Whether a lessor, in ordinary lease relationship, has the duty of safety consideration or prevention of theft, etc. against a lessee (negative)

In ordinary lease relations, the lessor’s obligation to the lessee is merely providing the lessee with the leased object to allow the lessee to use or profit from it, and further, it cannot be deemed that the lessor bears the duty to protect the lessee by taking into account the safety of the lessee or by preventing theft, etc. Furthermore, in the event the lessor provided the leased object to the lessee, the leased object is under the control of the lessee, and thereafter the lessor uses or profit from the leased object under the control of the lessee.

Article 618 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

Plaintiff (Attorney Lee Ho-ho et al., Counsel for the plaintiff-appellant)

Defendant

Seoul District Court Decision 98Na42737 delivered on January 14, 1999

The part of the judgment below regarding the claim for damages is reversed, and that part of the case is remanded to the Seoul District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the first instance judgment cited by the lower court, the lower court: (a) based on such evidence, occupied by the Plaintiff on May 19, 1996, leased KRW 20,000 and monthly rent of KRW 400,000 as indicated in its holding on the Plaintiff on May 19, 196; (b) the leased object is not installed semi- underground, but can be easily intruded by the theft crime by holding it on the road without gate; (c) on June 15, 1996, the lower court, based on the premise that the Plaintiff was unable to recover the leased object from the leased object to the Plaintiff on the condition that the Plaintiff did not suffer emotional distress until 10,00,000 if the leased object had been occupied by theft and 50 minutes; and (d) the Plaintiff did not suffer from the expiration of the lease contract term by providing the Plaintiff with the remainder of the leased object, i.e., the leased object to the effect that the Plaintiff had no mental suffering from the leased object.

2. However, in ordinary lease relationship, barring any special circumstance, the lessor’s obligation to the lessee is merely providing the lessee with the leased object to allow the lessee to use it or make profits from it, and further, it cannot be deemed that the lessor bears the duty to protect the lessee by taking into account the safety of the lessee or by preventing theft, etc. Furthermore, in a case where the lessor provided the lessee with the leased object, the leased object is under the lessee’s control, and thereafter the lessee uses or makes profits from the leased object under the management of the lessee. According to the records, the Plaintiff, as the lessee, knew of the circumstances where the leased object was located under the lower lower part of the third floor building as at the time of the conclusion of the instant lease agreement, and the leased object was not installed, and the Defendant, a lessor, installed a crime prevention facility immediately after the first theft case of the Plaintiff’s assertion that the leased object occurred from the leased object, and thus, cannot be deemed as the lessor’s duty to use or make profits from the leased object.

In addition, when the lease is terminated, the duty to return the deposit to the lessor and the duty to return the leased object to the lessor of the lessee are in a simultaneous performance relationship. Therefore, the lessor is not obligated to return the deposit to the lessee unilaterally without returning the leased object. According to the records, although the Defendant alleged the renewal of the lease as stated in the holding of the court below, the Plaintiff, a lessee, was unilaterally demanded the return of the deposit without returning the leased object, on the other hand, to the Defendant, the lessor. Therefore, in such a situation, the Defendant’s refusal of the return of the deposit cannot be deemed to constitute an unlawful act or forced the Plaintiff, a lessee, to reside in the leased object.

Nevertheless, the court below's recognition of liability for damages due to a lessor's default or illegal act under the above facts shall be deemed to have committed an unlawful act by misunderstanding the legal principles as to a lessor's duty in a lease agreement and the legal principles as to a lessor's duty in default or requirements for establishing a tort, and it is clear that such an unlawful act has influenced the judgment

3. Therefore, the part of the judgment of the court below regarding the claim for damages is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges

Justices Cho Cho-Un (Presiding Justice)