[1] Whether a person who conducts an activity that cannot be deemed as falling under the debtor's act of performance of obligation to the creditor can be deemed as an performance assistant under Article 391 of the Civil Code (negative)

[2] The case holding that the court below erred in the misapprehension of legal principles in holding that, in case where, after concluding a rental contract with Gap corporation and the Arts Complex for the Oralaeaeaea which was managed and operated by Gap corporation and the Arts Complex, the performance of the above rental contract became impossible because the stage and lighting were destroyed by a fire that occurred in the performance of the National Oralaeaeaeum, and the performance of the above rental contract was held in the position of an assistant to the Arts Complex for the art related to the above rental contract, the National Oralaeaea is held in the position of an assistant to the art Complex

[1] An employee as an agent for performance under Article 391 of the Civil Code refers to a person who performs an activity falling under the act of performance of an obligation under the obligor's involvement in the obligor's intent. Thus, a person who conducts an activity that cannot be viewed as falling under the obligor's act of performance of an obligation to the obligee cannot be deemed as an agent for performance

[2] The case holding that the court below erred in the misapprehension of legal principles in holding that, in case where the National Pest is liable for damages suffered by Company A due to the impossibility of the performance of the above rental contract on the ground that it concluded that the National Pest is in the position of performance assistant in the art's performance assistant in relation to the above rental contract on the ground that the National Pesta cannot be deemed as the performance assistant in the art's performance assistant in the art's performance of the above rental contract on the ground that the National Pesta cannot be deemed as the performance assistant in the art's performance of the above rental contract since it concluded that the National Pesta is in the position of the performance assistant in the art's performance assistant in the art's performance of the above rental contract on the ground that the National Pestaea cannot be deemed as the performance assistant in the art's performance assistant in the art's performance of the above rental contract on the ground that the National Pesta is in the position of performance assistant in the art's performance assistant

[1] Article 391 of the Civil Code / [2] Article 391 of the Civil Code

[1] Supreme Court Decision 2001Da44338 delivered on July 12, 2002 (Gong2002Ha, 1940) Supreme Court Decision 2007Da10290 Delivered on June 14, 2007

United Nations Weight Co., Ltd. (Law Firm Yang Hun-Hun, Attorneys Kim Jong-Un et al., Counsel for the plaintiff-appellant)

Arts Complex (Law Firm Rate, Attorneys Yoon Hong-san et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na121776 decided December 16, 2010

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, on July 6, 2007, the court below determined that the Defendant was liable to the Defendant for the installation and management of the national performance and safety control of the instant performance and the instant performance and management of the performance and the instant performance and management of the performance and the instant performance and management of the damages incurred by the Defendant, on the ground that the performance of the instant performance and management of the national performance and the instant performance and management of the performance and safety control of the performance and the instant performance and management of the performance and the instant performance and management of the performance and the instant performance and management of the performance and the instant performance and management of the performance and the instant performance and management of the fire (hereinafter “the instant fire”) caused by fire in the course of performing the performance of the National Pest, an incorporated foundation (hereinafter “National Pest”), which caused damages to the Defendant’s performance and management of the instant performance and the instant performance and management of the performance and the instant performance and management of the National Pest, etc., on the ground that it was impossible for the Defendant to implement the instant performance and management of the fire.

2. However, it is difficult to accept the above judgment of the court below for the following reasons.

A. An employee as an agent for performance under Article 391 of the Civil Act refers to a person who performs an act of performance of an obligation under the obligor’s involvement in the obligor’s intent (see Supreme Court Decisions 2001Da44338, Jul. 12, 2002; 2007Da10290, Jun. 14, 2007; 2007Da10290, Jun. 14, 2007). Thus, a person who performs an act that cannot be deemed as falling under the obligor’s act of performance of an obligation to the obligee cannot be deemed as an agent for performance under Article

However, according to the reasoning of the judgment of the court below, the National Pest established the rental period from December 1, 2007 to December 15, 2007 with the defendant for the performance of the "Y", and entered into a contract for the rental of the Pestaeaeae, separately from the rental contract of this case, and accordingly, possessed, used, and used the Peste at the time of the fire. As such, the National Pestae entered into an independent rental contract separate from the contract of this case with the defendant who is the management and operator of the Pesteaeae and takes profits from the occupancy and use of the Pesteaeaeaea, and thus, the act of possession and use of the Pesteaeaeaeaeae's lae to the plaintiff at the time of the fire of this case does not have any relation with the defendant's debt performance activities with the defendant under the rental contract of this case. Accordingly, the National Pestea is obligated to preserve the Meeaeaeae in accordance with the contract with the defendant.

B. In addition, according to the reasoning of the lower judgment and the record, Article 10 of the Rules on the Lease of the Baaeaeaeae, which applies to the Defendant’s Oaeaeaeaeaeae Park, including the instant lease agreement, emphasizes that the lessee has the duty of care to prevent fire by stipulating that “The gatee shall fulfill his/her duty of care as a good user with respect to the facilities and equipment of the hall during the rental period, and in particular, he/she shall conduct flame retardation in the case of the stage equipment, and shall make every effort to prevent fire.” In addition, Article 19 of the Rules emphasizes that the performance of the Maaeaeae is basically subject to the duty of care to compensate for damages of the Defendant or the lessee where the performance is revoked or suspended due to the reasons of the Maeaeaeaeaee's own, if the performance is revoked or suspended due to a natural disaster (Paragraph 1), the Lessee and the lessee are not liable to compensate for damages to the Defendant for the defect not attributable to the Defendant's.

In light of the above contents and purport of the Oraeck Rental Agreements, if the instant rental contract was impossible due to a fire, etc. unexpected without fault of the Defendant himself/herself, there is room to interpret that the Defendant’s liability for the Plaintiff was determined as equivalent to the liability where the performance was revoked or suspended due to the defect in machinery unexpected in the above rental agreement.

C. Nevertheless, the court below held that the defendant himself was not negligent in the installation and management of a sprinkler, safety management during the performance, and inspection and management of safety standards for stage props, etc. in relation to the occurrence of the fire of this case. However, the court below held that the National Pest is in the defendant's performance assistant status in relation to the rental contract of this case and held that the defendant is liable for the damages suffered by the plaintiff due to the impossibility of the performance of the rental contract of this case. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the scope of performance assistant and liability for damages, which affected the conclusion of the judgment. The ground of appeal pointing this out

3. Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)