In a case where a leased building was destroyed due to a fire the cause of which is unknown and its obligation to return the leased building becomes impossible, the burden of proof on the cause of the cause (=Lessee)

Where a lessee’s obligation to return a leased object becomes impossible, if the lessee is exempted from liability for damages due to nonperformance, he/she shall be responsible to prove that such nonperformance is not due to the lessee’s cause attributable to him/her, and if the lessee is exempted from liability even if the cause of the fire is unknown in cases where the leased building was destroyed by fire, he/she shall prove that the lessee has fulfilled his/her duty of due care to preserve the leased building

Articles 390, 615, 618, and 654 of the Civil Act

Supreme Court Decision 94Da38182 delivered on October 14, 1994 (Gong1994Ha, 2988), Supreme Court Decision 99Da36273 delivered on September 21, 1999 (Gong1999Ha, 2209Ha, 2209)

Dongyang Fire and Marine Insurance Co., Ltd. (Law Firm Dongyang General Law Office, Attorney No. 900)

Defendant

Busan District Court Decision 200Na1928 delivered on September 21, 2000

The judgment below is reversed. The case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged the following facts based on the evidence adopted by the court below. The defendant, based on the following facts: the part of the building located in the north-gu in Busan (location omitted) was leased from the non-party cultural industry Co., Ltd. (hereinafter "non-party company"), the owner of which is the non-party company, and engaged in the forest processing business using the original body and sponies, etc. using the sponies and sponies; however, on February 17, 1998, around the second floor of the above building, the fire occurred, and around 02:0, the second floor of the above building, the non-party company's 2 and the third floor were destroyed and damaged, and it is hard to find that the defendant's assertion that the fire occurred in this case's sponies and sponies caused damages to the non-party company, and therefore, it is hard to find the plaintiff's assertion that the fire occurred in this case's remaining damages to the non-party company.

2. However, in a case where a lessee’s liability for the return of leased object becomes impossible, if the lessee is not liable for damages due to the lessee’s nonperformance, the lessee is responsible to prove that the nonperformance was not due to the lessee’s fault. In a case where the leased building was destroyed by a fire and the cause of the fire is unknown, if the lessee is relieved of such liability, the lessee must prove that the lessee fulfilled his duty of care to preserve the leased building (see, e.g., Supreme Court Decision 9Da36273, Sept. 21, 199). Thus, in this case where the part of the building owned by the non-party company, including the leased part, was destroyed by a fire, the Defendant must actively prove that the lessee fulfilled his duty of care to preserve the leased building, and if the Defendant is exempted from the liability for damages due to the nonperformance of the obligation to return leased object, the disadvantage should ultimately be borne by the Defendant, the lessee, and it should not be changed.

Nevertheless, the court below rejected the plaintiff's assertion that the defendant is liable for damages due to nonperformance only when it is proved by the lessor that the fire occurred within the leased part, on the premise that the lessee can be liable for damages due to nonperformance only when it is proved actively by the lessor. The plaintiff's proof alone is insufficient to recognize this point, and the defendant is liable for damages due to nonperformance of the obligation to return leased object. In conclusion, the court below erred by misapprehending the legal principles of the burden of proof as to the liability for damages due to nonperformance of the obligation to return leased object, and it has affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)