임차목적물의 화재로 인한 임차인의 채무불이행책임- 대법원 2017. 5. 18. 선고 2012다86895, 86901 전원합의체 판결-

Abstract

Honoring Professor Yang Chang Soo’s academic achievements, this paper analyzes the Supreme Court’s recent ruling 2012Da36895 about the lessee’s contractual liability for damages from fire in leased buildings. The main parts of this paper are "liability for damages in the leased premises(Part III)" and "liability for damages in other parts of the building(Part IV)”. Part Ⅲ addresses the theory of control and maintenance area about which the opinions of all the Supreme Court judges are in agreement. Such views have already been raised by Prof. Yang and solved through his papers and his ruling. Part Ⅳ focuses on damages in the leased building other than the leased premises. Deviating from the precedents rooted in structurally inseparable theory, the majority opinion ruled that the lessor must claim and prove that the lessee failed his obligation of reasonable precautions to the leased premises. While the majority opinion reaches an acceptable conclusion, it does not provide any reasoning leading up to its decision which can be speculated only through two separate opinions and a dissenting opinion. It is different from the rationale of damages in the leased premises. It does not seem to be based on the lessee’s obligation to protect the lessor’s property. In that, I can say that it is influenced by Prof. Yang that there is little need to fully recognize the protective obligation in contracts under the Civil Code. It seems to be based on lessee’s violation of subsidiary obligation to reasonably preserve and maintain the leased premises and the expanded loss over performance gain of the contract. However, I do not agree with that. This paper argues that the lessee’s liability for damages in the leased building other than the leased premises should be regarded as the same cause as in the leased premises, but should be distinguished by ascertaining the damages caused by the special circumstances of Article 393. The lessee’s liability for damages in the leased building other than the leased premises can be denied if there is no special circumstances that would blame the lessee even though fire allegedly broke out within the leased premises.