2013Da212790 Damage, title 20

A

Kiturle Corporation

Seoul High Court Decision 2013Na2009626 Decided September 12, 2013

October 29, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The possession of an object refers to an objective relationship that can be said to be in a factual control of a person under the social concept, and thus, it does not necessarily require the physical and practical control of an object to be de facto controlled, and the temporal and spatial relationship between the object and the person;

Inasmuch as the determination of whether a person loses de facto control over an article ought to be made in accordance with the social concept by taking into account the principal right relationship, possibility of interference with others, etc., the determination of whether a person loses de facto control over the article ought to also be made in accordance with the said social concept (see, e.g., Supreme Court Decision 2011Da74949, Jan. 27, 201

2. The court below found the following facts based on the adopted evidence.

A. On March 16, 2011, the Plaintiff leased a building located in the underground floor, the first floor pharmacy store, the second floor dispensary, the third floor office, and the fourth floor residential space (hereinafter “instant building”) for one year from B, and entered into an agreement between B and B on March 22, 2011 with the overall authority over all revenues, expenditures, personnel management, etc. of “E” (hereinafter “the instant pharmacy”).

B. Since then, a dispute arose between the Plaintiff and B regarding the operation of the instant pharmacy, and B demanded the Plaintiff to leave the instant building by June 24, 2011, but the Plaintiff rejected the request.

C. B, at the same time, found the instant pharmacy and demanded the Plaintiff to leave the said pharmacy at night along with 201, June 24, 2011, and the Plaintiff, and arbitrarily replaced the entrance door of the stairs room at the entrance of the instant pharmacy from among the instant building, and the locking devices of the entrance of 2, 3, and 4 floors of the instant building.

D. The Plaintiff entered into a security service contract with the Defendant for the instant pharmacy, but around 13:00 on June 24, 201, the Plaintiff, at the instant building, set the warning device installed by the Defendant as a security condition and went to the building.

E. After that day, when B et al. attempted to enter the instant pharmacy again, around 13:37, the intrusion signal was received from the Defendant’s control room. The Defendant informed the Plaintiff of this fact by telephone and contacted the police, and sent the Defendant’s employees to the instant building. The arrival at the instant building explained to the Plaintiff that the Plaintiff dialogueed between B and police officers by telephone, etc., and the Plaintiff requested I to set the alarm device as a boundary condition. The Plaintiff was defective in setting the alarm device as a condition of boundary, and the Plaintiff requested B to set the alarm device as a condition of cancellation at the instant pharmacy’s owner. At the request of B, I set the alarm device as a condition of cancellation and set the alarm device as a condition of cancellation.

F. B between June 24, 2011 and July 1, 2011, between the instant building and the first and second floors, transferred the pharmaceutical products and the office fixtures, etc. to the underground floor, and thereafter disposed of in another place.

3. A. Examining these facts in light of the legal principles as seen earlier, it is deemed that at the time, B et al. had been difficult for the Plaintiff to enter the said building by arbitrarily replacing the locking devices of the entrance, etc. of the instant building; however, if B et al., after leaving the instant building, etc. and thereafter, B et al. want to enter the instant building again, it is difficult to conclude that B et al.’s de facto control over the instant medicine and the collection equipment was lost due to the fact that the Plaintiff et al.’s employees received intrusion signal and sent back to the site, and contact with the Plaintiff et al. at the time. In light of the situation at the time, it is difficult to conclude that B et al.’s control over the instant medicine and the collection equipment was lost, and therefore, it can be said that B et al., an employee of the Defendant, by setting up the alarm devices at the request of B and making it possible for B et al. to remove and dispose of the instant medicine without interference with the Plaintiff et al.

In light of the above circumstances, it is sufficient to deem the causal relationship between the act of setting the warning device in a state of cancellation against the Plaintiff’s request and the act of setting the warning device at will and the act of removing and disposing of the drug, etc. of this case, which occurred to the Plaintiff (On the other hand, the lower court determined that the Plaintiff was registered as the operator of the instant pharmacy through the PEA device and set the warning device at the state of cancellation. However, even if such fact is acknowledged, the party who entered into a security service contract with the Defendant is the Plaintiff, and as such, I is the party who entered into the contract with the Defendant, and thus, I is obligated to comply with the Plaintiff’s demand for setting the boundary status, and it cannot be said that there was no negligence so long as B releases the boundary status only as required by B. Furthermore, according to the records, it appears that the Plaintiff

B. Nevertheless, the court below rejected the Plaintiff’s claim for damages of this case on the ground that B et al. had already been deprived of the Plaintiff’s possession by replacing locking devices such as the entrance of the building of this case before the Defendant’s small cause was dispatched to this site, and thus, there was no causation between the Plaintiff’s above act and the damages incurred to the Plaintiff. The court below erred by misapprehending the legal principles on textile and causation, etc., which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Kim Yong-deok

Justices Kim Jae-new

Note Roster of Justice Lee In-bok