If the object of the lease is lost due to force majeure, the person who bears the risk of the lease = the lessor.

Where a leased object is destroyed by a third party's fire-prevention act without the lessee's negligence, such risk is borne by the lessor, who is the debtor, who bears the duty to use and benefit from the leased object in accordance with the principle of debtor's risk burden, and the lessor is liable to return the lease deposit to the lessee.

Article 537 of the Civil Act

Supreme Court Decision 65Da1898 Delivered on November 23, 1965

Plaintiff (Attorney Choi Jin-chul et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Semesters, Counsel for defendant-appellant)

1. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) an amount equivalent to 49,50,000 won with 5% per annum from February 21, 1997 to October 10, 1997, and 25% per annum from the next day to the full payment date.

2. All of the Plaintiff-Counterclaim Defendant’s principal claim and the remainder of the Defendant-Counterclaim Plaintiff’s counterclaim are dismissed.

3. The costs of litigation shall be borne by the plaintiff in total, in the principal lawsuit and counterclaim.

4. Paragraph 1 can be provisionally executed.

The principal lawsuit: The defendant (the plaintiff Counterclaim; the plaintiff hereinafter referred to as the "the plaintiff only) shall pay to the plaintiff (the plaintiff Counterclaim defendant; the plaintiff hereinafter referred to as the "the plaintiff") an amount of 60 million won per annum from February 20, 1997 to the service date of the duplicate of the complaint of this case, and an amount of 25 percent per annum from the next day to the full payment date.

Counterclaim: The plaintiff shall pay to the defendant the amount of 50,000,000 won and the amount equivalent to 5% per annum from February 21, 1997 to the service date of a duplicate of the counterclaim, and the amount equivalent to 25% per annum from the next day to the full payment date.

1. The parties' assertion

A principal lawsuit and a counterclaim shall be deemed simultaneously.

원고는, 그로부터 서울 동대문구 제기1동 (지번 생략) 소재 (이름 생략)여관(이하 '이 사건 여관'이라고만 한다)을 임차한 피고가 이 사건 여관에 상주하면서 이 사건 여관을 관리하지도 아니한 채 그의 처인 소외 1(60세)로 하여금 홀로 별다른 보안장치 없이 이 사건 여관을 관리하게 하였을 뿐만 아니라 위 소외 1이 조금만 주의 있게 관찰하였으면 소외 2가 정신이상자임을 알아 챌 수 있음에도 불구하고 함부로 위 소외 2를 투숙시키는 등 이 사건 여관을 관리함에 있어서 선량한 관리자로서의 주의의무를 다하지 못함으로써 이 사건 여관이 위 소외 2의 방화로 전소되었으므로 그 원상회복으로 이 사건 여관의 수리비 중 금 60,000,000원의 지급을 구한다고 주장함에 대하여, 피고는, 이 사건 여관이 그에게 아무런 과실 없이 불가항력적 사유로 인하여 전소되었다고 항변함과 아울러 이에 따라 임차인인 피고로서는 이 사건 여관을 더 이상 사용·수익할 수 없게 되었으므로 반소로써 위 임대보증금 50,000,000원의 지급을 구한다고 주장한다.

Therefore, I would like to examine whether the female management officer of this case was brought up by the negligence of the above non-party 1 who managed the female management officer of this case by assisting the defendant or the defendant.

2. Facts of recognition;

The following facts do not conflict between the parties, or are recognized as being based on Gap evidence 3-1, 2, 9 (the same shall apply to 15), 12, 13, 17, 19, 20, 21, Eul evidence 1-1 through 6, Gap evidence 6-1 through 22, and there is no counter-proof.

A. On December 1, 1995, the Defendant: (a) on December 1, 1995, leased the instant leisure hall from the Plaintiff as KRW 50,000,000; (b) monthly rent KRW 750,000; and (c) the period as KRW 24 months, respectively.

B. The Defendant: (a) worked as a security guard in Seongdong-gu Seoul Metropolitan Government Hasongcheon-dong 866-4, and (b) worked as a shooting unit; (c) was accommodated in the first floor information room of the instant female hall and was in charge of the instant female hall; and (d) the above Nonparty 1, the Defendant’s wife, was stationed in the above information room and was in charge of the instant female hall.

C. On September 5, 1980, the above non-party 2 was punished by imprisonment with prison labor for robbery and rape at the Army Law Meeting of Korea on September 5, 1980; imprisonment with prison labor for bodily injury at the Cheongju District Court on September 2, 1981; imprisonment with prison labor for one year for obstruction of performance of official duties at the Busan District Court on May 13, 1987; and one year for obstruction of performance of official duties at the Busan District Court on October 9, 196; and has completed the execution of each of the above punishments for 16 years on October 9, 196. Since January 5, 1994, the above non-party 2 suffered from a certificate of dynamic disorder.

D. On February 7, 1997, about four months after the release, Nonparty 2 determined a monthly night with the above Nonparty 1 as KRW 190,00,00,00, and operated a cooking in the above way, from among the inn of this case, he was fluencing the above room, and he was fluencing the above room with water to the above room, and he was flucing it to the above room in order to prevent this work to the Defendant. However, on the 20th day of the same month, Nonparty 1 was refused to have the appraisal of the Defendant and the above Nonparty 1 on the 10th day of the same month, and discovered that the flucing lid was flucing at the above room, and decided that he was flucing with the above 1st day of the above flucing with his ability to take care of the body of Nonparty 1, who was flucing the above room at the entrance of the above 1st day of the bar.

3. Determination

The lessee and the occupation assistant shall bear the obligation to return the leased object itself at the time of the termination of the lease, and preserve the leased object with the care of a good manager until that time. In light of the above facts of recognition, the defendant or the above non-party 1 shall be deemed to have fulfilled the ordinary duty of care as a good manager in preserving and managing the leisure house of this case. Furthermore, as alleged by the plaintiff, there is no special circumstance that the defendant directly resides or has at least two male managers in managing the leisure house of this case, or that there is no special reason that requires the above non-party 2's duty of care to prevent sudden murder and fire-prevention, which is the mentally handicapped, and even if special security devices were installed in the leisure house of this case, the above non-party 2 could not prevent the above criminal acts. Thus, it shall be deemed that the above non-party 1, who is the defendant and his assistant, was charged with the above non-party 1.

Therefore, the above lease agreement on the inn of this case was terminated by the fire prevention date ( February 20, 1997) of the above non-party 2, the third party, without any cause attributable to either the plaintiff and the defendant. Thus, in the preservation and management of the inn of this case, the plaintiff's claim of this case premised on the negligence on the defendant or the above non-party 1, is without any reason to further determine, and the risk of the use and profit from the loss of the leased object due to the loss of the leased object should return to the lessor who bears the duty to use and profit from the leased object. Thus, the plaintiff, the lessor, has the duty to return the above lease deposit to the defendant, the lessee.

4. The plaintiff's defense.

(a) Concurrent performance defense;

The plaintiff asserted that the plaintiff could not comply with the defendant's claim for the return of the deposit deposit until the plaintiff was ordered to receive the order from the defendant, and therefore, the plaintiff cannot be viewed as having lost the lessor's right to claim for the return of the lease deposit. Thus, the plaintiff's defense is without merit since the plaintiff's claim for the return of the leased deposit and the obligation for the return of the lease deposit cannot be viewed as having been concurrently performed.

B. Claim for deduction

Since the fact that the Defendant paid only rent to the Plaintiff by January 1, 1997 is not a dispute between the parties, the rent amounting to 500,000 won (gold KRW 750,000 x 20/30) between February 1, 1997 and the 20th day of the same month, which is the fire prevention day of this case, should be deducted from the above rental deposit.

Furthermore, the Plaintiff asserts that the sum of the electricity charges, water supply and drainage charges, and telephone charges imposed on the instant building between February 2, 1997 and May 2, 1997, which were paid on behalf of the Defendant, should also be deducted from the above rental deposit. However, the Defendant cannot be deemed to have the duty to bear the above public charges after February 20, 1997, which was the fire prevention date of this case, which was the fire prevention date of this case, and the above assertion itself is without merit.

5. Conclusion

Therefore, the plaintiff is obligated to pay to the defendant the amount of 49,500,000 won remaining after deducting the above overdue rental deposit of 50,000 won from the above overdue rental deposit of 50,000 won and the remaining amount of 49,50,000 won after deducting the above overdue rental deposit of 50,000 won, from February 21, 1997, the date following the fire prevention date of this case, to October 10, 1997, the amount of 5% per annum under the Civil Act, and 25% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc. from the next day to the full payment date. Thus, the plaintiff's counterclaim is justified within the scope of the above recognition, and all of the plaintiff's main claim and the remaining counterclaim are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Judges' profit-oriented (Presiding Judge)