Plaintiff (Law Firm Han, Attorneys Yu-hwan et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Inn, Attorneys Shin Young-young et al., Counsel for the defendant-appellant)

October 6, 2009

Suwon District Court Decision 2007Gahap1139 Decided December 18, 2008

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The defendants shall pay to each plaintiff 607,415,00 won with 5% interest per annum from July 3, 2007 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The part of the judgment of the court of first instance against the Defendants shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Basic facts

The reasoning for this Court's explanation is as to this part of the judgment of the court of first instance, "B. The plaintiff packaging the total amount of KRW 1,800,000 with defendant 1 on June 26, 2007 all household goods, such as the plaintiff's household goods, office goods, office goods, long-term finished products, samples, raw materials, etc. (hereinafter "the goods of this case") and keeps them until August 26 of the same year. However, the plaintiff's total amount of KRW 1,80,000 between defendant 1 and defendant 1 on June 26, 2007 and the total amount of KRW 1,80,000,000 as stated in attached Forms 1 and 2, and thus, the plaintiff packages goods such as household goods, office goods, long-term finished products, sample samples, raw materials, etc. (hereinafter "the goods of this case") and then cite them from the judgment of the court of first instance to the judgment of first instance until August 26, 2007."

2. Determination as to whether Defendant 1 is liable for damages

A. The parties' assertion

(1) Plaintiff

Defendant 1 concluded the instant contract between the Plaintiff and the Plaintiff, which is a custodian director contract for the instant goods. Since the instant goods were destroyed by fire, Defendant 1 is liable to compensate the Plaintiff for the damages incurred thereby.

(2) Defendant 1

Since Defendant 1 is specialized in the carriage of the goods of this case, the contract of this case constitutes only a contract for the carriage of the goods of this case, but only upon the plaintiff's request, Defendant 1's employee entered into a storage contract for the goods of this case with Defendant 2 on behalf of the plaintiff. Since Defendant 1 is not liable for the occurrence of the fire of this case, the plaintiff's claim against Defendant 1 for damages is without merit.

B. Determination

(1) The following are revealed according to the evidence of this case and the overall purport of the pleading.

Of the instant contract No. 1 written between the Plaintiff and Defendant 1, the agreement dated June 26, 2006 (Evidence No. 5-2 of the evidence No. 5-2) provides that “the transport and storage contract for the goods of directors” shall be written, and the term “the full payment of the storage cost” shall be written, as well as the term “the storage period (6/26-8/26)” shall be written.

Of the main terms and conditions (Evidence A No. 4) operated by Defendant 1, Defendant 1 introduced ○○ Benefit Press as a packing, general, and specialized company for storage. According to the claim of fare, etc. under Article 8 of the Terms and Conditions, “in the case of a stored director, the claim for storage fee shall be complied with unless otherwise agreed.” Defendant 1 is recognized as having handled the custody director other than the general director and packing director.

If Defendant 1 entered into a storage contract on the instant goods on behalf of the Plaintiff, as alleged by Defendant 1, on behalf of the Plaintiff, the contracting party is reasonable to enter the said contract in the name of Nonparty 1, not the Plaintiff, but the Nonparty 1, an employee of Defendant 1.

Defendant 2 stated that the fire of this case is directly traded with the company that received a request for keeping the goods at the time when the police made a statement (Evidence No. 4) and that there is no contractual relationship with the Plaintiff in the reply submitted to the first instance court (Records No. 71).

According to the evidence No. 1, the plaintiff prepared a letter that the contract No. 1 and the contract No. 2 of this case concluded with the defendant No. 2 had been executed by the plaintiff to the defendant No. 1, but it is acknowledged that the plaintiff did not enter into a direct contract with the defendant No. 1. 12, and in light of the records No. 12 and the circumstances of sinbrut before it, each of the above documents was prepared at the plaintiff's request by the non-party No. 1, an employee of the defendant No. 1 in the course of obtaining confirmation of the particulars of the goods of this case from the defendant No. 1. 1, and it is difficult to recognize that the plaintiff's intent as to the storage of the goods of this case was withdrawn.

(2) Therefore, in full view of the above circumstances, the contract of this case between the plaintiff and the defendant 1 is not only the carriage of the goods of this case, but also the storage thereof constitutes a contract entrusted to the plaintiff to the plaintiff 1. Ultimately, in the case where the defendant 1 entered into the contract of this case with the defendant 2 to implement the contract of this case which was concluded with the plaintiff 1 and kept the goods of this case, the defendant 2 shall be deemed to be an employee as the performance assistant in relation to the plaintiff. In the case where the fire occurred due to negligence as seen below, as seen in the "paragraph 3." while the defendant 2 kept the goods of this case, the defendant 1 also is liable for damages to the plaintiff due to the failure to return the goods of this case requested by the plaintiff to the plaintiff due to the fire of this case. Thus, the defendant 1 shall be liable for damages to the plaintiff.

3. Determination as to whether Defendant 2 is liable for damages

A. The parties' assertion

(1) Plaintiff

Defendant 2, as a warehouse business entity, failed to perform his duty of care to keep the instant goods in custody, and due to Nonparty 2’s negligence, etc., which could be seen as an employee of Defendant 2, caused the instant fire to inflict property damage on the Plaintiff. As such, Defendant 2 is liable to compensate the Plaintiff for damages incurred by the loss of the instant goods pursuant to Articles 750 through 756 of the Civil Act.

(2) Defendant 2

In addition, the fire of this case is not caused by Defendant 2’s negligence, and according to the Civil Act, Article 750 of the Civil Act applies only when there is a gross negligence in the case of a fire, and there is no gross negligence in relation to the above fire.

In addition, the fire of this case occurred while Nonparty 2, who was awarded a contract from Defendant 2 for the installation of a signboard, was employed by Nonparty 2, and Defendant 2 was employed by Nonparty 2 for the installation of a signboard. As such, Defendant 2 does not constitute Nonparty 2’s employer.

(b) Fact of recognition;

The following facts are acknowledged according to the respective statements and the purport of the whole pleadings in Eul 1 to 4.

Before the occurrence of the instant fire, Defendant 2 entered into a contract with Nonparty 2 on the condition that part of the containers located in the ○○ Logistics Center operated by Defendant 2, Nonparty 2 manufactured a signboard indicating “○○ Logistics Center and Telephone Number omitted” and attached it.

In attaching a signboard under the above contract with Nonparty 3 of Chinese nationality, Nonparty 2: (a) prior to July 3, 2007, the letters “monthly” and “D” were affixed in bridges; (b) however, during the period from July 13, 2007 to July 17, 2007, the remainder of the signboards affixed a light melting machine to a consortium by melting the melting machine.

○ Nonparty 2 et al. affixed a signboard using a folder, which is likely to be transferred to the styp on the inner side of the container, because the styp has been attached to the styp.

○ At the time of the instant fire, there was no other cause of the fire except that Nonparty 2 et al. performed on contact work.

Defendant 2 requested Nonparty 2, etc., who had finished the signboard attachment work, to attach an additional sign of “faging expense”, and the Nonparty 2, etc. became aware of the occurrence of a fire in a container, as seen above, in order to perform additional installation work.

C. Determination

(1) In general, in a contract for work, where a contractor is acknowledged to be in a position to independently complete a work with independence under his/her own responsibility, there is no relationship between the contractor and the contractor, and the contractor is not liable to compensate for damages incurred by a third party on the contracted work, unless there is gross negligence on the contractor’s contract or instruction (Article 757 of the Civil Act). However, in light of the nature of the contract, the contents of the contract, the relationship between the contractor and the contractor’s performance and supervision of a specific act to the contractor, or the relationship between the contractor and the contractor’s performance and supervision on the whole work, regardless of the name of the contract, the contractor is liable to compensate for damages incurred by the contractor to the third party due to his/her intentional or negligent act if it can be deemed that the contract is established.

(2) Comprehensively taking account of the facts acknowledged earlier and the purport of the entire argument of this case, it is deemed that the contact work performed by Nonparty 2 at the time of the instant fire is highly likely to cause fire. As such, Defendant 2, who is a warehouse business entity storing goods in a container, has a duty of care to prepare for measures such as monitoring whether the aforementioned contact work is safe, and if a fire occurs, it cannot be seen as having been destroyed or lost. Defendant 2’s work of manufacturing and installing signboards requested by Nonparty 2 cannot be deemed as having demanded high level of expertise in light of the nature of its work. Thus, it is deemed that Defendant 2 instructed Nonparty 2 to the position of attaching signboards to be produced by Nonparty 2, and that Defendant 2’s duty of care to prevent the occurrence of a fire at the time of the instant accident. In light of the fact that Nonparty 2’s failure to install and supervise a separate container under Defendant 2’s order after completion of construction of the signboard, it appears that the Constitutional Court’s decision of inconsistency with the Constitution was 80 as to the damages of this case.

(3) Therefore, Defendant 2 is liable to compensate the Plaintiff for damages caused by the tort of which the instant goods owned by the Plaintiff were destroyed due to the fire of this case.

4. Damages to be paid by the Defendants

A. The plaintiff's assertion

The Plaintiff sustained damages of KRW 607,415,00, which is the total value of the instant product, due to the amount of damages caused by the instant fire.

B. Determination

According to Gap evidence Nos. 10, the value of the goods of this case destroyed at the time of the fire of this case can be acknowledged as the facts constituting 288,372,066, and each statement of Eul evidence Nos. 1, Eul evidence Nos. 1 and 1 through 6 (including the number of branch numbers in the case of additional numbers) and the testimony of non-party 4 as the witness of the trial of this case is insufficient to reverse it, and there is no other counter-proof.

C. Sub-decision

Therefore, Defendant 1 is liable for damages due to nonperformance under the contract of this case entered into with the Plaintiff, and Defendant 2 is liable for damages due to tort. The Defendants’ liability is based on the same factual relationship, and the Defendants’ non-joint and several relations are mutually liable. As such, Defendants 1 are liable for damages due to each Plaintiff from January 3, 2008 on the record that the copy of the complaint of this case was served on the day following the delivery date as requested by the Plaintiff, and Defendant 2 from July 3, 2007, which is the date of the fire of this case falling under tort, to dispute the existence or scope of each Defendants’ performance obligation from July 3, 2007 to December 18, 2008, which is the date of the judgment of the first instance court, to pay 5% per annum under the Civil Act until December 18, 2008, and 20% per annum under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

5. Conclusion

Therefore, each claim against the Defendants against the Plaintiff is justified within the scope of recognition of the above "No. 4. C.," and the remaining claims are all dismissed as it is without merit. The judgment of the court of first instance is justified with this conclusion, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment]

Judges Cho Young-hee (Presiding Judge)