March 22, 2017

2. The defendant shall pay to the plaintiff 58,200,000 won with 15% interest per annum from January 27, 2016 to the day of complete payment.

3. All costs of the lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

The same shall apply to the order.

A. The Defendant is the owner of the commercial building of the second floor of the 2nd place of the Nam-gu, Gwangju ( Address omitted), the general steel structure, the sand site location board, and the second floor of the 2nd place of the building (hereinafter “instant building”).

The Plaintiff is a person who leased part of the first floor and the second floor from the Defendant and operated the “○○○○○○○ △△△△△△△”, a coffee specialty store.

B. On April 22, 2009, the Plaintiff leased approximately KRW 60,00,00 from the Defendant, about KRW 100,000,000,000 for lease deposit (excluding value-added tax), and from April 22, 2009 (60 months) from April 22, 2009 (hereinafter “instant lease agreement”). The Plaintiff began to operate the “○○○○○○ △△△△△△△△△△△△△△△△”, a coffee store in the instant building, around that time, to the Defendant.

C. After that, around December 2010, the plaintiff and the defendant changed the terms of the instant lease agreement and entered into four lease agreements in sequence as follows. The deposit amount under each of the following lease agreements is KRW 100 million.

(1) The rent of KRW 1,100,00 (excluding value-added tax) from December 25, 2010 to August 25, 2010 among the buildings in this case shall be determined by the agreement and after 5 years (60 months) from the date of the contract. Section 1 ② The rent of KRW 9,50,00 (excluding value-added tax) from December 25, 201 to December 25, 2010 among the buildings in this case shall be decided by the agreement for 5 years from the date of the agreement, and the rent of KRW 1,20,000 (excluding value-added tax) from December 25, 2010 to 1, 200,000 from December 25, 2010 (excluding value-added tax) shall be decided by the agreement for 5 years from the date of the agreement. Section 1-1, 201-1,000,000 won from December 1, 2015.

D. On October 2, 2015, the Plaintiff sent to the Defendant a content-certified mail stating that “The Plaintiff shall inform the Defendant that the Plaintiff did not intend to renew the contract upon the maturity date.”

Accordingly, on November 19, 2015, the Defendant sent to the Plaintiff a content-certified mail stating that “The instant lease agreement term is from December 25, 2010 to 8 (96 months) and the deposit is KRW 200 million from December 26, 2015, and KRW 14 million is raised respectively.”

E. On December 30, 2015, the Plaintiff entered into a removal construction contract with the Nonparty (○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○). The Nonparty completed the removal construction for the facilities within the relevant coffee specialty from December 31, 2015 to January 5, 2016.

F. On January 26, 2016, the Plaintiff returned the key of the leased part by sending to the Defendant a document verifying the content of “Saeong-gu, Gwangju Metropolitan City ( Address omitted), but the Plaintiff intended to restore and order the restoration of the area to the original address.” However, the Plaintiff refused to accept it and returned the key of the leased part.

However, on February 4, 2015, the defendant sent the key to the plaintiff on February 4, 2015, "the key sent by the lessee cannot be received because the lease term expires," and returned the key to the plaintiff.

G. On August 2013, the Plaintiff opened a business of “○○○○○○○○○○○○○○○○○○○○○○○○○○ store” and “○○○○○○○○○○○○○○○○○○○○○○○ store, separate from the instant building, and continues its business until now.

H. Of the instant building, the part on which the Plaintiff operated “○○○○○○○○○○○○○○○○” remains as a public room until now. As of January 31, 2016, the rent unpaid by the Plaintiff to the Defendant is KRW 418 million in total.

[Ground of recognition] Facts without dispute, Gap's 1 through 7, 11, 12, 17 evidence (including branch numbers, hereinafter the same shall apply), Eul's 1 to 7 evidence, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) The primary argument

The Plaintiff entered into the instant lease agreement and revised the terms and conditions to lease approximately 120 square meters from December 25, 2010 to 8 years (96 months) from December 25, 2010, the first floor and the second floor of the instant building, which were the lease between ○○○○○○○○○○ and △△△△△△△△△, and subsequently, revised the lease term from January 1, 201 to 5 years (60 months).

Therefore, the lease agreement between the Plaintiff and the Defendant was terminated on December 31, 2015, and the Plaintiff completed the removal construction as stated in paragraph 1-e.f., and returned the key to the Defendant on January 26, 2016 after the removal from the instant building.

Therefore, the Defendant is obligated to pay to the Plaintiff the remainder of the lease deposit KRW 58.2 million ( KRW 100 million - KRW 41.8 million not paid until January 31, 2016) and damages for delay of 15% per annum prescribed by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from January 27, 2016 to the date of full payment, which is the day following the delivery date of the instant building.

2) Preliminary assertion

A) On December 2010, the Plaintiff and the Defendant decided to jointly conclude the instant lease agreement for five years (60 months) and re-contract adjustment after five years (5 years). However, since the agreement on monthly rent was not reached between the Plaintiff and the Defendant after five years, the lease agreement was terminated, and the Defendant is obliged to pay the Plaintiff the balance of the said lease deposit amount of KRW 58,200,000 and the delay damages.

B) The terms of the instant lease agreement included the Plaintiff’s use of a parking space for the instant building. However, the trust relationship between the Plaintiff and the Defendant was destroyed by restricting or obstructing the Defendant’s use of the Plaintiff’s parking lot. As such, the Plaintiff lawfully terminated the lease agreement by delivery of a copy of the instant complaint, the Defendant is obliged to pay the Plaintiff the balance of the deposit, KRW 58,200,000, and damages for delay.

B. Defendant’s assertion

1) As to the plaintiff's primary argument

After the conclusion of the instant lease agreement, the Plaintiff and the Defendant modified the terms and conditions to lease approximately 120 square meters of the part of the first and second floors of the instant building from December 25, 2010 to about 8 years (96 months) from December 25, 2010. As such, the lease agreement between the Plaintiff and the Defendant was not yet terminated.

Section 1-C. 3. Each lease contract described in paragraph (4) is merely a back contract prepared by the original and the defendant in a false way to report the difference to the tax office less actually.

2) As to the Plaintiff’s conjunctive assertion

A) Around December 2010, 2010, the fact that the Plaintiff and the Defendant agreed to re-contract the instant lease agreement for five (5) years, and agreed to re-contract the agreement after five (5) years, means that the agreement is simply determined after five (5) years, and it does not mean that the lease agreement is terminated unless agreement is reached.

B) The Defendant limited or obstructed the use of the Plaintiff’s parking lot and did not violate the duty as a lessor.

3. Determination

A. Whether the lease contract of this case is terminated upon the expiration of the period

1) If the authenticity of a disposal document is recognized, the court should, in principle, recognize the existence and content of the declaration of intent as stated in the relevant disposal document, unless there is any clear and acceptable reflective evidence that denies the content of the statement. Furthermore, as to the fact that a legal act is a false declaration of intent, the party who asserts the legal act bears the burden of proof (see Supreme Court Decision 2012Da42529, Jul. 24, 2014, etc.).

2) There is no dispute between the original and the Defendant regarding the establishment of the authenticity of each lease agreement as stated in Paragraph (c) above 1-C. Therefore, barring any special circumstance, the term of the instant lease agreement is five years from January 1, 2011 to 5 (60 months) according to the text of the lease agreement as stated in Paragraph (4)(hereinafter “No.4).

3) Although the Defendant asserts that the No.44 of the lease agreement was merely a side agreement made in a false manner, considering the following circumstances, the evidence submitted by the Defendant alone is insufficient to acknowledge the fact that the above lease agreement was a side agreement made in a false manner, and there is no other evidence to acknowledge it. Accordingly, the lease agreement of this case was terminated on December 31, 2015 with the expiration of the period of validity on December 31, 2015.

A) Each fact-finding confirmation that the Defendant’s assertion conforms to the eight-year lease agreement period (Evidence No. 1, 2, and 5 of the evidence No. 3) is not a direct intermediary at the time of concluding the lease agreement of this case or a statement about the contents of witness at the site. In light of each of the authors and the Defendant’s relations, the No.S. lease agreement was made falsely, and it cannot be concluded that the lease agreement of this case was 8 years (96 months).

B) As seen earlier, the No.443, supra, the date of the lease is indicated as the date of January 1, 201. However, the Plaintiff was paid the rent from March 201 to October 2015 on the last day of each month after the No.450, the Plaintiff, from March 2011 to October 2015, and the Defendant did not raise any objection.

C) On December 2010, in the process of amending the terms and conditions of the instant lease agreement, both the Plaintiff and the Defendant recognized the fact that the said 1-C. III lease agreement (hereinafter referred to as the “III lease agreement”) was prepared by a false lease agreement to be submitted to the tax office.

In relation to the circumstances leading up to the preparation of the No.S. lease contract in falsity, the Defendant asserts that the first instance court prepared the No.S. lease contract in order to report the rent to the tax office less than the actual one, and then received the advice of the tax accountant and reported the rent to the tax office in the same way as the actual one. However, the second lease contract contains the phrase “(50%) of the disadvantage of the lessor due to the rent problem shall be borne by 50% in the tax office,” and it is difficult to submit the No.S. lease contract as it is, making it difficult to exclude only the phrase(4) lease contract.

First, as alleged by the defendant, if the tax office intends to report the contents of the lease agreement as it is, the rent is the actual tea, and there is no circumstance to prepare a false No.4 lease contract in addition, to enter the lease agreement term in a false manner only.

In this regard, the defendant argued in the first instance court that the term of lease was 5 years (60 months) to the effect that it would be caused by mistake. However, it is difficult to easily understand that the plaintiff and the defendant erroneously stated the term of lease, which is the most important part of the lease contract, by mistake. In light of the fact that the plaintiff and the defendant specified the term of lease as of January 1, 201 as the special terms of the No.44 lease contract, it is determined that the defendant prepared the term of lease at the time of the preparation of the No.4 lease contract with the awareness of the contents of the lease contract.

Furthermore, the Defendant’s assertion that “(4) years (60 months) have been intentionally entered in the No.44 lease contract for convenience of tax returns in consideration of the special agreement to adjust the difference after five years from preparation of the No.3 lease contract with a certified tax accountant’s advice after preparation of the No.4 lease contract.” The Defendant’s assertion on the reasons why the statement was made is inconsistent.

D) According to the above Section 1 Section 1 Section (c) and Section B, each lease agreement is accompanied by a separate special agreement, and between the original and the Defendant and the lease agreement owned by each party, while the No.D. lease agreement is not accompanied by a separate special agreement, and it is recognized that there is no delivery between the original and the Defendant’s own lease agreement.

However, as seen earlier, insofar as the authenticity of the No.4 lease agreement is recognized, it is difficult to readily conclude that the No.4 lease agreement was made in falsity solely based on the following facts: (a) there is a seal that does not directly affect the authenticity of the contract; or (b) there is any special agreement.

E) Otherwise, it does not seem clear and acceptable to deny the content of the No.D. lease agreement.

Rather, in light of the fact that the plaintiff and the defendant specified the date of the lease as the special terms of the No.44 lease agreement on January 1, 201, the plaintiff and the defendant decided to extend the lease term to eight years (96 months) by expanding the area of the object of lease under the instant lease agreement on December 2, 2010, and agreed to reduce the lease term to five years (96 months) again, the plaintiff and the defendant newly prepared the No.45 lease agreement and stated the date of the lease.

Furthermore, around August 2013, the Plaintiff opened “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○”).

B. Whether the Plaintiff delivered the leased part of the instant building to the Defendant

1) If the lease is terminated, the lessee is obligated to deliver the leased object to the lessor, and the delivery of the leased object refers to the lessee’s de facto possession of the leased object to the lessor’s control while maintaining its identity in light of the social concept.

2) According to the above facts, around January 5, 2016, the Plaintiff had already removed the Plaintiff’s “○○○○○○○○○○○○○○○○○○” facilities installed by the Plaintiff on the leased part of the instant building, and the fact of leaving the leased part.

In addition, the Plaintiff intended to order the Defendant to leave a store after the completion of restitution, but the Defendant refused, sent the key to the leased part to the Defendant on January 26, 2016, and did not at all assert the possession of the leased part. The Defendant’s return of the key to the Plaintiff is deemed to have been the Defendant’s own interest. The leased part still remains in the public room, and the Defendant appears to have leased the leased part to another lessee at any time.

3) Therefore, on January 5, 2016, the Plaintiff removed all the facilities installed by the Plaintiff on the leased premise, and removed them, and returned the key to the Defendant on January 26, 2016 to the Defendant, thereby transferring de facto control over the leased premise to the Defendant. Therefore, all the leased premises were delivered to the Defendant.

C. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 58.2 million ( KRW 100 million - KRW 41.8 million not paid until January 31, 2016) and damages for delay calculated at the rate of 15% per annum as stipulated by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from January 27, 2016 to the date of full payment, which is the day following the delivery date of the instant building.

4. Conclusion

Thus, the plaintiff's claim of this case shall be accepted for the reasons, and since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the defendant shall be ordered to pay the above amount. It is so decided as per Disposition.

Judges Ei-ho (Presiding Judge) Support for Egypt