[1] Criteria for determining whether use or profit-making which generates a lessor's repair obligation constitutes interference with a lessor's repair obligation

[2] In a case where part of the forests and fields adjacent to the factory, each of the leased objects due to the collapse of the forests and fields adjacent to the factory, due to the first and second intensive rain, destroyed part of the walls of the factory and damaged raw materials, machinery, and finished products owned by the lessee and the lessee Gap by entering the inside of the factory, the case holding that the court below erred in the misapprehension of legal principles in holding that the lessor was liable to install a fence on the side adjacent to the forest and fields or install a factory wall by using a solid material in order to maintain the condition necessary for the use and profit-making of the factory in light of all the circumstances

[1] In a lease agreement, a lessor is obligated to maintain the conditions necessary for the use and profit-making of the leased object while the lease is in existence (hereinafter “leased’s duty to repair”). Thus, in a case where the leased object is damaged or obstructed, if it is not repaired, the lessor shall bear the duty to repair the leased object to the extent that it would interfere with the lessee’s use and profit-making according to the purpose determined by the contract unless it is repaired. Barring special circumstances, the lessor’s duty to repair is recognized to the extent necessary for the lessee to use and profit-making from the leased object according to the purpose of the lease, barring special circumstances. Determination of whether it constitutes interference with the use and profit-making of the leased object, which causes the lessor’s duty to repair, should be made by taking into account all the circumstances, such as the type and use of the leased object, the scale and volume of damage or impairment, the degree of the impact on the use and profit-making of the object, whether it is easy to repair it, the cost and amount of the leased object at the

[2] In a case where part of forests and fields adjacent to a factory, which is the object of lease due to the collapse of a factory, due to the primary and secondary intensive rain, destroyed part of the walls of the factory and damaged the raw materials, machinery, and finished products owned by the lessee and the lessee Gap by entering the inside of the factory, the case holding that the court below erred by misapprehending the legal principles on the construction of a wall in order to maintain the status of the factory's use and profit-making of the forest, which is the object of lease, prior to the occurrence of a partial collapse of the forest land pursuant to the primary intensive rain, on the ground that the factory building and site, which is the object of lease, had been in the necessary condition for using and profit-making in accordance with the purpose stipulated in the contract, and even if there was an obstacle which could not be used or profit-making by the lessor due to the primary intensive rain, it cannot be deemed as including the duty to take protective measures to prevent damage to the factory, taking into account the possibility of collapse of the forest and land, and otherwise, in order to maintain the status necessary for factory's use and profit-making

[1] Article 623 of the Civil Code / [2] Articles 618 and 623 of the Civil Code

[1] Supreme Court Decision 2009Da96984 decided Apr. 29, 2010 (Gong2010Sang, 995)

Plaintiff

Defendant (Attorney Yoon Young-young, Counsel for the defendant-appellant)

Busan High Court Decision 201Na3930 decided November 22, 2011

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. The lower court acknowledged that the Defendant, a lessor of the instant plant, violated the duty to maintain the necessary conditions for the use and profit-making of the instant factory, which is the leased object during the lease agreement, on the grounds that the Plaintiff, as the lessee, violated the duty to maintain the necessary conditions for the use and profit-making of the instant factory, as follows: (a) the first intensive rain that occurred on July 9, 2009 (hereinafter “the first intensive rain”) and the second intensive rain that occurred on July 16, 2009 (hereinafter “the second safe rain”) and that part of the instant forest adjoining the instant factory were collapsed, and thus, (b) earth and sand, which was fasted, destroyed part of the walls of the instant factory and caused damage to the Plaintiff’s raw materials, machinery and finished products owned by the Plaintiff due to the inside of the factory.

In other words, the factory of this case was installed in contact with the forest of this case with a strong slope, and it could be anticipated that the soil of the forest of this case might collapse to the factory of this case at the time of centralized rain, and thus, the lessor, at the time of centralized rain, is obligated to install a solid fence abutting on the forest of this case or construct the wall of the factory of this case with solid material, so as not to cause any damage to the factory of this case even if the soil of the forest of this case collapses to the factory of this case. In addition, the panel wall of the factory of this case was destroyed by some collapse of the forest of this case under the first wellh, and without repairing it, the plaintiff could not use or benefit from the factory of this case in accordance with the purpose of the lease contract of this case. Thus, the lessor, the defendant, who was the lessor, has the duty to install the forest of this case with solid material of this case or solid material of this case, in preparation for any further removal of the wall of this case, is in contact with the forest of this case with the forest of this case.

2. However, we cannot agree with the above determination by the court below for the following reasons.

A. In a lease agreement, a lessor is obligated to maintain conditions necessary for the use and profit-making of the leased object during the existence of the lease agreement (hereinafter “leased’s repair obligation”). Thus, in a case where the leased object is destroyed or damaged, if it is to the extent that it would interfere with the lessee’s use and profit-making according to the purpose determined by the contract unless it is repaired, the lessor is obligated to perform the repair obligation (see, e.g., Supreme Court Decision 2009Da96984, Apr. 29, 2010). Such duty of repair is recognized within the extent necessary to allow the lessee to use and profit-making from the leased object according to the purpose of the lease, barring any special circumstance. Determination of whether it constitutes interference with the use and profit-making of the leased object, which causes the lessor’s repair obligation, ought to be made by taking into account the type and use of the leased object, the scale and degree of damage or impairment, the degree of impact on the use and profit-making of the object, the cost required for repairing, the amount of the leased at the time, etc.

B. The following circumstances revealed by the evidence and records adopted by the court below, i.e., ① the Plaintiff’s use or profit-making of the factory of this case and its site subject to the lease prior to the collapse of some of the surface of the forest of this case at the time of the first heading, there are no circumstances to deem that there was any impediment or interference with the Plaintiff’s use or profit-making in accordance with the purpose stipulated in the lease agreement. ② The direct cause of the Plaintiff’s damage inflicted upon the lessee of the factory of this case at the time of the first heading Co., Ltd. shall be the accumulated amount of rainfall due to the continued concentration, which had never been done before the towing, and the water was additionally discharged into the forest of this case (the Nonparty’s testimony by the witness at the first instance trial). In light of the fact that the Plaintiff’s use or profit-making of the forest of this case, which had been installed in the site of this case, was difficult to view that there was a defect in the forest of this case or the forest of this case’s site of this case’s case’s building site.

Furthermore, in cases where the collapse of the instant plant due to the partial collapse of the instant plant due to the first well-feasible 1 accident, is partly damaged, and the Plaintiff is unable to use or benefit from the instant plant and its site, as an ombudsman inside the said factory, barring any special circumstance: (4) it cannot be deemed that the lessee simply provides lessee with the leased object so that it can use or benefit from the leased object, and further bears the duty to protect the lessee by taking into account the safety of the lessee’s body or profit from the leased object (see, e.g., Supreme Court Decision 9Da1004, Jul. 9, 199). It is difficult to view that the lessee might incur harm to the safety of the instant factory by taking account of the fact-finding circumstances, such as the removal of the instant forest and land from the time of the instant plant and the danger of using or benefit from the leased object, and thus, it is difficult to see that the lessee might have obstructed the use or benefit from the forest and land within the scope of the instant plant and its infrastructure.

Therefore, the court below determined otherwise based on its reasoning that the lessor, as the lessor, has a duty to install a fence on the side of the forest of this case or to construct a wall of this case with a solid material in order to maintain the conditions necessary for the use and profit-making of the factory of this case, solely based on the circumstances stated in its reasoning, the court below erred by misapprehending the legal principles on the lessor's duty to repair, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)