[1] In a case where a lessee’s obligation to return leased object becomes impossible, the burden of proof as to the cause attributable to the lessee (= lessee)

[2] The case holding that the lessee is liable for damages on the ground that the fire was caused by the lessee’s failure to perform his/her duty of care as a good manager as to the preservation of the leased object, where the leased building was destroyed by a fire caused by an electrical power plant or more, and the lessee’s liability for damages was acknowledged

[1] A lessee shall fulfill his/her duty of care as a good manager with respect to the preservation of a leased building, and where a lessee’s obligation to return leased object becomes impossible, if the lessee is exempted from liability for damages due to nonperformance, he/she shall bear the burden of proving that the impossibility of performance is not due to the lessee’s fault.

[2] The case holding that a lessee is liable for damages on the ground that a fire caused by a defect in an electrical boat, which is a part of the building structure, should be deemed to have been caused by a lessee’s failure to perform his/her duty of due care as a good manager for the preservation of the leased object, in the event that the lease was continued for a long time and the lessee was directly aware of, or could have known, the electrical ship that was the cause of the fire, and that the lessee was within the control and management area of the lessee, barring any special circumstance, inasmuch as the fire caused by a defect in the electrical boat was caused by a fire caused by a defect in the electrical boat,

[1] Articles 390, 615, 618, and 654 of the Civil Act; Article 288 of the Civil Procedure Act / [2] Articles 390, 615, 618, 623, and 654 of the Civil Act

[1] Supreme Court Decision 93Da2227 delivered on February 8, 1994 (Gong1994Sang, 1002), Supreme Court Decision 94Da38182 delivered on October 14, 1994 (Gong1994Ha, 2988), Supreme Court Decision 99Da36273 delivered on September 21, 199 (Gong1999Ha, 2209Ha, 2209) Supreme Court Decision 200Da57351 Delivered on January 19, 2001 (Gong201Sang, 523)

Twin Fire and Marine Insurance Co., Ltd. (Attorney Han-won, Counsel for the plaintiff-appellant)

Defendant-Counterclaim Plaintiff (Attorney Lee In-bok et al., Counsel for defendant-Counterclaim)

Gwangju High Court Decision 2005Na2638, 2645 decided August 19, 2005

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

1. Regarding ground of appeal No. 1

A lessee is responsible to prove that, with respect to the preservation of a leased building, the lessee has a duty of due care as a good manager, and that, in cases where the lessee’s obligation to return leased object becomes impossible, the lessee is not liable for damages due to the lessee’s fault. Even if the leased building was destroyed by a fire caused by an electrical power failure, which is a part of the building structure, and the lessee’s obligation to return the leased object was impossible, if the lease was continued for a long time, and the lessee was directly aware of, or could have known, the electrical ship that was the cause of the fire, and the lessee was within the controlled management area of the lessee. Therefore, the fire caused by the defect of the electrical power failure should be deemed to have occurred as a result of the lessee’s failure to exercise the due care as a good manager for the preservation of the leased object, barring special circumstances.

Based on evidence, the non-party 1, who is the birth of the above non-party (the non-party 1, hereinafter referred to as "the non-party 1"), purchased the above factory building from the defendant on 1979 immediately after the completion of the registration of ownership transfer, operated the above factory building and machinery. The overall operation and management of the above factory was delegated to the non-party 2, the non-party 2, who was at home, and operated the above factory. The non-party 2, from 08:00 to 18:00 on the date of the above fire, did not directly remove the above factory's general shut-off equipment, and it was difficult to find that the non-party 1, who was a lessee of the above factory, had been under the duty of care of the non-party 1, who was under the duty of care of the non-party 1, had been under the presumption that the fire was under the duty of care of the non-party 2, who was under the duty of care of the non-party 1, was under the presumption of the fire.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there are no errors in the misapprehension of facts against the rules of evidence or misapprehension of legal principles as to the duty of repair of a lessor, as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

In light of the records, the court below acknowledged the facts based on the evidence adopted by the court below, and found that the non-party 1, the lessee, performed restoration work in lieu of compensation for damages as a result of restoration work rendered by the non-party 1, the lessee, and therefore, the defendant's right to claim the payment of insurance proceeds against the plaintiff (the counter-party) was all extinguished. There is no error of law such as failing to exhaust all necessary deliberations and misconception of facts

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)