1. Regarding ground of appeal No. 1

According to the reasoning of the judgment of the court of first instance cited by the court below, the court below rejected the defendant's defense prior to the merits that the lawsuit of this case is unlawful contrary to the agreement of the court of first instance on the ground that the agreement of the court of first instance, which was included in the lease agreement of this case, goes beyond the meaning of consultation or claim as to the contents and implementation of the lease agreement of this case between a large number of sectional owners and the defendant, and that it does not apply to the case where a sectional owner terminates the lease agreement of this case and seeks restoration to its original state as in the case of the non-performance of the contract of this case as in this case

2. As to the grounds of appeal Nos. 2 and 3

According to the reasoning of the first instance judgment cited by the lower court, the lower court determined that the instant lease was terminated upon the delivery to the Defendant of any content-certified mail containing the Plaintiff’s declaration of intent to terminate the instant lease agreement on the ground of the Plaintiff’s failure to perform the said agreement for more than two consecutive months. Examining the relevant legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the requirements to exercise the right to termination

3. Regarding ground of appeal No. 4

According to the reasoning of the judgment below, the court below rejected the defendant's simultaneous performance defense that the defendant's obligation to deliver the plaintiff's store of this case to the defendant is related to the plaintiff's obligation to deliver the lease deposit of 5 billion won for the object of the lease contract of this case (from the first to the sixth part of the ground among the buildings of this case) with the obligation to return the lease deposit of 5 billion won. In light of the relevant legal principles and records, the judgment of the court below that the above lease deposit of 5 billion won is not related to the obligation to deliver the above store is just.

However, according to the records, it can be acknowledged that the registration of the establishment of a joint chonsegwon of KRW 34,342,525 on July 3, 2013 for the instant store owned by the Plaintiff was completed in the future of the Defendant. It is reasonable to view that the Defendant, the lessee, as a means of strengthening the right to receive a refund of KRW 34,342,525 on the instant store out of the total amount of KRW 5 billion for the lease deposit under the instant lease agreement, the said right to lease on a deposit basis has been established. Meanwhile, the Defendant’s obligation to deliver the Plaintiff’s store to the Plaintiff may also be deemed to include the defense that the Defendant’s obligation to deliver the Plaintiff’s store to the Plaintiff was in simultaneous performance relationship with the Plaintiff’s obligation to return KRW 34,342,525 on a deposit basis.

If so, the court below should have deliberated and judged whether the above simultaneous performance port of the defendant included the above 34,342,525 won in seeking simultaneous performance of the obligation to return the amount of KRW 34,342,525.

Nevertheless, the court below rejected the defendant's simultaneous performance defense by regarding the same simultaneous performance defense as a defense seeking the simultaneous performance of the obligation to return the deposit amounting to 5 billion won. This is due to a breach of the duty to explain and failing to exhaust all necessary deliberations.

4. Regarding ground of appeal No. 5

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court is justifiable to have determined that the termination of lease of the Plaintiff’s store of this case does not go against the principle of trust and good faith.

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Gin-young

Chief Justice Lee Dong-won