(a) Where the obligation to return the leased object becomes impossible due to a fire the cause of which is unknown, the burden of proof for the cause of which is attributable;

(b) The case holding that it is difficult to view that the lessee, who is an operator of a light-type restaurant, has fulfilled the duty of due care as a good manager in the preservation of the leased building merely because he was locked and returned home after checking the location, etc. of electric lighting that might cause a fire; and

(a) Where the lessee becomes liable for damages due to nonperformance, if the lessee is liable for the damages due to nonperformance, he shall be responsible to prove that such nonperformance is not due to the lessee’s cause attributable to him, and where the leased building was destroyed due to a fire that occurred from the building and the cause of the fire is unknown, if the lessee is exempted from liability, he shall prove that the lessee fulfilled his duty of due care as a good manager for the preservation of the leased building;

B. The case holding that it is difficult to view that, even if the cause of a fire is unknown, if it is reasonable to presume that at least the leased building occurred, the lessee had fulfilled the duty of due care as a good manager for the preservation of the leased building, even if the lessee completed his/her business and checked the electric lighting position, etc. that could cause a fire, such as ordinary times, and returned to all the entrance, such circumstance alone is insufficient to deem that the lessee fulfilled his/her duty of care as a good manager

(a)Articles 390 and 618 of the Civil Code;

A. Supreme Court Decision 84Meu2416 decided Apr. 9, 1985 (Gong1985, 729) (Gong1985, 729) 87Meu1575 decided Nov. 24, 1987 (Gong198, 163) (Gong1994Sang, 102)

International Fire Insurance Co., Ltd., Counsel for the plaintiff-appellant

Defendant

Seoul High Court Decision 93Na38941 delivered on June 23, 1994

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

As to the Grounds of Appeal

Where the lessee’s obligation to return the leased object becomes impossible and the lessee is not liable for damages due to the cause attributable to the lessee, Nonparty 1, the first witness of the said fire, is responsible for proving that the nonperformance was not due to the lessee’s fault. In the event the leased building was destroyed by a fire and the cause of the fire is unknown, if the lessee is relieved of such liability, the lessee must prove that the lessee fulfilled his duty of care as to the preservation of the leased building (see, e.g., Supreme Court Decisions 87Meu1575, Nov. 24, 1987; 84Meu2416, Apr. 9, 1985). Thus, the lower court found that the Defendant’s first witness of the said fire, who was the first witness of the said building, had no reason to believe that the fire was destroyed within the leased building and that there was no concern that the fire was destroyed by the Defendant’s duty of care due to the fact that the fire was destroyed within the leased building, as well as that there was no other evidence to prove that the fire was no concern for the Defendant’s employees.

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

Justices Kim Jong-sik (Presiding Justice)