Aju Station Co., Ltd. (LLC, Attorneys Kim Dong-dong, Counsel for the plaintiff-appellant)

A.N.BD Co., Ltd. (Law Firm Professor, Attorney Lee Jong-tae, Counsel for the plaintiff-appellant)

May 28, 2014

Suwon District Court Decision 2013Gahap5487 decided October 17, 2013

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

The defendant shall pay to the plaintiff 72,985,085 won with 5% interest per annum from October 13, 2008 to June 25, 2014, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be five minutes, and four minutes shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 382,767,408 won with 5% per annum from October 13, 2008 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 382,767,408 won with 5% interest per annum from October 13, 2008 to the delivery date of a duplicate of the petition of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. Status of the parties

The Plaintiff operates a factory that manufactures and processes industrial contact tapes in the building of Ansan-si ( Address 1 omitted) in Ansan-si (Road 1 omitted), the Plaintiff owned by the Plaintiff, and the Defendant owns a ground building adjacent to the Plaintiff’s building and operates a factory that manufactures automobile parts in the said building.

(b) The occurrence of a fire and any damages caused by it;

(1) On October 12, 2008, at around 00:37, a fire occurred on the side of the warehouse within the Defendant-owned factory building (hereinafter “instant warehouse”). As a result, the Plaintiff’s factory building partially relocated to the Plaintiff’s factory building adjacent to the instant fireproof building, and the machinery, parts, inventory assets, etc. owned by the Plaintiff, which were stored in the said building and warehouse, were destroyed.

(2) According to the fire site investigation and the fire awareness by the Gyeonggi Provincial Police Agency and the National Institute of Scientific Investigation, the lower part of the instant warehouse building owned by the Defendant was presumed to have burned fire in the direction of the Plaintiff’s factory building, but the correct point and cause of combustion cannot be discussed.

(c) Payment of insurance money;

On February 2, 2009 and April 22, 2009, the Plaintiff received 324,240,778 won in total, including 76,572,976 won in the insurance proceeds of the instant fire, and 144,459,937 won in the machinery, and 103,207,865 won in the movable property.

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 6, 10, and Eul's 4 (including ing number; hereinafter the same shall apply), each entry and video, and the purport of whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

Since the Defendant did not properly manage a building without permission in the vicinity of the factory building by constructing a new building without permission and using it as a warehouse, which led to the occurrence of the fire in this case to an adjacent building owned by the Plaintiff, the Defendant, pursuant to Article 758 of the Civil Act, is liable to compensate the Plaintiff for damages incurred to the Plaintiff, less KRW 324,240,778, and delay damages incurred by the Plaintiff, out of KRW 707,08,186, the amount of damages incurred by the Plaintiff due to the fire in this case, and KRW 324,240,778, and the amount of damages incurred by the fire.

B. Defendant’s assertion

The fire of this case cannot be deemed to have occurred in the warehouse of this case since the point and cause of the fire of this case are not clearly revealed.

Even if the Defendant’s liability for damages is recognized, unless the instant fire was caused by gross negligence by the Defendant, the liability for damages shall be mitigated in accordance with the Act on the Liability for Fire Caused by Negligence (hereinafter “Act on the Liability for Fire Caused by Negligence”).

3. Occurrence of liability for damages;

A. The defect in the installation and preservation of a structure as referred to in Article 758(1) of the Civil Act refers to a state in which a structure fails to meet safety ordinarily required according to its use. In determining whether such safety has been met, it shall be determined on the basis of whether the installer and custodian of the structure in question fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure. Moreover, the defect in the installation or preservation of the structure does not mean that only causes the occurrence of the damage. Even if the damage is caused by competition with another third party’s act or with the victim’s act, the damage shall be deemed to have been caused by the defect in the installation or preservation of the structure so long as the defect in the installation or preservation of the structure becomes one of the joint causes (see Supreme Court Decision 2010Da71318, Mar. 28, 2013).

B. According to the facts found earlier, the building of this case was merely fire-fighting equipment owned by the Defendant’s employees, but the building of this case was destroyed by fire-fighting equipment located in the 1st,000 warehouse, and it was found that specific fire-fighting points or causes were not revealed. However, in light of the fact that the fire-fighting equipment located in the 1st, 2nd and 2nd as well as the appraisal of the first instance court, the fire-fighting equipment located in the building of this case was relatively less likely to have been destroyed by fire-fighting equipment located in the building of this case, and that the fire-fighting equipment located in the 2nd and the first instance court did not have been installed in the building of this case to the extent that the fire-fighting equipment located in the 7th and the first instance court, and that the fire-fighting equipment located in the 2nd and second instance of the building of this case was relatively new to the effect that the fire-fighting equipment located in the 2nd and second instance of the building of this case was not located.

4. Scope of damages.

A. The plaintiff's damages

(1) Damage such as buildings, machinery, etc.

In full view of the purport of the argument in Gap evidence No. 16, the plaintiff's damage items and the amount of damages caused by the fire of this case computed by the lot damage insurance company as follows: ① 115,709,510 won, ② 229,702,940 won, ③ 675,243,106 won, subtracting 13,200,000 won from the total amount of 329,830,656 won, etc., of the part of the machinery, ③ 329,830,656 won, etc.

(2) Damages excluded from damage assessment

원고는 이 사건 화재로 인하여 슬리터 부품, 샷시, 작업대, 이동대차, 내충격 바닥재, 적치대, 에어 사프트, 냉난반기 등이 소훼되는 손해를 입었음에도 이 부분이 롯데손해보험 주식회사의 손해사정 당시 제외되었으므로 이 부분 손해 역시 이 사건 화재로 인한 원고의 손해액으로 인정되어야 한다고 주장하나, 갑 제17호증 내지 22호증의 각 기재만으로는 이를 인정하기에 부족하고, 달리 이를 인정할 만한 증거가 없으므로, 원고의 이 부분 주장은 받아들이지 아니한다.

(3) Loss equivalent to the amount of leave benefits.

The plaintiff argued that the plaintiff suffered losses of 20,119,080 won, deducting 14,120,710 won, which was paid to the above employees as the amount of subsidies for temporary retirement benefits from the Ministry of Labor, from 34,239,790 won paid to the above employees as temporary retirement benefits for about eight months until the new factory was built due to the fire in this case. However, the damage caused by the payment of temporary retirement benefits to the production employees under the above suspension of production constitutes damages due to special circumstances, and there is no evidence that the defendant knew or could have known that the plaintiff would have known that the fire in this case would have ceased production. Thus, this part of the plaintiff's assertion is without merit.

(b) Limitation on liability (reduction of amount of damages);

However, according to Article 3(1) of the Fire Liability Act, if the fire is not caused by gross negligence, the person liable to compensate for the damage caused by the fire can file a claim with the court for reduction of the amount of compensation, taking into account the circumstances of the subparagraphs of paragraph (2) of the same Article. In such a case, the court can reduce the amount of compensation in consideration of the circumstances of each subparagraph of paragraph (2) of the same Article. The term "serious negligence" as referred to in the above Act means a case where it can be easily and harmful results if it can be predicted if it is not due to considerable attention to the extent required of ordinary people, but it is difficult to say that the defect in the installation and preservation of the warehouse of the defendant of this case can be seen as a serious negligence. Furthermore, considering the above, it is difficult to view that the defect in the installation and preservation of the warehouse of the defendant of this case is not revealed that specific cause of the fire of this case, as seen earlier, specific cause of the fire of this case, such as the expansion of the defendant's equipment and location of the fire of the plaintiff's shop.

(c) Insurance money deduction;

The fact that the Plaintiff received total amount of KRW 324,240,778 as insurance proceeds from the instant fire is as seen earlier. Ultimately, if the Plaintiff deducts the insurance proceeds from the Plaintiff’s recognized damage amount of KRW 397,225,863 (i.e., KRW 662,043,106 x KRW 60% x less than KRW 60), the Plaintiff’s remaining amount of damages (i.e., KRW 397,225,863 - KRW 324,240,778).

D. Sub-determination

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at each rate of 72,985,085 won and 20% per annum as stipulated in the Civil Act from October 13, 2008 to June 25, 2014, which is the date of the ruling of the court below that it is reasonable for the Defendant to dispute the existence and scope of the obligation to perform, as requested by the Plaintiff, as of October 12, 2008, the fire date of this case, and as of October 13, 2008.

5. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above scope of recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the plaintiff's appeal shall be accepted and it shall be revoked and the payment of the above amount shall be ordered to the defendant in the trial, and since the remaining part of the judgment of the court of first instance is legitimate, the plaintiff's remaining appeal shall be dismissed as it is so decided as per Disposition.

Judges Kim Wil (Presiding Judge)