2014 Gohap 1435 Compensation for damages

A

B

November 2014, 27

December 11, 2014

1. The defendant shall pay to the plaintiff 289,291,429 won and 281,232,675 won among them, 5% per annum from February 16, 2013 to December 11, 2013, 5% per annum from December 18, 2013 to December 11, 2014, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

With respect to the Plaintiff KRW 321,526,448 and KRW 281,232,675 among them, the Defendant shall pay 5% per annum from February 16, 2013 to the service date of a copy of the application for modification of the claims and the cause of the claims in this case from December 18, 2013 to the service date of a copy of the application for modification of the claims in this case and 20% per annum from the next day to the day of full payment.

1. Basic facts

A. Location and shape of the instant building

1) During the period of Ansan-si, the defendant is the owner of a factory building A704.74m (hereinafter referred to as "Adong building") on the second floor of the 2nd floor of the building site A, B, 197.41m (hereinafter referred to as "B Dong building") of the building B, which is a factory site B, of the building B, of the building of the building B, the building of the building of the steel frame 197.41m (hereinafter referred to as "Bdong building") of the building B, which is located in the part of the building A, and E, F, the plaintiff, and G are engaged in the business of "H, I, J, and K by leasing the remaining parts of the building Adong from the defendant," and L is a business of "M by leasing the building B from the defendant."

3) The building A Dong and B are located at one container (hereinafter “instant container”) used by the Defendant as office and resting space between the building A and B.

4) The location and shape of the container A and B of the instant building and the location of the Defendant, E, F, Plaintiff, and G's respective business stores (hereinafter referred to as "D stores"), 'H stores', 'I stores', 'K stores', 'K stores', and 'K stores' in the building A and B of the instant case are as shown in attached Form 2.

B. Lease agreement between the plaintiff and the defendant

1) On January 10, 2012, the Plaintiff prepared a lease agreement with the Defendant (hereinafter referred to as “the lease in this case”) with a lease deposit of KRW 20 million, monthly rent of KRW 1200,000, and the lease term of KRW 100,000 from January 10, 2012 to January 10, 2013. Article 8 of the above lease agreement provides that “B” shall keep all the goods, furnitures, equipment, etc. under the responsibility of B, and shall not transfer the civil and criminal liability to “B (the Defendant shall be obliged to subscribe to insurance to prevent death, fire, or other damage).”

2) After that time, the Plaintiff paid the above lease deposit to the Defendant, received delivery from the Defendant of the said J shop, and operated electric installations business, etc. at the same time, and the instant lease agreement was implicitly renewed on January 10, 2013, a rental fee for the period of time. The instant fire accident occurred.

On February 15, 2013, at around 18:25, a fire (hereinafter referred to as “the fire of this case”) occurred in the behind the Adong Building. Accordingly, the facilities and equipment of H stores, one store, J stores, K stores and containers of this case, and the inventory assets were removed, and parts of D stores, M stores’ facilities and interior house fixtures, fixtures, and inventory assets were removed. 【Grounds for recognition. 【Reasons for recognition. 【The grounds for recognition. 【No dispute”], each entry in the Evidence Nos. 1, 2, Nos. 1, 7, 8, 10 (including paper numbers), and Nos. 1, 7, 8, and 10 (including paper numbers), the result of the on-site verification conducted by this court, the purport of the entire pleadings

2. The parties' assertion

A. The plaintiff's assertion that the plaintiff, a lessor, was obligated to maintain the store of this case, which is the object of lease, in a state necessary for the use and profit-making (the duty of a lessor to repair), in violation of this duty, the defendant is liable to compensate the plaintiff for damages arising from the non-performance of the repair obligation under the lease agreement of this case (the amount equivalent to the value of the destroyed goods and the amount equivalent to the amount of the non-use damage) as a result of the fire, since the fire occurred due to the electrical heat that occurred from the electric power failure, which occurred from the electric power failure of the H store to the J store, among the electric power failure to move into the store located within the Adong building in the entire area controlled and managed by the lessor, from among the electric power failure to move into the store located within the Adong building.

B. The defendant's assertion

1) The Plaintiff’s assertion that the instant fire occurred due to the defects existing in the area controlled by the lessor, as the result of the appraisal by the National Institute of Scientific Investigation and Investigation conducted by the National Institute of Scientific and Investigative Research, since it was proved that the cause of the fire and the point of extinguishment are unclear.

2) Even if the instant fire is deemed to have been caused by a defect existing in the area controlled and managed by a lessor, the Defendant, at the time of the conclusion of the instant lease agreement, agreed between the Plaintiff and the Plaintiff to exempt the Defendant from liability for damages, even if the Plaintiff’s fire, theft, or human life incident occurred with respect to the Plaintiff’s goods and equipment dealt with, and the instant fire, and as such, the Defendant is not liable for damages against the instant fire, since it did not comply with the Plaintiff’s agreement to subscribe to fire insurance at his own expense

3. Determination

A. Occurrence of damages liability

1) Relevant legal principles

In the lease contract, a lessor is obligated to maintain the conditions necessary for the use and profit-making of the leased object (hereinafter referred to as “leased’s duty to repair”). Therefore, in the event of a damage or impairment to the leased object, the lessor is not obligated to repair if it is so minor that the lessee can easily and easily repair the leased object without any separate cost, and it does not interfere with the lessee’s use and profit-making. However, if it is not repaired to the extent that it can not be used and profit-making according to the purpose determined by the contract, the lessor is liable to repair the leased object. This is the same as in the case of damage to the leased object which is attributable to the lessor, as well as damage that is not attributable to oneself (see, e.g., Supreme Court Decision 2009Da96984, Apr. 29, 2010).

If a fire is presumed to have occurred due to a defect existing in the area controlled and managed by a lessor, such as the electrical ship which installed on the part of the building owner and forms a part of the building structure, while a lessee of a house or other building or a part thereof occupies and uses the object delivered by a lessor, the act of repairing and removing the defect falls under the lessor’s duty to maintain the state necessary for the use and profit-making of the leased object (see, e.g., Supreme Court Decisions 94Da34692, 34708, Dec. 9, 1994; 98Du18053, Mar. 23, 2000).

2) Determination

In light of the following circumstances, the fire of this case is presumed to have occurred as a result of the fact-finding conducted by the National Scientific Investigation Institute of this Court, and the appraiser 0 in addition to the whole purport of the arguments, the fire of this case is presumed to have occurred as a result of the fact-finding conducted by the Defendant, the owner of the building A Dong-dong and the lessor of the J store, who is the owner of the building Adong and the lessor of the J store, and the Defendant is obligated to maintain the status necessary for using and benefiting from the J store, which is the leased object by repairing and removing the above defect. Since the fire of this case occurred in violation of this case, the Defendant is liable to compensate the Plaintiff for damages arising from the non-performance of the repair obligation under the lease agreement of this case.

① In most cases where a fire is expanded, it is almost impossible to find out the cause of the fire completely due to the fire itself as it is, and in the instant case, it is also difficult to reveal the cause of the fire as the evidence is destroyed most likely to reveal the cause of the fire due to the fire, burning, fire-fighting, etc.

② The instant fire caused the collapse of each of the said stores due to the severe combustion of the Adong, H, I, J, and K stores, and the instant B-dong and the instant container are in a state where the said stores collapsed compared to the A-dong building. The instant building and the instant container appear in a state where the degree of burning is relatively not severe than that of the B-dong building and the burning of the instant container rather than the interior. In light of the above circumstances, inasmuch as the instant building and the instant container are presumed to have been burned by the flame expanded in the process of burning the A-dong building, the instant container and the instant container are excluded from the point of combustion.

(3) The main unit in charge of the electricity of the entire building A is installed inside D. The main unit to H, I, J, and K stores were charged with electric power lines from the main unit to the main unit unit of the building A through the cable duct installed in accordance with the middle level of the building A.

④ At the time of the occurrence of the instant fire, many people who were inside the Adong store at the time of the occurrence of the instant fire stated that the fire alarm system was consistent with the fact that they could not feel flames, smokes, smells, etc. up to the sounding of the fire, and that “ON was all installed in the entire subdivision of H, I, and J stores,” and that there was no electrical characteristics that could be related to the extinguishing and inspection inside each of the above stores. In light of the above circumstances, there is little possibility that the fire alarm system was created by electrical factors inside each of the above stores.

⑤ In the inside and outside of the building A, Dong, and Dong B, D StaffN, H employee P, I operator F, J staff Q Q, and M Company R stated that the point of origin of the instant fire was the second floor wall between D stores and H stores after the building A, and the point of origin was the same. The point of origin of the instant fire is accurately consistent with the route in which the electrical seal line passes, both at each shop after the main unit of the instant fire.

④ From around 2012, A Dong building frequently occurred when electricity of the entire building occurs due to abnormal malfunctions inside the D main body, and the J directly replaced the electric breaker, and the malfunctions of the fire alarmer occurred frequently. In addition, around 4:00 p.m. on the date of the instant fire, Q, a J employee, found the electric breaker of the main unit installed at D store as D, and cut off two to three times thereafter (the Defendant, in light of the above circumstances, was aware of the defects of the electric breaker, which were distributed to each shop inside the Adong building, and the Defendant did not bear repair duty, but the above circumstances alone do not make it clear that the Plaintiff had the electric breaker prior to the electrical breaker’s defect. As such, the Defendant’s assertion that there was no possibility that the electric breaker’s defect was generated from the main body of the National Investigation Research Center, the Defendant’s assertion that there was no possibility that the electric breaker’s defect was generated from the main body of the instant fire.

(8) The appraiser designated by the court presented his opinion to the effect that the electrical heat of the above electrical seal line (hereafter referred to as "electric seal line 1" in paragraph (8) is not the cause of the fire of this case. At the same time, upon the premise that the electrical seal of the container of this case (hereafter referred to as "electric seal 2" in this paragraph) was made through the small hole below the first electrical seal line at the expense of the 1st unit A East Building, the fire of this case was caused by the electrical power string at the top of the container of this case, and there was no evidence to acknowledge that there was a lack of evidence to acknowledge that there was a lack of evidence to acknowledge that there was no difference between the Defendant and the 10th unit 17th unit 1 and 20th unit 17th unit 1 of this case in light of the fact that there was no evidence to acknowledge that there was no evidence to acknowledge that there was no difference between the first electrical seal 2 at the time of the appraisal of this case and the second unit 17th unit 2 of this case.

3) Judgment on the Defendant’s assertion of immunity

(1) As to the assertion of the exemption agreement, the main sentence of Article 8 of the instant lease agreement provides that "B (Plaintiff) shall preserve all the goods dealt with and the collection equipment, equipment, etc. under the responsibility of B (Plaintiff) and shall not transfer the civil and criminal liability to A (Defendant) for theft, fire, and human life accidents, etc. as seen earlier. However, in light of the principle of good faith, it is reasonable to interpret that the aforementioned exemption agreement applies only to the case where the lessor, the Defendant, is not responsible for the theft, fire, and human life accidents, etc.

The defendant's assertion that the contract of compulsory purchase of insurance is without merit. The defendant's assertion that the contract of compulsory purchase of insurance is without merit, and that the proviso of Article 8 of the lease contract of this case (Provided, That the proviso of Article 8 of the lease contract of this case shall be obligated to buy insurance to prevent human life, fire, or other damage) is stipulated as above. However, the above compulsory purchase of insurance brings about a result contrary to the principle of private autonomy (the principle of freedom of contract) which is the basic principles of the Civil Act by depriving the lessee of his right to freely decide whether to enter into the contract, thereby bringing about a result contrary to the principle of private autonomy (the principle of freedom of contract) which is the basic principles of the Civil

(b) Scope of damages;

(i) Property losses;

Comprehensively taking account of the aforementioned evidence and the overall purport of the pleadings in light of the entirety purport of the pleadings in the instant fire, the Plaintiff was obliged to pay damages equivalent to KRW 9,127,942 due to the Plaintiff’s destruction of all of the office equipment and fixtures, such as computers and air conditioners, which were kept in his J branch, and damages equivalent to KRW 9,127,942. Moreover, it can be acknowledged that the damage equivalent to KRW 272,104,733 was incurred due to the destruction of all of the inventory assets, such as computer cables and electric cable lines (goods for sale). As such, the Defendant is obliged to pay the Plaintiff a total amount of damages for property damage (= KRW 272,675,00,000).

2) Loss from suspension;

The Plaintiff asserts that the Plaintiff had a duty to pay to the Plaintiff KRW 40,293,773 (= KRW 77,937,666) as compensation for business suspension damages incurred during the pertinent period, on the wind that both the house fixtures and inventory assets located within the J store are destroyed by fire, and that there was no choice but to suspend business operations for about 10 months from February 16, 2013 to December 17, 2013, the date following the date of delivery of the J store. Therefore, the Defendant is obliged to pay to the Plaintiff KRW 10,293,73 (= KRW 77,937,666) as compensation for business suspension damages incurred during the pertinent period.

In a case where a building used for a distribution business is destroyed by a tort, the profits that would have been incurred if the building had continued to operate the business for a reasonable period necessary to prepare another substitute for it, i.e., losses for business suspension, as far as it is possible to prove such losses, shall be compensated separately from the place of exchange. In a case where a building used for a distribution business was destroyed by a tort, such losses for business suspension should be calculated on the basis of the operating profits that could have been incurred when the building was continuously used for the distribution business. For example, in a case where the building used for the distribution business was completely damaged, losses for business suspension shall be calculated on the basis of the operating profits that could have been earned if the building continued to operate the distribution business (see, e.g., Supreme Court Decisions 2003Da20909, Mar. 25, 2004; 2001Da82507, Mar. 18, 2004). This legal doctrine applies to a case where an obligor’s business object was destroyed due to nonperformance of obligation.

In the instant case, comprehensively taking account of the health team back to the instant case, the aforementioned evidence, and the result of a partial appraisal by an appraiser 0 (excluding the parts rejected in the foregoing), the J store was set up due to the instant fire, and thereafter the Plaintiff was temporarily closed down business without any long-term resumption of business, and the average monthly sales from January 2, 2012 to January 2013 are KRW 77,937,666, and the J’s average monthly sales from January 201 to December 2012 are KRW 5.17%. In light of the size, structure, etc. of the J store, it is reasonable to view that the reasonable period necessary for the Plaintiff to establish a store replacing the said store is up to two months, and thus, the amount of damage to the Plaintiff’s business suspension is less than KRW 8,058,754 won (=7,937,67,9360, X600, 517%, etc.).

Therefore, with respect to the Plaintiff KRW 289,291,429 (i.e., KRW 281,232,675 + KRW 8,058,754) and KRW 281,232,675 among them, the Defendant is obligated to pay damages at a rate of 20% per annum as prescribed by the Civil Act from February 16, 2013, following the date of the occurrence of damages claim for temporary closure damages, which is the day following the date of delivery of the J shop, which is the day following the date of the completion of delivery, to the Plaintiff, to dispute the existence or scope of each Defendant’s obligation from December 18, 2013 to December 11, 2014, which is the date of the instant sentencing, and from the next day to the day of full payment, to the day of full payment, damages for delay calculated by 20% per annum as stipulated by the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judges and leather

Judges

Judge Lee Young-soo

1) The entries in the building register are different from those in the building register, and the entry in the building register which reflects the current status more faithfully.

2) The upper end of the attached building layout map is front of the building in the direction of the road, and the lower end is behind the building.

3) Electric wires passing through the wall of a building and the ceiling are part of the building structure, and any defects exist therein;

Unless special circumstances exist, such as the lessee has known or could have known the defect, the responsibility to maintain the repair shall be the object of the lease.

B. A lessor is obligated to maintain the status necessary for the lessee to use and take profits (Supreme Court Decision 9Da64384 Decided April 2, 200, 707).

[Reference]

4) The average monthly sales from January 2012 to January 2013

5) The average operating profit ratio from January 201 to December 2012)