Whether the previous lessee is obliged to prevent the loss of the present occupant's fault in the natural park that the previous lessee accepted;

The previous lessee, at the time of the lease, removed brok partitions and columns and constructed to cause excessive fire to the middle beer, caused by a defect in the roof weight of the leased building. The current occupant who acquired the right of lease from the former lessee, did not know the construction fact, but did not look at the inside because the building was covered by beer, and it was not possible to find out whether the initial partition or pole was moved from the outside, and even if there was any specific error in the ceiling, it cannot be seen that the present occupant neglected the duty of care, as seen above, even though he did not pay considerable attention to the situation, it was impossible to prevent the damage in advance due to the hidden defect in the ceiling.

Article 758(1) of the Civil Act

Plaintiff 1 and 12 others

Defendant 1 and one other, Defendants 1 and 1 others, Counsel for the defendant-appellant Park Hun-young and Doll.

Daegu High Court Decision 83Na580 delivered on November 8, 1983

The part of the judgment of the court below against the defendants shall be reversed, and that part of the case shall be remanded to the Daegu High Court.

The defendants' attorney's grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below determined that since the building of this case was owned by the non-party 1 and the non-party 2 and the non-party 3 et al. operated a restaurant on or around June 1970 on a lease agreement, they were removed by fully putting up the partitions of the Appendix 1, which had been installed by the non-party 2 and the non-party 3 around 1973, and moved up to two holess on the part of the pole in the middle, which had been installed by the non-party 1 and the non-party 2, the defendant 1 and the non-party 2 did not pay excessive roof weight to the above non-party after acquiring the right of lease from the above non-party on the first day of June 197 with the consent of the owner of the above building and operated the restaurant, the plaintiff 1 et al. was not obliged to pay compensation for damages caused by the non-party 2's failure to do so.

2. However, under the proviso of Article 758(1) of the Civil Act, the possessor of a structure may be exempted from liability if he proves that he did not neglect due care to prevent any damage caused by the defect in the installation or preservation of the structure. Therefore, the possessor shall be deemed to be likewise exempted from liability in cases where he did not prevent the damage, even though he did not exercise due care, but could not anticipate the occurrence of the damage

As determined by the court below, it is due to the defect that the whole lessee of the building of this case caused by the defendants' removal of the partitions and columns between two restaurants of this case at the time of the lease and construction of the roof weight to be excessively cut off. According to each evidence of employment of the court below (in particular, the result of the examination of the first court's criminal record and the testimony of non-party 4), the defendants who occupied the building of this case by transfer of the right of lease from the whole lessee was not aware of the above construction of the whole lessee and the defendants who occupied the building of this case cannot be seen as carrying the building of this case in Vagle because the defendants could not be seen as moving the building of this case from the outside, and it cannot be seen as moving the building of this case in the first place because the defendants could not be identified as moving the partitions or columns from the outside, and there is no particular error in appearance in the ceiling.

If the facts are as above, even though the Defendants had paid considerable attention as a lessee, they could not anticipate the damages caused by the hidden defects inside the ceiling and prevent them. Therefore, it cannot be deemed that the Defendants neglected due care for the prevention of damages caused by the said defects.

3. Ultimately, the judgment of the court below which rejected the above defendants' defense of exemption is erroneous in the misunderstanding of the legal principles as to the possessor's exemption in liability for damages caused by the defect in the installation and preservation of a structure, and the judgment of evidence is erroneous in the misunderstanding of legal principles as to the possessor's exemption, and such illegality constitutes the ground for reversal under Article 12 (2) of the Special Act on

Therefore, among the judgment below, the part against Defendants 1 and 2 is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Lee Sung-soo (Presiding Justice)