[건물명도청구사건][고집1978민,432]
Relationship between the obligation to return a rental deposit and the obligation to name a house;
The obligation of return of rental deposit and house name of the lessee of a building is also a simultaneous performance relationship.
Article 536 of the Civil Act
Kim Jong-il
Ethical Notes
Seoul Central District Court (77 Gohap4393, 78 Gohap1060) in the first instance trial
Of the original judgment, the part accepting the counterclaim against the plaintiff (the counterclaim defendant, hereinafter only referred to as the defendant) by the defendant (the counterclaim defendant, hereinafter referred to as the plaintiff) shall be revoked and the corresponding defendant's counterclaim claim shall be dismissed.
The plaintiff's remaining appeal is dismissed.
All the costs of lawsuit in the first and second trials shall be divided into two parts and one of them shall be borne by the plaintiff, the remainder by the defendant, and the part incurred by a counterclaim shall be borne by the defendant.
(2) On June 3, 197, the Plaintiff received KRW 2,945,00 from the Plaintiff, and at the same time, ordered the real estate recorded in the attached list, and paid KRW 350,000 per month from June 3, 197 to the completion of the name.
(Counterclaim) The Plaintiff shall pay to the Defendant an amount of KRW 2,00,000 and an annual amount of KRW 5% from the next day of service to the day of full payment.
To cancel the part against the plaintiff in the original judgment and to seek the same judgment as that of the principal claim;
(1) We examine the principal lawsuit.
Since Gap evidence Nos. 2 and 3 without dispute over the establishment of the plaintiff, Eul evidence Nos. 1, Eul evidence Nos. 2, and Eul evidence Nos. 3, considering the whole purport of the oral argument in each testimony of the same type of life-sustaining ethics, the defendant, on Nov. 13, 1976, notified the plaintiff on Dec. 12, 1976 that the rent for 6,50,000 won was 150,000 won for 6 months from the occupancy date, and the rent for 60,000 won was 60,000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 6,50,000 won for 6,00 won for 6,00 won for 6,00 won for 6,000 won for 6,000 won for 6,00 won for 6,00.
The defendant argued that the plaintiff could not respond to the plaintiff's request without receiving the amount of KRW 9,500,000 for the premium of KRW 6,500,000 paid from the defendant at the time of the lease of the building of this case and the money of KRW 2,500,000 for the premium of KRW 2,50,000 for the goods, etc. paid to the non-party, the former lessee at the time of the lease of this case. Therefore, as seen in the above recognition, the defendant can be recognized as having leased the building of this case from the plaintiff and paid KRW 6,50,000 for the rent deposit, and according to the above recognition evidence, the defendant paid KRW 2,50,00 for the premium of the goods, etc. to the non-party, the lessee of the building of this case to the non-party, but there is no doubt about the part that the defendant accepted the money from the plaintiff, and there is no reason to acknowledge the simultaneous repayment of the deposit.
As to this, the plaintiff asserts that the monthly rent should be deducted from the above deposit from June 3, 1977 to April 13, 1978 that the defendant delayed the monthly rent. Thus, the fact that the defendant did not clearly dispute the fact that the defendant did not pay monthly rent of KRW 150,00 during the above period, and that the fact that the defendant was the overdue rent of the above period was deducted from the deposit is as stated in the above recognition, and therefore, the fact that the fact that the defendant was the overdue rent of the above period was deducted from the deposit is the same as that of the above recognition, the amount of KRW 1,55,000 (150,000 +10 +30) shall be deducted from the above deposit of KRW 6,50,000, and the deduction of the above deposit of KRW 4,945,00 shall remain.
Thus, the defendant is obliged to receive 4,945,00 won from the plaintiff to order the building of this case at the same time, and to pay 150,000 won per entry fee to the plaintiff from April 14, 1978 to the completion of life order.
(2) We examine the counterclaim.
As seen above, the defendant filed a claim against the plaintiff as a counter-claim that the amount of KRW 2,00,000,000, which was paid by the plaintiff under the name of facility premium, without indicating the above deposit 6,500,000 won received by the plaintiff, as a counter-claim. Thus, as seen above, since the defendant raised a defense of simultaneous performance with respect to the above money and recognized a partial defense, it is without merit to claim it as a separate counter-claim.
(3) Ultimately, the Plaintiff’s principal claim is justified within the scope of the above recognition, and the remainder of the claim and the Defendant’s counterclaim are dismissed without merit. Since the part of the counterclaim claim in the original judgment is unfair based on its conclusion, the part of the counterclaim claim in the original judgment is revoked, and the appeal regarding the part of the principal claim shall be dismissed unfairly. It is so decided as per Disposition by the application of Articles 89, 92, 93, and 96 of the Civil Procedure Act with respect to the bearing of litigation costs.
Judges Jeon Soo-hee (Presiding Judge)