208Na20483 Claims

Stock Company

Daegu Place of Service

Representative Director;

Attorney Park Jae-hoon

Attorney Park Jae-hoon

A person shall be appointed.

Busan District Court Decision 2008Gau49521 Decided November 13, 2008

April 30, 2009

May 28, 2009

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The defendant sent to the plaintiff KRW 6,948, 763 and its copy from April 22, 2008.

The amount calculated by 5% per annum and 20% per annum from the following day to the day of full payment.

H. D. D.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On June 8, 2007, the Defendant: (a) from A on June 2007, the 26,000,000,000, 850,000, and the lease deposit amount for the rental deposit for the part of the 1st floor of the ground among the 1st floor underground and the 3rd floor building located in Daegu-gu, Daegu-gu, its ownership; and (b) the lease period for the lease of the 26,00,000,000, 6,009.

8. During the term, lease was made (hereinafter referred to as “the instant lease agreement”).

B. A around March 22, 2007, between the Plaintiff and the Plaintiff, entered into an insurance contract with the insured amount of KRW 150,00,000,000, the insured Party A, and the insurance period from March 22, 2007 to March 22, 2008 (hereinafter “instant insurance contract”).

C. On March 8, 2008, at the instant store, the Defendant’s restaurant (in the process of its mutual operation: around 10: air conditioners, kimchi air conditioners, and laundry, which are installed on the outer wall of the instant store, are presumed to have been accumulated in the electric code connected to the instant store, and the above building 2 and 3 floors, including the inside of the instant store, were removed from the outside and outside of the said building (hereinafter “fire accident”).

D. Accordingly, on April 21, 2008, the Plaintiff paid KRW 6,948,763 as insurance money to A in accordance with the instant insurance contract.

【Ground of recognition】 A without dispute, entry of evidence of subparagraphs 1 through 5, and purport of the whole pleadings

2. Determination

(a) Occurrence of liability for damages;

The Defendant, as a lessee of the instant store, has a duty to keep the instant store subject to the instant lease agreement with the care of a good manager, and upon the termination of the contractual relationship, bears the obligation to fully return the instant store to A, the owner of the instant building. According to the above basic facts, as long as the Defendant’s obligation to return the instant store was impossible due to the instant fire accident, and it is not proven that the Defendant fulfilled its duty of due care as a good manager for the preservation and management of the instant store, the Defendant is liable to compensate for the damages incurred to A due to the instant fire.

B. In the event that the Plaintiff’s subrogated acquisition loss was caused by the act of a third party, the insurer who paid the insured amount acquires the rights of the policyholder or the insured against the third party to the extent of the amount paid (Article 682 of the Commercial Act). Thus, the insurer subrogated to claim damages against the Defendant A within the limit of KRW 6,948,763 of the insurance amount paid by the Plaintiff (the above insurance amount is deemed to have been paid within the scope of damages suffered by A due to the instant fire accident).

C. Judgment on the defendant's assertion

1) The Defendant asserts that the cause of the instant fire accident is presumed to have occurred from electric code connected to air conditioners, etc., installed on the outer wall of the instant store, and that the cause of the fire accident was not clearly identified. Therefore, the Defendant did not assume the responsibility to compensate for the damages caused by the instant fire accident.

Then, in a case where a leased building was destroyed by a fire and the cause of the fire is unknown, if the lessee is exempted from its liability, he must prove that the lessee fulfilled his duty of care as to the preservation of the leased building (see Supreme Court Decision 2000Da57351, Jan. 19, 2001). Even if the cause of the instant fire accident is presumed to have occurred due to the leakage of the electric code, the point of the instant fire accident is the area surrounding the Defendant’s electric code, such as air conditioners, kimchi cooling and laundry, which are installed on the outer wall of the instant store located within the Defendant’s management area. Thus, the Defendant’s proof that the lessee fulfilled his duty of care as to the preservation of the store of this case is insufficient. Thus, this part of the Defendant’s assertion is without merit.

2) In addition, the defendant asserts that since the construction cost of KRW 15,00,000 for damages caused by the loss inside the store of this case was brought in and restored to its original state, he did not assume responsibility for the fire accident of this case.

In light of the size and structure of the building, where the leased part of the building and the other part of the building are in an indivisible structure with respect to mutual maintenance and existence, and where fire in the leased part has occurred and damage has occurred due to burning to other parts of the building, the lessee is obligated to compensate for the damage incurred by the lessor as the lessee was destroyed and damaged without limiting the leased part and other parts in an indivisible relationship with the maintenance and existence of the building (see Supreme Court Decision 2002Da39456, Feb. 27, 2004). In full view of the evidence as above, Eul evidence and evidence No. 1, Eul evidence and the purport of oral argument, the store of this case is a part of the building of the first and third floor above, and it is indivisible with the whole building. In addition to the building of this case due to the fire of this case, the fact that the building of this case was destroyed and damaged by the fire of this case, the lessee is not limited to the leased part, and the defendant is not liable to compensate for damages from the above 3000 won for repair work of this case.

D. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff who acquired by subrogation the right to claim damages against the defendant A the amount of KRW 6,948,763, which is equivalent to the above insurance proceeds, and to pay damages for delay calculated at the rate of 5% per annum prescribed by the Civil Act from April 22, 2008 to July 16, 2008, which is clear that it is the delivery date of a copy of the complaint of this case from April 22, 2008, and 20% per annum prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Hyun-hwan - - - Other

Judges Lee Ho-do's garment

- - - - Other

Judges Lee Jin-jin -