[2] Whether a decision can be rendered to order future performance in a case where the deadline for the performance of the obligation will come in the future and the continuation of the cause for the nonperformance by that time is finally scheduled at the time of the closing of argument (affirmative)

[3] In a case where Gap filed a lawsuit claiming the return of the lease deposit against Eul, asserting the violation of the duty under the lease agreement, and the conciliation was concluded by Gap, but Eul separated from the building before and after the conciliation was concluded, and Eul occupied and used the building by building the key to the building, and Eul filed a claim against Eul for unjust enrichment or damages from the date following the conciliation was established to the date of completion of delivery of the building, the case holding that the court below erred by misapprehending legal principles on the ground that the part seeking unjust enrichment or compensation for damages from the day following the closing of argument in the court below to the date of delivery of the building does not meet the requirements to order future performance, and thus, the court below erred

[2] Article 251 of the Civil Procedure Act provides, “A lawsuit claiming performance in the future may be instituted only when a prior claim is required.” In cases where a debtor’s performance period is deemed impossible even if the obligor’s attitude or the content and nature of the obligation arrives, a prior claim should be made if it is determined that the obligor’s performance cannot be expected.

Even in cases where the obligation will continue to be due in the future, if the cause for the nonperformance is uncertain at the time of the closing of pleadings and it cannot be determined as a conclusive period for the obligor to be held liable at the time of the closing of pleadings, a judgment ordering the future performance cannot be rendered. However, if the time of the fulfillment of the obligation is expected to arrive in the future and the continuation of the cause for the nonperformance by that time is definitely scheduled at the time

[3] In a case where Gap filed a lawsuit claiming the return of the lease deposit against Eul, asserting the violation of the duty under the lease agreement after renting the building to Eul, and Gap left the building before and after the conciliation agreement was concluded, and Eul occupied and used the building to Eul, and Eul sought unjust enrichment or damages against Eul from the date following the conciliation agreement was concluded to the date of completion of delivery of the building, the case holding that the judgment of the court below was erroneous in the misapprehension of legal principles that determined that Eul did not seek unjust enrichment or damages from the date of completion of delivery since Eul's possession and use of the key of the building to Eul, and Eul did not receive rent since Eul occupied and used the key of the building to Eul, and Eul did not receive rent, and Eul still refused delivery of the building with Gap's understanding, and as long as Eul still has the duty to deliver the building to Eul, it is reasonable to deem that Eul's losses caused by tort will continue to occur until the delivery of the building was completed, and Eul's direct possession of the building could cause losses regardless of Gap's intent, and thus, Eul did not meet the requirements for payment of unjust enrichment.

1. Facts acknowledged by the court below

According to the lower judgment, the following facts are revealed.

A. On December 10, 2015, the Defendant leased from the Plaintiff a building listed in the attached list of the lower judgment (hereinafter “instant building”) with the lease deposit of KRW 15 million, monthly rent of KRW 500,000,000, and the lease period from January 1, 2016 to January 1, 2018.

B. The Plaintiff was donated the instant building from Nonparty 1 on December 9, 2015, and completed the registration of ownership transfer on January 15, 2016.

C. The Defendant filed a lawsuit claiming the return of lease deposit and damages with the Plaintiff, etc. on the ground that he/she breached his/her duty under the lease agreement as the Gwangju District Court 2016dan3800, and the conciliation was concluded as follows on May 3, 2016. ① The Plaintiff shall pay KRW 13.5 million to the Defendant two days after the date on which the Defendant reinstated approximately 330 square meters out of the instant building and the relevant site and delivered them to the Defendant. ② The Defendant waives the remainder of the Defendant’s claim against the Plaintiff. ③ The costs of the lawsuit and the costs of the conciliation

D. Before and after the establishment of the above conciliation, the Defendant left the building of this case to Nonparty 2, who was not the Plaintiff, had the key to the building of this case, and Nonparty 2 is residing in the building of this case.

2. Legal principles concerning comparative negligence and limitation of liability, etc.

A. In tort, comparative negligence is set in consideration of the victim’s negligence in light of the principle of equity or good faith. Matters to be considered include: (a) the perpetrator and the victim’s intentional or negligent act; and (b) the occurrence of illegal act and the expansion of damages. The determination of the fact-finding or its ratio on the ground of comparative negligence belongs to the exclusive authority of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 98Da54397, Jun. 9, 200).

B. The lower court held that, even if the Defendant ought to deliver the instant building to the Plaintiff upon termination of the lease agreement, Nonparty 2, who is not the Plaintiff, occupied and used the key to the instant building, and the Plaintiff suffered damages for not using the instant building due to the aforementioned unlawful act, and thus, was obliged to compensate for the damages equivalent to the rent for the period from May 4, 2016 to March 9, 2018, which is the date of closing argument in the lower judgment.

However, the lower court limited the Defendant’s liability to 30% on the ground that the negligence, even though the Plaintiff was able to communicate or contact the Defendant by other means, was negligent, and did not seek any remedy against Nonparty 2, caused the Plaintiff’s occurrence of damages or the expansion of damages.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on offsetting negligence and limitation of liability, as otherwise alleged in the grounds of appeal

3. Whether a lawsuit seeking unjust enrichment or damages from the date following the closing of argument in the court below to the date of completing delivery of the building

A. Article 251 of the Civil Procedure Act provides, “A lawsuit claiming performance in the future may be brought in need of a prior claim.” In light of the obligor’s attitude and the content and nature of the obligation, where it is deemed impossible to expect the obligor to perform the obligation even if the due date arrives, the claim ought to be filed in advance.

Even in cases where a future performance period is scheduled to arrived, if the cause for nonperformance is uncertain at the time of the closing of argument, and the obligor cannot definitely set the period to be held liable at the time of the closing of argument, a judgment ordering the future performance cannot be rendered (see, e.g., Supreme Court Decision 86Meu2151, Sept. 22, 1987). However, if the performance period is expected to arrive in the future and the continuation of the cause for nonperformance is determined at the time of closing of argument, a judgment ordering the future performance may be rendered.

B. The lower court determined that the Defendant was obligated to deliver the instant building to the Plaintiff, and that there was a duty to compensate for damages equivalent to the rent for the instant building based on a tort. However, as to the liability for damages, the lower court recognized only from May 4, 2016 to March 9, 2018, which is the date of the closing of argument in the lower judgment, from March 10, 2018, which is the day following the closing of argument in the lower judgment, to the day of delivery of the instant building, and determined that the suit seeking payment of unjust enrichment or compensation for damages (hereinafter “instant suit”) did not meet the requirements to order the future performance. For that reason, Nonparty 2, who directly occupies the instant building and directly occupies the instant building, may suspend the Plaintiff’s damage regardless of the Defendant’s intent, and thus, was not definitely scheduled to continue the Plaintiff’s damage.

C. However, the lower court’s determination is difficult to accept in light of the foregoing legal doctrine.

As the Defendant occupied and used the key of the instant building to Nonparty 2, who is not the Plaintiff, thereby having Nonparty 2, who did not receive any delivery of the instant building, the Plaintiff suffered any loss equivalent to rent. As long as Nonparty 2 refused to deliver the instant building since he occupied the instant building with the Defendant’s understanding, and the Defendant still bears the duty to deliver the instant building, there is room to deem that the Plaintiff’s damage caused by the Defendant’s tort is definitely planned to continue to occur until the Plaintiff received the instant building.

If the Plaintiff’s damage caused by the Defendant’s tort can be determined at the time of the closing of argument in this case that the Plaintiff would continue until delivery of the building in this case, the Defendant’s liability for damages is disputed, and the Plaintiff’s claim is also necessary in advance. Therefore, there is room to deem that the lower court should specifically deliberate and determine this part of the lawsuit and render a judgment ordering future performance.

The judgment of the court below is erroneous by misapprehending the legal principles as to the requirements for sentencing a future performance order, which affected the conclusion of the judgment. The Plaintiff’s ground of appeal assigning this error is with merit.

4. Conclusion

Of the part against the Plaintiff, “the part seeking unjust enrichment or damages from March 10, 2018 to the delivery date of the instant building” is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remainder of the Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim Chang-suk (Presiding Justice)