[전세금청구사건][고집1965민,397]
Whether a liability for the return of security deposit exists where the subject matter of the lease is destroyed due to reasons not attributable to both parties to the lease contract.
If the settlor of chonsegwon is unable to perform his/her obligation to allow the person having chonsegwon to use and make profits from the subject matter of the prior lease for any other reason not attributable to both parties, the settlor of chonsegwon who is responsible for such obligation bears the risk as the so-called debtor.
Article 537 of the Civil Act
65Da1898 delivered on Nov. 23, 1965 (Supreme Court Decision 1537 delivered on Nov. 23, 1965; Supreme Court Decision 537(1)443 of the Civil Act)
Plaintiff
Defendant
Seoul Central District Court (64A7924) in the first instance trial (Supreme Court Decision 64Da7924)
The original judgment shall be revoked.
The defendant shall pay to the plaintiff 250,000 won with the annual interest rate of 5% from August 26, 1964 to the date of full payment of the above amount.
All the costs of lawsuit shall be borne by the defendant.
The plaintiff's attorney shall revoke the original judgment.
The defendant shall pay to the plaintiff 250,000 won with the annual interest rate of 5% from the day following the service of the payment order to the day of the full payment order.
All the costs of lawsuit are assessed against the defendant, and a declaration of provisional execution is sought, and the defendant's attorney is dismissed.
The appeal cost is assessed against the plaintiff.
Of the main houses located in Jongno-gu Seoul Metropolitan Government No. 251, the second floor 40 square meters was owned by the defendant; the plaintiff entered into a lease contract with the defendant on January 16, 1963 on a deposit basis for six months for the lease on a deposit basis for the lease on a deposit basis for the above house owned by the defendant; and entered into the lease contract with the defendant on a deposit basis for six months for the lease on a deposit basis for the lease on a deposit basis; the plaintiff paid 50,000 won additionally to the defendant at the defendant's request; on June 10 of the same year, the plaintiff paid 50,000 won to the defendant at the defendant's request and extended the lease on a deposit basis for the above house at KRW 250,000; the lease period was not registered; and there is no dispute between the parties as to the fact that the above house was destroyed due to a fire without any reason attributable to both parties on December 31 of the same year.
However, since the plaintiff's agent terminated the above house lease contract between the defendant on January 29, 1965 on the ground that the above building was destroyed by fire at the date of pleading of the court below, the defendant asserts that the above house lease contract between the defendant was obligated to return 250,000 won to the plaintiff. Thus, in light of the above facts, since the above lease contract was not registered, the above lease contract is a so-called "mortgage lease contract" and as long as the defendant, who is the person having chonsegwon, cannot make use of the lease due to the destruction of the leased object, could not make profit to the plaintiff, the above lease contract was terminated as the plaintiff's declaration of intention of termination of the contract. Since the above lease object was destroyed due to a cause not attributable to the original defendant, the plaintiff cannot return the leased object to the defendant, and therefore, the plaintiff cannot claim the return of the lease deposit, but the plaintiff cannot claim the return of the above lease deposit to the plaintiff, as the settlor of chonsegwon bears the obligation to return the lease deposit to the plaintiff for reasons attributable to the plaintiff.
Then, even if the lease contract was terminated, the defendant is in the relationship between the duty of return of the lease on deposit basis and the duty of return of the lease on deposit basis of the person who has established the lease on deposit basis when the lease on deposit basis was terminated. The plaintiff asserts that the return of the lease on deposit basis cannot be claimed since the lease on deposit basis cannot be returned to the defendant. However, even in the case where the lease on deposit basis is terminated, the obligation of return of the lease on deposit basis and the duty of return of the lease on deposit basis is in the relationship of simultaneous performance, applying Article 317 of the Civil Act by analogy. However, if the duty of restoration, which is the effect of cancellation or termination of the contract, is in the relationship of simultaneous performance, it is the premise that both parties can perform the conflicting duty of restoration or are liable to return the lease on deposit basis, and it is not possible to restore the lease on deposit basis as the result of the extinguishment of the lease on deposit basis as in this case, and if the object is lost due to any other reason not attributable to the plaintiff, the plaintiff is not obliged to restore the above obligation to the plaintiff.
Thus, the defendant is obligated to pay the plaintiff the amount at the rate of 5% per annum from August 26, 1964 to the date when the order for payment of security deposit 250,000 won and this case was delivered to the defendant. Thus, the plaintiff's claim for payment of the plaintiff's principal claim is justified, and the judgment of the court below to which the conclusion was different shall not be revoked. The plaintiff's appeal is justified and it is reasonable not to attach the provisional execution declaration, and it is so decided as per Disposition by the application of Articles 386, 96, and 89 of the Civil Procedure Act.
Judges Kim Jong-young (Presiding Justice)