Plaintiff (Law Firm Jeongdong International, Attorney Kim Sung-soo, Counsel for plaintiff-appellant)

Defendant 1 and two others (Law Firm Cheongn, Attorney Choi Byung-il, Counsel for the defendant-appellant)

April 14, 2011

1. Defendant 1 shall pay to the Plaintiff 24,957,300 won with 5% interest per annum from November 24, 2009 to May 12, 201, and 20% interest per annum from the next day to the day of full payment.

2. The remaining claims against Defendant 1 and the claims against Defendant 2 (Co-Defendant 2 of the second instance judgment) and Defendant 3 (Co-Defendant 3 of the second instance judgment) are dismissed, respectively.

3. Of the costs of lawsuit, 75% of the portion arising between the Plaintiff and Defendant 1 shall be borne by the Plaintiff; 25% by the same Defendant; and the portion arising between the Plaintiff, Defendant 2 and Defendant 3 shall be borne by the Plaintiff

4. Paragraph 1 can be provisionally executed.

The Defendants jointly and severally pay to the Plaintiff 16,578,060 won with 5% interest per annum from July 8, 2009 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. On March 24, 2008, the Plaintiff leased the instant factory (hereinafter “instant factory”) on the ground of the Newcheon-ri (Land Number 1 omitted) (hereinafter “instant factory”) from Defendant 1 during the period from May 1, 2008 to April 30, 2010, with a deposit amounting to KRW 40,000,000, monthly renting KRW 250,000,000, and the period from May 1, 2008 to April 30, 2010. The Plaintiff manufactured parking facilities, etc. with the trade name, “gold-si industry machinery” at the instant factory.

나. 피고 2, 3은 지형상 이 사건 공장 부지 위쪽에 맞닿은 김해시 한림면 신천리 (지번 2 생략) 임야 4,165㎡(이하 ‘이 사건 임야’라 한다.)를 공유하고 있다. 이 사건 임야는 경사면이 상당히 가파르고, 대부분이 나대지 상태로 흙이 드러나 있으며 일부는 움푹 패어있다. 이 사건 임야의 비탈을 따라 그 위쪽에는 ○○중공업 주식회사(이하 ‘ ○○중공업’이라 한다.)의 공장이 있고, 이 사건 임야와 ○○중공업 공장 부지 사이에 옹벽이 설치되어 있다.

C. On July 7, 2009, in the area of Kimhae-si, 191.5mm (the maximum rainfall per hour 34.5mm) (hereinafter “the primary concentrated rain”). Since the water was not drained from the open-air of the factory of ○○ Heavy Industries, the water taken out and flow out the retaining wall and caused the landslide due to the collapse of part of the forest of this case. A landslide caused damage to raw materials, machinery, and finished products in the factory due to the destruction of the wall that became the panel of the factory of this case, in which earth and sand were pushed down.

D. The Plaintiff knew of such damage to Defendant 1, and Defendant 1 accepted the damaged factory wall as a panel. Defendant 2 and Defendant 3 stored a block fence on the destroyed factory wall.

E. On July 16, 2009, a landslide, such as the primary concentrated rain (hereinafter “second concentrated rain”), was occurred with 222mm (the maximum lecture capacity per hour 53.5mm) located in the area of Kimhae-si on July 16, 2009, and at the same time, the factory walls of this case were destroyed, and raw materials, machinery, and finished products in the factory were flooded.

F. On July 31, 2009, the Central Disaster and Safety Countermeasure Headquarters declared 8 Si/Gun/Gu as a special disaster area, in which 8 Sis/Guns, including Kimhae-si, have caused serious damage to concentrated friendship.

【In the absence of dispute over the grounds for recognition, Gap evidence 1-1, Gap evidence 2, 3, Eul evidence 3, Eul evidence 4-1 through 7, Gap evidence 4-1 through 6, Gap evidence 5-1 through 12, Gap evidence 16-1 through 13, Eul evidence 16-1 through 4, Eul evidence 1-1 through 5-9, non-party 1 (non-party to the judgment of the Supreme Court), part of Eul evidence 1 (non-party to the judgment of the Supreme Court), the purport of the whole pleadings

2. Claim against the defendant 1;

(a) Occurrence of liability for damages;

According to the above facts, the lessor is obligated to maintain the condition necessary for the use and profit-making of the leased object while the lease contract is in existence. According to the above facts, the factory of this case was composed of a panel of the walls abutting on the forest land of this case with a strong slope, and even after the wall was destroyed and damaged without the earth and sand which was pushed down at the time of the first intensive concentration, Defendant 1 repaired the wall as the panel. Accordingly, when the soil and sand of the forest of this case was destroyed by the wall of the factory of this case, which was cut down in the first and second intensive concentration, and thus, it was flooded beyond the factory due to the destruction of the wall of the factory of this case by the soil and soil water of this case. Thus, Defendant 1 is liable for the damages suffered by the Plaintiff.

As to this, Defendant 1 asserts that the Plaintiff’s loss is caused by a natural disaster based on a concentrated rain and by a soil erosion by Defendant 2 and 3, and thus, Defendant 1 is not responsible for Defendant 1. The fact that a large amount of damage has occurred due to a concentrated rain that occurred in the Gimhae-si and this area was declared as a special disaster area is as seen earlier, but such circumstance alone cannot be readily concluded that there is no natural disaster of force majeure or there is no cause attributable to Defendant 1. The above argument by Defendant 1 is without merit. However, Defendant 1’s liability is limited as seen below.

(b) Scope of damages;

(1) Property damages on raw materials, machinery, or finished products

The Plaintiff spent 2,197,100 won for repair costs related to the melting machines and electricity, 15,532,500 won for finished goods, 2,100 won for cleaning, decomposition, and re-processing costs of raw materials, and 7,525,000 won for cleaning and moving raw materials, and 3,380,000 won for raw materials and the difference between the price of raw materials and the price of the scrap metal for which re-processing is impossible due to the sale of part of the raw materials for scrap metal, and 19,180,000 won for repair cost of the CNC cutting machines, etc. (each entry of evidence No. 10,11,12,14, and 15 for finished goods, and partial testimony of Non-Party 1 for Non-Party 1).

The above property damages amounting to KRW 49,914,60 (=2,197,100 + KRW 15,532,500 + KRW 2,100,00 + KRW 7,525,00 + KRW 3,380,00 + KRW 19,180,000).

The Plaintiff also sought compensation for the amount equivalent to the value-added tax on the repair cost of the contact and electricity related repair cost, the cost of cleaning, decomposition, and assembling finished goods, the cost of reprocessing work including iron plates, and the cost of repairing CNC cutting machines, etc. However, since the value-added tax constitutes the input tax amount under the Value-Added Tax Act and it appears that the Plaintiff can either be deducted or refunded from his own output tax amount, the Plaintiff’s claim for this portion is without merit (see, e.g., Supreme Court Decision 92Da47328, Jul. 27,

(2) Loss in the payment period of finished products, and profit in sales compared to the preceding month.

The Plaintiff sought compensation equivalent to KRW 3,500,000, which was claimed from the ordering place for the delay in the payment period of finished products, and KRW 48,720,000,000, which was sales profit compared to the preceding month of the recovery period of flood damage. Such damages claimed by the Plaintiff are liable for damages due to special circumstances only if Defendant 1 knew or could have known such circumstances, and there is no evidence to acknowledge this. The Plaintiff’s claim for this part is without merit.

(3) Consolation money

In general, in the event of property damage caused by the nonperformance of a contractual obligation, the mental suffering that the contracting party received is recovered by compensating for the property damage. Accordingly, there are special circumstances that the compensation for property damage sustained an irrecoverable mental suffering, and only where the other party knew or could have known such circumstance, consolation money for mental suffering may be recognized. However, there is no evidence to acknowledge this, and therefore, the plaintiff's claim for this part of this case is without merit.

C. Limitation on liability

Since the damage suffered by the Plaintiff includes damage caused by ethical concentration, which is a natural history, it should be taken into account when determining the scope of compensation for damage to be compensated by Defendant 1 (see, e.g., Supreme Court Decision 92Da52122, Feb. 23, 1993). Considering the details and details of the damage, it is reasonable to view that the degree of contribution to concentrating the overall damage of the Plaintiff is 50%.

Therefore, Defendant 1 is obligated to pay to the Plaintiff 24,957,300 won (i.e., KRW 49,914,600 x 50%) and damages for delay calculated at the rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day of May 12, 2011, which is appropriate to dispute over the existence and scope of the obligation to perform from November 24, 2009, the day following the delivery of the copy of the complaint of this case against the said Defendant. (Inasmuch as liability for damages arising from nonperformance under a lease agreement is recognized, damages for delay is recognized as above).

3. Claim against the defendant 2 and 3

A. The plaintiff's assertion

Defendant 2 and 3, the owner of the forest of this case, who is the owner of the forest of this case, was able to expect the damage to the factory of this case when leaving the soil and sand from the new construction of the factory on the land adjacent thereto, but they were placed on the forest of this case, and the factory of this case was flooded due to the first concentrated rain, and the factory of this case was again flooded at the second concentrated rain because any safety measures were not taken. Accordingly, Defendant 2 and 3 are jointly and severally liable with Defendant 1, the lessor, to compensate the Plaintiff for the damage caused by inundation.

(b) Fact of recognition;

(1) The factory site of ○○ Heavy Industries is 16,448 square meters of a new factory site on January 10, 2006, and this land was divided into 44,696 square meters of the above new-ri (number 2 omitted) forest and land category changed. The above new-ri (number 2 omitted) forest and land category changed. Defendant 2 and 3 transferred part of the shares of the forest and land before the above division to Dongjin Heavy Heavy Industries Co., Ltd. on December 29, 2005. On January 23, 2006, 2006, the new 300 square meters of a new forest and land lot number omitted (number 2 omitted). The above new 30,000 square meters of the forest and land were transferred (number 11,058 square meters of the forest before the above division, but it appears that the ownership of the forest and land was approved pursuant to the above new 30,000 square meters of the forest and land ownership.

(2) On the other hand, on October 14, 2005, Nonparty 2 obtained approval of factory construction for the 4,165 square meters of the above forest (which is the forest of this case at present) among the forests and fields prior to the said division in the name of △△△ industry on October 14, 2005 from the Kim Sea market, but received prior notice of revocation of approval of factory construction on April 3, 2009.

【Fact-finding without a dispute over the grounds for recognition】: Gap evidence 1-2, Eul evidence 6, Eul evidence 9-1, 2, 3, Eul evidence 10 and 11; the purport of the whole pleadings

C. Determination

Defendant 2 and 3: (a) it is difficult for the witness Nonparty 1 to believe that he built a factory site in the instant forest; or (b) he left the earth and sand generated in the process of establishing ○○ Heavy Industries Factory to neglect in the instant forest; (c) it is insufficient to recognize the witness’s partial testimony by Nonparty 1 in light of the above facts of recognition; and (d) it is insufficient to recognize only the items of evidence No. 18-1 and No. 2; and (e) there is no other evidence to acknowledge it. Accordingly, the Plaintiff’s claim against Defendant 2

4. Conclusion

Therefore, the plaintiff's claim against the defendant 1 is partially accepted within the scope of the above recognition, and the plaintiff's remaining claim against the defendant 1 and the claim against the defendant 2 and 3 are dismissed as it is without merit.

Judges Park Jong-soo (Presiding Judge)