[2] In a case where a real estate rental business operator entered into a lease contract with a pre-printed lease agreement, the case holding that the provision on compensation for delay in the surrender or restoration of the leased object falls under a standardized contract and is null and void by Article 8 of the Regulation of Standardized Contracts Act, which imposes unfairly excessive liability on the lessee

[2] In a case where a real estate rental business operator entered into a lease contract with a pre-printed lease agreement, the case holding that the "the provision on compensation for delay in the restoration to the original state" which sets two times the sum of ordinary rent and management expenses and interest on the deposit money for lease from the termination date of the lease contract to the date of delivery or restoration from the termination date of the lease contract, constitutes a standardized contract, since it cannot be said that the other party had an opportunity to adjust his own interest by conducting individual negotiations, and it is a clause that imposes unfairly excessive liability on the lessee, and thus, is null and void pursuant to Article 8 of the Regulation of Standardized Contracts Act.

A. In a case where one party to a contract prepared a contract in advance in order to enter into a contract with a large number of other parties and entered into a contract by presenting it to one party, if the other party has an opportunity to adjust his/her own interest by means of an individual negotiation (or negotiation) with regard to a specific provision, such specific provision shall be deemed an individual agreement not subject to the regulation of the Act on the Regulation of Terms and Conditions (hereinafter “Standard Contracts Regulation Act”), and even if the result of such negotiation does not necessarily appear in the form of changing the contents of a specific provision, it is possible for the other party to change its contents by exercising influence after sufficiently reviewing and considering the relevant specific provision in almost equal status with the other party who prepared the specific provision.

According to the reasoning of the judgment below and the records, even if the Plaintiff entered into a lease agreement with the Defendant on December 12, 2003, with the purpose of real estate leasing business, and it is difficult for the Defendant to conclude that the lease agreement was concluded with the Defendant on December 12, 200, and the five stories (number omitted) among the five stories of the building (hereinafter “the building in this case”) and entered into a lease agreement with the Defendant on December 12, 200, the terms and conditions of the lease agreement were 40,17,60 won, monthly rent, management fee amount of KRW 2,802,40, and damages amount of the lease agreement were not determined by the Plaintiff’s first time from December 13, 203 to December 12, 2004 (hereinafter “the lease agreement in this case”). The lease agreement in this case was concluded with the Defendant on the condition that the Plaintiff did not have any influence on the terms and conditions of the lease agreement in this case, including the lease agreement in this case’s non-permanent terms and damages.

Therefore, it is reasonable to view that the damages clause of this case stated in the lease agreement of this case has the nature of the terms and conditions as it is difficult for the Defendant, who is a lessee, to have an opportunity to adjust his own interests through individual negotiations. In the same purport, the court below is justified in holding that the damages clause of this case constitutes a standardized terms and conditions as a provision to estimate damages, and there is no violation of the rules of evidence or misunderstanding of legal principles as to the concept of the standardized terms

B. In addition, the court below determined that the damages clause of this case, which is the amount of compensation two times the sum of ordinary rent, management fee, and interest on the deposit for lease, is null and void pursuant to Article 8 of the Standardized Contract Regulation Act, because the following circumstances, namely, the fact that the damages clause of this case was not delivered to the lessee regardless of whether the lessee is responsible for the cause, and the amount of damages suffered by the owner due to the illegal possession of real estate should be calculated based on the rent amount of the real estate, barring special circumstances. In light of the relevant legal principles and records, it is reasonable to determine that the damages clause of this case, which is the amount of compensation, is a provision that imposes an unreasonably excessive liability on the defendant who is the customer, and thus, is null and void pursuant to Article 8 of the Standardized Contract Regulation Act. In light of the relevant legal principles and records, it is not erroneous in the misapprehension of the rules of evidence, or in the misapprehension of the legal principles as to the invalid terms and conditions of contract

2. As to the Defendant’s ground of appeal

The court below held that the amount exceeding the above 7.88,00 won out of 15,841,280 won, which was deducted from the lease deposit pursuant to the compensation clause of this case, shall be returned to the defendant as unjust enrichment, and therefore, the Seoul Western District Court Decision 2006Da24114 decided February 20, 206, which is the executive title of this case, shall not be allowed compulsory execution based on the execution order of 8,361,280 won (15,284, 288, 284, 288) and damages for delay shall not be allowed to the plaintiff, based on the premise that the lessor is obligated to return only the balance remaining after deducting the amount to the lessee.

However, according to the records, the defendant asserted that he paid KRW 7,480,000 as unjust enrichment from the possession and use of the building of this case, separate from the damages under the damages clause, when he delivered the building of this case in the preparatory document dated June 28, 2007 of this case, and the above Seoul Western District Court 2006Gaso24114 was also asserted as the same content in the above Seoul Western District Court case, and the non-party who is the plaintiff's executive director stated in the investigative agency to recognize the receipt of this money.

If so, the court below should have dismissed the plaintiff's claim of this case seeking the rejection of compulsory execution based on the above execution recommendation decision, but it should not be examined at all. Thus, the court below erred in failing to properly examine the plaintiff's claim, and it is obvious that such illegality affected the judgment.

3. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)