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

Defendant-Counterclaim (Law Firm Hyeong, Attorney Cho Jae-in, Counsel for the defendant-Counterclaim)

Defendant 1 and one other (Law Firm Hyeong et al., Counsel for the defendant-appellant)

March 21, 2012

Suwon District Court Decision 2009Gahap17130 (principal lawsuit), 2010Gahap7740 (Counterclaim) Decided December 1, 2010

1. The part of the judgment of the court of first instance against the Defendant (Counterclaim Plaintiff) and the Plaintiff (Counterclaim Defendant) against the Defendant Samsung Fire Marine Insurance Co., Ltd., falling under the following, shall be revoked:

Defendant Lessee (Counterclaim Plaintiff) and Defendant Samsung Fire Marine Insurance Co., Ltd. pay to each Plaintiff 148,278,300 won with 5% interest per annum from June 16, 2010 to September 5, 2012, and 20% interest per annum from the next day to the day of complete payment.

2. Of the part concerning the counterclaim of the judgment of the court of first instance, the part against the plaintiff (Counterclaim defendant) shall be revoked, and the defendant (Counterclaim plaintiff)'s counterclaim corresponding to the revoked part shall be dismissed.

3. All appeals by the Plaintiff (Counterclaim Defendant) against Defendant 1, the remainder of the appeal against Defendant Samsung Fire and Marine Insurance Co., Ltd. and the incidental appeal by the Defendant (Counterclaim Plaintiff) are dismissed.

4. The total costs of the lawsuit incurred between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) bear 35% of the total costs of the lawsuit, including the principal lawsuit and the counterclaim, and the remainder, respectively, by the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff). The costs of the appeal incurred between the Plaintiff (Counterclaim Defendant) and the Defendant 1 are borne by the Plaintiff (Counterclaim Defendant). 70% of the total costs of the lawsuit incurred between the Plaintiff (Counterclaim Defendant) and the Defendant Samsung Fire Marine Insurance Co., Ltd. are borne by the Plaintiff (Counterclaim Defendant) and the Defendant Samsung Fire Marine Insurance Co.

5. The payment portion of paragraph (1) may be provisionally executed.

1. Purport of claim

(a) Main claim;

Defendant Counterclaim Plaintiff (hereinafter “Defendant”), Defendant 1, and Defendant Samsung Fire and Marine Insurance Co., Ltd. jointly and severally pay 492,118,000 won to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) as well as 20% interest per annum from the day following the delivery of a copy of the claim and the application for change of cause of this case to the day of full payment.

(b) Counterclaim;

The Plaintiff shall pay to the Defendant (Counterclaim Plaintiff) 376,208,831 won with 20% interest per annum from the day following the delivery of a copy of the instant counterclaim to the day of complete payment.

2. Purport of appeal

(a) Main claim;

The judgment of the court of first instance concerning the principal lawsuit shall be revoked. The judgment identical with the purport of the principal lawsuit shall be revoked.

(b) Counterclaim;

It is so decided as per Disposition 2.

3. Purport of incidental appeal;

Of the part on the counterclaim of the judgment of the court of first instance, the part against the Defendant (Counterclaim Plaintiff) shall be revoked. The Plaintiff shall pay to the Defendant (Counterclaim Plaintiff) 36,208,831 won with 20% interest per annum from the day following the delivery of a copy of the instant counterclaim to the day of complete payment.

1. Basic facts

A. Conclusion of a lease agreement between the Plaintiff and the Defendant (Counterclaim Plaintiff)

(1) From June 24, 2004, the Plaintiff owned the storage facilities of the 1st floor, the 6th floor of the 2nd floor of the general steel-frame (defluent concrete string roof), the 1st floor of 963.43 square meters, the 2nd floor 957.18 square meters, the 2nd floor 957.18 square meters and the 1st floor of the toilet (refluent type) room, the toilet (refluent type) room (hereinafter “the instant building”).

(2) However, the inside space of the building of this case is supported by the steel columns and beams. However, the inside space of the building of this case is divided into the first floor and the second floor by the wall slabs in the ceiling, and the entrance from the first floor to the second floor through the internal stairs is made, and the warehouse of the prefabricated-type panel (hereinafter referred to as the prefabricated-type panel) structure is installed adjacent to the second floor in the stairs exit to the second floor. On the other hand, the outer space of the building of this case from the first floor to the third floor is a structure that forms the whole body of the prefabricated-type panel, and the building of this case forms an integral structure in the mutual maintenance and respect.

(3) On May 27, 2008, the Plaintiff and the Defendant (Counterclaim Plaintiff) concluded a lease agreement (hereinafter “instant lease agreement”) with respect to KRW 150,00,00 on the first floor of the instant building (hereinafter “the instant leased object”), which stipulates that the lease deposit shall be KRW 40,00,000, monthly rent KRW 3,300,000, and the lease term shall be KRW 3,300,000, and the lease term shall be from July 1, 2008 to 24, and the Defendant (Lessee) paid the said lease deposit to the Plaintiff around that time.

(4) After the conclusion of the instant lease agreement, the Defendant (Counterclaim) divided the leased object (which falls under the generally left part on the basis of the main entrance map) into an office, store, warehouse, etc., and used the instant building as a store for storing and selling golf products, and the Plaintiff used the instant building 2 as a logistics warehouse for storing furnitures, such as beed by the Plaintiff, and the instant building 2 was stored as a water tank in a warehouse near the stairs, and the instant building rooftop was used as a rooftop, and the remainder of the building was used as a rooftop, while the water tank was stored in a warehouse near the stairs.

B. Conclusion of an insurance contract between the Defendant (Counterclaim Plaintiff) and Defendant Samsung Fire and Marine Insurance Co., Ltd.

(1) The Defendant Lessee concluded two fire insurance contracts with Defendant Samsung Fire Marine Insurance Co., Ltd. (hereinafter “Defendant Samsung Fire”) with respect to the leased object of this case on the following major contract terms:

The name of goods: (1) insurance contract (hereinafter referred to as "fire insurance contract of this case") included in the main sentence 1 (contract number 1 omitted): The insurance policy holder and the insured: the insurance period: the insurance period on June 30, 2008: the insurance contract period from 16:0 on June 30, 2008 to 16:00 on June 30, 201, - the owner of the building - the owner of the facility (hereinafter referred to as "owner's compensation liability"): 10 million won (10 million won): 10 million won (10,000 won): 10 million won (2) insurance contract number (hereinafter referred to as "contract number 2: 100,000 won) - the owner of the building and the owner of the building (hereinafter referred to as "owner's compensation liability - 10,000 won: 10,000 won (hereinafter referred to as "this case's fire insurance contract - 2: 108,08.

(2) On the other hand, the main contents of the general terms and conditions incorporated into the fire insurance contract Nos. 1 and 2 of the instant case, the liability of the owner of facilities, and the liability of the lessee are as follows

본문내 포함된 표 ◎ 보통약관 제14조(보상하는 손해) ① 회사는 보험기간 중에 보험에 가입한 물건이 화재로 입은 아래의 손해를 보상하여 드립니다. 1. 화재에 따른 손해 2. 화재에 따른 소방손해 3. 화재에 따른 피난손해 ◎ 시설소유자배상책임 특별약관 제1조(보상하는 손해) 회사는 피보험자가 보험기간 중에 소유, 사용 또는 관리하는 시설(이하 ‘시설’이라 하며, 보험가입증서에 기재된 시설에 한합니다) 및 그 시설의 용도에 따른 업무의 수행으로 생긴 우연한 사고로 타인의 신체에 장해를 입히거나 타인의 재물을 망그러뜨려 법률상의 배상책임을 부담함으로써 입은 손해를 보상하여 드립니다. 제4조(보상하지 아니하는 손해) ② 회사는 피보험자가 아래에 열거한 손해배상책임을 부담함으로써 입은 손해는 보상하여 드리지 아니합니다. 4. 계약자 또는 피보험자가 소유, 점유, 임차, 사용하거나 보호, 관리, 통제하는 재물이 손해를 입음으로써, 그 재물에 대한 정당한 권리를 가지는 사람에 대한 손해배상책임. 그러나 피보험시설 내에 설치된 엘리베이터로 생긴 재물손해에 대한 배상책임은 보상하여 드립니다. 제9조(손해배상청구에 대한 회사의 해결) ① 피보험자가 피해자에게 손해배상책임을 지는 사고가 생긴 때에는 피해자는 이 약관에 의하여 회사가 피보험자에게 지급책임을 지는 금액 한도 내에서 회사에 대하여 보험금의 지급을 직접 청구할 수 있습니다. 그러나 회사는 피보험자가 그 사고에 관하여 가지는 항변으로써 피해자에게 대항할 수 있습니다. ◎ 임차자배상책임 특별약관 제1조(보상하는 손해) 회사는 보험기간 중에 피보험자가 임차한 보험가입증서에 기재된 부동산이 보통약관 제14조에서 정한 화재로 인하여 없어지거나 망가짐으로써 그 부동산에 대하여 정당한 권리를 가진 자에게 법률상의 배상책임을 부담함으로써 입은 손해를 이 특별약관에 따라 보상하여 드립니다. 제3조(보상하지 아니하는 손해) ② 회사는 피보험자가 아래에 열거한 손해배상책임을 부담함으로써 입은 손해는 보상하여 드리지 아니합니다. 5. 배상책임의 목적인 임차부동산을 제외한 계약자 또는 피보험자가 소유, 점유, 임차, 사용하거나 보호, 관리, 통제하는 재물에 생긴 손해에 대한 배상책임 제8조(손해배상청구에 대한 회사의 해결) ① 피보험자가 피해자에게 손해배상책임을 지는 사고가 생긴 때에는 피해자는 이 약관에 의하여 회사가 피보험자에게 지급책임을 지는 금액 한도 내에서 회사에 대하여 보험금의 지급을 직접 청구할 수 있습니다. 그러나 회사는 피보험자가 그 사고에 관하여 가지는 항변으로써 피해자에게 대항할 수 있습니다.

C. Occurrence of a fire on the instant building

(1) On October 9, 2009, around 12:05, the main entrance and exit of the first floor of the instant building and the first floor and the second floor were expanded so that flames can be cut down, and a substantial part of the outer wall of the first floor or the third floor centered on the front entrance and exit of the first floor was destroyed. In addition, there was a fire where the whole interior facilities of the second floor of the instant building, the entire roof warehouse, and a part near the main entrance and exit of the first floor is shot up (hereinafter “the instant fire”).

(2) Due to the instant fire, the leased object of this case was destroyed by the main parts of the outer wall, and its internal space was damaged to a considerable part of water leakage water, etc. and became unusable for use and profit-making as a golf product store. Accordingly, the Defendant Lessee (Counterclaim Plaintiff) left the leased object of this case as it remains damaged and transferred a golf product store to the building located in Gwangju-si (resident address 3 omitted) located in the neighboring city of the instant building around October 2009, where long from the date of the instant fire occurrence.

【In the absence of dispute over the grounds for recognition, Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 5, 6, 18, Eul evidence Nos. 3 and 4 (in the absence of a separate indication of the identification number, including the serial number; hereinafter the same shall apply), Eul evidence Nos. 3 and 4 (in the absence of a separate indication of the identification number, hereinafter the same shall apply), the result of on-site verification by the court of the first instance, the result of appraisal by non-party No. 2 of the case for which the application for preservation of evidence is filed by Sungwon District Court Sung-nam Branch 2010Kaga468 (

2. The party's assertion and judgment on the claim of the principal lawsuit

A. The parties' assertion

(1) Plaintiff

(A) Defendant (Counterclaim Plaintiff) and Defendant 1: (a) respectively or jointly leased 150 square meters and 60 square meters among the first floor of the instant building from the Plaintiff; and (b) in fact, occupied and used the entire first floor of the instant building; and (c) operated a golf product store.

(B) However, according to the appraisal report of the National Institute of Scientific Investigation (No. 3) and the witness's statement, the fire in this case occurred inside the main entrance and exit of the first floor, which is the leased part of the Defendant Lessee, and Defendant 1, and as a result, the damage was caused by the fire in this case's building and the goods stored inside the building in an indivisible relationship with the leased part. As long as the above Defendants neglected their duty of due care as a good manager for the leased part and caused the damage to the Plaintiff, the above Defendants shall compensate the Plaintiff for the damage caused by the nonperformance under the lease agreement, and even if the fire in this case is unclear, the above Defendants did not prove that the fire in this case occurred outside their leased part.

(C) or selectively, the instant fire occurred due to the negligent act committed by the Defendant (Counterclaim Plaintiff) and Defendant 1’s employees, after smoking tobacco in the vicinity of the main entrance and exit of the first floor and then without properly extinguishing the cigarette, and the said Defendants shall compensate for the damages suffered by the Plaintiff on the basis of the employer’s responsibility.

(D) Meanwhile, Defendant Samsung Fire is an insurer of fire damage caused by the instant fire as to the leased part of Defendant Samsung Fire (Counterclaim Plaintiff) and Defendant 1. The Plaintiff is obligated to pay insurance proceeds from the instant fire. The Plaintiff seeks direct payment of insurance proceeds against Defendant Samsung Fire, based on the right to claim damages from the instant fire.

(E) Furthermore, the Plaintiff suffered damages of KRW 492,118,256 in total, including KRW 223,149,256, and KRW 492,118,256, and KRW 492,118,00 in total, due to the fire of the instant building caused by the fire, and the household goods stored in the second floor logistics warehouse of the instant building. The Defendants jointly and severally shall compensate the Plaintiff for the damages of KRW 268,96,118,00, which are part of the costs.

(2) Common assertion by the Defendants

(A) According to the ○○ Fire Station’s statement on the scene of the instant fire that was prepared by Nonparty 3 on the fire site (No. 10 evidence; hereinafter “the result of the instant fire station’s on-site investigation”) and witness’s statement, the instant fire was generated on the second floor of the instant building occupied and used by the Plaintiff, and is irrelevant to the leased part under the instant lease agreement.

(B) Even if the point of extinguishment of the instant fire is inside the main entrance of the first floor according to the result of the State’s water appraisal, the point of extinguishment is not the leased part under the instant lease agreement, but rather only the part possessed and used by the Plaintiff for the utilization of the second floor of the instant building.

(C) Therefore, the Plaintiff’s claim on the premise that the Defendant (Counterclaim Plaintiff) and Defendant 1 are liable for nonperformance under the lease agreement is without merit.

(3) Individual assertion of Defendant Samsung Fire

(A) According to the respective special terms and conditions of the instant fire insurance contract, the Lessee’s liability for fire damage occurred on the leased object of this case, and the Lessee’s liability for the payment of the insurance proceeds vary because the fire damage occurred on the remainder of the instant building except the leased object of this case among the instant building. The instant fire did not cause any damage on the leased object of this case, while only the remainder of the instant building was incurred. Defendant Samsung Fire is liable for the insurer under the terms and conditions stipulated in the facility owner’s liability for the damages. Accordingly, the liability for the payment of insurance proceeds against the Plaintiff of Samsung Fire is limited to KRW 9,90,000 ( KRW 100,100,000) which is the limit set by the facility owner’s liability for damages.

(B) The Plaintiff’s damage caused by the instant fire is the expanded damage caused by the fire caused by the fire, and the amended Act on the Liability for Fire Caused by Fire Caused by Fire (wholly amended by Act No. 9648, May 8, 2009; hereinafter “amended Act on the Liability for Fire Caused by Fire”) applies. The amount of compensation for the damage caused by the instant fire should be significantly mitigated.

(4) Individual assertion by Defendant 1

The parties to the instant lease agreement are only the Plaintiff and the Defendant (Counterclaim Plaintiff), and Defendant 1 did not conclude any lease agreement with the Plaintiff on the instant building. Therefore, Defendant 1’s claim on the premise that Defendant 1 is a lessee under the instant lease agreement is without merit.

B. Determination on the claim against Defendant (Counterclaim Plaintiff) and Defendant Samsung Fire

(1) Determination on the Defendant (Counterclaim Plaintiff)’s default liability

(A) Relevant legal principles

Where a lessee is unable to fulfill his/her duty to return an object of lease, if the lessee is liable for damages due to nonperformance, he/she shall be responsible to prove that the nonperformance does not occur due to the lessee's cause attributable to the lessee. If the leased building is destroyed by a fire, if the cause of the fire is unknown, the lessee shall prove that the lessee fulfilled his/her duty to preserve the leased building in order to be exempted from his/her liability, and if the cause of the fire is unknown, the disadvantage should be ultimately borne by the lessee. This legal principle applies to cases where the lessee is unable to prove whether the fire occurred within the leased part. Although the obligation to return the leased object was not impossible at the time of the termination of the lease, it is equally applied to cases where the returned leased building seeks damages on the ground that the building was damaged by a fire, and the size and structure of the building are in an indivisible relationship with the leased part of the building, and if the leased part becomes destroyed by a fire to the other part of the building, the lessee shall not be held liable for damages, 2005.297.257.

On the other hand, the lessee’s failure to fulfill the duty to return the leased object falls under the lessor’s duty to maintain the condition necessary for the use and profit-making of the leased object as well as the lessee’s breach of the duty to preserve the leased object, even if it is revealed that there is a cause of the lessee’s breach of the duty to maintain the leased object separately. Thus, in a case where the lessee of a house, other building, or a part of the lessee is destroyed by a fire while taking over the leased object from the lessor and occupying and using it, if it is presumed that the fire was caused by a defect existing in the area controlled and managed by the lessor, such as the electrical ship, which forms a part of the building structure, the repair and removal of the defect falls under 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 for damages concerning the nonperformance, etc. of the duty to return the object due to the fire (see, e.g., Supreme Court Decision 2009Da13170, May

(B) Presumed facts and related issues

On the other hand, the object of the lease of this case was destroyed by a substantial part of the outer wall, which is the main part of the building of this case, and was damaged by water leakage, etc. for fire extinguishing water, and was in a situation in which it was no longer usable or benefiting from it for the purpose of lease. Accordingly, even though the term of the lease has not expired, the Defendant Lessee moved its leased facilities without leaving the leased object in the state as it was destroyed, and the leased object of this case is a space which is an integral body in structure due to the mutual maintenance and existence with other parts of the building of this case. The fire of this case was destroyed not only by the object of the lease of this case but also by the first and second floors, which are the remaining parts of the building of this case, and the fact that the fire of this case was destroyed not only by the fire of this case, but also by the first and second floors and the second floors, which are the remaining parts of the building of this case, were found to be all the cause of the fire of this case, such as the possibility of fire, witness, and electrical cause of fire, etc.

Examining these facts in light of the legal principles as seen earlier, the instant lease agreement was terminated due to the instant fire, the cause of which is unclear, which became impossible to achieve the purpose of the lease by social norms, and it also becomes impossible for the Defendant Lessee (Counterclaim) to return the leased object to the Plaintiff in full condition. On the other hand, the Plaintiff suffered damages from the first floor, second floor, and rooftop parts of the instant building, which are an integral space between the leased object and the structure indivisible. However, in order for the Plaintiff to be exempted from liability for nonperformance due to the fire, it shall be proved that the instant fire was caused by defects existing in the area controlled and managed by the Plaintiff, the lessor, or if not, the Defendant Lessee (Lessee) fulfilled the duty of due care as a good manager for the preservation of the leased object.

(C) Additional findings

The following facts are acknowledged in full view of the evidence admitted above, Gap's evidence Nos. 3, 8, 9, 13, Eul's evidence Nos. 7 through 17, non-party 4's testimony as a witness of the trial court, and the purport of the whole fact-finding as to the chief of the court of the trial as a whole.

① As a result of the investigation conducted on the point of the fire of this case, the results of the investigation conducted by the fire station and the water station and the results of the investigation conducted on the point of the fire of this case. On the other hand, the results of the investigation conducted on October 29, 2009 by the National Scientific Investigation Institute, including the first site situation of the fire of this case and the witness’s statements, determined the point of the fire station as “the second floor of the building of this case.” On the other hand, the results of the investigation conducted on October 29, 2009 by the National Scientific Investigation Institute and Non-Party 5, etc., on the investigation data of the fire of this case, the witness statement, the cellular phone and CCTV screen taken around the scene and its surrounding area at the time of the fire of this case, including all the results of the investigation conducted by the said fire station, which determined the point of the fire station as “the inner right side of the front floor entrance.” The two results show conflicting judgments as to the point of the fire of this case.

As a result of the on-site investigation, ○○○○ fire-fighting pipe’s inner diameter of the fire-fighting department (the first floor of the fire-fighting department), the inner combustion point of the instant fire-fighting department’s front floor was located in the front direction of the entrance and exit of the second floor, and the front bottom of the fire-fighting department’s front direction of the fire-fighting department’s 2nd floor and the front bottom of the fire-fighting department’s front direction of the fire-fighting system (the third floor fire-fighting department and the front bottom of the fire-fighting department’s front direction of the fire-fighting system). It is not easy to see that the front bottom and the front bottom of the fire-fighting department’s front left-hand part of the fire-fighting system’s 2nd floor were non-explosible and front bottom of the fire-fighting system’s front bottom and the front bottom of the fire-fighting system’s front bottom and the front bottom of the fire-fighting system.

Note 4)Roofs

② After the instant fire, the investigative agency conducted an investigation into witnesses on the scene of the fire or surrounding areas. Nonparty 4 and Nonparty 6 (hereinafter “the witness witness of the Plaintiff”) who stated that the point of the instant fire occurred on the right side of the front floor of the first floor is in a personal relationship closely with the Plaintiff (the non-party 4 is the factory employee of the Plaintiff’s wife, and the non-party 6 is the Plaintiff’s neighbor), while both Nonparty 7, 8, and 9 (hereinafter “the Defendant Lessee”) who stated that the point of the fire occurred on the second floor of the instant building (hereinafter “the non-party 7, 8, and 9”) are in a personal relationship closely with the Defendant (the employees of the store in charge of the Defendant Lessee). The Plaintiff and the non-party 10, a neighboring resident, and the non-party 3, a fire fighter, who stated that the point of the fire occurred accurately.

③ An investigative agency that investigated the instant fire was unable to accurately identify the cause and location of the instant fire on the grounds that the witness’s statements were different, including the results of the on-site investigation conducted by the fire officer, the results of the on-site investigation conducted by the police officer, and the results

④ Meanwhile, Defendant 1 operated a store in the left-hand area of the main entrance, the front floor of the first floor, as shown in the attached Form “○○○ Ss distribution map,” while, at the same time, used the outer-hand part of the main entrance, the front part of the front floor as packing materials or waste stuffs, etc. In addition, Defendant 1 used the front stairs of the front floor as a smoking space of employees or installed the security facilities in the front entrance, thereby substantially managing the vicinity of the front floor of the first floor. However, Defendant 1 used lifts installed in the left-hand part of the main entrance, the front floor of the first floor (i.e., the front entrance and exit), while the Plaintiff, as a logistics warehouse, has been managing the second floor as the second floor of the instant building.

(D) Determination as to point of origin

The following circumstances revealed through the above facts, i.e., ① the Plaintiff’s testimony of the fire site and witness of the Defendant (Counterclaim Plaintiff) were made in a position related to both parties’ interests. The remaining witnesses merely do not know the fire site. The statement of the witness of the fire site and its surrounding witness cannot identify the fire site. ② The point where the fire occurred can only be inferred in a scientific way by adding supplementary materials to the on-site situation. As a result of the scientific trend of the on-site survey, the point where the fire occurred and the results of the appraisal of the fire station and the on-site appraisal, which are the results of the on-site survey and the on-site appraisal of the fire site as seen earlier, it is reasonable to see that the lease contract was concluded to the right-hand side of the fire site and the on-site image material of the witness at the time of the fire site and the on-site survey result of the on-site survey, and it is reasonable to see that the lease contract was concluded to have a superior value to the Defendant’s on the first floor or the first floor of the fire site.

Even if the point of extinguishment of the instant fire cannot be determined to the right-hand side of the front entrance of the first floor, in light of the above circumstances, it cannot be inferred that the instant fire occurred within the leased area of the Defendant-Counterclaim Plaintiff, and it is only the case where it is impossible to find out whether the fire occurred within the leased area of the Defendant-Counterclaim Plaintiff, and it cannot be said that it occurred within the area controlled and managed by the Plaintiff. In light of the aforementioned legal principles, there is no burden of proving that the Defendant-Counterclaim Plaintiff has fulfilled the duty to preserve

(E) As to the Defendant (Counterclaim Plaintiff)’s duty to preserve the leased object

As to whether the Defendant Lessee (Counterclaim) fulfilled the fiduciary duty to preserve the leased object of this case under the instant lease agreement, each statement in the evidence Nos. 5, 6, 9, 14, and 15 issued by the Defendant Lessee and the Defendant Lessee (Counterclaim Plaintiff) on this part of the allegation was merely a video material on which the fire site and its surrounding areas were recorded, and each statement in the evidence Nos. 7, 8, 11 through 13, 16, and 19 was merely a reliable statement as to the process of the occurrence of the instant fire and its employees, or it was merely a statement on the witness status of Nonparty 3, the fire station No. 10, the value of which was low as a result of the on-site investigation, and the evidence that each of the above Defendant Lessee was insufficient to acknowledge otherwise as to the leased object of this case.

Therefore, the Defendant (Counterclaim) is liable for damages incurred by the Plaintiff due to nonperformance of the duty to return the leased object under the instant lease agreement.

(f) Scope of damages

In full view of the purport of the argument by Nonparty 2 as a result of the appraisal of the first instance trial, it is found that the Plaintiff was damaged by KRW 492,118,00,00 in total, including the Plaintiff’s intrusion, household, office fixtures, etc., and the amount equivalent to the market price of the building of this case, which was destroyed by the fire of this case, 268,969,000, and the second floor of the building of this case. The result of the inquiry by Nonparty 2 of the first instance trial court against Nonparty 2 of the first instance trial without considering the substantial loss of the outer wall of the leased object of this case is merely the purport that the repair cost is not necessary on the premise that only the repair cost is not necessary on the premise that the repair cost of the building of this case, including the leased object, is not interfered with the recognition of the whole repair cost of the building of this case.

However, as seen earlier, the Defendant Lessee is liable for damages due to nonperformance under the instant lease agreement, which is the damage incurred to the instant building itself, which forms an indivisible structural unit in the maintenance and existence of the leased object in the instant case. The Defendant Lessee’s nonperformance liability is limited to KRW 268,969,00, which is limited to KRW 268,969,00 due to the fire of the instant building recognized as above, and cannot be deemed as the damage that is the object of the Defendant Lessee’s nonperformance liability.

Therefore, the scope of damages caused by the Defendant-Counterclaim Plaintiff’s nonperformance of obligation is KRW 268,969,000.

(g) limitation and deduction of liability;

The security deposit received in the lease of real estate guarantees all the obligations of the lessee arising from the lease relationship, such as the rental fee and the liability for damages arising from the loss, damage, etc. of the object, and the amount equivalent to the secured obligation is naturally deducted from the security deposit without any separate declaration of intention unless special circumstances exist when the object is returned after the termination of the lease relationship (see Supreme Court Decision 9Da50729, Dec. 7, 1999, etc.). Meanwhile, in cases of the limitation of liability for the fair sharing of the burden of damages to the lessor, the security deposit should be deducted from the liability limitation first (see Supreme Court Decision 2008Da27721, Apr. 9, 2009, etc.).

With respect to the instant case, the following circumstances are acknowledged to show the purport of the entire argument as follows: ① the cause of the fire in this case was not clearly revealed; ② the fire generated from the leased object was carried out on the second floor of the instant building used by the Plaintiff and profit-making; ② the fire in this case increased rapidly with inflammable objects, such as beer, furniture, office fixtures, etc., owned by the Plaintiff; ③ the damage to the instant building was increased; ③ the fire in this case was not equipped with heat facilities or fire extinguishing facilities sufficient to cope with the fire itself; ④ The rapid expansion of the fire in this case was based on the structure inside the instant building that was not easy early extinguishment; ④ the fire in this case was not caused by the initial failure to respond to the fire on the part of the Defendant Lessee; ⑤ the Defendant Lessee (Plaintiff Lessee) was a relatively small amount of KRW 40 million x KRW 700,000,000,000 for the instant building; and ④ the damages amount was 860,000,000 won by the Plaintiff 7.

Meanwhile, among the damages of the Plaintiff, the amount equivalent to KRW 40,00,000, which is limited as above, should be naturally deducted from the lease deposit of this case according to the termination of the lease contract of this case. Therefore, if such amount is deducted [the Plaintiff’s obligation to return the lease deposit to the Defendant-Counterclaim Plaintiff is terminated as a matter of course], the amount of damages that the Defendant-Counterclaim Plaintiff is liable to compensate to the Plaintiff is KRW 148,278,300 (18,278,300,300-40,000).

(2) Determination on the Defendant (Counterclaim Plaintiff)’s employer liability

Furthermore, the plaintiff's selective claims are insufficient to recognize that the fire of this case occurred due to the tort that the employees of the defendant Lessee (Lessee) smoked tobacco in the vicinity of the main entrance of the first floor and did not properly cut down the cigarette, and there is no other evidence to acknowledge it. Thus, the plaintiff's claim on this part premised on the defendant Lessee's liability is without merit without further review.

(3) Determination as to the insurer's liability of Defendant Samsung Fire

(A) Determination on the scope of the obligation to pay insurance proceeds

(1) In interpreting a standardized contract, a fair and reasonable interpretation shall be made in accordance with the principle of trust and good faith in consideration of the purpose and purpose of the standardized contract, and an objective and uniform interpretation shall be made on the basis of average customer’s understanding potential without considering the intended purpose and intent of the individual contracting party. Even after such interpretation, where the meaning of the standardized contract is unclear, such as where the standardized contract provision is objectively and objectively interpreted and its respective interpretation is reasonable, it shall be interpreted in favor of customers (see, e.g., Supreme Court Decisions 2011Da30147, Jul. 28, 2011; 2009Da73295, Sept. 8, 2011).

② Examining the following circumstances in light of the aforementioned legal doctrine in light of the language and purport of the terms and conditions of the 1 and 2 fire insurance contract as seen earlier, and the legal nature of the Lessee’s liability for damages incurred by the lessor due to the nonperformance of the Defendant-Lessee’s liability, i.e., the leased object and other parts that form an integral structure in the maintenance and existence of the leased object, it is reasonable to deem that the 1 and 2 fire insurance contract of this case is guaranteed by both the Lessee’s liability for damages incurred by the lessor and the Lessee’s liability for damages incurred by the nonperformance of the leased object and its mutually indivisible structure

(a) The Lessee’s liability for damages on the leased object itself is excluded from the object of compensation, while securing the lessee’s legal liability for damages on the leased object’s property due to fire or due to fire due to the use and profit-making activity of the leased object (see Articles 1 and 4(2)4 of the Special Clause on the Lessee’s Liability for Damages). The Lessee’s liability for damages guarantees the lessee’s legal liability for damages on the leased object as the leased real property loses or is lost due to fire (see Article 1 of the Special Clause on the Lessee’s Liability for Damages). Each of the Special Clause guarantees the lessee’s legal liability for damages on the leased object due to fire on the leased object, and is the same as the object of security itself as the lessee’s liability for damages

(b) The liability of the owner of a facility is the scope of the property damage of the lessor caused by fire of the leased object, that is, the scope of the damage extended to the extent other than the leased object due to the burning of the leased object. It is apparent that the contractual terms and conditions stipulate that the lessee shall be liable for nonperformance (see, e.g., Supreme Court Decision 2002Da39456, supra) for the damage incurred by the lessor due to the loss of other parts indivisible in the structure in the maintenance and existence of the leased object.

The remedy for damages also covers the tenant's legal liability for the lessor due to the fire of the leased real estate, but does not explicitly provide for the details of the tenant's legal liability for damages. However, if the leased object is destroyed or damaged due to a fire, the terms and conditions of the collateral are interpreted as a provision on the contents and limitation of the tenant's liability for damages to the lessor. Thus, the lessee's liability for nonperformance, which is included in the collateral scope of the lessee's liability for damages as mentioned above, does not differ from the lessee's legal liability for damages, which is set forth within the scope of the lessee's liability for damages. It does not correspond to the lessee's liability for damages excluded from the collateral scope, i.e., the lessee's liability for damages arising from the property other than the leased object (Article 3 of the Clause on Special Cases concerning the Lease)

㈃ 한편, 시설소유자배상책임은 임대차의 경우를 제외하고도 피보험자가 소유, 사용 또는 관리하는 시설 내지 그 시설의 용도에 따른 업무의 수행으로 인하여 발생한 화재에 따라 제3자에 대하여 부담하는 법률상 배상책임까지 담보할 수도 있는 것인 반면, 임차자배상책임은 화재로 인한 임차목적물 그 자체의 멸실·훼손에 따라 임차인이 임대인에 대하여 부담하는 법률상 배상책임만을 담보하는 것인바, 시설소유자배상책임이 임차자배상책임보다 그 담보 범위가 넓게 인정될 여지가 있을 뿐 위 두 보험자책임이 서로 양립할 수 없는 것이라고는 볼 수 없고, 피보험자로서도 위 각 보험 내용에 관하여 보험가입금액의 조정을 통하여 자신의 법률상 배상책임에 관한 보험 혜택을 조절할 수 있는 것이기도 하다.

㈄ 나아가, 시설소유자배상책임과 구분하여 임차자배상책임의 담보 범위에 관한 규정만을 오로지 임차목적물 그 자체에 손해가 발생한 경우에 한정하여 적용된다고 해석하는 것은, 그 담보 대상을 규율하는 핵심적 요소인 ‘법률상 배상책임’이라는 책임 발생요건과 범위에 관한 다양한 측면을 포섭할 수 없을 뿐만 아니라, 임차목적물의 멸실·훼손으로 인하여 부담하게 되는 장래 불확정한 법률상 배상책임을 보험가입금액을 한도로 보상받고자 하는 임차인의 보험 가입에 관한 일반적 인식과도 배치된다.

③ Therefore, Defendant Samsung Bio-resources is an insurer that may compensate the Plaintiff for losses incurred by the Defendant (Counterclaim Plaintiff) due to the Defendant’s nonperformance of its liability against the Plaintiff and the lessee’s liability. The maximum amount of each fire insurance contract as above is KRW 279,900,000 (the maximum amount of damages for the owner of facilities of the instant fire insurance contract plus KRW 99,000,000 + the maximum amount of damages for the lessee of the instant fire insurance contract 10,000 + the maximum amount of damages for the lessee of the instant fire insurance contract 80,000,000) as seen earlier. As such, Defendant Samsung Fire is obligated to pay KRW 148,278,300 equivalent to the amount of damages of the Plaintiff recognized as the above maximum amount of damages to the Plaintiff as the direct claimant.

(B) Determination as to the application of the amended "Liability Act"

The purpose of the amended Act is to stipulate special cases under Article 765 of the Civil Act concerning reduction of the amount of damages in cases where the actual owner is not grossly negligent considering the peculiarity of the realization, and the claim for damages due to nonperformance is not applicable (see Supreme Court Decision 98Da5107, 51084, Apr. 13, 199). The defendant Lessee's liability for damages due to the plaintiff's non-performance of obligation under the lease contract of this case is the non-performance of obligation under the lease contract of this case. Thus, this part of the defendant Samsung F&M's assertion on different premise is without merit.

(4) The theory of lawsuit

As seen earlier, Defendant Lessee and Defendant Samsung Fire are jointly and severally liable for damages incurred by the Plaintiff. Accordingly, the Defendants are obligated to pay damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from June 16, 2010 to September 5, 2012, which is the day following the delivery date of a copy of the claim of this case and the application for change of cause, as sought by the Plaintiff, as to each of the Plaintiff, as to the existence and scope of the above Defendants’ damages, from June 16, 2010 to September 5, 2012, and from the next day to the day of full payment.

C. Determination on the claim against Defendant 1

(1) Determination as to default liability

In light of the records of evidence No. 4-3, it is insufficient to recognize that Defendant 1 leased part of the building of this case or jointly leased the object of this case with Defendant 1 (Counterclaim) as indicated in the above real estate lease contract, and there is no other evidence to acknowledge it. Thus, this part of the Plaintiff’s assertion on the premise that Defendant 1 is a lessee of the leased object of this case without any further need to examine, as seen earlier, is contrary to the lease contract of this case concluded between the Plaintiff and Defendant 1 and the Plaintiff (Counterclaim Plaintiff).

(2) Determination on employer liability

The evidence No. 2, No. 3, 5, 8, 9 through 11 is written, the testimony of Non-party 4 witness of the trial court, the result of the on-site inspection by the court of the first instance, the result of the appraisal by Non-party 2 of the court of first instance is insufficient to recognize that Defendant 1 is in the position of employer against the employees of the golf instruments shop, who are the subject of tort as alleged by the plaintiff, and there is no other evidence to acknowledge this differently. Thus, the plaintiff's assertion on this part, which is premised on the status of employer, is without merit without need to further examine.

3. The defendant (Counterclaim plaintiff)'s assertion on the counterclaim and judgment on the counterclaim

A. The assertion on the claim for damages and the determination thereof

(1) The argument

The Defendant Lessee (Counterclaim) asserts that the Plaintiff did not have any fire-fighting and disaster prevention facilities, such as sprinklers and fire extinguisherss, on the instant building so that it can use and benefit from the leased object under the instant lease agreement, and that the Plaintiff incurred damages equivalent to KRW 485,391,331 due to the loss or damage of or damage to golf equipment, office supplies, and other property owned by the Defendant Lessee (Counterclaim) in the process of the fire extinguishment of the instant building, and that the Plaintiff shall compensate the Defendant for the said damages based on the nonperformance liability or tort liability. The Plaintiff shall pay the Defendant Lessee the remainder of KRW 336,208,831 (485,391,31,149,182,500) that the Defendant Lessee deducted the insurance proceeds paid by the Defendant Lessee from the Defendant Samsung Fire.

(2) Determination

As a result of the statement Nos. 2 through 19 and the on-site inspection conducted by the court of first instance, it is not sufficient to recognize that the Defendant Lessee suffered property loss in the process of extinguishing the fire of this case due to the Plaintiff’s failure to install fire-fighting and disaster prevention facilities, such as sprinklers and fire extinguisherss, in the building of this case, and there is no other evidence to acknowledge this otherwise. Therefore, this part of the Defendant Lessee’s assertion is without merit without need to further examine.

B. The assertion and determination on the claim for refund of the lease deposit

(1) The argument

The Defendant Lessee (Counterclaim) asserts that the instant fire occurred due to the Plaintiff’s neglecting the management of the instant building, and that the instant lease agreement was terminated because it was impossible to achieve its purpose. Accordingly, the Plaintiff asserts that the Defendant Lessee should return the deposit amount of KRW 40,000,000 to the Defendant Lessee based on the nonperformance liability under the instant lease agreement.

(2) Determination

As seen earlier, the instant lease deposit guarantees the Defendant Lessee’s obligation to compensate for damages under the instant lease agreement against the Plaintiff. As such, the Defendant Lessee’s claim on a different premise is without merit.

4. Conclusion

Therefore, the plaintiff's main claim against the defendant Samsung Fire is justified within the scope of the above recognition. The plaintiff's main claim against the defendant 1, the plaintiff's main claim against the defendant 1, the plaintiff's remainder of the main claim against the defendant Samsung Fire, and the plaintiff's counterclaim against the defendant 1 shall be dismissed. Since the part concerning the main claim against the defendant Samsung Fire, which corresponds to the part ordering the above payment, and the part against the plaintiff against the defendant Samsung Fire, are unfair upon a different conclusion, part of the judgment of the court of first instance is accepted, and part of the plaintiff's appeal against the above defendant is accepted, and the payment of the above cited amount is ordered to be made to the above defendants, and the part against the plaintiff among the part concerning the counterclaim against the court of first instance against the defendant Samsung Fire is unfair upon a different conclusion, and thus, the part in the judgment of first instance as to the counterclaim against the defendant 1 is just, and the remaining part in the judgment of the court of first instance is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

[Attachment]

Judges Lee Young-young (Presiding Judge)

Note 1) After the occurrence of the instant fire, reference was to the arrangement attached to the non-party 1’s report (a evidence No. 18) made by the Korean claims adjuster No. 1.

Note 2) The name of the National Institute of Scientific Investigation was changed later.

3) The same evidence as the evidence No. 17 submitted by the Defendant (Counterclaim Plaintiff) and the Defendant 1 is the same as the evidence No. 17; hereinafter, the same evidence as the evidence No. 1 is not indicated separately.

Note 4) As a result of the State’s water appraisal, state “three floors” is indicated as “three floors.”