In the event of impossibility of performing the obligation to return the leased object, the burden of proof

Where a lessee’s obligation to return leased object becomes impossible, if the lessee is exempted from liability for damages due to nonperformance, he/she shall be responsible to prove that the impossibility of performance is not attributable to the lessee’s cause, and if the leased building is destroyed by a fire and the cause of the fire is unknown, if the lessee is exempted from liability, he/she shall prove that the lessee has fulfilled his/her duty of due care as a good manager for the preservation of the leased

Article 390 of the Civil Act

Supreme Court Decision 69Da56 Decided March 18, 1969, Supreme Court Decision 80Da508 Decided November 25, 1980

[Defendant-Appellee] Defendant 1 et al., Counsel for defendant-appellee

Attorney Park Do-won, Counsel for the defendant-appellant

Seoul High Court Decision 81Na3270 delivered on February 1, 1982

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

We examine the grounds for appeal by the defendant's attorney.

1. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the plaintiff offset the defendant's claim for damages against the amount equivalent to the market price of the above building against the plaintiff's damages claim and the plaintiff's claim for the return of the lease deposit of this case against the defendant's equal amount, on the ground that the plaintiff's claim that the defendant's claim for the return of the lease deposit of this case against the defendant's claim for damages against the defendant's assertion that the defendant's claim for the return of the lease deposit of this case against the plaintiff's claim for damages against the defendant's compensation claim and the defendant's claim that the plaintiff's claim for the return of the lease deposit of this case should not be trusted and there is no other evidence supporting the defendant's assertion that the above facts were alleged.

2. However, in cases where a lessee’s liability for the return of leased object became impossible, if the lessee is exempted from liability for damages due to nonperformance, the lessee is responsible to prove that nonperformance was not attributable to the lessee’s cause attributable to the lessee. In cases where the leased object was destroyed due to fire and the cause of the fire is unknown, if the lessee is exempted from liability, the lessee must prove that the lessee fulfilled his/her duty of care as a good manager with respect to the preservation of the leased building (see, e.g., Supreme Court Decisions 69Da56, Mar. 18, 1969; 80Da508, Nov. 25, 1980).

In this case, even though it is clear that the Defendant asserted against the Plaintiff the claim for damages due to nonperformance of the obligation to return the leased object, rather than the claim for damages due to tort (see the written reply of April 30, 1981). However, the lower court’s rejection of the above claim on the ground that the Defendant did not prove the cause attributable to nonperformance of the obligation to return the leased object and did not err by misapprehending the legal doctrine on the burden of proof concerning nonperformance of the obligation to return the leased object.

3. Ultimately, the judgment of the court below is reversed, and the judgment below is remanded to the Seoul High Court for further proceedings consistent with this Opinion, since the grounds for reversal under Article 12 (2) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings exist. It is so decided as per Disposition by the assent of all participating

Justices Lee Lee Sung-soo (Presiding Justice)