[1] The content of the duty to protect the guests of accommodation operators and the responsibility for the violation of the duty

[2] The method and limitation of determining the existence and degree of the grounds for offsetting negligence

[3] In a case where a accommodation business operator failed to fulfill his/her obligation to protect customers under a lodging contract and the guest died, whether a person with a close interest in the deceased guest can claim consolation money on the ground of his/her non-performance of obligation under a lodging contract for the accommodation business operator (negative)

[4] In a case where a building was damaged to the extent that it could be repaired but its use became impossible under the ordinary usage of the building, the scope of ordinary damages resulting therefrom

[1] A lodging contract entered into with an accommodation business entity, which is a public entertainment business entity, provides guest rooms with which the accommodation business entity can provide accommodation to the customer and allow the customer to use the guest rooms for temporary use of the guest rooms and related facilities only are controlled by the accommodation business entity. As such, the accommodation business entity is obligated to provide guest rooms, such as a usual lease, and related facilities, to allow the customer to use and profit from the guest rooms and related facilities. Furthermore, the accommodation business entity bears the duty to protect the customer's safety by providing safe and comfortable guest rooms and related facilities without any danger to the customer. Such duty is an incidental duty recognized as the good faith principle in light of the nature of the lodging contract, and the accommodation business entity is liable for nonperformance due to incomplete performance if the accommodation business entity causes loss to the guest by infringing on the customer's life and body. In such case, the victim is obligated to assert and prove the specific duty of protection and the fact of violation, and the accommodation business entity cannot be exempt from his/her responsibility for non-performance as long as he/she is not negligent.

[2] The comparative negligence set-off system under the Civil Act intends to take into account the obligee’s such care in calculating the amount of damages according to the principle of equity in a case where the obligee fails to fulfill his/her duty required under the principle of equity. The existence and degree of comparative negligence in determining the scope of liability for damages caused by nonperformance of obligation should be determined comprehensively by comparing the conclusion and implementation of the contract at issue in individual cases and the fault of both parties. In such a case, the fact-finding or set-off of the grounds for comparative negligence should not be considerably unreasonable in light of the principle of equity, even if the pre-

[3] In a case where the accommodation business operator died of the guest because of his/her failure to fulfill his/her obligation to protect customers under the accommodation contract, even if the guest’s son was suffering from mental pain due to his/her accident, the accommodation business operator cannot claim consolation money on the ground of his/her nonperformance of obligation under the accommodation contract for the deceased.

[4] If a building is damaged to the extent that it can be repaired due to a fire and its use becomes impossible under the ordinary usage of the building, damages caused by the failure to use it during a reasonable period required for repair shall be deemed ordinary damages caused by the damage. If there are special circumstances under which it is impossible to immediately commence repair as soon as possible by social norms, damages caused by the failure to use it until the commencement of repair is possible shall also be deemed ordinary damages.

[1] Articles 390 and 653 of the Civil Act, Article 151 of the Commercial Act / [2] Article 396 of the Civil Act / [3] Articles 390, 751, and 752 of the Civil Act / [4] Articles 393 and 763 of the Civil Act

[1] Supreme Court Decision 93Da43590 delivered on January 28, 1994 (Gong1994Sang, 824), Supreme Court Decision 96Da47302 delivered on October 10, 1997 (Gong1997Ha, 3406) / [2] Supreme Court Decision 98Da56416 delivered on May 25, 199 (Gong1999Ha, 1249), Supreme Court Decision 98Da54397 delivered on June 9, 200 (Gong200Ha, 1603), Supreme Court Decision 98Da35389 delivered on June 13, 200 (Gong200Ha, 1643) / [2] Supreme Court Decision 98Da19879 delivered on June 16, 197 (Gong1978Da19789 delivered on June 29, 1974]

Plaintiff 1 and 7 others

Defendant (Law Firm Dongbu General, Attorney Choi Il-young, Counsel for the defendant-appellant)

Daejeon High Court Decision 99Na2261, 6409 delivered on June 14, 2000

Of the judgment below against the Defendant (Counterclaim Plaintiff) regarding the main lawsuit and counterclaim, the part of the claim for business loss among the part against the Plaintiff (Counterclaim Defendant) 1, 2, and 3 regarding the main lawsuit and counterclaim is reversed, and that part of the case is remanded to the Daejeon High Court. All of the remaining appeals by the Plaintiff (Counterclaim Defendant) 1, 2, and 3 are dismissed.

1. As to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”)’s ground of appeal

(1) According to the reasoning of the judgment below, the non-party 1 and the non-party 2 opened the 3rd floor of the above 3rd floor of the 3rd floor and opened the 3rd floor of the 3rd floor of the 196th floor, and opened the 3rd floor of the 3rd floor of the 3rd floor, and opened the 3rd floor of the 3rd floor of the 3rd floor of the 3rd floor and opened the 3rd floor of the 1st floor of the 3rd floor of the 3rd floor, and opened the 3rd floor of the 3rd floor of the 3rd floor of the 3rd floor and then opened the 3rd floor of the 1st floor of the 3rd floor of the 3rd floor of the 4th floor of the 1st floor of the 3rd floor of the 3rd floor of the 1st floor of the 3rd floor of the 3rd floor of the 3rd floor of the 1st floor of the 3rd floor of the 4th floor.

In light of the records, the fact finding by the court below is just and there is no violation of the rules of evidence against the rules of evidence.

B. Based on the above facts, the court below found that the fire of this case was caused by the care of the deceased at the guest room, such as the 3rd time of the fire, and that the fire was caused by the care of the deceased, but if the public room was installed at the request of the customers to use it for other purposes, the public room could not be used for the purpose of using it on the front day even if the fire was opened, it was left without being able to cover the safety net of the public room. On the other hand, the first measure taken by the manager of the above 3rd time of the fire, which was installed in the customer room, was to be the most important to promptly inform the customers of the fire that the fire was destroyed by the fire, such as the removal of the fire, and the removal of the fire caused by the fire to the public room. However, the non-party 3, as well as the above 3rd time of the fire, was the first measure to be taken by the public room to find out the fire again.

A lodging agreement entered into with an accommodation business entity, which is a public entertainment business entity, is a lease agreement for a kind of temporary use of guest rooms that can provide accommodation to a customer and allow the customer to use it, and the accommodation business entity is under the control of the accommodation business entity. As such, the accommodation business entity is obligated to provide the guest rooms, such as an ordinary lease, and related facilities, to use and profit from the accommodation business entity. Furthermore, the accommodation business entity bears the duty to protect the customer by providing safe and comfortable guest rooms and related facilities that are recognized as having no risk to the customer, taking into account the safety of the customer. Such duty is an incidental duty recognized under the good faith principle, taking into account the characteristics of the accommodation agreement, where the accommodation business entity causes damage to the guest by infringing on his/her life and body, the accommodation business entity is liable for nonperformance due to incomplete performance, and the victim is obligated to assert and prove the existence of the specific protection obligation and the violation thereof, and the accommodation business entity cannot be exempt from the liability for nonperformance of the obligation, i.e., a non-performance of the obligation., 90.

According to the records, it can be seen that the safety net has been attached to the stormer, which caused the occurrence of the instant fire, so that other objects do not come into direct contact. As long as safety is ordinarily equipped with the above winder, barring any special circumstance, it does not constitute a duty to cover the above winder with the water network. Moreover, since the entrance of this case is less than 30 guest rooms and the interior decorations, etc. are not included in a special area where flame retardation performance should have flame retardation, etc. in accordance with the relevant Acts and subordinate statutes, such as the Fire Services Act, etc., and thus, it cannot be deemed that the installation of the goods generating poisonous gas in the guest room administered by the deceased does not constitute a violation of the Acts and subordinate statutes, and thus, the judgment of the court below on this part is erroneous.

However, the judgment of the court below on the part that the female manager failed to perform his duty to protect the guests after a fire is justified and acceptable. Accordingly, the judgment of the court below that recognized the defendant's liability to compensate for damages caused by the fire of this case is just and it cannot be said that there was an error of law by misapprehending the legal principles on the violation of the duty to protect the guests.

C. The comparative negligence set-off system under the Civil Act intends to take into account the obligee’s equivalent principle in calculating the amount of damages in accordance with the principle of equity in a case where the obligee fails to fulfill his/her duty required under the principle of equity. The existence and degree of comparative negligence in determining the scope of liability for damages due to nonperformance should be determined comprehensively by comparing both parties’ fault and conclusion of the contract at issue in individual cases, and the process of performance thereof. In such a case, the fact-finding or set-off of the grounds for comparative negligence is not considerably unreasonable in light of the principle of equity, even if the pre-determination of the fact-finding court is a fact-finding authority (see, e.g., Supreme Court Decisions 96Da6240, Sept. 4, 1998; 98Da35389, Jun. 13,

As determined by the court below, the fire in this case occurred due to the deceased's mistake, and the fire-fighting systems installed in the inn of this case do not seem to be in violation of the Acts and subordinate statutes; the death of the deceased is the main cause of the massation caused by poisonous gases caused by a fire in the wind season; these circumstances are ordinarily difficult to anticipate, and it is not easy to cope with them appropriately; furthermore, considering the fact that the court below recognized that the fire in this case did not cover the water network in the wind season and recognized it as a violation of the Defendant's duty to protect the guests from being accommodated in the air, it is too small, and there is room to deem that it is considerably unreasonable in light of the principle of equity.

The judgment of the court below is erroneous in the misapprehension of legal principles as to comparative negligence in damages or failing to exhaust all necessary deliberations, and such illegality affected the conclusion of the judgment.

D. Meanwhile, according to the reasoning of the judgment of the court below, the court below clearly states that the defendant is liable for the damages suffered by the deceased on the ground of incomplete performance of the obligation to protect the deceased under the lodging contract against the deceased, who is a guest, on the ground that the defendant violated the obligation to protect the deceased under the lodging contract.

Therefore, even if the plaintiffs, who are not the parties to the accommodation contract of this case, were suffering from mental distress due to the accident of this case as the children of the deceased, they cannot claim consolation money due to the defendant's non-performance of obligation under the accommodation contract for the deceased (see, e.g., Supreme Court Decisions 74Da997, Nov. 12, 197; 82Meu278, Jul. 13, 1982). Nevertheless, the court below's approval without disclosing the grounds for the plaintiffs' claim for consolation money is erroneous in the misapprehension of the legal principles as to non-performance of reason or consolation money, and such illegality also affected the conclusion of the judgment (the defendant's ground of appeal pointing this out shall be deemed to be included in the purport of pointing this out).

2. As to the grounds of appeal by Plaintiffs 1, 2, and 3

A. According to the reasoning of the judgment below, the court below acknowledged the fact that the above fire occurred in the above 303th floor of the above 303 room operated by the defendant, and the defendant did not provide the above guest room to the business, and held that the plaintiffs as the inheritors of the deceased are liable to compensate the defendant for the damages caused by the above fire according to their respective inheritance shares. In light of the records, the judgment of the court below on the occurrence of the deceased's liability for damages is just, and there is no violation of law as otherwise alleged in the grounds of appeal.

B. If a building has been damaged to the extent that it can be repaired due to fire and its use pursuant to the ordinary usage of the building became impossible, damages caused by the failure to use the building during a reasonable period required for its repair shall be deemed ordinary damages caused by the damage. If there are special circumstances under generally accepted social norms that make it impossible to immediately commence its repair as to such damage, damages caused by the failure to use the building until the commencement of repair is possible shall also be deemed ordinary damages (see, e.g., Supreme Court Decisions 84Meu162, Dec. 11, 1984; 96Da27469, Jun. 12, 1998); however, even if there is a need to preserve the fire site in order to secure evidence in accordance with the lawsuit, it shall not be deemed that there is a proximate causal relation with the fire in this case.

According to the reasoning of the judgment below, the court below recognized the damages that the plaintiffs should compensate for, and the amount of KRW 5,496,00 as business losses for 37 months from the time of a fire, and KRW 16,465,00 ( KRW 445,00 x 37 months) as business losses for 37 months from the time of a fire. In light of the records, the judgment of the court below on the expenses for passenger room remuneration and replacement of equipments is just, but the judgment of the court below that the above guest room suffered business losses for more than 3 years without any instruction on special circumstances that the above guest room was not immediately repaired, is hard to accept.

In the end, the judgment of the court below is erroneous in the misapprehension of legal principles as to the scope of damages, and such illegality also affected the conclusion of the judgment.

3. Therefore, among the part against the defendant as to the principal lawsuit and counterclaim and the part against the plaintiff 1, 2, and 3 as to the counterclaim, the part against the defendant as to the claim for business loss is reversed, and that part of the case is remanded to the court below. The remaining appeals by the above plaintiffs are all dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Son Ji-yol (Presiding Justice)