In cases where a lessee becomes unable to reach the object of lease due to a lessor's default, whether to recognize consolation money

In general, in a lease agreement, where a lessee is unable to reach the object of lease due to the nonperformance of the lessor’s obligation, the mental suffering that the lessee has suffered shall be deemed to have been restored by compensating for the property damage. Therefore, there is a special circumstance that the lessee has suffered irrecoverable mental suffering due to the sole compensation for the property damage, and the lessor has known or could have known such circumstance, the consolation money for mental suffering may be recognized only when the lessor knew or could have known of such circumstance.

Articles 390 and 393 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

[Judgment of the court below]

Defendant

Seoul Civil District Court Decision 93Na1595 delivered on October 27, 1993

The part of the judgment below against the plaintiff shall be reversed, and that part of the case shall be remanded to the Panel Division of the Seoul Civil Court.

The defendant's appeal is dismissed. Litigation costs arising from the defendant's appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the Plaintiff’s ground of appeal

A. Examining the reasoning of the judgment below in light of the records, we affirm the fact-finding of the court below, and there is no error of law such as violation of the rules of evidence or misunderstanding of facts, such as the theory of lawsuit. There is no reason for debate.

B. In general, in cases where a lessor’s nonperformance of a lease agreement makes it impossible for the lessee to reach the object of the lease, the mental suffering that the lessee has suffered shall be deemed to have been recovered by compensating for its property damage. Thus, there is a special circumstance that the lessee has suffered an irrecoverable mental suffering by only compensating for property damage, and where the lessor knew or could have known such circumstance, consolation money for mental suffering may be recognized (see Supreme Court Decision 93Da1915 delivered on Nov. 9, 1993).

According to the reasoning of the judgment below, the court below recognized the fact that the defendant has been operating a food restaurant facility by investing enormous facilities in the building of this case from the plaintiff, but the plaintiff has a duty to maintain the conditions necessary for allowing the defendant to use and benefit from the store of this case during the lease period, and it is sufficiently recognized in light of the empirical rule that the defendant's violation of this duty is sufficiently recognized that he suffered considerable mental pain by failing to operate his business any longer at the facility investment place, and that the consolation money is 4,00,000 won.

However, in order for the Plaintiff, a lessor of the store of this case, to have a duty to pay for mental suffering suffered by the Defendant in money due to the Plaintiff’s breach of the duty as a lessor, there exist special circumstances as mentioned above, and the Plaintiff knew or could have known of such special circumstances. The facts established by the court below alone are difficult to deem that there was such special circumstances as above to the Defendant, and the judgment of the court below that the Plaintiff was liable to pay for mental suffering caused by the Plaintiff’s failure to conduct business any longer due to the defect in the store of this case without any deliberation and determination as to whether or not the Plaintiff knew of such circumstances. The court below committed an error in the misapprehension of legal principles as to damages due to special circumstances, or in the incomplete deliberation or the lack of reasoning. The Plaintiff’s appeal pointing this out has merit.

2. As to the Defendant’s ground of appeal

The principal of the lawsuit is without merit to find out the existence of evidence and fact, which are all the matters of the court below's exclusive jurisdiction. The arguments are without merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiff, the part of the plaintiff's failure in the judgment of the court below is reversed and remanded to the court below. The defendant's appeal is dismissed. The costs of appeal regarding the dismissal of appeal are assessed against the losing party. It is so decided as per

Justices Lee Jae-soo (Presiding Justice)