[1] Where a lessee’s obligation to return an object becomes impossible due to the extinguishment of a fire, etc., whether the lessee is liable for damages arising from the nonperformance of the duty to return the object, if the lessee fails to prove that the nonperformance was due to a cause not attributable to himself/herself (affirmative), and whether this legal principle equally applies to cases where the lessee seeks damages on the ground that the returned leased building was destroyed by a fire (affirmative)

[2] Where a fire occurred in the part of a building owned by a lessor that was partially leased for use and profit-making, and the part of a building that is not a leased one, which is not a leased one, and the lessor causes property damage to the lessor, matters to be asserted and proved by the lessor to seek compensation against the lessee for damage incurred to the non-leased part of the building

[3] The legal nature of the victim's direct right to claim under Article 724 (2) of the Commercial Code (=the claim for damages) and the scope of the insurer's obligation to claim damages according to the victim's direct right

[1] Where a lessee becomes unable to fulfill his/her duty to return an object due to the extinguishment of a fire, etc., the lessee is liable for damages incurred due to nonperformance of his/her duty to return the object unless he/she proves that the nonperformance was caused by a cause not attributable to himself/herself, and the same applies to cases where specific cause of a fire, etc., such as a fire, has not been revealed. In addition, this legal principle equally applies to cases where the returned building seeks damages on the ground that the duty to return the object was destroyed by a fire, even though

Meanwhile, a lessor is obligated to deliver an object to a lessee and to maintain conditions necessary for the use and profit-making during the lease term (Article 623 of the Civil Act). If a fire that occurred during the lease term is presumed to have occurred due to a defect existing in the area controlled and managed by the lessor, repairing and removing the defect belongs to the lessor’s duty to maintain the condition necessary for the use and profit-making of the leased object, and the lessee knew or could have known the defect in advance, barring special circumstances, the lessor cannot be held liable for damages for nonperformance, etc. of the duty to return the object due to a fire to the lessee.

[2] [Majority Opinion] In a case where a fire, which occurred in the part of a building owned by a lessor that was partially leased for use and profit-making, and the part of a building that was not leased (hereinafter “non-leased part”) was destroyed by such fire, the lessee is liable to compensate the lessor for damage to the non-leased part of the building pursuant to Articles 390 and 393 of the Civil Act, if the lessee proves that there was a contractual breach of the lessee’s contractual duty related to the occurrence of a fire, such as providing the cause of the fire by violating the duty of preservation and management, and reasonable causation exists between such contractual breach and the damage to the non-leased part. If the damage to the non-leased part of the building falls under ordinary damages caused by such contractual breach, or is deemed to fall under the damage due to special circumstances that the lessee knew or could have known

The Supreme Court has previously held that, in cases where a fire occurred in the part of a building owned by a lessor that was partially leased for use and profit-making, and the non-leased part of a building was destroyed thereby causing property damage to a lessor, if, in view of the size and structure of the building, if the leased part of the building and the other part are in an indivisible relationship in the structure of the mutual maintenance and existence of the building, unless the lessee proves that he/she fulfilled the fiduciary duty in relation to the preservation of the leased building, the lessee is liable to compensate the lessor for the damage incurred by the fire in the non-leased part of the building that was destroyed by the fire.

However, even if the non-leased premises constitute an indivisible structure, in order for a lessor to seek compensation against a lessee for damages incurred to the non-leased premises due to nonperformance, the lessor should assert and prove that there was a lessee’s contractual breach related to the occurrence of a fire, such as providing the cause of the fire by violating the duty of preservation and management, and reasonable causation exists between the contractual breach and the damages incurred to the non-leased premises, and that the damages incurred to the non-leased premises are within the scope of damages to be compensated pursuant to Article 393 of the Civil Act due to the contractual breach.

On the contrary, the previous Supreme Court precedents that held that, even if a lessor did not assert or prove such assertion or proof, unless the lessee proves that the lessee fulfilled his/her duty of due care to preserve the leased building, the lessee is liable to compensate for the non-leased premises of the building due to nonperformance shall be modified to the extent inconsistent with this Opinion.

[Concurring Opinion by Justice Kim Shin and Justice Kwon Soon-il] In a case where a fire occurred in the part of a building owned by a lessor that was partially leased for use and profit-making, and the non-leased part of a building that was destroyed thereby causing property damage to a lessor, only tort liability is established as to property damage incurred to the non-leased part of the building, barring any other special circumstances. Therefore, in a case where a lessor seeks compensation against a lessee for damage incurred to the non-leased part of a building, the burden of proving the existence of a cause attributable to the lessee as to tort ought to be deemed to exist against the lessor, who is the victim. This does not change even if “the relationship between the leased part and the other parts of the building, when considering the size and structure of the building, are indivisible as it is mutually maintained

[Dissenting Opinion by Justice Kim Jae-hyung] In a case where a fire occurred in the part of a building owned by a lessor that was partially leased for use and profit-making, it is sufficient to determine whether a lessee is liable for damages pursuant to Article 390 of the Civil Act. It is sufficient to determine whether a leased object or any other part of a building owned by a lessor is included in the scope of compensation pursuant to Article 393 of the Civil Act. There is no reason to change the requirements for establishing liability for damages or the burden of proof depending on whether a fire is a leased object or a part other than a leased object. It is not acceptable to separately determine the requirements for establishing liability for damages arising from nonperformance of a duty or a tort, separately from leased object and non-leased premises, to determine the scope of liability for damages.

[Concurring Opinion by Justice Lee Ki-taik] If a lessee partially leased a building, the leased part and the non-leased part of the building owned by the lessor are destroyed due to a fire that occurred during the lease term, as to the establishment of liability for nonperformance due to the lessee’s breach of duty and the scope of liability for damages to be compensated in the event the lessee’s nonperformance is constituted.

However, in a case where a fire occurred in the part of a building owned by a lessor that was partially leased for use and profit-making, and the cause of a fire or the cause attributable thereto is not clearly revealed, not only the damage to the leased building but also the damage to the non-leased building may be harsh for the lessee. On the other hand, the lessee is not fully liable for the damage to the non-leased building but also the damage to the non-leased building may also go against the specific feasibility. Therefore, in such a case, the court shall affirm the lessee’s liability for damages to the non-leased building, but also ensure that the lessor and the lessee reasonably share the damage to the non-leased building through the limitation on liability.

[3] The legal nature of the victim’s right of direct action under Article 724(2) of the Commercial Act is that the insurer concurrently takes over the insured’s obligation to compensate for damages against the victim, and the victim is the right to claim damages against the insurer, and the insured’s right to claim damages against the insurer is not the right to change or equivalent to the insured’s right to claim insurance against the insurer. However, the damage liability borne by the insurer upon the victim’s direct claim is based on an insurance contract, and should

[1] Articles 374, 390, 615, 618, 623, and 654 of the Civil Act; Article 288 of the Civil Procedure Act / [2] Articles 374, 390, 393, 610(1), 615, 618, 624, 629(1), 634, 654, and 750 of the Civil Act; Article 288 of the Civil Procedure Act / [3] Article 724(2) of the Commercial Act

[1] [2] Supreme Court Decision 2009Da96984 decided Apr. 29, 2010 (Gong2010Sang, 995) / [1] Supreme Court Decision 94Da38182 decided Oct. 14, 1994 (Gong1994Ha, 298), Supreme Court Decision 9Da36273 decided Sept. 21, 199 (Gong1999Ha, 2209), Supreme Court Decision 9Da64384 decided Jul. 4, 200 (Gong200Ha, 183), Supreme Court Decision 209Da64979 decided Feb. 10, 206 (Supreme Court Decision 2005Da6523 decided Feb. 29, 2006)

Plaintiff (Counterclaim Defendant) (Bae & Yang LLC, Attorneys Yellow-ju et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim Plaintiff (Law Firm Hyeong, Attorneys Cho Jae-in et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Samsung Fire and Marine Insurance Co., Ltd. (Law Firm Gyeongpyeong, Attorneys Jeon Sung-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na3529, 3536 decided September 5, 2012

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) and Defendant Samsung Fire and Marine Insurance Co., Ltd. is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Of the grounds of appeal by the Defendant (Counterclaim Plaintiff), as to the point where the instant fire occurred

The court shall judge whether the arguments are true in accordance with logical and empirical rules on the basis of social justice and the principle of equity with free conviction, taking into account the overall purport of arguments and the results of the examination of evidence (Article 202 of the Civil Procedure Act).

For the reasons indicated in its holding, the lower court determined that the location where the instant fire occurred is “the inside right side of the main entrance and exit of the first floor” of the instant building.

Examining the record, the lower court’s determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary

2. As to the ground of appeal by the Defendant (Counterclaim Plaintiff) and the ground of appeal by the Defendant Samsung Fire & Marine Co., Ltd. (hereinafter “Defendant Samsung Fire”) on the liability for damages caused by fire

A. (1) A lessee is obligated to preserve the leased object with due care as a good manager and restore the leased object to its original condition at the time of termination of the lease (Articles 374, 654, and 615 of the Civil Act). In addition, when the obligor fails to perform his/her obligation in accordance with the content of the obligation, the obligee may claim damages, provided that the obligor cannot perform his/her obligation without intention or negligence (Article 390 of the Civil Act).

Therefore, where a lessee’s obligation to return an object of lease becomes impossible due to the extinguishment of a fire, etc., the lessee is liable for damages incurred due to the nonperformance of the lessee’s obligation to return the object, if the lessee fails to prove that the nonperformance was caused by a cause not attributable to himself/herself, and the same applies to cases where the specific cause of the fire, etc. is not revealed (see, e.g., Supreme Court Decisions 94Da38182, Oct. 14, 1994; 99Da36273, Sept. 21, 1999). In addition, this legal principle equally applies to cases where the lessee seeks damages on the ground that the returned building was damaged by a fire, although the obligation to return the object of lease was not performed at the end of the lease term (see, e.g., Supreme Court Decision 2009Da96984, Apr. 29, 2010).

(2) Meanwhile, a lessor is obligated to deliver an object to a lessee and to maintain conditions necessary for the use and profit-making during the lease term (Article 623 of the Civil Act). If a fire that occurred during the lease term is presumed to have occurred due to a defect existing in the area controlled and managed by a lessor, the repair and removal of the defect belongs to the lessor’s duty to maintain the condition necessary for the use and profit-making of the leased object, and the lessee was aware of the defect in advance, barring special circumstances, such as the lessee was aware of or could have known of the defect, the lessor cannot be held liable to compensate the lessee for the nonperformance of the duty to return the object due to the fire (see, e.g., Supreme Court Decisions 9Da64384, Jul. 4, 200; 2005Da65623, Feb. 10, 2006; 2009Da13170, May 28, 2009).

B. (1) In the event a fire, which occurred in the part of a building owned by a lessor that was partially leased for use and profit-making, and the part of a building that was not leased (hereinafter “non-leased part”) was destroyed by such fire, the lessee is liable to compensate the lessor for damage to the non-leased part pursuant to Articles 390 and 393 of the Civil Act, if the lessee proves that there was a contractual breach of the lessee’s contractual duty related to the occurrence of a fire, such as providing the cause of the fire by breach of the duty of preservation and management, and reasonable causation exists between such contractual breach and the damage to the non-leased part, and if the damage to the non-leased part constitutes ordinary damage caused by such contractual breach, or if it is deemed that the damage to the non-leased part constitutes damage due to special circumstances that the lessee knew or could have

(2) In cases where a fire, which occurred in the part of a building owned by a lessor that was partially leased for use and profit-taking, and the non-leased part of the building was destroyed by the fire and the non-leased part of the building was destroyed, if the building’s size and structure are in a structural indivisible relationship as to the mutual maintenance and existence of the building, the lessee has a duty to compensate the lessor for damages incurred to the non-leased part due to fire and the non-leased part of the building indivisible with the maintenance and existence of the building without proving that he/she fulfilled the duty of due care as a good manager for the preservation of the building (see, e.g., Supreme Court Decisions 86Da1066, Oct. 28, 1986; 92Da1652, Sept. 22, 1992; 97Da41597, Dec. 23, 1997; 2005Da42984, Apr. 23, 2007).

However, even if the non-leased premises constitute an indivisible structure as stated in the Supreme Court Decisions, supra, in order for a lessor to seek compensation for damages incurred to the premises against a lessee due to nonperformance, the lessor shall assert and prove that the lessee breached the duty of preservation and management, providing the cause of the fire, etc., and that there was a contractual breach between the lessee’s breach and the damages incurred to the non-leased premises, and reasonable causation exists between the contractual breach and the non-leased premises, and that the damages incurred to the non-leased premises are within the scope of damages to be compensated by the contractual breach under Article 393 of the Civil Act.

In contrast, Supreme Court Decisions, including Supreme Court Decisions 86Meu1066 Decided that held that, even if a lessor did not assert or prove such assertion or proof, unless the lessee proves that the lessee fulfilled his/her duty of care as a good manager with respect to the preservation of the leased building, the lessee is liable for damages arising from nonperformance of the duty to compensate for the non-leased portion of the building, shall be modified to the extent inconsistent with this Opinion.

C. (1) We examine claims for damages arising from nonperformance of the duty to return the leased object itself.

For reasons indicated in its holding, the lower court determined that the Defendant Lessee was unable to return the leased object of this case to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) on the ground that the leased object of this case was no longer usable for use or profit-making due to the fire of this case, and that the lease agreement of this case was terminated as it became impossible for the Plaintiff (Counterclaim Plaintiff; hereinafter “Plaintiff”) to achieve the purpose of the lease, and that the obligation to return the leased object of this case was impossible. Furthermore, the lower court determined that the Defendant Lessee was liable to compensate the Plaintiff for damages caused by nonperformance of the duty of due to nonperformance of the duty of due care as to the preservation of the leased object of this case, on the other hand, the “the inside right side of the first floor main entrance and exit” of the instant building, which is the location where the fire of this case occurred, constitutes the leased object of this case, and on the other hand, the Plaintiff, a lessor, was controlled and managed by the Plaintiff.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, this part of the lower judgment is justifiable as it is based on the legal doctrine as seen earlier. In so doing, it did not err by misapprehending the legal doctrine on liability for damages arising from nonperformance of the duty to return leased object

(2) We examine the claim for damages incurred to the part of the building, other than the leased object of the instant case.

For the reasons indicated in its holding, the lower court determined that, among the first floor of the instant building that is the object of the instant lease agreement, the part 150 square meters of the instant building constitutes an integral part in its structure with respect to the maintenance and existence of other parts of the instant building; and that the fire of this case destroyed not only the leased object but also the remaining parts of the first floor, the second floor, and the rooftop (hereinafter “the non-leased part of the instant building”) but also the other parts of the instant building, and there is insufficient evidence to prove that the Defendant Lessee fulfilled the duty to preserve the leased object, the Defendant Lessee was liable to compensate the Plaintiff for the damages incurred not only to the leased object but also to the non-leased part of the instant building due to the fire, and further, Defendant Samsung Fire, as the insurer of the Defendant Lessee (hereinafter referred to as the Defendant Lessee), is also liable to compensate for the damages related to this part.

However, according to the reasoning of the lower judgment and the evidence duly admitted, the National Scientific Investigation Institute determined that the location where the instant fire occurred was the inner right side of the front entrance of the first floor of the instant building by comprehensively taking account of the fire officer’s on-site investigation and self-site investigation, investigation data, witness’s statement, the scene at the time of the instant fire occurred and the cellular phone and video image taken therefrom, but the location where the instant fire occurred was determined as the inner right side of the front entrance of the first floor of the instant building after examining all the causes of the fire, including the possibility of fire, electrical and mechanical factors, and artificial factors, but it was not revealed that the instant fire was not specifically caused by any reason.

Examining these facts in light of the legal principles as seen earlier, it is difficult to view that the Defendant Lessee, the lessee, violated the duty to preserve and manage the instant fire, thereby providing the cause of the instant fire to the Defendant Lessee. Therefore, the Defendant Lessee cannot be deemed liable to compensate for the damages incurred to the non-leased premises of the instant building.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court concluded that the Defendant Lessee was liable for damages incurred to the non-leased premises of the instant building, and on such premise determined that Defendant Samsung Fire was also liable. In so doing, the lower court erred by misapprehending the legal doctrine on the lessee’s liability to compensate for damages incurred to non-leased premises of the building where the non-leased premises were destroyed due to a fire that occurred in the leased building, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. As to Defendant Samsung Fire’s ground of appeal No. 1

A. The legal nature of a direct claim that is recognized as a victim under Article 724(2) of the Commercial Act is that the insurer concurrently takes over the insured’s obligation to compensate for damages against the victim, and the victim is the right to claim damages against the insurer, and the insured’s right to claim damages against the insurer is not a right equivalent thereto (see, e.g., Supreme Court Decision 94Da6819, May 27, 1994). However, the liability for damages borne by the insurer upon the victim’s direct claim is based on an insurance contract, and the insurer’s liability should be recognized within the scope of the insurer’s liability limit under the insurance contract (see, e.g., Supreme Court Decision 2013Da71951, Sept. 4,

B. The lower court found that: (a) the Defendant Lessee and the Defendant Samsung Fire concluded the instant first and second fire insurance contract with the Defendant Lessee as the insured on the leased object; (b) in the instant case of the first and second fire insurance contract, the maximum amount of compensation under the special agreement on the Lessee’s liability for damages was KRW 100 million, and the maximum amount of compensation under the special agreement on the Lessee’s liability for damages was KRW 100,000,000,000,000 without the special agreement on the Lessee’s liability for damages; and (c) in the instant second fire insurance contract, the Defendant Samsung Fire was liable for damages incurred to the Plaintiff due to the fire of the non-leased premises, which are indivisible in structure due to the maintenance and existence of the leased object and its trade name, the lower court determined that the Defendant Samsung Fire was liable to compensate the Plaintiff within the scope of KRW 1 and 290,000,000,000,000,000.

C. However, according to the reasoning of the lower judgment and the evidence duly admitted, ① The special terms and conditions for liability for damages sustained by the insured’s being held liable for statutory damages to a person with a legitimate right to the real estate due to the loss or loss of the real estate caused by fire (Article 1). However, the damages suffered by the insured or the insured’s liability for damages arising from the possession, possession, lease, use, protection, management, and control of the leased real estate, excluding leased real estate (Article 3(2)5). The special terms and conditions for liability for damages to the owner of the facilities stipulate that the insured or the insured shall not compensate for the damages sustained by the insured’s liability for damages arising from the insured’s physical disability or damage of another’s property due to any unexpected accident arising from the performance of the duties according to the use of the facilities owned, used, or managed by the insured or the insured during the insurance period (Article 1), and that the contractor or the insured shall not be held liable for damages to the person with a legitimate right to the property arising from such loss (Article 4(2)4).

Examining these facts in light of the legal principles as seen earlier, the non-leased premises of the instant building cannot be deemed to constitute “real estate leased by the insured” under Article 1 of the Special Terms and Conditions for the Lessee’s Liability. As to Defendant Samsung Fire’s liability for compensation for damages incurred to the said premises of the instant building, even if the part of the instant building is indivisible in structure due to the maintenance and existence of the leased object, it does not hold the lessee liable for compensation following the special agreement on the Lessee’s liability for compensation. Furthermore, Defendant Samsung Fire constitutes “property leased by the insured” under Article 4(2) Subparag. 4 of the Special Terms and Conditions for the Lessee’s Liability for Compensation, and thus, is exempted from the liability for compensation under the special agreement on the Lessee’s liability for damages incurred to the instant leased object. Accordingly, the insurance amount to be paid by Defendant Samsung Fire to the Plaintiff is divided into the damages incurred to the leased object of the instant building and the damages incurred to the non-leased premises of the instant building within the scope of KRW 1,900,000 won (1 billion).

D. Nevertheless, the lower court did not distinguish between the maximum amount of compensation under the special agreement on the Lessee’s liability for damages and the special agreement on the liability of the owner of facilities, but rather determined the amount of insurance proceeds that Defendant Samsung Fire shall pay to the Plaintiff. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of the insurance terms, thereby affecting the conclusion of the judgment.

4. Scope of reversal

The lower court, without distinguishing between the leased object and the non-leased premises of the instant building, calculated the amount of damages incurred by the fire of the entire building of the instant case. Examining the record, there is no evidence to specify the amount of damages incurred due to nonperformance of the duty to return the leased object and the amount of damages incurred to the non-leased premises of the instant building. Therefore, the lower court erred by misapprehending the legal doctrine on the liability for damages incurred to the non-leased premises of the instant building was affected by the judgment on the calculation of the total amount of damages that the Defendant (Lessee) is liable to compensate. Therefore, the part against the Defendant (Lessee) of the lower judgment regarding the principal claim should be

In addition, due to the above circumstances, Defendant Samsung Fire cannot calculate the amount of insurance proceeds actually to be paid to the Plaintiff within the scope of each limit of compensation stipulated in the special agreement on the Lessee’s liability for damages and the special agreement on the owner of facilities. Therefore, it cannot be readily concluded that the total amount is the same as KRW 148,278,300, which the lower court ordered Defendant Samsung Fire to pay to the Plaintiff. Therefore, the lower court’s error of misapprehending the legal principles as seen earlier affected the judgment on the total amount of insurance proceeds to be paid to the Plaintiff by Defendant Samsung Fire. Therefore, the part against Defendant Samsung

5. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant Lessee, the part against the Defendants among the part on the principal lawsuit of the lower judgment is reversed, and that part of 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, except where there is a separate opinion by Justice Kim Shin, Justice Kwon Soon-il, Justice Kim Jae-hyung, Justice Kim Jae-hyung, Justice Lee Jae-hyung, and Justice Lee Ki-taik regarding the Defendants’ grounds of appeal on limitation of liability among the grounds of appeal by the Defendant Lessee (Counterclaim Plaintiff) and the grounds of appeal by Justice Lee Ki-taik

6. As to the Defendant (Counterclaim Plaintiff)’s ground of appeal, the misapprehension of the legal principle as to the liability for damages caused by fire and the separate opinion by Justice Kim Shin and Kwon Soon-il as to the second ground of appeal

A. The gist of the Concurring Opinion is that, in a case where a fire occurred in the leased part of a building owned by a lessor that was partially leased for use and profit-making, and the non-leased part of the building was destroyed by the fire and the lessor’s property damage incurred therefrom, only tort liability is established as to property damage incurred to the non-leased part, barring any other special circumstances. Therefore, the precedents, including Supreme Court Decisions 86Meu1066 Decided otherwise, should be modified to the extent inconsistent with this Opinion. The reasons are as follows.

(1) If the content of a lease agreement is interpreted to have a duty to prevent damage to the non-leased premises of a building, there is no reason to not establish a lessee’s liability for nonperformance of such duty. However, barring any special circumstance, the lessee does not assume a contractual obligation to the non-leased premises of the building, and barring such contractual obligation, compensating for damages caused by fire to the non-leased premises of the building without legal basis is unfairly expanding the lessee’s duty without any legal basis, and is irrelevant to compensation for performance interest, which is the object of compensation for damages arising from nonperformance.

First, barring special circumstances, such as the existence of an agreement between the parties, a lessee is not obligated under a lease agreement with respect to non-leased premises. However, a lessee bears a general duty that does not prejudice the legal interests of any other person as well as the legal community members. In a case where a lessee causes damage to an object other than the object of a contract in violation of such duty, liability for damages arising from a tort would suffice. There is no reason to view such an object differently solely on the ground that ownership of a lessor is unclear, and there is no reason to recognize the lessee’s liability for nonperformance of a contractual obligation without any justifiable reason in exceptional cases where it is impossible to determine the cause attributable to a lessor and a lessee as to tort due to unclear cause of a fire. Supreme Court precedents do not completely deny the contractual obligation as well as the contractual party’s contractual duty to pay a certain amount of obligation under the good faith principle, but are not in line with the duty to protect the obligee’s body, property or safety, such as accommodation contract, labor contract, and travel contract (see Supreme Court Decision 97Da12082, Feb. 23, 2019).

The main interest of the parties in entering into a lease agreement is to provide and return the leased object itself, receive rent, and conclude a lease agreement in consideration of whether the lessor owns the non-leased premises of the building. In order to recognize the lessee as liable for the non-leased premises of the building on the ground of such exceptional circumstances, the lessor has to assert and prove the details of such obligation.

Second, in the liability for nonperformance, the purpose of compensation for damages lies in restoring the status of the obligee if the obligor had performed the obligation properly, that is, the obligor who violated the contract should compensate for the same economic interest as the contractual performance was completely performed (see Supreme Court Decision 2006Da25745, Dec. 24, 2008, etc.). Thus, inasmuch as the lessee’s contractual obligation on non-leased premises of a building is not proven, compensating for damages incurred due to the fire in the non-leased premises of a building owned by the lessor is not related to such performance interest. The obligation to return the leased object itself is related to the leased object itself, and the obligation to return the leased object itself cannot be considered as the premise. Such obligation to return the leased object and the benefit that the lessor, the obligee, would have obtained if the obligation to preserve the leased object was performed properly, refers to the benefit that the lessor, the obligee, could have enjoyed on the premise that the leased object would have been returned. Therefore, it should be deemed that the duty to return the non-leased premises of the building and non-leased premises.

(2) According to Supreme Court Decisions 86Meu1066, etc., where a fire that occurred in a leased object was expanded and destroyed constitutes an integral part with the leased object, and the leased object was owned by the lessor, even if the cause of the fire was not revealed, the lessee is liable to compensate for the damages incurred due to nonperformance of the duty to return the leased object, unless the lessee proves that the lessee fulfilled the duty of due care to preserve the leased object. However, among damages incurred to the lessor due to a fire, the damages incurred due to the loss or damage of the leased object, which was caused by the nonperformance of the duty to return the leased object, cannot be deemed as damages arising from the nonperformance of the duty to return the leased object, even if the damages incurred due to the loss or damage of the non-leased premises cannot be deemed as the tort or nonperformance of the duty to return the leased object. Therefore, it is deemed that the lessee is identical to the duty to bear the non-leased premises of the building and non-leased premises, or that the lessee is not liable for the damages incurred by the lessee merely due to an electronic default.

In addition, it is difficult to find a special reason to determine liability for damages incurred to non-leased premises of a building, considering different grounds for the occurrence of liability for damages depending on the unexpected circumstances such as whether the owner is a lessor or a third party.

A lessor, as a party to a lease agreement, bears the duty of repair in accordance with a lease agreement, and is highly likely to know or know well about the status of the lessee’s use and profit-making of the leased building. As such, a third party is partly liable for the occurrence of a fire, whereas a third party is not liable for any duty of care in relation to the leased object, which is the location where the fire occurred. Nevertheless, Supreme Court Decisions 86Meu1066 Decided that, in cases where a third party is the owner of a non-leased building, the lessee is not liable for damages unless the third party proves the cause attributable to the lessee according to the structure of the burden of proof in tort, deeming that there is no liability for damages by the lessee unless the lessee proves the existence of the cause attributable to the non-leased building. Such interpretation is contrary to equity.

If liability for damages incurred to a leased object itself is an issue of fire, it is reasonable to interpret that the lessee bears the burden of proving that the lessee fulfilled the duty of due care for the preservation of the leased object is damages incurred to the area in which the lessee bears the duty of preservation and management under the lease agreement. However, the view that the lessee is liable for damages incurred to a non-leased premises of the building not belonging to the area in which the lessee bears the duty of preservation and management is not consistent with the principle of self-responsibility, which is the basic principle of civil law, but is inconsistent with the principle of reasonable allocation of the burden of proof.

(3) The indefinite concept of “unafford portion” presented by the Supreme Court Decisions, supra, does not constitute a clear and consistent standard as to the lessee’s scope of liability in a case where the damage caused by the fire is unclear, in view of the nature of the fire, to which extent the damage would be expanded. Therefore, it is difficult to predict where the lessee’s liability for damages should be expanded.

Furthermore, the Act on the Liability for Fire Caused by Negligence (wholly amended by Act No. 9648, May 8, 2009; hereinafter “the Act on the Liability for Fire Caused by Fire Caused by Fire Caused by Fire Caused by Fire Caused by Fire Caused by Fire Caused by Fire Caused by Fire Caused by Fire Caused by Fire Caused by Fire Caused by Fire Caused by Fire Caused by Negligence) is a special exception under Article 765 of the Civil Act in cases where the fire caused by the fire caused by no gross negligence by the fire caused by the fire caused by the fire caused by the fire caused by the fire caused by the fire caused by the fire caused by the fire caused by the fire caused by the fire caused by the fire caused by the fire caused by the fire caused by the fire caused by the fire caused by the fire caused by the fire to the fire caused by the fire caused by the fire caused by the fire caused by the fire. However, Supreme Court Decisions 87Meu898, Dec. 8, 1987>

(4) From a legal and economic point of view, it is reasonable to resolve damages incurred to non-leased premises of a building, not leased, by a contract liability, rather than by a tort system. The reasons are as follows.

① The Civil Act provides for the performance of a contract, thereby ensuring the efficient distribution of resources in a market economy system. Of the remedies for breach of a contract stipulated under the Civil Act, the most significant meaning is compensation for damages. Article 390 of the Civil Act generally recognizes damages for breach of a contract. In this context, damages refer to the profits that the obligee would have gained if the obligor performed the contract, i.e., compensation for performance benefits, which would have been incurred by the obligee. The proviso of Article 390 of the Civil Act imposes on the obligor the burden of proving that the obligor does not have any cause attributable to the nonperformance of the contract. This is due to the fact that the obligor takes over the realization of the promised performance through a special combined relationship existing between the obligee and the obligor, and if the performance of the obligation is not performed, it is presumed that the cause is within the area controlled by the obligor (the risk that the performance of the contract may not be performed is efficient to the least cost avoidanceer). Accordingly, the obligor can make decisions as to the breach of the contract in a socially efficient manner, and exercise due care to the optimal level of default.

Finding the basis for liability for damages in breach of a contract lies in a special-combined relationship between the obligee and the obligor, which goes beyond the general position of a member of the legal community. Accordingly, in this case, the burden of proof as to the absence of the cause attributable to the nonperformance of the contract lies in realizing the same state as the performance of the contract as much as possible to the obligor. In other cases, it is difficult to find the basis for liability for damages as stated in the Majority Opinion or the Dissenting Opinion.

② In light of the other functions of the contract law, the reduction of transaction cost, it is reasonable to discuss liability for damages due to nonperformance of a lease agreement only about the object of the lease agreement.

In the case of a building lease agreement, the lessor has the information on the structure, facilities, and usage of the building necessary for the maintenance and management of the general building, and the lessor is also in a position to easily collect the information on the lessee. Furthermore, the lessor may divide the transaction cost into rent or management expenses and transfer the transaction cost to the lessee. On the other hand, if the lessee is deemed liable for damages for nonperformance to the non-leased premises even though the cause is unknown, where the lessee is “a relationship indivisible into the structure” as referred to in Supreme Court Decisions 86Meu1066, etc., the lessee has a duty of due care to a certain extent and it is difficult to predict the scope of liability for damages to the lessee. Accordingly, it is difficult to research and collect information on the whole building other than the leased object. This is difficult, even if possible, it can be reflected in each lease agreement in terms of relatively less dangerous factors than the whole building, while the lessee is also unable to enter into a contract in an efficient manner as well as in an efficient manner.

③ Article 750 of the Civil Act provides for the principle of liability for negligence with regard to tort. Under the principle of liability for negligence, when the degree of considerable care of the perpetrator is set at an optimum level in society, the perpetrator has to exercise due care in order to avoid liability for damages, and the victim has to exercise due care to reduce the damages that the perpetrator would bear.

However, today, when the use of the insurance is generalized, the function of ex post facto distribution of damages is more efficient than applying the legal principles on illegal acts. Even when using the insurance system, the legal principles on compensation for damages should be taken into account in determining whether the potential perpetrator and the victim are adequate to subscribe to the insurance. Where a lessor separates one building into several parts of a building and enters into a lease agreement respectively, in preparation for the risks that the entire building will be destroyed due to unclear fire, a lessor purchases fire insurance for the entire building for the purpose of insurance, and then diversifys the insurance premium in the form of rent, etc., and a lessee purchases insurance for the leased object in preparation for nonperformance of the duty to return the leased object. This is not only reasonable but also consistent with the legal principles on compensation for damages presented by the Concurring Opinion.

However, in accordance with Supreme Court Decisions 86Meu1066, supra, when “a relationship which forms an indivisible structure” falls under the whole of one building, the lessee needs to purchase an insurance policy in preparation for nonperformance of the duty to return the entire building even if there is no cause attributable to himself/herself. This is not only inconsistent with the reality of the transaction, but also can readily be seen as inefficient in light of the overall society.

(5) Ultimately, in a case where a fire, which occurred in the part of a building owned by a lessor that was partially leased for use and profit-making, and the non-leased part of a building was destroyed by the fire and the non-leased part of the building caused property damage to a lessor, liability for damages incurred to the non-leased part of the building ought to be established, barring any other special circumstances. Therefore, in a case where a lessor seeks compensation against a lessee for damages incurred to the non-leased part of a building, the burden of proving the existence of a cause attributable to the lessee in accordance with the general principle of the burden of proof for tort ought to be deemed to exist on the part of the lessor, who is the victim. This does not change even if the “the relationship between the leased part and the non-leased part of the building, in view of the size and structure of the building, is indivisible as it constitutes an indivisible

B. Of the lower judgment, the part of the damage incurred to a building that is not a leased object is examined.

The court below held that the leased object of this case located on the first floor of the building of this case constitutes an integral structure in the maintenance and existence of a trade name with other parts of the building of this case. Since the fire of this case was destroyed by not only the leased object of this case but also the remaining parts, the second floor, and the rooftop part of the building of this case, the other parts of the building of this case. Thus, the defendant Lessee has a duty to compensate not only for the damages caused by the leased object of this case but also for the damages caused to the plaintiff due to the fire not only to the leased object of this case, but also to the damages caused to the non-leased building of this case, and further, the defendant Samsung F&M has a duty to compensate the above damages as the insurer of the defendant Lessee (the defendant Lessee). On the other hand, after the fire of this case occurred, the related fire authorities and investigation agencies investigated all the causes of fire such as the possibility of fire, electrical and mechanical factors, and artificial factors, etc. through the scene and witness of the fire of this case.

Examining these facts in light of the legal principles as seen earlier, although the Defendant Lessee, the lessee, failed to fulfill the duty to return the leased object, it cannot be readily concluded that there was intention or negligence with respect to the fire of the non-leased premises.

Nevertheless, the lower court held that the Defendant Lessee is liable for damages incurred to the non-leased premises of the instant building on the ground that there is insufficient evidence to prove that the lessee was not responsible for the preservation of the leased object with respect to the damages incurred by the lessor due to fire in a structural indivisible relationship with the leased object due to the maintenance and existence of the leased object. In so doing, the lower court erred by misapprehending the legal doctrine on the liability for damages incurred to the non-leased premises of the instant building due to the expansion of fire caused by the leased object, thereby adversely affecting the conclusion of the judgment.

C. The lower court’s error of misapprehending the legal doctrine affected the judgment on the calculation of the total amount of damages that the Defendant Lessee should compensate for, and such error also affected the judgment on the determination of the total amount of insurance proceeds that Defendant Samsung Fire shall pay to the Plaintiff. Therefore, the part of the lower judgment against the Defendants in the principal lawsuit should be reversed in its entirety.

As above, I agree with the conclusion of the majority opinion, but there are different reasons for reversal, so I express my concurring opinion.

7. As to the Defendant (Counterclaim Plaintiff)’s ground of appeal, the misapprehension of legal principle as to the liability for damages caused by fire, and the dissenting opinion by Justice Kim Jae-hyung on the second ground of appeal

A. In a case where a fire occurred in the part of a building owned by a lessor that was partially leased for use and profit-taking, and the non-leased part of a building that was destroyed by the fire, and the lessor suffered property damage therefrom, the Majority Opinion: (a) according to the previous precedents, as to the damage incurred by the loss of or damage to the non-leased part of a building, the lessee is liable for nonperformance of the contractual obligations of a lessee related to the occurrence of a fire, such as providing the cause of the fire by breach of the lessee’s duty to preserve and manage the non-leased part; and (b) the lessee is obliged to prove that there was a breach of the lessee’s contractual obligations related to the occurrence of a fire. The separate opinion by Justice Kim Shin and Justice Kwon Soon-il,

However, the above view does not fit the provisions and systems of our civil law.

Article 390 of the Civil Act provides for the requirements for the establishment of liability for damages due to nonperformance as a general rule and generally and comprehensively. On the other hand, Article 393 of the Civil Act provides that the scope of liability for damages due to nonperformance shall be limited to ordinary damages as to the scope of liability for damages due to nonperformance, and that damages due to special circumstances shall be compensated to the extent possible. This is the basic structure adopted by our Civil Act regarding liability for damages due to nonperformance. Therefore, the establishment of liability for damages due to nonperformance is determined in accordance with Article 390 of the Civil Act, and shall be determined in accordance with Article 393 of the Civil Act as to the scope of liability for damages due to nonperformance.

In a case where a fire occurred in the part of a building owned by a lessor that was partially leased for use and profit-making, it is sufficient to determine whether a lessee is liable for damages pursuant to Article 390 of the Civil Act. Moreover, it is sufficient to determine whether a lessee is liable for damages pursuant to Article 393 of the Civil Act, depending on whether a fire is a leased object or a part other than a leased object. There is no reason to change the requirements for establishing liability for damages or the burden of proof depending on whether a fire is a leased object or a part other than a leased object. Determination of the requirements for establishing liability for damages due to nonperformance of a duty or a tort should be made separately by classifying a leased object and a non-leased part into a building outside of a leased object is difficult

I would like to examine the detailed reasons for the establishment of the liability for nonperformance due to the lessee’s breach of the duty and the scope of compensation for damages, and then present my opinion on how to determine in this case.

B. In order to determine whether a lessee is liable for nonperformance, first of all, the obligation to be borne by the lessee under the lease agreement ought to be determined. The obligation of the parties to the lease is basically determined by the provisions of the Civil Act and the terms of the lease agreement. However, given that the lease agreement is continuous and continuous, the trust relationship between the parties is very serious, the obligation to maintain trust can be acknowledged

(1) In order to realize the purpose of the lease agreement, the lessee’s obligation consists of complementary and complementary obligations.

A lease is a contract under which another person’s goods are leased and used for profit-making and the rent is to be paid in return (Article 618 of the Civil Act). Upon termination of the lease relationship, the lessee shall return the leased object to the lessor (Supreme Court Decision 94Da54641, Sept. 6, 1996). The lessee shall restore the leased object to its original state when returning the leased object (Articles 654 and 615 of the Civil Act). The lessee’s obligation is not limited to such fundamental obligation.

Inasmuch as the delivery of a leased object constitutes the subject matter of a claim, a lessee should preserve the leased object with the care of a good manager until the delivery of the leased object (Article 374 of the Civil Act). If repair of the leased object is necessary or a person asserts a right over the leased object, the lessee shall notify the lessor thereof without delay (main sentence of Article 634 of the Civil Act). If the lessor performs an act necessary for the preservation of the leased object, the lessee may not refuse such act (Article 624 of the Civil Act).

Furthermore, the lessee should use or make profits from the leased object as prescribed by the lease contract or by the nature of the object (Article 654 and Article 610(1) of the Civil Act). The lessee should not cause damage to the lessor due to use or profit-making contrary to the usage and profit-making, and shall not transfer the right or sublet the leased object without the lessor’s consent (Article 629(1) of the Civil Act).

The above multiple obligations of a lessee arise due to the nature of the lease that the lessee continues to use the leased object for a certain period. The obligation to preserve the leased object, the obligation to use and profit from the leased object, the obligation to return, and the obligation to restore the leased object under the usage of the leased object are closely connected with each other, and one obligation affects the other. The lessee is obliged to preserve the leased object so that the lessee can return the leased object in the entirety of the leased object at the end of the lease. The lessee is obliged to use and profit from the leased object, not simply keep the leased object simply but also use and profit from the leased object, so it is difficult to clearly distinguish the act of use and profit-making and the act of preserving the leased object from the leased contract (Article 693 of the Civil Act). In addition, in a building lease agreement, the parties should not engage in any act impairing mutual trust between the parties. In addition, the act of preserving the leased object and the act of using and profit-making the leased object may be modified according to the method of lessee’s preservation, use, and profit-making.

(2) In general, in a case where a fire occurred while a lessee was using a leased object and the leased object is destroyed by a fire, the lessee’s nonperformance liability may be established pursuant to Article 390 of the Civil Act. This is because the lessee is unable to restore the leased object to its original state due to a failure to perform his/her duty to preserve the leased object in a normal manner or to return the leased object without restoring the leased object to its original state. Such a lessee’s breach of such duty is more closely related than the overlapping of separate obligations, rather than the overlapping one incident or situation where a fire is a fire, and thus, the lessee is practically unable to perform its duty properly.

Therefore, in a case where a fire, while a lessee was using a leased object, destroyed the leased object due to a fire, the establishment of nonperformance should be determined depending on whether the lessee breached his/her duty under the premise that the lessee was closely connected with each other, and the scope of damages arising therefrom and the amount of damages that ought to be compensated shall be determined. Such a breach does not appear to include the elements of “when the lessee fails to perform his/her duty in accordance with the substance of the obligation” as stipulated in the main sentence of Article 390 of the Civil Act. On the other hand, the duty of the lessee is different depending on whether the leased object is a leased object or a part other than the leased object, or the other party’s damage is deemed to have breached his/her duty, and the determination of the scope of liability for damages does not coincide with the structure and system of the liability for damages.

(3) It is difficult to determine the cause of a fire in a case where a lessor claims damages against a lessee due to a fire that occurred while a lease agreement is in force, and a lessor or a lessee breached a contractual duty. In such a case, reasonable conclusion can be derived by determining the recognition of liability for damages on the basis of the existence of a fire in the area controlled and managed by the lessor (hereinafter “area controlled and managed”). In other words, in a case where a fire that constitutes a cause of damage occurred in the area controlled and managed by a lessee, barring special circumstances, such as the occurrence of a defect existing in the area controlled and managed by a lessor, such as the electrical ship that forms part of the building structure, the lessee should compensate for such damages.

Here, “a lessee’s control and management area” refers to the area where the lessee can control and manage the occurrence of a fire, etc. by means of legal or de facto means. This is an area where the lessee is liable for taking over the risk in a lease agreement, and thus, can be deemed as the lessee’s risk area or responsibility area. The reason for considering the control and management area in determining the lessee’s liability for nonperformance is that the lessee is physically controlling and managing the leased object while the lessee is using the leased object in delivery, and thus, it is reasonable to deem that the lessee has a duty to prevent the risk of fire, etc. caused in that area.

The area of control and management in a lease agreement ought to be determined by comprehensively taking account of the contents of the lease agreement and the developments leading up to the conclusion thereof, whether the location of the fire occurred falls under the scope of the leased object, who is responsible for managing the location of the fire where the fire occurred, and whether the lessee has taken measures, such as notifying the lessor of the parts to repair the leased object or if the lessee finds out the leased object and the matters that could cause the fire in the surrounding area. The issue of whether the fire occurred in the area of control and management of the lessee is reasonable based on evidence, but the fact-finding court is sufficiently reasonable to determine based on the evidence. As such, the point of occurrence of the fire serves as an important factor in a specific case,

First, in the case of an aggregate building that is leased and used by a lessee (exclusive ownership in the case of an aggregate building), a fire may be deemed to have occurred in the area controlled and managed by a lessee unless it is within the area controlled and managed by a lessor, such as the electrical ship that forms a part of the building structure.

Second, in a case where the place where a fire occurred is jointly used by the lessor and the lessee (the case where the common use area of an aggregate building falls under it), it cannot be deemed that the fire occurred in the area controlled and managed by the lessee. However, if it can be deemed that the lessee mainly used it or the lessee provided the cause of the fire by placing the object that could constitute the cause of the fire in such a place, it can be deemed that the fire occurred in the area controlled and managed by the lessee, barring special circumstances.

Third, if the point where a fire occurred does not fall under the above two cases, it is difficult to deem that the fire occurred in the area controlled and managed by the lessee. Even if the point itself is not revealed, it cannot be deemed that the fire occurred in the area controlled and managed by the lessee.

Meanwhile, in order for a lessee to be exempted from his/her responsibility where it is found that a fire occurred in the area controlled and managed by a lessee, the lessee must prove that the fire occurred due to a cause not attributable to himself/herself (proviso of Article 390 of the Civil Act) or prove that a cause attributable to a lessor or a third party exists for the fire.

(4) In a case where a number of previous Supreme Court Decisions 80Da508 delivered on November 25, 1980; 94Da38182 delivered on October 14, 1994; 200Da57351 delivered on January 19, 201, where the obligation to return the leased object was impossible due to a fire, the lessee was held liable for damages caused by the nonperformance unless he/she proves that the nonperformance was caused by a cause not attributable to himself/herself; and 2000Da57351 delivered on January 29, 201, etc., which is equally applicable to cases where the lessee claims damages on the ground that the returned building was damaged by a fire, although the lessee was unable to perform the obligation to return the leased object at the time of termination of the lease (see, e.g., Supreme Court Decisions 80Da96984 delivered on April 29, 2010).

On the other hand, several Supreme Court Decisions held that, in a case where a house or any building or a part of a building or a building or a leased object was destroyed by a fire while it was occupied and used by a lessor, if the fire is presumed to have occurred due to a defect existing in the area controlled and managed by the lessor, such as the electrical ship that forms a part of the building structure, the repair and removal of the defect belongs to the lessor’s duty to maintain the condition necessary for the use and profit-making of the leased object, and thus, the lessee cannot be held liable to compensate for the nonperformance of the duty to return the object due to the fire (see, e.g., Supreme Court Decisions 9Da64384, Jul. 4, 200; 205Da65623, Feb. 10, 206; 2009Da13170, May 28, 2009).

However, there is a Supreme Court decision recognizing liability for nonperformance in a case where a leased building becomes a fire due to a defect that occurred due to an electrical power failure, which is part of the building structure. In other words, in a case where the leased building continued for a long time and the lessee was directly aware of, or could have known, the electrical power failure, which was the cause of the fire, the lessee, the management of the electrical power failure was within the area controlled and managed by the lessee. Thus, a fire due to a defect in the electrical power failure should be deemed due to the lessee’s failure to perform his/her duty of care as a good manager for the preservation of leased object, barring special circumstances (Supreme Court Decision 2005Da51013 Decided January 13, 206).

Although these two types of Supreme Court precedents seem to be contradictory, it can be understood that the Supreme Court has judged the establishment of liability for nonperformance depending on which the fire occurred in the area controlled and managed by the lessor and the lessee in the event that the leased object is destroyed due to an unknown fire. Therefore, even if the lessee fails to prove that the fire occurred due to a cause not attributable to himself/herself, if it is presumed that the fire occurred due to a defect existing in the area controlled and managed by the lessor, the lessor cannot claim against the lessee for damages due to nonperformance of the leased object, etc.

(5) As seen above, if it is proved that a fire constituting a cause of damage occurred in the controlled and managed area of a lessee, it is reasonable to view that the lessee is in principle liable for the damage caused by the fire.

On the contrary, in a case where a fire is deemed to be a fire in itself, whether a lessee is liable for nonperformance depending on whether the fire occurred in the area controlled and managed by the lessee; and, in a case where the non-leased premises of a building are destroyed, it should be proven that the lessee breached the duty of preservation and management, providing the cause of the fire, etc.; however, the legal doctrine of the Majority Opinion recognizing the lessee’s liability for nonperformance of the duty of preservation and management cannot find grounds therefor. The Majority Opinion states that the lessee is liable for nonperformance of the duty of preservation and management in the case of a lessee’s breach of the contractual obligation related to the occurrence of a fire. It does not necessarily mean that the Majority Opinion does not change the determination of whether the lessee was liable for nonperformance of the duty of preservation and management in the case of a fire in question or whether the non-leased premises of a building were the cause of the fire. However, it may be concluded that the lessee is not liable for nonperformance of the duty to compensate for the non-leased premises of a building even if the cause of the fire occurred within the dangerous area of a lessee.

C. Next, we examine the scope of damages to be compensated in the event of a lessee’s nonperformance of obligation.

(1) In the context of liability for nonperformance, the purpose of liability for damages lies in restoring the status of the obligee if the obligor had performed the obligation properly. An obligor who violated the contract must compensate for the same economic benefits as the contractual performance is completely performed (see, e.g., Supreme Court Decision 2006Da25745, Dec. 24, 2008). Performance benefits are not limited to the interests per se of the contractual subject matter. If an obligor fails to perform the contract, thereby causing damage to an obligee out of the subject matter of the contract, such damage shall also be compensated. This is because the obligee could not recover the status of the obligee if the obligation was performed properly

(2) Article 393 of the Civil Act provides that the scope of compensation for damages due to nonperformance shall be limited to ordinary damages, and damages due to special circumstances shall be liable only when the obligor knew or could have known of such circumstances. Barring special circumstances, damages refer to damages within the scope that would normally arise in light of the ordinary transaction concept of the society or the ordinary empirical rule of the society in the event of nonperformance of the same kind of obligation, and damages due to special circumstances refer to damages arising from individual and specific circumstances of the parties (see, e.g., Supreme Court Decisions 2006Da25745, Dec. 24, 2008; 2013Da66904, Feb. 27, 2014). If a debtor who defaulted with an obligation knew or could have known of the existence of special circumstances, he/she shall compensate for damages due to such special circumstances (see, e.g., Supreme Court Decisions 204Da24647, Nov. 11, 1994; 2007Da637877.

(3) In our Civil Act, whether the damage incurred due to nonperformance falls under the scope of damage that an obligor is liable for, or whether such damage falls under the profit of performance, or is included in the scope of compensation for damage as stipulated under Article 393 of the Civil Act, is sufficient. Accordingly, even if the damage sought by an obligee is an extended damage, secondary damage or additional damage arising out of the leased area, such damage constitutes performance profit, and if it is deemed that the damage falls under ordinary damages or damages due to special circumstances that the obligor knew or could have known, such damage falls under the scope of damage that an obligor is liable for, pursuant to Article 393 of the

In the event that a lessee partially leased a building, the foregoing legal doctrine likewise applies to cases where a fire that occurred during the lease term and the part of a building owned by a lessor was destroyed, and the non-leased part of a building owned by a lessor. Therefore, if a lessee’s breach is recognized, the lessee’s liability for damages is established, and the scope of damages to be compensated accordingly ought to be determined in accordance with Article 393 of the Civil Act, and the final amount of damages should be determined by considering whether comparative negligence or limitation of liability is recognized. On the contrary, the lessee’s liability is not established unless the lessee’s breach is recognized. It is unreasonable to determine whether the relevant part of a building is included in the scope of damages due to nonperformance

(4) Supreme Court Decisions, supra, cited by the Majority Opinion, held that, in cases where a fire occurred in the part of a building owned by a lessor that was partially leased for use and profit-making, and the non-leased part of the building was destroyed and the non-leased part of the building was destroyed thereby causing property damage to a lessor, if, in view of the building size and structure, if the leased part of the building and the non-leased part of the building are structural indivisible to maintain and maintain the building, unless it is proven that the lessee performed his/her duty of due care for the preservation of the leased part, the lessee is not limited to the leased part, and the non-leased part of the building, which is indivisible to the maintenance and existence of the building, is also liable for damages incurred by the lessor due to nonperformance.

However, such term “all parts of a building” is not a legal term used in the Civil Act, the Act on the Ownership and Management of Aggregate Buildings, and other Acts and subordinate statutes. As mentioned in the Supreme Court Decisions, it cannot be deemed a direct standard for determining the scope of damages caused by nonperformance. However, in a case where a lessee’s contractual breach exists in the past, the Supreme Court has determined that there exists a proximate causal relation with the lessee’s breach of contractual duty, or that the damage was entered into the scope of damages to be compensated pursuant to Article 393 of the Civil Act on the basis of the specific facts of each individual case, without further proceeding to determine whether there exists a proximate causal relation with the lessee’s breach of contractual duty. In the process of determining the recognition of damages, it can be understood that the Supreme Court made a brief determination by drawing up the ambiguous concept of “all parts of the damages.”

As such, if we understand the previous Supreme Court precedents, the scope of compensation for damages is not an essential difference with the legal principles as seen earlier, and it is not necessary to change the previous Supreme Court precedents through this judgment. However, rather than using the concept of “unconsumed portion”, it is desirable to determine the scope of compensation for damages based on whether damage to non-leased premises falls under ordinary damages pursuant to Article 393 of the Civil Act or damages that may arise from special circumstances, rather than on the basis of the concept of “unconsumed portion.”

(5) It is difficult to find an example to determine the requirements for nonperformance or tort, or the burden of proof separately, by dividing damage incurred by a single object into the leased object itself and any other part between the contracting parties. In the event of a fire in a leased object, if the establishment of liability for nonperformance is affirmed for the leased object, and the liability for nonperformance cannot be established for damage incurred to the leased object, and only tort liability is established for damages incurred to the leased object, it is difficult to avoid conflict with the previous Supreme Court precedents.

Specifically, the following are examined.

① The Supreme Court determined that a contractor has a duty to compensate for damages incurred to the contractor unless the contractor proves that the contractor was not responsible for his/her failure to perform his/her duty under the terms of the contract (see, e.g., Supreme Court Decisions 2007Da26455, Aug. 23, 2007; 2012Da113667, Sept. 26, 2013). In addition, where extended damages or secondary damages incurred due to defects in the object of sale, the Supreme Court held that the seller is liable for the extended damages in addition to the seller’s breach of the duty not to deliver the object without defects, where the seller’s fault is recognized (see, e.g., Supreme Court Decisions 96Da3945, May 7, 1997; 2002Da356666, Jul. 22, 2003).

② In the event that a seller is unable to perform the seller’s duty to transfer ownership in a sale contract, the Supreme Court already known the fact that the buyer would purchase it at the time of sale and build a new building, and determined that the damage was at least caused by special circumstances if the buyer’s failure to perform the seller’s duty to perform the seller’s duty to remove the building (Supreme Court Decision 92Da2028 Decided August 14, 1992). In this case, it is clear that the damage incurred by the buyer due to the removal of the building is not the damage itself caused to the leased object, but the precedent is liable for nonperformance.

③ It is a established precedent of the Supreme Court that constitutes damages due to nonperformance of any profit that may have been derived from the leased object, namely, loss of opportunities for use such as gains from resale, or loss of operating income, etc. (see, e.g., Supreme Court Decisions 90Da7569, Aug. 14, 1990; 91Da2972, Apr. 28, 1992; 94Da4774, Feb. 10, 1995; 2005Da16591, Jan. 27, 2006; 2006Da25745, Dec. 24, 2008). It is clear that such damage does not directly result in the leased object.

④ It is also established in the Supreme Court’s established precedents that constitute damages due to nonperformance of obligation by a creditor, such as damages, taxes, etc. that the creditor additionally bears to a third party due to nonperformance of obligation (see, e.g., Supreme Court Decisions 80Da130, May 13, 1980; 91Da25369, Oct. 11, 1991; 95Da47619, Feb. 13, 1996; 2005Da75897, Apr. 13, 2006). Such damages are not directly incurred to a leased object.

⑤ The Supreme Court precedents recognize the duty of protection or the duty of safety consideration under a specific type of contract as a contractual obligation. In other words, the accommodation business entity’s duty of protection (see, e.g., Supreme Court Decision 2000Da38718, Nov. 24, 2000). The hospital’s duty of protection (see, e.g., Supreme Court Decision 2002Da63275, Apr. 11, 2003); the employer’s duty of protection or safety consideration (see, e.g., Supreme Court Decision 2011Da60247, Nov. 28, 2013); the obligation of safety consideration to ensure the safety of travelers’ life, body, property, etc. (see, e.g., Supreme Court Decision 2000Da38718, Sept. 25, 2014).

(6) Although a doctor’s legal interest in the duty to explain to a patient is “the patient’s right to self-determination” or “the opportunity to choose for the treatment”, a judicial precedent constitutes a non-performance liability for damages caused by serious consequences, such as death, etc. caused by a violation of the duty to explain (see, e.g., Supreme Court Decisions 2011Da2966, Apr. 26, 2013; 2013Da28629, Dec. 24, 2014).

7) In the event of nonperformance, there are many cases where compensation for consolation money is actually recognized in addition to property damage, but it is established that even if it is non-property damage or mental damage, it may be included in the scope of compensation for damage caused by nonperformance (see, e.g., Supreme Court Decisions 95Da12798, Jun. 11, 1996; 96Da36289, Dec. 10, 1996; 2005Da67971, Jan. 11, 2007). It is clear that such damage does not directly result in the subject-matter of a contract.

D. We examine the judgment below in light of the legal principles as seen earlier.

(1) The lower court recognized the Defendant-Lessee’s liability for nonperformance on the following grounds. The instant building owned by the Plaintiff is the second floor, and the first floor area of 150 square meters (hereinafter “the leased object”) was leased by the Defendant-Lessee for the purpose of storing and selling golf products, and the second floor was used as a logistics warehouse in which the Plaintiff was in possession of the household. Since the leased object of this case was in a situation no longer usable and making profits from the leased object due to the instant fire, the lease agreement of this case was terminated as it could no longer achieve the purpose of the lease under social norms. The Defendant-Lessee was unable to return the leased object to the Plaintiff. Although the cause of the instant fire was not revealed, the “the right-hand side part of the front floor entrance” of the instant building, which was the location where the fire occurred, was actually used and made profits from the leased object pursuant to the instant lease agreement, and the Plaintiff cannot be deemed as the Plaintiff’s duty of due care to the Plaintiff’s duty to return the leased object to the Plaintiff.

The lower court’s determination is justifiable in light of the legal doctrine as seen earlier. According to the evidence duly admitted by the lower court, the part on the right side of the first floor of the instant building, which was revealed as the point of fire in this case, was mainly used by the Defendant Lessee (Lessee), the lessee, and its employees on the side of the first floor entrance and exit of the instant building. The lower court found that the Defendant Lessee (Lessee) and its employees had used and profit from the leased part under the instant lease agreement. The lower court also established the fact that “the Defendant Lessee (Lessee) has actually used and profit from the leased part.” Therefore, the instant fire can be deemed to have occurred in the area controlled and managed by the Defendant Lessee (Lessee), the lessee). Even if the instant building was a general building, not an aggregate building, and the area controlled and managed by the Defendant Lessee (Lessee) as the main part that was mainly used by the Defendant Lessee. Therefore, the lower court did not err by misapprehending the legal doctrine on fire liability.

(2) Based on the following facts, the lower court determined that the Defendant Lessee was liable for nonperformance as well as the remainder of the first floor, the second floor, and the second floor of the building, which are the parts of the instant fire, and the damages the Plaintiff incurred due to the fire of the instant fire. ① The inside space of the instant building was supported by the steel pole and the second floor, but the inside space of the instant building was divided into the first floor and the second floor by the inner wall slurb, and the entrance was made from the first floor to the second floor through the interior stairs, and the warehouse of the prefabricated-type panel (hereinafter referred to as the “slurbboard board”) structure was installed adjacent to the second floor. ② The outer space from the first floor to the third floor was a prefabricated-type panel. ③ The outer wall of the instant building was not equipped with fireproof facilities or the second floor, and the office building was not equipped with fireproof facilities or the second floor to the second floor.

While the reasoning of the judgment below is inappropriate, the conclusion is acceptable. In light of the fact that the structure and material of the building of this case, the use and management relation of the building of this case, which can be known through the facts acknowledged by the court below, the Defendant Lessee used the leased object as a golf product store, the Plaintiff used the two floors as a warehouse, and the Defendant Lessee concluded two fire insurance contracts with the Defendant Samsung Fire, stating the object of security as “building” and the damages for the portion other than the leased object are included in the scope of compensation. In addition, in light of the fact that all damages incurred to the building of this case and the non-leased premises of this case constitute ordinary damages due to the Defendant Lessee’s nonperformance or damages due to special circumstances, it can be deemed that the Defendant Lessee (Lessee) knew or could have known, as the lessee, even if the damages incurred to the entire building of this case are included in the scope of damages to be compensated by the Defendant Lessee, the lower court’s determination that the damages incurred to the entire building of this case include the scope of damages due to the Defendant Lessee’s negligence is justifiable in its conclusion.

E. Meanwhile, in a case where the court recognizes liability for damages and limits the amount of damages in light of the ideology of the damage compensation system, i.e., comparative negligence in consideration of the creditor’s fault or the equitable apportionment of damages, finding facts or determining the rate of damages for the creditor’s fault or reasons for mitigation of liability belongs to the exclusive jurisdiction of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decisions 2001Da6251, 6268, Jan. 8, 2002; 2007Da83908, Feb. 26, 2009; 2010Da42532, Oct. 11, 2012).

The lower court limited the Defendant-Counterclaim Plaintiff’s liability for damages to 70% by taking account of the circumstances such as the fact that the heat facilities or fire extinguishing facilities that could be compared to fire were not properly equipped with the instant building were the cause of the expansion of damages. The lower court’s determination is justifiable in light of the aforementioned legal doctrine and did not err by misapprehending the legal doctrine on comparative negligence or limitation of liability.

F. Of the judgment below against Defendant Samsung Fire, it is erroneous in the misapprehension of the legal principles as to the interpretation of the insurance clause, which affected the conclusion of the judgment, and thus, the part of the judgment should be reversed. However, as seen above, the Defendant Lessee’s ground of appeal cannot be accepted, and it shall be dismissed

For the foregoing reasons, we express our concurrence with the Majority Opinion.

8. Concurring Opinion by Justice Lee Ki-taik on the misapprehension of legal principles as to the liability for damages caused by fire and the limitation of liability, among the grounds of appeal by the Defendant Counterclaim Plaintiff, and Justice Lee Ki-taik on the

A. We agree with the Dissenting Opinion regarding the establishment of liability for nonperformance due to a lessee’s breach of duty and the scope of liability for damages to be compensated in cases where a lessee’s nonperformance is constituted when a fire that occurred during the lease term and the non-leased premises of a building owned by a lessor were destroyed by a fire.

However, in a case where the cause of a fire or a cause attributable to a fire is not clearly revealed, the court below did not examine some of the elements to be considered in limiting the liability of the Defendant (Counterclaim) who is the lessee, even though certain elements are to be considered in limiting the lessee’s liability for damages. Therefore, it is reasonable to accept the Defendant (Lessee)’s assertion on the limitation of liability among the grounds for appeal. The reasons are as follows

(1) In a case where a debtor is liable for damages due to a creditor’s breach of contractual obligations, the amount of damages may be limited in light of the ideology of the damage compensation system, namely, fair apportionment of damages, by taking into account various circumstances, such as the motive or circumstance leading up to the act, objective circumstances involved in the occurrence and expansion of damages, degree thereof, and existence of profit accrued from the act (see, e.g., Supreme Court Decisions 2013Da77355, Feb. 27, 2014; 2012Da8220, Apr. 10, 2014).

However, in a case where a fire occurred in the part of a building owned by a lessor that was partially leased for use and profit-making, and the cause of a fire or the cause attributable thereto is not clearly revealed, not only the damage to the leased building but also the damage to the non-leased building may be harsh for the lessee. On the other hand, the lessee is not fully liable for the damage to the non-leased building but also the damage to the non-leased building may also go against specific feasibility. In such a case, the court shall affirm the lessee’s liability for damages to the non-leased building; however, the lessor and the lessee shall reasonably share the damage to the non-leased building through the limitation on liability. The elements to be considered by the court to limit the lessee’s liability are as follows.

(1) The elements related to the terms and conditions of a lease agreement, such as the terms and conditions of the lease agreement, the use of and methods for profit from the building scheduled to be leased, the details of the obligations borne by the lessee, deposit money, rent, and all other consideration that the lessee pays to the lessor in connection with the lease agreement.

② Next, factors related to the current status of a building itself are factors related to the structure, nature, materials, leased parts of the entire building, and the entire building, including disaster prevention facilities, fire-fighting systems (sprinkers, etc.), installation status of electricity, gas, and water supply facilities, degree of deterioration, difference between the leased parts and the remaining parts of the building.

③ Also, factors related to the management status of a building include the regular inspection, management, repair, and replacement status of disaster prevention facilities, fire-fighting systems, and electricity, gas, and water supply facilities installed in a building; the general management and use status of the leased building and the entire building; and the propriety of continuous operation and management.

④ As an element related to the occurrence and expansion of a fire, the location of the occurrence of the fire, the degree of the occurrence of the fire, and the objective circumstance or degree involved in the occurrence and expansion of the fire, etc.

⑤ Finally, as an element related to damage, the amount of damages incurred to the leased building and the amount of damages incurred to the other parts than the leased building are much and how to share between the parties.

(2) According to the reasoning of the lower judgment, the lower court: (a) the cause of the instant fire was not clearly revealed; (b) the fire that occurred from the leased object of this case was extended to the second floor of the instant building that the Plaintiff used and profited; and (c) rapidly spreads the burning of inflammable objects, such as the Plaintiff’s bed, furniture, office fixtures, etc., and causing the damage to the instant building; and (b) did not have properly equipped with heat facilities or fire extinguishing equipment to prepare for the fire itself; (c) the cause of the expansion of the damage was the cause of the fire; (d) the rapid expansion of the fire of this case was based on the internal structure of the instant building that was not easy early extinguishment; and (e) the Defendant Lessee (Counterclaim) did not seem to have caused the lack of early response on the part of the Defendant Lessee; and (e) on the other hand, the Defendant Lessee leased part of the instant building to a small amount of KRW 40 million,000,000,000,000.

However, there is no document that can specify the amount of damages incurred to the leased building of this case and the amount of damages incurred to the part other than the leased building. There is no data related to the current status of the building itself, such as the current status of the installation of disaster prevention facilities, fire-fighting systems, electricity, gas and water supply facilities, etc. based on the entire building and the degree of deterioration, and there is no data that can identify the current status of the building, such as the current status of regular inspection, management, repair, and replacement of such facilities, the current status of general management and use of the leased building and the entire building, and the propriety of continuous operation

The lower court erred by misapprehending the legal doctrine on limitation of liability for damages when damage to the non-leased premises of a building was extended due to unclear fire, thereby failing to exhaust all necessary deliberations.

B. The lower court’s error of misapprehending the legal doctrine, etc. affected the judgment on the calculation of the total amount of damages that the Defendant Lessee should compensate for, and such error also affected the judgment on the determination of the total amount of insurance proceeds that Defendant Samsung Fire shall pay to the Plaintiff. Therefore, the part of the lower judgment against the Defendants in the principal lawsuit should be reversed in its entirety.

As above, I agree with the conclusion of the majority opinion, but there are different reasons for reversal, so I express my concurring opinion.

Justices Yang Sung-tae (Presiding Justice)