A. The relationship between both responsibilities where a lessor is liable for nonperformance and his/her performance assistant is liable for tort as he/she prevents a lessee from using or making profits from the leased object;

B. Whether there is an obligation to compensate for damages that either knew or could have known, in the event of the occurrence of damages due to special circumstances

C. The case holding that the appellate court should not consider the defendant's deposit in the judgment of the first instance court of the provisional execution division where the plaintiff received the deposit for repayment while the appellate court continues to conduct the appellate trial on the judgment of the first instance court

A. Defendant A, a lessor, is obligated to compensate the Plaintiff for damages due to nonperformance of his/her duty as a lessor in relation to the act that Defendant B, an agent of performance, prevented the Plaintiff from using or making profits from his/her shop by blocking access to a shop, which is a leased object, and suspending the installation of internal facilities construction. Moreover, Defendant B’s failure to use or make profits from the store by the said method despite the Plaintiff’s knowledge that the Plaintiff is a lessee constitutes a tort that infringes on the Plaintiff’s right of lease. Therefore, in cases where Defendant B is liable to compensate the Plaintiff for damages due to a tort, Defendant B’s liability for nonperformance of duty and tort liability against Defendant B is based on the same factual basis.

(b) The default or tortfeasor is obligated to compensate for damages due to the special circumstances if he knew or could have known the existence of the special circumstances, and is not required to have known or could have known the amount of damages due to such special circumstances.

C. In a case where the Defendants deposited the amount of judgment and received it from the Plaintiff after the judgment of the court of first instance was rendered, in light of the fact that the Defendants asserted the amount cited in the court of first instance while filing an incidental appeal at the appellate court, such money is deposited to be exempted from a compulsory execution based on a provisional execution attached to the judgment of first instance. Although the Defendants, a debtor, were in the form of a deposit for repayment, it cannot be deemed that the Defendants deposited the amount with the Plaintiff, even though they had recognized that they had an obligation equivalent to the amount of money, and did not receive it from the Plaintiff, but did not receive it. Accordingly, the Plaintiff’s receipt of the deposit is not a voluntary repayment of part of the Plaintiff’s claim against the Defendants, but a provisional execution attached to the judgment of first instance. Accordingly, it is not a ground to consider it in the appellate court, since the amount received by the provisional execution attached to the judgment of first instance does not have an effect on a final repayment.

A. Articles 750, 623, and 390 of the Civil Act. Articles 393(2) and 763(c) of the Civil Act; Article 199 of the Civil Procedure Act; Articles 460 and 487 of the Civil Act

C. Supreme Court Decision 80Da1101,102 Decided December 14, 1982 (Gong1983,265) (Gong1983,265) 90Meu26,33 decided May 22, 1990 (Gong1990,1369) 93Da26175,26182 decided Oct. 8, 1993 (Gong193Ha, 3049)

[Judgment of the court below]

Defendant 1 and one other Defendants, Defendant 1 et al., Counsel for the defendant-appellant Kim Jung-il

Seoul High Court Decision 93Na32646 delivered on March 29, 1994

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

On the first ground for appeal

The court below's finding that Defendant 1 was liable for nonperformance and is not responsible for tort. Thus, we cannot accept the judgment of the court below on the premise that the court below recognized Defendant 1's liability for tort. The arguments are without merit.

On the fifth ground

According to the reasoning of the judgment below, the court below, as the father of the defendant 1, who is the owner of the building of this case, did not perform the duty of care for damages caused by the non-performance of the duty of care for damages arising from the non-performance of the duty of care for damages arising from the non-performance of the duty of care for damages arising from the non-performance of the duty of care for damages arising from the non-performance of the duty of care for damages arising from the non-performance of the duty of care for the non-performance of the duty of care for damages arising from the non-performance of the duty of care for the non-performance of the duty of care for damages arising from the non-performance of the duty of care for the non-performance of the duty of care for damages arising from the non-performance of the duty of care for damages arising from the non-performance of the duty of care for the non-performance of the non-performance of the duty of care for damages arising from the non-performance of the duty of care for damages arising from the non-performance of the above duty of care for the non-party 2.

In addition, the damages recognized by the court below against the defendants are damages caused by the ordinary damages and special circumstances due to the non-performance of obligation against the defendants 1, and the damages caused by the ordinary damages and special circumstances against the defendant 2, and the ordinary damages are not recognized as tort liability against the defendants, since all the damages caused by the non-performance of obligation to the defendants and special circumstances are not recognized as tort liability against the defendants. Thus, the judgment of the court below is not erroneous in violation of the principle of pleading, such as the theory of lawsuit. The arguments are

On the second ground for appeal

In light of the records of this case, it is reasonable that the measures that the plaintiff knew or could have known the circumstances that the plaintiff paid the money as facility costs when he received the right of lease to the above non-party 2 as the right of lease to the above non-party 2, and there is no error of law by misunderstanding the facts against the rules of evidence, such as the theory of lawsuit.

In addition, a person defaulting on obligation or a person committing an illegal act is obligated to compensate for damages caused by such special circumstances if he knew or could have known the existence of such special circumstances, and it does not have to have known or could have known the amount of damages caused by such special circumstances. The arguments are without merit.

Adjudgments 3, 4 and 6

According to the reasoning of the judgment below, the court below found, based on macroficial evidence, that the plaintiff concluded a contract with the above non-party 1 for the payment of KRW 18,00,000 to the above non-party 1 for the interior facility construction work that changed the internal structure of the store to be beer and paid KRW 18,00,000 to the above non-party 1 on the day, and the above non-party 1 started the above construction work and discarded the above construction work due to the defendants' obstruction of construction and entry and exit, and it was no longer possible to continue the construction work, and the above non-party 1 did not receive the above start payment from the above non-party 1 for all the expenses such as design cost and material cost, etc. until the commencement of the construction work in accordance with the original contract, and determined that the defendants were liable to compensate for the above start payment as ordinary damages. In light of the records and records, the judgment of the court below is justified, and there is no violation of law of law by misapprehending the rules of evidence.

In addition, according to Gap evidence No. 1, in concluding a lease contract for the store of this case, it is acknowledged that "a lessee may not claim all expenses, such as expenses for the installation of business facilities and maintenance expenses, and shall not claim the right of annual rent without exercising the right of retention." This agreement is an agreement that the lessee gives up the necessary and beneficial expenses, etc. by installing the business facilities in the store of this case without claiming the lessor, and that the lessee shall restore the premium to its original state when the period of time expires without claiming the lessor's right of lease even if the lessee paid the premium to the tenant for the establishment of the business facilities in question and the right of lease is transferred, it shall be deemed that the agreement applies to the case where the lease contract is implemented as the contract, the period expires, or the contract is terminated due to the lessee's default (e.g., delayed payment of the rent), and that the plaintiff, who received the transfer of the right of lease with the lessor's consent, cannot be deemed to be unlawful in interpreting the above construction expenses and damages due to the lessor's non-performance of the right of this case.

However, although the Defendants asserted that the above amount of KRW 27,50,000 paid by the Plaintiff to all the tenants as facility costs cannot be claimed on the ground of the above agreement, the lower court did not make any judgment on this point, the lower court erred by misapprehending the legal doctrine, but as seen earlier, the above argument by the Defendants cannot be accepted, since the above agreement is not applicable to this case, and therefore, the illegality of the omission of the judgment is not affected by the conclusion of the judgment. All the arguments are without merit.

On the seventh Ground

According to Eul evidence No. 8, 193, Jul. 13, 1993, after the judgment of the court of first instance was rendered, the defendants can recognize the fact that the defendants, the debtor of the court of first instance, provided actual payment of the amount of KRW 39,60,00,00 as cited in the judgment of the court of first instance to the plaintiff as the creditor, but the plaintiff paid the above amount of KRW 39,60,00,00 as the cause of deposit was the fact that the plaintiff refused to receive, and the plaintiff stated that he received the above amount at the date of second pleading of the court below. However, in light of the fact that the defendants raised an incidental appeal at the court of second instance and disputed the amount as cited in the court of first instance, although the defendants were in the form of a deposit for repayment, the above amount was deposited in order to be exempted from compulsory execution based on provisional execution attached to the judgment of the court of first instance, it cannot be deemed that the defendants arbitrarily provided the equivalent amount to the plaintiff, although they did not receive the deposit.

This is because, if this is considered as a voluntary repayment deposit by the Defendants, the Plaintiff’s appeal is without merit, and it is assumed that the part against the Defendants was revoked and that the Plaintiff’s claim was dismissed due to the incidental appeal by the Defendants. In such a case, it constitutes a non-payment with knowledge that the above amount of deposit was not repaid, and thus, the Defendants cannot seek a return to the Plaintiff. This is contrary to the purport of the Defendants’ filing an incidental appeal.

Therefore, the Plaintiff’s receipt of the deposit money is not a voluntary repayment of part of the Plaintiff’s claim against the Defendants, but it is the money received by the declaration of provisional execution attached to the judgment of the court of first instance. As such, the amount received by the provisional execution attached to the judgment of the court of first instance does not definitely have the effect of repayment, and it does not constitute a ground for taking this into account in the appellate court (see, e.g., Supreme Court Decision 80Da1101,102, Dec. 14, 1982; Supreme Court Decision 90Meu26, 33, May 22, 190).

Therefore, even if the court below did not make any decision as to the receipt of the above deposit money, it cannot be said that there was an error of failing to exercise the right of explanation like the theory of lawsuit. There is no reason for discussion.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)