In the event that the leased building is lost and its obligation to return the leased building is not fulfilled, the burden of proving the cause for the failure;

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

Article 390 of the Civil Act

Supreme Court Decision 80Da508 delivered on November 25, 1980, Supreme Court Decision 82Meu254 Delivered on August 24, 1982

Plaintiff

Defendant

Gwangju High Court Decision 84Na320 delivered on November 9, 1984

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

We examine the Defendant’s grounds of appeal.

1. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the plaintiff set off the amount equal to the above lessee's right to return the lease deposit, since the fire occurred while the plaintiff leased the 1 column of 36.2 equal store from the defendant to 8,00,000,000 won for lease deposit and the cause of unknown fire occurred while operating the 36.2 equal store, and the object of lease was lost, and the above lease is terminated. Since the fire occurred due to the cause attributable to the plaintiff, the plaintiff is liable for compensating the defendant for the amount of KRW 15,30,000,000, such as the cost of the above store's restoration and the profit of the cost of the day-to-day rent, and it is difficult to conclude that the above fire occurred is not clear, and thus the plaintiff's violation of the duty to manage the store,

2. However, in a case where a lessee’s obligation to return leased object becomes impossible, if the lessee is liable for damages due to nonperformance, the lessee is responsible to prove that nonperformance was not attributable to the cause attributable to the lessee. In a case where the leased building was destroyed due to a fire that occurred from the building and the cause of the fire is unknown, the lessee must prove that the lessee fulfilled his duty of care as a good manager with regard to the preservation of the leased building (see, e.g., Supreme Court Decisions 80Da508, Nov. 25, 1980; 82Meu254, Aug. 24, 1982).

According to the records, the fire of this case occurred within the store leased by the plaintiff, and it is clear that the defendant claims for damages due to the non-performance of the obligation to return leased object against the plaintiff. Thus, in order for the plaintiff to be exempted from the liability for damages as mentioned above, the court below rejected the counter-performance of the above set-off by concluding that the cause of the fire is unclear and the cause of the fire is not attributable to the plaintiff. Thus, the court below erred in the misapprehension of the burden of proof as to the non-performance of the obligation to return leased object.

2. Ultimately, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion, since the above illegality of the judgment below constitutes grounds for reversal under Article 12 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

Justices Lee Il-young (Presiding Justice)