(b) Whether the continuous possession of the lessee is illegal, where the claim for the repayment of the lease deposit is fully satisfied after the termination of the lease;

B. Even if a lessee’s claim for the repayment of the lease deposit is entirely satisfied, the identity of the claim is maintained, and thus simultaneously performance relationship continues to exist as a matter of course. Thus, since the lease contract is terminated, it shall be interpreted that the lessor has lost the right of defense of simultaneous performance due to reasons such as actual performance of the claim for the repayment of the remaining lease deposit to the person who received the claim for the repayment of the lease deposit after the termination of the lease contract, or for reasons such as delayed performance of the obligation due to the lessee’s failure to specify the object, even though the lessee provided the obligation for the repayment of the leased deposit, unless otherwise asserted and proved by the lessor, possession of the object

The case is remanded to Seoul High Court.

1. In concluding a lease agreement, the deposit paid by the lessee to the lessor for the lease as well as the deposit for the lease that the lessor acquires to the lessee pursuant to the lease agreement as well as the deposit for damage incurred until the leased object has been returned. Thus, even if an assignment order was issued with respect to the claim for the repayment of the lease deposit to the lessee, the order is effective when the claim for the repayment of the lease deposit was delivered to the third obligor. Thus, the claim for the repayment of the lease deposit is a condition subsequent to the cancellation of the lessor’s claim, and thus, the assignment order is valid only for the balance remaining after the lessor’s claim was deducted (see, e.g., Supreme Court Decision 87Da68, Jun. 9, 1987; Supreme Court Decision 87Meu1315, Jan. 19, 198; Supreme Court Decision 2008Da297197, Feb. 29, 197).

2. The court below held on March 22, 1986 that since the non-party, the lessee of the building of this case, owned by the defendant on March 22, 1986, paid KRW 10,00,000 to the defendant who is the lessor under the lease contract concluded between the defendant and the non-party, the claim for the refund of KRW 23,00,000 was issued on March 24, 198, and the order was delivered to the defendant on the condition that the above non-party would have suspended the business run in the building of this case on February 28, 1986 and set the entrance door set up in the building of this case on the grounds of the non-party's discontinuance of business and the removal of the building of this case, the non-party's claim for the above cancellation of the lease contract of this case on March 24, 1987 and the non-party's claim for reimbursement of the remaining amount of the lease deposit after the termination of the lease contract of this case.

3. However, as seen earlier, the lessor’s obligation to return the lease deposit and the lessee’s obligation to return the leased object arising at the time of termination of the lease maintain the integrity of the lease deposit even if the lessee’s obligation to return the leased object was fully performed. Thus, the simultaneous performance relationship should be interpreted as it continues to exist as it is (see Supreme Court Decision 86Meu2476, Apr. 12, 198). After the lease contract of the building of this case is terminated, the lessor’s obligation to return the remaining lease deposit was actually performed by the Plaintiff to whom the lessor’s obligation to return the remainder lease deposit was wholly performed or provided (where the Plaintiff refused to receive the remainder lease deposit or the Nonparty refused to perform the obligation to return the name of the building of this case, it shall be sufficient to make oral offer if the Plaintiff refused to receive the remainder lease deposit or the Nonparty refused to perform the obligation to return the name of the building of this case, and thus, the Nonparty’s obligation to return the leased object of this case was lost due to the Nonparty’s obligation to return the building of this case.

Nevertheless, the court below rejected the plaintiff's assertion that the possession of the building of this case by the above non-party was based on the right of defense of simultaneous performance, and judged that the above non-party illegally occupied the building of this case on the ground that the above non-party's claim above the above non-party's claim over the remaining lease guarantee amount was already entirely paid to the plaintiff and the remaining lease guarantee amount to be returned to the above non-party upon the termination of the lease. The judgment below is not deemed to have committed an unlawful act of misunderstanding the legal principles as to the simultaneous performance relation of the obligation of repayment of leased object and the obligation of repayment of lease deposit, which occurred upon the termination of the lease, and it is obvious that such illegality affected the conclusion of the judgment, and thus, it is therefore justified to point

4. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all participating judges.

Justices Lee Jae-sung (Presiding Justice)