임차건물 화재발생시 임대차계약상 의무의 종류에 따른 손해배상의 범위와 증명책임 － 대법원 2017. 5. 18. 선고 2012다86895, 86901 전원합의체 판결 －

The recent Korean Supreme Court en banc Decision, May 18, 2017, 2012Da86895, 86901 (the Majority Opinion) ruled that, where the tenant leased only a part of the building, the tenant is not liable for damages on the non-leased part of the building owned by the landlord, resulted by the fire of unknown cause in the leased premises of the building, unless a contractual breach on the part of a tenant, such as providing the cause of a fire by failing to fulfil the fiduciary duty to preserve and manage the leased premises, has been proven by the landlord. The tenant has the fiduciary duty to preserve and maintain the leased premises, the obligation to use the leased premises properly during the lease term, and the obligation to return the leased premises to the landlord after the termination of the lease. According to the Majority Opinion, when the fire of unknown cause occurred in the leased premises and the fire ruined not only the leased premises but also the non-leased part of the building owned by the landlord, the tenant’s contractual liabilities to the landlord can be divided into two separate liabilities according to the area of the building. The tenant is liable for damages on the leased premises of the building. With respect to the leased premises of the building, where the whole building including the leased premises is ruined by the fire of unknown cause, the lease is terminated and the tenant is liable for damages caused by the failure to fulfil the contractual obligation to return the leased premises to the landlord after termination of the lease. If the fire initially broke out in the leased premises of the building, the tenant’s negligence is factually presumed because the leased premises is under the tenant’s control and management. On the other hand, the tenant is not liable for damages on the non-leased part of the building unless the landlord proves the negligence of the tenant and the tenant’s failure to fulfil its fiduciary duty to preserve and maintain the leased premises. The landlord bears the burden of proof. According to the Majority Opinion, the tenant’s liability for damages on the non-leased part of the building should be denied if there is no special circumstance that would blame the tenant even though the fire initially broke out within the leased premises of the building. The Concurring Opinion 1 is that the tenant is liable for the breach of the lease contract with respect to the damages on the leased premises of the building, and the tenant is liable for tort with respect to the damages on the non-leased part of the building. The Dissenting Opinion is that the tenant should be liable not only for the damages on the leased premises of the building but also for the damages on the non-leased part of the building according to Article 393 of the Korean Civil Code, if the fire initially broke out in the leased premises and the tenant could foresee the damages on the non-leased part of the building. According to Article 393 of the Korean Civil Code, the tenant is liable for ordinary damages and the special damages which the tenant knew or ought to have known. An ordinary person can foresee that the fire broke out in the leased premises of the building would easily move through the non-leased part of the building where the two parts of the building are structurally inseparable. The Dissenting Opinion also adds that the compensation amounts could be reduced considering the landlord’s carelessness and the principle of fairness.