).

First of all, although Article 623 of the Civil Act does not expressly provide for the lessor's duty to deliver the object, it is reasonable to say that the lease contract is a contract under which the lessor allows the lessee to use or benefit from the object and the lessee pays the rent for it (Article 618 of the Civil Act), and that the "delivery" under Article 623 of the Civil Act refers to the obligation to deliver the object in a state suitable for the use or benefit of the object according to the purpose of the lease rather than a mere delivery. In this case, even if the above general theory is not followed, the Plaintiff and the Defendant agreed in Article 2 of the lease contract of this case that "the lessee shall deliver the object to the lessee in a state suitable for the use or benefit of the object for the purpose of the lease." Thus, there is no room for doubt that the Defendant bears the obligation to deliver the object of this case to the Plaintiff in a state suitable for the use or benefit of the object in accordance

Next, in a case where a lessor’s duty of repair is damaged or obstructed by a health unit, object, etc., the lessor is not obliged to repair if it does not interfere with the lessee’s use and profit-making (see, e.g., Supreme Court Decision 94Da34692, 34708, Dec. 9, 1994). However, if the lessee is unable to repair it, then the lessor bears the duty of repair (see Supreme Court Decision 201Da107405, Mar. 29, 2012).

In light of the above interpretation on the duty of delivery and repair of a lessor’s object, it is reasonable to view that the lessor’s damage or impairment of an object subject to repair (hereinafter referred to as “defect”) refers to a defect revealed during the lease period, and it is not limited to any defect that occurred only during the lease period, but also includes any defect that the lessor had existed at the time of delivering the object to the lessee.

On the other hand, the above repair obligation of a lessor is recognized only if it is possible to repair, and if it is impossible to repair it, it becomes a problem of impossibility of performance due to the destruction of all or part of the object, not the problem of repair

Where a lessor delivers a defective object due to a cause attributable to the lessor to perform the duty of delivery of the object or delays the duty of repair, the lessee may file a claim against the lessor for damages due to nonperformance (see Article 390 of the Civil Act). In addition, the lessee may terminate the lease contract if it is impossible to repair the defective object and it is impossible to achieve the purpose of the lease due to the impossibility of repairing it (see Supreme Court Decision 2009Da96984, Apr. 29, 2010). In addition, the lease is immediately terminated without the lessee’s termination (see Supreme Court Decision 95Da15087, Mar. 8, 1996).

(b) Warranty liability of a lessor;

Since the provisions concerning the seller's liability for warranty are applied mutatis mutandis to a contract for consideration (Article 567 of the Civil Act). Where there was a defect in the object at the time of the establishment of the lease contract, and the lessee was unaware of it without negligence (see Supreme Court Decision 98Da18506, Jan. 18, 200), the lessor becomes liable for warranty pursuant to Articles 580(1) and 575(1) of the Civil Act, separate from whether the lessor is liable for the repair obligation, and accordingly the lessee may claim against the lessor for damages caused by the defect in the object. Furthermore, if the object cannot achieve the purpose of the lease due to the defect in the object, the lease can be canceled or terminated if the lessee was delivered, but if the lessee continued to use and profit from the object after delivery of the object, the lease can only be terminated (see Supreme Court Decision 93Da61361, Nov. 22, 1994).

(c) Lessee's duty to notify;

Article 634 of the Civil Act provides, “If the leased object is repaired or a person claims a right on the leased object, the lessee shall, without delay, notify the lessor thereof. However, this shall not apply if the lessor has already become aware of it.” The above provision is a provision prepared to allow the lessor to take appropriate measures against a situation where the use and profit-making of the leased object is hindered, and it is reasonable to deem the “repair” as referred to in the above provision to be the same meaning as the “repair” as referred to in the lessor’s duty of repair. Accordingly, in the above provision, the lessee shall continue to use the word “repair” instead of the word “repair” for the unity of the terms.

(6) A lessor is obligated to use or benefit from an object during the lease period, and such duty is derived from such duty to maintain the object. A lessor shall deliver the object to the lessee under the lease contract. After delivery of the object, use or benefit from the object under the management of the lessee is placed under the control of the lessee. (2) Even if the lessor was aware of the defect in the object at the time of delivery under the above circumstances, it is difficult to expect the lessor to investigate and repair the defect unless it is discovered that there was any defect in the object. (3) Even if it is difficult to expect that the lessor has the duty to notify the lessee of the removal or benefit from the object, it is difficult to ensure that the lessor has the right to use or benefit from the object without delay if it is deemed that the lessor has no knowledge of the defect in the object. (4) Even if it is necessary to repair the object, it is difficult to deem the lessor to use or benefit from the defect in light of the principle of equity and interest of the lessee unless it is discovered that there is any defect in the object to be repaired without delay.

4. Determination

(a) General theory

1) Whether there exists any defect in the object of this case

In this case, during the period of this case, the fact that fungi (hereinafter “fungi”) occurred severely in remote areas, the household owned by the plaintiff, clothes, and bags of the object of this case from time to time, and in the ceiling of the living room, water can fall down, water flows out from the window, and the remote area was suck up with the stable (hereinafter “the present phenomenon”), and as such, the fact that fung (hereinafter “fungi”) occurred considerably in remote areas, the household owned by the plaintiff, clothes, and bags of the object of this case, are as shown in the above recognition. However, it is unclear until the present phenomenon is leakage (in particular, as to whether water flows out from the ceiling) but at least it seems to fall under a serious association.

Furthermore, even if Nonparty 1 and 19 were to be stated in the wall of this case, Nonparty 2’s testimony of Nonparty 1 and Nonparty 3, and the fact-finding on Nonparty 4 of the first instance court, the following facts or circumstances are considered comprehensively considering the overall purport of the pleading, namely, ① the phenomenon where steams in the air are relatively frighted to the surface of the object, and the lack of heat and damp-proof performance of ordinary buildings is being revealed due to fundamental reasons that occur within the building, ② if the building is not properly frighted, it appears that there were very heated and frightful signs in the building of this case, and that the building of this case appeared to have been located in the building of this case for the purpose of preventing the use of the building of this case by Nonparty 1 and Nonparty 2. It appears that the building of this case had been located in the upper floor of this case, and the building of this case had been located in the building of this case for the purpose of preventing the use of the building of this case.

2) Whether the Plaintiff could not achieve the purpose of the lease of this case due to the defect in the object of this case

Although the Plaintiff appears to have suffered inconvenience in residing in the subject matter during the instant period due to the present phenomenon and mycoiation, it appears that the Plaintiff moved in the subject matter of this case as a new lessee on February 15, 2013 from the date of the Plaintiff’s moving in the subject matter of this case to Nonparty 2 as the new lessee on March 27, 2013. Nonparty 2 appears to have not experienced issues such as removal of mycoi and the construction of Docoi removal and Docoiation and the construction of the prevention of this case, and that the Plaintiff could not be removed and prevented by measures such as removal of mycoi and the construction of the subject matter of this case, the removal of mycoiation and the construction of the construction of this case, and the construction of the construction of this case to the extent that the Plaintiff could not be seen as having achieved the purpose of this case’s removal or termination of this case’s lease agreement, as long as the Plaintiff could not be seen as having been separately notified by the Plaintiff.

3) Whether the Plaintiff fulfilled the duty of notification under Article 634 of the Civil Act

In light of the above facts, the plaintiff's 1 to 23 testimony of the non-party 1 and the non-party 2's testimony of the non-party 4, the following facts are acknowledged: (i) the plaintiff voluntarily notified the non-party 1 in writing as to the present situation; and (ii) the statement of telephone call with the defendant or the defendant's mother who is living together with the non-party 1 in the real estate brokerage office of this case was not presented, and (iii) if the defendant was notified of the fact that the non-party 1 and the non-party 2 did not appear to have known that the non-party 1 were not the non-party 3's office for the purpose of this case's 1 to 3's fungico, and that the non-party 2's fungco, which were the non-party 1 to fungco in this case's fungco, the plaintiff's new construction of the building of this case to the non-party 1 and the non-party 2's office for this case's fung.

4) Sub-committee

In order to be arranged, there was a defect that caused this case's phenomenon and mycoi in the subject matter of this case, which caused the plaintiff to use and profit from the subject matter of this case for residential purpose, which is the object of this case's lease. However, it was impossible to repair the subject matter of this case's defect that caused this case's phenomenon and mycoi. However, it was possible to repair the subject matter of this case's defect. The plaintiff failed to perform his duty of notification under Article 634 of the Civil Act to the defendant during the period of this case. While the defendant could not repair the subject matter of this case due to the violation of the plaintiff's duty of notification, the plaintiff moved to the director of this subject matter of this case.

Therefore, the Plaintiff cannot claim damages against the Defendant on the ground that the Plaintiff could not achieve the purpose of the lease of this case due to the defective performance of the object of this case, or that the Defendant did not perform its repair obligation. The Plaintiff merely notified the Defendant of the present situation and mycoi without delay and provided compensation for damages arising from the non-performance of the duty of delivery of the object of this case, which could not be avoided or removed even if repair was performed, the Plaintiff may claim damages against the Defendant based on the non-performance of the duty of delivery of this case.

B. Conclusion

In this regard, I will look at the damages claimed by the plaintiff in this case by dividing them by item.

(i) real estate brokerage commission and director fee;

Upon the instant claim, the Plaintiff claimed compensation for damages for KRW 630,00,00 for real estate brokerage fees, KRW 1,050,00 for directors, and for household decomposition expenses, KRW 200,000 for household decomposition expenses, and KRW 350,00 for real estate brokerage fees, paid when the Plaintiff moved out of the instant subject matter on February 15, 2013.

On the other hand, the plaintiff's claim for this part of this case was retroactively extinguished by the cause of the plaintiff's above expenses (the expenses paid when the plaintiff moved out of the subject matter of this case) or did not exist (the expenses paid when the director moved out of the subject matter of this case), and it was based on the premise that the plaintiff could not achieve the purpose of the lease of this case due to the defect in the subject matter of this case. As seen above, the plaintiff merely interfered with the use of and profit from the subject matter of this case due to the defect in the subject matter of this case, and it was not sufficient to achieve the purpose of the lease of this case, and the plaintiff was effectively formed and continued to move out of the subject matter of this case by the agreement of this case that the plaintiff bears the real estate brokerage fees, and the plaintiff did not go out of the subject matter of this case and did not know the cancellation or termination thereof. Thus, the plaintiff's claim for this part of this case which is a different premise cannot be accepted.

(b) laundry and transfer and installation expenses for electric products;

Upon the instant claim, the Plaintiff also sought compensation of KRW 102,700 for the cost of cleaning and the cost of transferring and installing electric products.

According to Gap evidence No. 3-6, which was submitted as evidence for the payment of the above laundry, the above laundry was disbursed on March 4, 2013 and March 14, 2013, and according to Gap evidence No. 3-5, which was submitted as evidence for the expenses for the transfer and installation of the above electrical products, the expenses for the transfer and installation of the above electrical products were disbursed on February 19, 2013. Thus, since the above laundry and the expenses for the transfer and installation of electrical products were all disbursed after the instant period, and it is unclear whether they were disbursed due to the present situation and fungi in itself, the plaintiff's claim for this part cannot be accepted without examining other issues.

(iii) equivalent to the cost of two replacements, the cost of replacing the Switzerland North Korea, the market value of clothes, the value of two golf banks, and the market value of handbags.

Upon the claim of this case, the Plaintiff also sought damages equivalent to KRW 170,000, 12,000, 12,000, 300,000, 300,000, total market value of clothes, 200,000, total market value of two golf banks, and 150,000,00,000, in total.

According to the results of the fact-finding with respect to the statement and video of Gap 1 through 19, the testimony of non-party 3 of the first instance court, and the head of the first instance court's 4 head of the Dong of this case, it is not possible to recognize that the above book book, Switzerland north, clothes, golf banks, handbags, etc. were damaged to the extent that the restoration to the original state was difficult. However, even if the plaintiff was notified without delay and the repair was performed, it is not sufficient to recognize that the damage was the loss of the flag that could not be avoided or removed, and there is no other evidence to recognize otherwise. Rather, if the plaintiff, without delay, notified the defendant of the present situation and requested the defendant to take appropriate repair measures to remove or prevent the present phenomenon or fung, the above book, ice, clothes, golf banks, handbags, etc., cannot be accepted. Thus, the plaintiff's claim for restoration to the original state of this case cannot be accepted.

4) Consolation money

Upon the claim of this case, the plaintiff also sought compensation of 5,000,000 won for mental damage.

On the other hand, it is unclear whether the plaintiff's claim for this part of this case constitutes "the claim for compensation for mental damage caused by the plaintiff's infringement of property right due to the defect of the object of this case" (see Supreme Court Decision 2007Da18959, Dec. 13, 2007) or "the claim for compensation for mental damage caused by the plaintiff's destruction of his daily life due to the defect of the object of this case" (see Supreme Court Decision 92Da34162, Dec. 8, 192). In any case, it is difficult for the lessor to ordinarily anticipate that the tenant suffered mental damage due to the defect of the object of this case in the lease relation, and therefore, in order to accept this part of the claim of this case, the defendant should be presumed to have known or could have known the above fact of the plaintiff's mental damage (see Supreme Court Decision 93Da5979, Dec. 13, 194), and there is no evidence to acknowledge the plaintiff's testimony or fact inquiry of the non-party 13.

5. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed. Since the judgment of the court of first instance is just to conclude this conclusion, the plaintiff's appeal of this case is dismissed.

Judges Park Jong-dae (Presiding Judge)

1) Under Article 606(1) of the Civil Act, the Japanese Civil Act, which was a reference for the enactment of the Korean Civil Act, provides that “a lessor shall bear the obligation of repair necessary for the use and profit of the leased object” and Article 615 of the same Act provides that “a lessee shall, without delay, notify the lessor of the need to repair the leased object or a person asserts a right to the leased object: Provided, That this shall not apply where the lessor has already been aware of the need to repair it or a person asserts a right to it: Provided, That this shall not apply where the lessor has already known thereof),” and consistently uses the word “repair”. At the time of enactment of the Korean Civil Act, the substantial content is accepted, but it is assumed that the phrase “repair” is replaced with “repair” which can be used as “repair” which can be used as “

2) For reference, the German Civil Code stipulates that when the defect of an object is revealed during the term of lease pursuant to Article 536-c(1) of the Civil Code, the lessee shall notify the lessor thereof without delay, and where the lessee fails to notify the lessee pursuant to Article 536-c(2), to the extent that the lessor could not make any remedy due to the failure to notify the lessor, the lessee shall be deemed unable to file a claim for damages due to delay in removal of the defect, as well as liability for damages due to defect liability against the lessor, and the lessee shall clearly recognize the effect of forfeiture of rights