A. The defendant's compulsory execution based on the Seoul Western District Court's decision on February 20, 2006Gaso24114 against the plaintiff shall be dismissed only for the part of 8,361,280 won and the amount exceeding 5% per annum from January 15, 2005 to March 2, 2006 and 20% per annum from the next day to the date of full payment.

B. The plaintiff's remaining claims are dismissed.

2. The decision to suspend compulsory execution under the Seoul Western District Court Decision 2007Da12671 Decided August 7, 2007 shall be revoked only in the amount calculated by the ratio of 8,361,280 won per annum from January 15, 2005 to March 2, 2006 and the amount calculated by the ratio of 5% per annum from the next day to the date of full payment.

3. One half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 2 can be provisionally executed.

Seoul Western District Court Decision 2006Gaso24114 decided February 20, 2006 rejected compulsory execution against the defendant against the plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

A. On December 13, 199, the Plaintiff entered into a lease agreement with the Defendant on the lease deposit amount of KRW 31,000,000, monthly rent of KRW 3,100,00 (excluding value-added tax), management expenses of KRW 2,108,00 (excluding value-added tax), and value-added tax (excluding value-added tax) for one year from December 13, 199 to December 12, 200. The Plaintiff and the Defendant have renewed the said lease agreement on the one-year basis.

B. On December 12, 2003, the Plaintiff entered into a lease agreement with the Defendant on the same terms and conditions as the previous one with respect to the instant building: Provided, That deposit for lease shall be KRW 40,176,00, monthly rent shall be KRW 4,017, and KRW 600 (excluding value-added tax); maintenance expenses shall be KRW 2,802,40 (excluding value-added tax); the term of lease shall be from December 13, 2003 to December 12, 204; (1) the lessor or lessee shall be deemed to have entered into the lease agreement with the Plaintiff on the same terms and conditions as the instant lease agreement until December 12, 200; and (2) the lessor or lessee shall be deemed to have not entered into the lease agreement with the Plaintiff on the condition that the lease agreement was terminated or to have not been extended by 20% until December 13, 200, respectively; and (3) the lessee shall be deemed to have not entered into the lease agreement with the Plaintiff or the lease agreement (2).

C. However, on October 27, 2004, the Plaintiff demanded the Defendant to increase the lease deposit, monthly rent, and management expenses when notifying the renewal of the instant lease agreement. Accordingly, the Defendant did not respond to the extension contract even until December 1, 2004. As the extension contract was not concluded until the time when the instant lease agreement was terminated, the Plaintiff requested the Defendant to deliver the instant building several times from December 2, 2004 to January 6, 2005.

D. However, the defendant delivered the building of this case to the plaintiff on January 15, 2005, and the plaintiff paid only the remaining amount after deducting the amount of compensation calculated in accordance with the damages clause from the lease deposit amount [7,920,640 won [7,221,60 won [7,221,760 won [7,221,60 won monthly rent + management expenses + 2,802,400 won + 1% interest of 1% on lease deposit + 401,760 won] x 34 days from December 13, 2004 to January 15, 2005];

E. Accordingly, the Defendant filed a lawsuit against the Plaintiff on the ground that the Plaintiff’s deduction of the amount of final compensation pursuant to the above provision constitutes unjust enrichment and filed a claim for restitution of unjust enrichment against the Plaintiff. On February 20, 2006, the above court rendered a decision on performance recommendation (hereinafter “the instant decision”) to the effect that “the Plaintiff would pay KRW 15,841,280 to the Defendant and its delay damages.” On March 2, 2006, the instant decision became final and conclusive since the Plaintiff did not file an objection within the objection period even after receiving a certified copy of the instant decision on March 2, 2006.

[Ground for Recognition: Facts that there is no dispute between the parties; significant facts in this Court; evidence 1-2; evidence 2-1-5; evidence 3-1-3; evidence 4; and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff asserts that compulsory execution based on the decision of this case should not be permitted, since it is reasonable for the plaintiff to deduct damages from the lease deposit stipulated in the lease contract of this case in accordance with the damages clause.

B. Defendant’s assertion

In regard to this, the Defendant: (a) written special agreement that the Plaintiff and the Defendant excluded the provision from the damages at the time of the instant lease agreement; (b) however, Nonparty 2, the Plaintiff’s director, damaged it without permission; (c) thus, the damages clause is not effective according to the said special agreement; and (b) also asserts that the damages clause is null and void pursuant to Article 6(2)1 and Article 8 of the Regulation of Standardized Contracts Act, which imposes liability for damages, such as unfairly excessive damages.

3. Determination

A. Determination as to whether the Plaintiff and the Defendant agreed to exclude the provision on damages at the time of the instant lease agreement

6. In light of the following facts: (a) evidence No. 2-5; (b) evidence No. 1-3; (c) evidence No. 7; (d) evidence No. 4; and witness No. 1-2; and (c) evidence No. 3; and (d) evidence No. 1-2; and (c) evidence No. 4; and (d) evidence No. 1-2; and (c) in the process of concluding the instant lease agreement with the Plaintiff, the Plaintiff prepared two copies of the lease deposit, monthly rent, and management expenses as agreed upon by the Defendant; and (d) the Defendant again issued the Plaintiff with the seal No. 9’s signature and seal No. 1-2; and (e) the Plaintiff’s statement that the Plaintiff was not subject to the instant lease agreement to the effect that the Plaintiff would be exempt from damages under the terms of the instant lease agreement; and (e) the Plaintiff’s statement that it was not subject to the instant agreement to the expiration of the terms of the lease agreement; and (e) the Plaintiff’s statement that it was not subject to the agreement.

B. Determination as to whether the damages clause under the instant lease agreement is null and void in accordance with the Act on the Regulation of Terms and Conditions (hereinafter “Standard Contracts Regulation Act”).

(1) First, we examine whether the instant lease agreement and the damages clause constitute a standardized contract.

The "Terms and Conditions Regulation Act" refers to the terms and conditions of a contract, regardless of its name, form or scope, which are prepared in advance by either party to the contract in order to enter into a contract with a large number of other parties. According to the above evidence, the plaintiff is a company specializing in the lease business of ○ building, which owns ○○ building and uses a form of a lease agreement prepared in advance in order to enter into a lease contract between the defendant and a large number of lessees including the defendant, and the remaining terms and conditions of the lease agreement excluding the term of the contract and the amount of the contract (including the damage compensation clause) can be recognized as being printed in the same letter. Accordingly, it is reasonable to see that the terms and conditions of the lease agreement in this case and the

(2) Next, we examine whether the damages clause is invalid as a clause imposing unfairly excessive damages on the defendant.

First of all, with regard to the nature of the damage compensation clause of this case, the provision provides that "if a lessee fails to remove his own property or property for any reason, or fails to restore the leased property to its original state, he shall pay two times the ordinary rent and management expenses, and the interest on deposit (calculated on a rate of 1%) from the date of termination of the lease contract to the date of life order or restoration to the original state, it shall be paid to the lessor." Thus, in light of the above provisions, if the lessee occupies the leased property without a legitimate title or fails to perform his duty to restore it to the original state, it shall be deemed that the lessee planned to compensate for damages in order to prevent legal disputes arising therefrom.

However, the above provision provides that ① a lessee shall be liable for damages only if the lessee occupies the building of this case upon the right of defense of simultaneous performance without distinguishing whether the lessee can exercise the right of defense of simultaneous performance even though he had the right to possess the leased object legally from the lessor until the deposit is returned. ② The liquidated amount of damages is that the lessee shall be liable for damages only if there is an agreement between the parties to the contract to prove the actual loss in the event of the non-performance of obligation and the amount of the damage, and the fact that the lessee did not deliver the object immediately according to the scheduled amount of damages, regardless of whether there is any cause attributable to the lessee. ③ In light of the fact that the amount of damages suffered by the owner due to the illegal possession of the real estate should be calculated based on the rent of the real estate, management fee, and interest (calculated at 1% per month), the amount of damages which are two times the amount of damages incurred by the owner can be deemed to be unduly excessive, and ultimately, the above provision shall be deemed to be unreasonable in accordance with the Act on the Regulation of Terms and Conditions of this case.

(3) Therefore, the Plaintiff’s assertion that the damages clause of this case is valid is without merit.

C. Amount of lease deposit to be returned by the Plaintiff

(1) However, since the lease deposit covers all the obligations of the lessee, such as the rent and unjust enrichment equivalent to the rent arising in relation to the lease from the time when the lease contract is terminated to the time when the object is delivered, the lessor is obligated to return only the balance remaining after deducting the amount. The monthly rent stipulated in the lease contract of this case is 4,017,600 won, management fee is 2,802,400, and the Defendant occupied the building of this case even after the termination of the lease contract of this case on December 12, 2004, and delivered it to the Plaintiff on January 15, 2005. Thus, the Defendant is obligated to return to the Plaintiff the amount equivalent to the rent accrued from the possession and use of the building of this case for 34 days from December 13, 2004 to January 15, 2005.

(2) Accordingly, the defendant is obligated to pay the plaintiff the amount of unjust enrichment of 7,480,00 won [6,820,600 won (monthly rent of 4,017,600 + management fee of 2,802,400 won + 34/31 days from December 13, 2004 to January 15, 2005] which occurred from the lease deposit stipulated in the lease contract of this case to the day when the delivery of the building of this case is completed. Thus, the plaintiff is obligated to pay only the remainder after deducting the above unjust enrichment of 7,480,000 won from the lease deposit stipulated in the lease contract of this case.

D. Sub-committee

Therefore, the amount exceeding KRW 7,480,00, out of the amount deducted by the Plaintiff from the lease deposit, shall be obtained without any legal ground and thereby, shall be returned to the Defendant in unjust enrichment. Therefore, the compulsory execution based on the decision of this case shall not be permitted only for the amount exceeding the amount calculated at the rate of 8,361,280 won ( KRW 15,841,280 - 7,480,000) and the amount exceeding 5% per annum from January 15, 2005 to March 2, 2006, and 20% per annum from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the above scope of recognition and the remaining claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the defendant's appeal shall be accepted and the judgment of the court of first instance shall be modified as above, and it is so decided as per Disposition.

Judges Kim Number (Presiding Judge)