2015Da231870 Preemptives

ABS Partnership Co., Ltd.

1. A;

2. B building management body;

3. The lawsuit taken over by C of a stock company;

Bankruptcy Trustee of Bankrupt Co., Ltd. L

Seoul High Court Decision 2014Na2043647 Decided July 16, 2015

February 18, 2016

The part of the judgment below on delay damages against Defendant A shall be reversed, and this part shall be modified as follows:

Defendant A shall pay to the Plaintiff 871,738,794 interest rate of 5% per annum from April 10, 2003 to October 16, 2014; 20% per annum from the next day to the day of full payment; 176,238,531 interest rate of 5% per annum from April 10 to July 16, 2015; and 20% per annum from the next day to the day of full payment.

The plaintiff's remaining appeals against the defendant A and all remaining appeals against the defendants are dismissed.

All costs of the lawsuit between the Plaintiff and the Defendant are divided into two minutes, and one is the Plaintiff, the remainder is the Defendant, and the costs of the lawsuit between the Plaintiff and the remaining Defendants are the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The part of the claim against the defendant A

A. The lower court accepted the Plaintiff’s appeal and accepted KRW 1,047,977,325, more than KRW 871,738,794, which the first instance court accepted as the Plaintiff’s damage claim that the Plaintiff acquired, and determined that the damages for delay was reasonable to dispute the existence and scope of the Defendant’s obligation to pay the entire amount cited by the lower court until the date of the lower judgment, and thus, ordered the payment of damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from April 10, 2013 to July 16, 2015, which is the date following the date of the instant fire, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

B. "Where it is deemed reasonable for an obligor to dispute the existence or scope of the obligation" under Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings refers to the time when there is a reasonable ground for the obligor's argument in a dispute over the existence or scope of the obligation. In a lawsuit seeking monetary payment, in a case where the first instance court accepted only a part of the Plaintiff's claim and dismissed the remainder of the claim, barring any special circumstance, it is reasonable for the Defendant to resist the existence or scope of the obligation until the date when the first instance court rendered a declaration of the first instance judgment. Thus, the statutory interest rate under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings should not be applied to delay payment of the cited amount until the date when the first instance court rendered a declaration of the first instance judgment (see Supreme Court Decision 98Da6410

In light of the above legal principles and records, the Defendant deemed reasonable to dispute over KRW 1,746,628,875 of the Plaintiff’s claim amount, and there was no error of misapprehending the legal principles as to Article 3(2) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings in the judgment of the court of first instance, which did not apply statutory interest rates of KRW 871,738,794, which the court of first instance accepted by the court of first instance until the date of rendering a judgment. However, the judgment of the court below which did not apply statutory interest rates of KRW 871,738,794, which the court of first instance accepted by the court of first instance, for the following reasons is difficult to accept.

1) Where the appellate court maintained the claim amount cited by the first instance court in a lawsuit seeking monetary payment, barring any special circumstance, it cannot be deemed reasonable for the Defendant to claim in the appellate court the existence and scope of performance obligation on the above quoted amount (see Supreme Court Decision 2005Da40167, Jan. 26, 2006).

2) The first instance court recognized the Defendant’s liability for damages, but limited the scope of liability to 60%, and accepted KRW 871,738,794 by deeming the time of conversion of foreign currency as the date of closing of argument. The lower court recognized the Defendant’s liability as identical to the first instance court, but accepted KRW 1,047,977,325 as the date when the time of conversion of foreign currency was corrected to the date when the damage was incurred. The Defendant did not submit at all the document disputing the Plaintiff’s claim at the lower court, and did not appear at the date of closing of pleading, and there was no special circumstance to deem that it is reasonable for the Defendant to prove the existence or scope of the obligation to perform with respect to the amount cited in

3) Nevertheless, the lower court erred by misapprehending the legal doctrine on Article 3(2) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings, which applied the statutory interest rate under the Civil Act instead of applying the statutory interest rate prescribed in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings to delay damages from the date following the date of the first instance judgment on KRW 871,738,794 to the

4) Therefore, the part of the judgment of the court below on delay damages is reversed, and this part is sufficient for this court to directly decide, and it is decided as follows pursuant to Article 437 of the Civil Procedure Act

Defendant A is obligated to pay to the Plaintiff 871,738,794 won as cited in the first instance trial, 5% per annum from April 10, 2003 to October 16, 2014; 20% per annum from the next day to the day of full payment; 5% per annum from April 10, 2003 to July 16, 2015 to the day of full payment; and 20% per annum from the next day to July 16, 2015 to the day of full payment. Accordingly, the part of the Plaintiff’s claim against Defendant A in the damages for delay is justified within the scope of the above recognition, and the judgment of the first instance is so unfair that it is so modified as per Disposition.

2. The remainder of the defendants' claims

A. As to the fire exhaustr:

After finding the facts as stated in its reasoning, the lower court determined that it was difficult to readily conclude that there was any defect or management error by itself, and that the reason for the failure of the fire exhausters to operate is merely due to the fact that the working conditions were not met, such as the extension of the extent necessary for their operation and the failure to transmit heat, etc., and that there was negligence on the employees of Defendant B building management body (hereinafter referred to as Defendant B building management body) and C (hereinafter referred to as “C”) on the part of the employees of the Defendant B building management body and C (hereinafter referred to as “Defendant C”) on the part of the Defendant B building management body.

In light of the record, the lower court did not exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, and did not err by misapprehending the facts against logical and empirical rules or by failing to exhaust all necessary deliberations, or by failing to exhaust all necessary deliberations.

B. As to the Singler

After finding the facts as stated in its reasoning, the lower court determined that it is difficult to readily conclude that Defendant management body and C did not pay due attention to the maintenance and management of the instant sprinklers in light of the unique characteristics of the instant fire and the inspection details of fire-fighting systems, etc., even if the instant sprinklers were to operate late at the time of the occurrence of the instant fire, based on the evidence submitted by the Plaintiff, even if the instant sprinklers failed to operate at the time of the occurrence of the instant fire, 4 to 5 minutes after arrival at the scene, and that they operated at the time of the commencement of the extinguishment.

In light of the record, the lower court did not exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, and did not err by misapprehending the facts against logical and empirical rules. As to the fire alarm.

After finding the facts as stated in its reasoning, the lower court determined that the evidence submitted by the Plaintiff alone is insufficient to recognize that E had not operated the fire alarm system at all immediately after the occurrence of the instant fire, and that even if the fire alarm system had been operated after the arrival of the fire officer, as alleged by the Plaintiff, it is difficult to deem that the response to the fire was delayed and the damage caused by the instant system was caused.

In light of the record, the lower court did not exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, and did not err by misapprehending the facts or by misapprehending the legal doctrine on causation in violation of logical and empirical rules.

D. As to the initial action of the management staff

The lower court determined that the evidence submitted by the Plaintiff alone was insufficient to recognize that Defendant management body and C did not take appropriate initial action despite the occurrence of the instant fire.

In light of the record, the lower court did not exhaust all necessary deliberations, as otherwise alleged in the grounds of appeal, and did not err by misapprehending the facts contrary to logical and empirical rules.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant A concerning delay damages is reversed and printed, and all remaining appeals against Defendant A and appeals against the remaining Defendants are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Park Young-young

Justices Kim In-bok, Counsel for defendant

Justices Kim Jong-il