2017Da218208 Unlawful gains

Co., Ltd.

State Fire & Marine Insurance Corporation

Seoul Central District Court Decision 2016Na28599 Decided February 15, 2017

August 18, 2017

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. (1) citing the reasoning of the first instance judgment, the Plaintiff concluded the instant accident insurance contract with the managing director of the instant apartment as indicated in the judgment below. The Defendant concluded the instant accident insurance contract with A, the householder of 101 Dong 1001, 1001, 1101, 102, 1102, 1101, 1201, 1301, and 1301, as the fire that occurred within 101 Dong 101, 1001, 101, and 1301, which were the same as the fire that occurred within 101 Dong 1001, 101, and 1301, which caused the damage to the victims, the lower court determined that (2) the instant fire occurred within the instant accident insurance contract, and (3) the first point and its cause was clearly revealed to have been caused by social norms to prevent the occurrence of the fire and its internal control of the instant building.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. The defect in the installation or preservation of a structure under Article 758(1) of the Civil Act refers to a state in which the structure itself lacks ordinary safety, and the burden of proving the existence of the defect lies on the victim (see, e.g., Supreme Court Decision 82Meu348, Aug. 24, 198).

B. According to these legal principles, in order to recognize liability for damages to the possessor or owner of the instant apartment No. 101, 1001, 1001, pursuant to Article 758(1) of the Civil Act, the fact that the instant apartment No. 101, 1001, and 1001, were in a state of failing to meet the safety requirements should be proved first, and the burden of proof on it is against the Plaintiff who asserts

Taking account of the circumstances cited by the lower court, in this case where the first point of fire fighting and the cause of fire fighting was not revealed, it cannot be deemed that there was a defect in the installation or preservation of a structure as a structure in the above 1001 and internal structure. Nevertheless, the lower court determined that the instant fire was attributable to the failure of B to fulfill its duty to take protective measures against the internal structure of No. 1001 solely on the ground that B occupied and owned the instant apartment No. 101, 1001.

Therefore, the lower court erred by misapprehending the legal doctrine on the burden of proof of defect in the installation or preservation of a structure in the liability for damages as provided by Article 758(1) of the Civil Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik

Justices Park Poe-young

Justices Kim Jae-tae

Justices Kim Jae-in