[2] The case holding that in a case where Gap corporation purchased a building and transferred the leased deposit to Eul, which is the lessee of Eul's store in the building, and "the lessee shall transfer the pre-sale deposit to the lessee when the full amount of the leased deposit is returned, and the time limit for the transfer expires. The lessor shall pay the expenses of the director's expenses in advance to the lessee, but the lessee shall agree to claim ten times the expenses of the director's expenses when the lessee does not move to the lessee, and the lessee shall pay the expenses of the director's expenses in advance, and Eul did not deliver the store by the expiration date of the lease term, in a case where Eul did not deliver the store after he expressed his intention to not deliver the store by the expiration date of the lease term, the case holding that Eul corporation did not have a duty to pay the penalty for breach of contract since Eul did not return the deposit after deducting the overdue rent, etc. to Eul or provide the real performance even if Eul did not deliver the store

1. The duty to return the lessee's property and the duty to return the deposit after deducting the lessor's overdue rent, etc. arising from the termination of the lease contract are related to simultaneous performance. Thus, if the lessee has continuously occupied the leased building by exercising the right to defense of simultaneous performance even after the termination of the lease contract, unless the lessor has lost his/her right to defense of simultaneous performance due to reasons such as the lessee's performance of the duty to return the deposit to the lessee or the lessee's duty to specify the lessee's building by providing a realistic performance, etc., the possession of the building cannot be deemed illegal possession. Therefore, the lessee has no duty to compensate for the damages (see, e.g., Supreme Court Decisions 95Da1464, 14671, Jul. 25, 1995; 98Da6497, May 29, 198).

2. The record reveals the following facts.

A. On November 16, 2015, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) purchased a 4th floor reinforced concrete building building on the ground of Seoul Special Metropolitan City, Nowon-gu ( Address omitted) (hereinafter “instant building”) from the Newsung FS Comprehensive Construction Co., Ltd., and succeeded to a lease agreement on the instant building, and completed the registration of ownership transfer on December 11, 2015.

B. The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) leased part of the second floor of the instant building (hereinafter “instant store”) before the Plaintiff purchased the instant building, and operated the party hall. However, the term of lease was expected to expire on December 31, 2015.

C. On November 23, 2015, the Plaintiff and the Defendant entered into an agreement on the termination of the lease agreement of the instant store and the delivery of the store (hereinafter “instant agreement”), and on November 25, 2015, the lessee deposited KRW 5,000,000 as the Defendant’s bank account to the effect that “The lessee shall deposit KRW 5,000,000,000 for the director’s expenses under the name of the Do and the lessee shall be paid in advance to the lessee for the pre-payment of the entire rental deposit (except for the unpaid rental fee, the restoration cost, the water and mineral heat cost, and other unpaid money).”

D. However, after the instant agreement, the Defendant expressed its intent not to deliver the instant store by December 31, 2015, on the ground that the Plaintiff did not have any place to place a director, and thus, the instant store will be operated more at the instant store. It would return KRW 5,00,000 paid at the director’s expense.”

E. On December 29, 2015, the Plaintiff requested the delivery of the instant store, which is the object of lease, by content-certified mail, until December 31, 2015, according to the instant agreement, and notified the Plaintiff of the request for delivery of the leased object and the notice of related legal measures to the effect that if the Plaintiff failed to comply with the request, he/she would claim for penalty of KRW 50,000,000 as stipulated in the instant agreement and claim for additional damages. The Defendant received the said content-certified mail on December 31, 2015, but did not deliver the instant store to the Plaintiff by December 31, 2015, the agreed period.

F. After that, the Plaintiff filed the instant lawsuit against the Defendant, around January 18, 2016, the Defendant removed the party building from the instant store without having any equipment and ancillary facilities installed in the instant store. On or around the 20th day of the same month, the Nonparty requested the Nonparty, who was performing the removal and repair work of the instant building, to treat the remainder of the said equipment and facilities by destroying them, etc., and the Nonparty, until January 27, 2016, took the instant store by processing the said remainder of the house, etc.

G. Meanwhile, the Plaintiff, while asserting that the deposit to the Defendant was fully deducted and extinguished in the course of the instant lawsuit, did not pay a lease deposit or provide a realistic performance, which deducts the overdue rent, etc., to the Defendant, on the ground that the Plaintiff received penalty of KRW 50,000,000 as stipulated in the instant agreement.

3. Examining the above facts in light of the legal principles as seen earlier, it is determined as follows.

A. Since the Defendant’s duty to deliver the instant store and the Plaintiff’s duty to return the deposit, which deducted the overdue rent, etc., are in simultaneous performance relationship, the agreement that the Defendant would pay ten times the director’s expenses, in the instant agreement, in the event that the Defendant did not transfer by December 31, 2015, should be deemed as the obligation arising from the premise that the Defendant’s possession of the instant store constitutes an illegal possession on the ground that the Defendant lost his/her right to defense of simultaneous performance due to the Plaintiff’s failure to pay the deposit, etc., or offered a realistic performance.

B. However, in the instant case, since the Plaintiff returned the deposit after deducting the overdue rent, etc. from the Defendant, or provided a realistic performance, even if the Defendant did not deliver the instant store to the Plaintiff by December 31, 2015 as stipulated in the instant agreement, the Defendant’s possession cannot be deemed an illegal possession, and therefore, the Defendant is not liable to pay the penalty for breach of contract as stipulated in the instant agreement. This cannot be viewed differently even if the Defendant expressed his/her intent to refuse the delivery of the store pursuant to the instant agreement before December 31, 2015.

4. Nevertheless, the court below determined otherwise that the Plaintiff may claim a penalty under the agreement of this case against the Defendant even without performing the obligation to return the deposit under the agreement of this case or providing a realistic performance. In so doing, the court below erred by misapprehending the legal principles on whether the right to defense of simultaneous performance is extinguished in the lease agreement and the lessee’s illegal possession, etc., which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the Defendant regarding the counterclaim among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Shin (Presiding Justice)