Plaintiff (Attorney Kim Sung-soo, Counsel for the plaintiff-appellant)

Defendant (Attorney Yoon Young-young, Counsel for the defendant-appellant)

October 18, 2011

Busan District Court Decision 2009Gahap23477 Decided May 12, 2011

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The defendant shall pay 16,578,060 won to the plaintiff jointly and severally with the co-defendant 2 and 3 of the court below and the amount calculated by applying 5% per annum from July 8, 2009 to the delivery 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

A. The plaintiff's purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff falling under the order of additional payment shall be revoked. The defendant shall pay to the plaintiff 32,900,760 won with 20% interest per annum from July 8, 2009 to the day of full payment.

B. The defendant's purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows, except for the following: (a) part of Article 2.1 (6) of the judgment of the court of first instance (Articles 4.6 through 19 of the judgment of the court of first instance); and (c) part of Article 2.3 (6) of the judgment of the court of first instance (Articles 6 and 16 of the judgment of the court of first instance) (Articles 6.6 through 16 of the judgment of the court of first instance), and therefore, it is identical to the ground for

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(a) Occurrence of liability for damages;

(1) In a lease agreement, the lessor is obligated to maintain the leased object as necessary for its use and profit-making (see Article 623 of the Civil Act). If the leased object is destroyed or damaged and the lessee is unable to use and profit-making the leased object unless it is repaired, the lessor is obligated to repair the leased object according to the purpose stipulated in the agreement. The same applies to a case where the leased object is damaged due to a cause attributable to the lessor as well as a case where the leased object is damaged without any cause attributable to the lessor (see, e.g., Supreme Court Decision 2009Da96984, Apr. 29, 2010).

B. We examine whether the damage suffered by the Plaintiff due to flooding of the factory of this case was attributable to the fact that the Defendant, a lessor, failed to maintain the leased object in a state necessary for its use and profit-making.

As acknowledged earlier, the factory of this case was installed in a place adjacent to the forest of this case with severe slope, and in full view of the evidence and the purport of the entire pleadings employed by the court below, it appears that the soil of the forest of this case could have anticipated that the factory of this case would collapse to the factory of this case at the time of intensive rain. Thus, even if the soil of the forest of this case was dismantled to the factory of this case at the time of intensive rain, the defendant, as the lessor, has the duty to install a fence on the side adjacent to the forest of this case, so as not to cause any damage to the factory of this case, or to construct the wall of the factory of this case as a solid material. Further, as acknowledged earlier, the panel wall of this case was destroyed without the first concentrated soil, and the whole purport of the evidence and arguments employed above, the plaintiff, as the lessee, cannot be seen as being obliged to repair the forest of this case, and thus, the lessor, as the lessee, bears the duty to maintain the forest of this case, in preparation for the repair of the factory of this case, the forest of this case.

Nevertheless, the defendant did not construct a solid wall at a place adjacent to the plant of this case and the forest of this case as a solid material, and even in repairing the factory of this case after the completion of the first intensive care, he did not install a solid wall at a place adjacent to the plant of this case and the forest of this case or construct a solid wall at a place adjacent to the forest of this case as a solid material, and only the wall of the factory of this case without installing the wall of the factory of this case as a solid material. Thus, due to the defendant's breach of duty, when the 1 and 2 intensive concentration of the forest of this case were collapsed, the wall of the factory of this case was destroyed and the plaintiff suffered damages due to flooding. Thus, the defendant is liable to compensate the plaintiff for damages due to failure to maintain the leased object in the state necessary for its use and profit.

The defendant asserts that the plaintiff suffered from inundation damage in the plant of this case was due to natural disasters, or failure to properly manage retaining walls and drainage facilities installed in a place beyond the defendant's responsible area, or failure to leave soil while building the factory site without permission, and that the defendant did not err by violating the duty of the lessor under the lease contract.

At the time of the instant case, a large number of damages were incurred due to the centralized rain that occurred in the Kimhae-si at the time of the instant case, and the fact that the damaged area, including Kimhae-si, was declared as a special disaster area. However, solely on the above circumstances alone, it is difficult to deem the flood damage of the instant factory solely due to the natural disaster of force majeure, and there is no other evidence to recognize otherwise. In addition, as to whether the flood damage of the instant factory was caused by the failure to properly manage the retaining wall and drainage facilities installed in the instant forest, or by neglecting the earth and sand without permission while building the factory site, it is difficult to recognize the existence of each description of subparagraphs 1 and 2 of evidence No. 18, and there is no other evidence to prove otherwise.

Therefore, the defendant's assertion of exemption is without merit.

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C. Limitation on liability

(1) In the event a debtor is liable for damages due to nonperformance to a creditor, if there is any negligence on the part of the creditor or if it is necessary to ensure fairness in the burden of damages (see, e.g., Supreme Court Decision 2007Da37721, May 15, 2008). In the event the damage suffered by the creditor is concurrent with that of the debtor's non-performance of obligation, the scope of the debtor's damages should be limited to the remaining parts after deducting the portion which is deemed to have contributed to the natural ability as to the occurrence of damages from the perspective of fair burden of damages (see, e.g., Supreme Court Decisions 92Da52122, Feb. 23, 1993; 2006Da13001, Jun. 11, 2009).

B. The strong rain, which was taken in the area of Kimhae-si on July 7, 2009, is 191.5mm (34.5mm per hour) and the strong rain, which was taken in the area of Kimhae-si on July 16, 2009, is 222mm (5mm per hour) and the Central Disaster and Safety Countermeasure Headquarters declared eight Sis/Guns, which were damaged areas due to concentrated rain, including Kimhae-si on July 31, 2009, as recognized above, as special disaster areas. In full view of the results of fact-finding in the first instance court's fact-finding on the Kimhae-si market, where the factory of this case is located, the damaged enterprise due to the concentration above the Japan-si, which is 57 billion won or more, and among them, the damaged enterprise is 4.4 billion won or more, and among them, the fact that the damaged enterprise is a flood victim.

According to the above facts, it is reasonable to view that the inundation damage of the factory of this case was concurrently caused by the natural power of concentrated, in addition to the fact that the defendant, a lessor, failed to maintain the factory of this case which is the object of lease in the necessary condition for its use and profit-making, as seen earlier, and therefore, the scope of the defendant's compensation should be limited to the remaining part which deducts the part which is deemed to have contributed to the natural ability of concentration as to the damage

On the other hand, taking into account all the circumstances acknowledged by comprehensively taking into account the circumstances leading up to the occurrence of centralized rain and the result thereof, the details of the defendant's breach of duty, the details of the plaintiff's losses, etc., and the overall purport of pleadings, it is reasonable to view that the ratio of damages due to the natural event of centralized rain and the defendant's failure to maintain the factory of this case as necessary for the use and profit-making of the factory of this case as 50% each.

Therefore, the Defendant is obligated to pay 24,957,300 won (the damages recognized earlier 49,914,600 won x 0.5) out of the damages suffered by the Plaintiff due to flooding of the factory of this case, and to pay damages at each rate of 5% per annum as stipulated in the Civil Act from November 24, 2009 to May 12, 201, the date following the day when a copy of the complaint of this case containing the purport of the Plaintiff’s claim for damages was served on the Defendant.

2. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and all appeals of the plaintiff and the defendant are dismissed as they are without merit. It is so decided as per Disposition.

Judges Kim Yong-ho (Presiding Judge)