Plaintiff (Counterclaim Defendant) (Attorney Han Han-soo, Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Attorney Cho Jae-sik et al., Counsel for defendant-Counterclaim)

Defendant 1 and one other (Attorneys Cho Jae-in et al., Counsel for the defendant-appellant)

November 3, 2010

1. All claims filed by the Plaintiff (Counterclaim Defendant) are dismissed.

2. The Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff) the amount of KRW 40,00,000 and 20% interest per annum from July 17, 2010 to the date of full payment.

3. The defendant (Counterclaim plaintiff)'s remaining counterclaims are dismissed.

4. Of the costs of lawsuit, the costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant), the Plaintiff (Counterclaim Defendant), the Plaintiff (Counterclaim Defendant), and the Defendant (Counterclaim Plaintiff), respectively.

5. Paragraph 2 can be provisionally executed.

The principal lawsuit: Defendant (Counterclaim Plaintiff), Defendant 1, and Defendant Samsung Fire and Marine Insurance Co., Ltd. shall jointly and severally pay to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 492,118,000 won with the interest of 20% per annum from the next day of the delivery of a copy of the claim of this case and the application for modification of the cause of this case to the day of complete payment.

Counterclaim: The Plaintiff shall pay to the Defendant (Counterclaim Plaintiff) 376,208,831 won and the interest rate of 20% per annum from the day following the delivery of a copy of the instant counterclaim to the day of complete payment.

1. Basic facts

○ The Plaintiff used the 2th floor of the instant building as a logistics warehouse for storage of furniture, such as bridges owned by the Plaintiff, and 2th floor of the instant building, as the owner of the instant building, the 1st floor of the general steel structure ( Address 1 omitted), the ( Address 2 omitted), the 2nd roof roof, the 963.43m2, the 2nd floor, the 957.18m2, the 2nd floor of the 2nd roof, the 2nd floor of the non-Dong general steel structure, and the 6m2nd floor of the toilet (collection type).

On May 27, 2008, the Defendant (Counterclaim Plaintiff) leased 150 square meters among the first floor of the instant building from the Plaintiff as lease deposit for 40,00,000, monthly rent for 3,300,000, and lease term for 24 months from July 1, 2008 (hereinafter “the lease of this case”). At that time, the Defendant (Lessee) paid the Plaintiff KRW 40,000,000 to the Plaintiff for KRW 40,000,000, and used the said lease term for stores for the wholesale and retail of golf products.

On June 30, 2008, the Defendant (Counterclaim Plaintiff) concluded each of the following insurance contracts with Defendant Samsung Fire Marine Insurance Co., Ltd. with respect to the instant golf products store.

4. Insurance products: Non-dividend Tridra Newviol Policy

. Contract number: (Contract Number 1 omitted)

-Insurance policyholder and insured: Defendant (Counterclaim Plaintiff)

(1) Insurance period: From June 30, 2008 16:00 to June 30, 201 16:00

m. Amount of insurance coverage (the details of security and maximum amount of compensation)

- Damage such as fire and collapse: 25,000,000 won in facilities, 10,000,000 won in movable property, 100,000,000

- Electric danger security(special agreement) : 3,500,000 won

- Facility owners' liability: 100,000,000 won

- Lessee(fire) liability: 100,000,000 won

4. Insurance products: Non-dividend Tridra Newviol Policy

. Contract number: (Contract Number 2 omitted)

-Insurance policyholder and insured: Defendant (Counterclaim Plaintiff)

(m) Insurance period: From July 10, 2008 16:00 to July 10, 201 16:00

m. Amount of insurance coverage (the details of security and maximum amount of compensation)

- Damage such as fire and collapse, etc. (movable property): 150,000,000 won

- Lessee(fire) liability: 80,000,000 won

around 12:05 on October 9, 2009, fire fighting units and part of the second floor were destroyed (hereinafter “the instant fire”). The part used by the Defendant (Counterclaim) pursuant to the instant lease agreement is no longer usable as golf-related stores due to the loss of outer walls, leakage of fire fighting water, etc., and the Defendant (Lessee) returned its leased part to the Plaintiff around that time.

○ Around October 2009, Nonparty 11 drafted a fire site investigation report (No. 10) containing the following contents with respect to the instant fire.

- The shape of the process of combustion showed the progress of burning in the highest direction with the center of main stairs, and in the case of the upper floor, it is presumed that the combustion has been expanded as the combustible liquids flows out to the lower floor and flows out below the upper floor;

- The point of origin is identified in the main entrance and exit inside the second floor warehouse, and the direction of the progress of burning is identified in this section on the right side of the warehouse and in front and into the main entrance and exit; and

around December 10, 2009, ○ National Institute of Scientific and Investigative Research prepared a written appraisal (Evidence A No. 3, Evidence A No. 17) containing the following contents with respect to the instant fire, around December 10, 209.

- The burning shape of a logistics warehouse is the shape in which the second and third parts of the upper part of the warehouse are continuously burned around the right side of the front main entrance door, and the rear side of the inside side of the second floor warehouse is seriously burned.

- The left-hand side of the first floor and the right-hand space partitioned by the sand site panel inside the front of the logistics warehouse is not burned.

- Among the front space of the front entrance of the second floor logistics warehouse, the front columns and sandd panels are the shape burnedd by the expanded flames caused by the rise in the first floor, and the toilet part is the state in which the adjacent parts to the second floor door are relatively profound.

- The point of origin is presumed to be the inner right side of the main entrance of the instant building, but it is impossible to discuss specific paints because there is no distinction between suspended, stuffs and plastics, in addition to the burning residues of plastics or inflammable liquidss, it is not possible to discuss specific paints because it is not recognizable at the presumed point of origin.

[Ground of recognition] Evidence Nos. 1 through 3, Evidence Nos. 4-2 and 6, Evidence Nos. 5 through 10, Evidence Nos. 3-1 and 3-2, the result of the on-site inspection by this court, the purport of the whole pleadings

2. Determination on the main claim

A. Grounds for the Plaintiff’s main claim

On May 27, 2008, the Defendant (Counterclaim Plaintiff) and Defendant 1 leased 150 square meters and 60 square meters among the first floor of the instant building from the Plaintiff, respectively, and possessed and used not only their leased parts but also the entire first floor of the instant building, and run a wholesale and retail business for golf products.

○○ The instant fire was generated by the negligence of employees employed by the said Defendants inside the main entrance door of the first floor of the instant building that was leased and used by the Defendant (Counterclaim Plaintiff) and Defendant 1 (the inside of the main entrance door of the first floor was located in the warehouse used by the said Defendants, and the employees of the said Defendants used the front main entrance door of the first floor as work space for stuffing, packing, product entry and exit, etc., while the said Defendants used the second floor of the instant building as a logistics warehouse, the Plaintiff was only using the second floor of the instant building as a logistics warehouse, and did not place employees, and the Plaintiff used the cargo elevator located on the side of the instant building when the Plaintiff entered and withdrawn from the second floor. Accordingly, the inside the main entrance door of the first floor of the instant building is a space used by the said Defendants while occupying and managing the first floor).

Therefore, the Defendant (Counterclaim Plaintiff) and Defendant 1, as a lessee, are obligated to use their leased portion of the instant building with due care as a good manager and return it to the Plaintiff, the lessor, at the time of termination of the lease. Since the said Defendants breached the said duty due to the instant fire, they are liable to compensate the Plaintiff for damages incurred due to the breach of duty under the said lease agreement.

○ or selectively, the instant fire occurred by the Defendant (Counterclaim Plaintiff) and the employees employed by Defendant 1, and thus, the said Defendants are liable to compensate the Plaintiff for the damages caused by the instant fire as the employer.

On the other hand, Defendant Samsung Fire Marine Co., Ltd. is obligated to pay the Defendant Samsung Fire Marine Co., Ltd. insurance money due to the instant fire to the Defendant-Counterclaim Plaintiff according to each of the above insurance contracts concluded with the Defendant-Counterclaim Plaintiff. The Plaintiff, the victim of the instant fire, also can directly claim the Defendant Samsung Fire Marine Co.

○ However, the Plaintiff suffered damages equivalent to KRW 268,969,00 from the fire of the instant building caused by the fire of the instant building, and also incurred damages equivalent to KRW 223,149,256 due to the fire of the furniture stored in the second logistics warehouse of the instant building.

Therefore, the Defendants are jointly and severally liable to compensate the Plaintiff for KRW 492,118,256 (=268,969,000 + KRW 223,149,256), which is a part of the said damages, as the Plaintiff seeks.

B. Determination on the claim against the Defendant (Counterclaim Plaintiff)

1) Claim for damages due to tort

The records of Nos. 2, 3, and 8-1 through 10, 9 and the result of the on-site inspection by this court alone are insufficient to acknowledge that the instant fire occurred due to the negligence of employees employed by the Defendant (Counterclaim Plaintiff). The Plaintiff’s claim for this part of the lawsuit is without merit, since there is no other evidence to acknowledge this otherwise.

2) Claim for damages due to breach of duty under a lease agreement

Where a lessee is unable to fulfill his/her duty to return an object leased, if the lessee is liable for damages due to nonperformance, he/she shall be responsible to prove that the impossibility of performance does not due to the lessee’s cause attributable to the lessee. Even if the cause of the fire is unknown in cases where the leased building was destroyed by a fire, the lessee shall prove that the lessee fulfilled his/her duty to preserve the leased building in good faith in order to be exempted from his/her liability. This legal doctrine applies likewise to cases where the lessee seeks compensation for damages on the ground that the returned building was destroyed by a fire, although the obligation to return the object was not impossible at the time of the termination of the lease, and the leased building was not at the time of the completion of the lease. In light of the size and structure of the building, if the leased part and other parts were destroyed by a fire to another part of the building that was destroyed by a fire, the lessee is liable to compensate for damages suffered by the lessor due to a fire in an indivisible relationship with the maintenance and existence of the building (see, e.g., Supreme Court Decision 2010Da9694.).

As to the instant case, the instant lease agreement was terminated because it was impossible for the Plaintiff to achieve its purpose by social norms due to the instant fire, and it was also impossible for the Defendant-Counterclaim Plaintiff to return the leased part to the Plaintiff. If the instant fire occurred from the leased part of the Defendant-Counterclaim Plaintiff, the lessee, and thus, was burned to the other parts of the instant building, the Defendant-Counterclaim Plaintiff is liable to compensate the Plaintiff for the damages incurred to the Plaintiff due to the instant fire (the first and second floors of the instant building are inseparably indivisible) unless the Defendant-Lessee proves that he had fulfilled his duty of due care as a good manager with respect to the preservation of its leased part (the first and second floors of the instant building are inseparably indivisible).

Therefore, as to whether the fire in this case was caused by the leased part of the Defendant (Counterclaim Plaintiff), the National Scientific Investigation Institute presumed the fire in this case to be the inner right-hand part of the instant building “the front side door of the building.” However, the fire officers, etc., who investigated the fire in this case first than the National Scientific Investigation Institute, presumed to be the second floor of the instant building. ② The inner right-hand part of the front side of the instant building could have been used as the way of entering the stairs room to become the second floor of the building used by the Plaintiff to become the logistics warehouse. In light of the fact that the fire in this case appears to have been used as the way of entering the stairs room to become the second floor of the building used by the Plaintiff, there is insufficient evidence to acknowledge that the fire in this case was the part occupied and used by the Defendant (Counterclaim Plaintiff) in accordance with the instant lease agreement, that is, the risk of the Defendant (Lessee), and there is no evidence to acknowledge it differently.

Therefore, the plaintiff's main claim is without merit.

C. Determination on Defendant 1’s main claim

1) Claim for damages due to tort

It is insufficient to acknowledge that the instant fire was caused by the negligence of the employees employed by Defendant 1, solely on the basis of the descriptions of the evidence Nos. 2, 3, and 8-1 through 10, 9, and the result of the on-site inspection of this Court. The Plaintiff’s claim for this part of this case is without merit, since there is no other evidence to acknowledge this otherwise.

2) Claim for damages due to breach of duty under a lease agreement

In light of the following facts: (a) it is insufficient to acknowledge that Defendant 1 leased 60 square meters of the first floor of the instant building from the Plaintiff around May 27, 2008; (b) it is insufficient to recognize that Defendant 1 leased 60 square meters of the instant building from the Plaintiff around May 27, 2008; (c) even if Defendant 1’s assertion was made to the effect that Defendant 1 is a co-resident under the instant lease agreement, it is insufficient to recognize that Defendant 1 concluded the instant lease agreement with Defendant 1 as a co-resident; and (d) there is no other evidence to acknowledge that Defendant 1 leased part of the instant building 1st as a result of the examination of the evidence Nos. 2, 3, 4-1, 3-1, 8-1, 9-1, 9-1, 9-1, 1-3, 1-1, and 3-1, 1-1, and 9-1, respectively.

Therefore, the plaintiff's main claim is without merit.

C. Determination as to the main claim against Defendant Samsung Fire Marine Insurance Co., Ltd.

The Plaintiff’s claim against the Defendant Samsung Fire and Marine Insurance Co., Ltd. is premised on the premise that the Defendant Lessee is liable to compensate the Plaintiff for damages caused by the instant fire. As seen earlier, there is insufficient evidence to acknowledge that the instant fire constituted the Defendant Lessee’s tort or the nonperformance of obligations under the instant lease agreement. Therefore, the Plaintiff’s claim against the Defendant Samsung Fire and Marine Insurance Co., Ltd. against the Defendant Samsung Fire and Marine Insurance Co., Ltd.

3. Determination on the Defendant-Counterclaim Plaintiff’s counterclaim

A. Claim for damages

1) Grounds for claim

○ The Plaintiff, as a lessor, was equipped with fire-fighting and disaster prevention facilities, such as sprinklers and fire extinguisherss, on the instant building so that the leased object can be maintained necessary conditions for the use and profit-making. However, the Plaintiff did not have any such facilities. Accordingly, the Defendant (Counterclaim Plaintiff) incurred damages equivalent to KRW 485,391,331 in which golf appliances, office supplies, and other property owned by the Defendant (Counterclaim Plaintiff) were destroyed or damaged during the process of extinguishing the instant fire (the Plaintiff’s breach of duty as seen above constitutes tort).

○ Accordingly, the Plaintiff is obligated to pay the Defendant-Counterclaim Plaintiff the remainder of KRW 336,208,831 (= KRW 485,391,331 - KRW 149,182,500) calculated by deducting the insurance money that the Defendant-Counterclaim Plaintiff received from Defendant Samsung Fire and Marine Insurance Co., Ltd. from the amount of damages (= KRW 485,39,182,50).

2) Determination

In the process of extinguishing the fire of this case, it is not sufficient to recognize that the Plaintiff (Counterclaim Plaintiff) suffered property loss in the process of extinguishing the fire of this case by failing to install fire-fighting and disaster prevention facilities, such as sprinklers and fire extinguisherss, on the sole basis of the entries in the evidence Nos. 5 through 18 and the result of the on-site inspection of this Court, and there is no other evidence to acknowledge otherwise.

The Defendant-Counterclaim Plaintiff’s counterclaim cannot be accepted.

(b) Claim for refund of lease deposit;

According to the above facts, since the lease contract of this case was terminated because it is impossible to achieve its purpose due to the fire of this case, the plaintiff is obligated to pay to the defendant (Counterclaim plaintiff) 40,000,000 won of the lease deposit of this case and damages for delay calculated at the rate of 20% per annum from July 17, 2010 to the day of complete payment, which is the day following the delivery of a duplicate of the counter-claim of this case.

4. Conclusion

Thus, all of the plaintiff's claim of this case is dismissed as it is without merit, and the defendant (Counterclaim plaintiff)'s claim of counterclaim is accepted within the scope of the above recognition, and the remaining counterclaim is dismissed as it is without merit.

Judges Choi Jae-chul (Presiding Judge)