[가건물철거등청구사건][고집1969민(1),207]
Whether an agreement that the lessee agrees to remove and restore the facilities of a building after the expiration of the lease agreement is null and void because it violates the mandatory provisions of Article 643 of the Civil Act that provides for the lessee's right to demand the purchase, etc.
If the parties agree to the lease term at any time to remove all the building and facilities built on the leased site by the lessee until then after the expiration of the lease term, and to deliver the said site to the lessor after restoring to the original state, it cannot be deemed that it violates the mandatory provisions of Article 643 of the Civil Act, which is referred to in this agreement.
Articles 643 and 652 of the Civil Act
Supreme Court Decision 69Da617 delivered on June 24, 1969 (Supreme Court Decision 553Da817 delivered on June 24, 1969; Supreme Court Decision 17 ②B citizen243 delivered on June 24, 196; Civil Code Article 640(4)48
Plaintiff
Defendant 1 and three others
Seoul Central District Court (68A4029) in the first instance trial (Supreme Court Decision 68Da4029)
The appeal is dismissed.
The costs of appeal shall be borne by the defendants.
The plaintiff's attorney shall leave the plaintiff from 1 to 23 5 Gabbebbes (attached Form 1) per 1 Gabbes (Gabbes) 1, 14-1 to 35 Gabbes (a) 94-1, and the defendant 3 shall move from 20 Gabbes (d) Gabbes (a) 1 to 35 Gabbes), and the defendant 1 shall move from 95 Gabbes (ma) 4 to 4 Gabbes (a) Gabbes (a) 97 Gabbes (a) Gabbes) 1 to 97 Gabbes (a) Gabbes (a Gabbes), 1 to 95 Gabbes (a Gabbes), 1 to 94 Gabbes (a Gabbes), 1 to 14 Gabbes (a Gabbes) 1 to 94 Gabbes.
The Defendants’ legal representative has revoked the original judgment and sought a judgment dismissing the Plaintiff’s claim.
The facts that the Jongno-gu Seoul Metropolitan Government 95 large 23 large 94-1 large 35 large 94-1 large 94-1 large 35 is the Plaintiff’s ownership, and Defendant 4 used this site without a fixed period until June 30, 1967, and paid in full the rent of KRW 20,000 per month until September 30, 1967 (the rent for August and September 1967 was offset by public charges subrogated by Defendant 4 on behalf of the Plaintiff) and Defendant 4 did not conflict between the parties.
In view of the testimony of Nonparty 1, the witness and Nonparty 2, each of the testimony of Nonparty 1, the witness and Nonparty 2, the verification of the lower court, and the result of Nonparty 3’s appraisal, Defendant 4 agreed on June 3, 1967 between the Plaintiff and the Plaintiff on December 31, 1967 that the lease term of this site was agreed on December 31, 1967, when the Plaintiff used the building site from the Plaintiff for the lease from around 20 years to around 1967, when the Plaintiff was using the building and facilities constructed on the building site of this case, and restored the building and facilities on the building site of this case to its original state and then restored them to the original state, and there is no further data.
Therefore, Defendant 4 has the duty to remove the above building and facilities and deliver the said site to the Plaintiff pursuant to the above agreement. The defendant asserted that the agreement on the statement of No. 1 (Dismissal) is not made due to the defendant's mistake or because it was made by the plaintiff's deception. However, there is no evidence to acknowledge that the defendant's expression of intent was made by deception, and thus, it cannot be accepted.
In addition, even if the above assertion is groundless, the above agreement is invalid because it violates the mandatory provisions of the Civil Act stipulating the lessee's right to claim renewal of the contract and the right to claim purchase of the contract, but in this case, it cannot be viewed as violating the mandatory provisions in the case of termination of the lease contract by agreement between the parties. Therefore, it shall not be accepted as well
In other words, the defendant asserts that the above building and facilities were built by the defendant with the consent of the plaintiff, and that the plaintiff would claim the purchase of the above building at a reasonable price. However, the plaintiff and the defendant agreed to remove the above building until the end of the same year and restore it to its original state and deliver the land to the plaintiff. Thus, the defendant's assertion is without merit.
Therefore, the above lease contract between the plaintiff and the defendant 4 is to be terminated as of December 31, 1967, and the defendant is to leave the building site by removing the above building and facilities from the contract amount between the plaintiff and the defendant, and the defendant has the duty to pay to the plaintiff the amount of money equivalent to 20,000 won per month from January 1, 1968 to December 31, 1967 as the overdue rent from October 1, 1967 to the time when the delivery of the building site is completed (in this case where other special circumstances exist, it shall be deemed as the rent amount between the plaintiff and the defendant and the above site as the rent amount per the above site). Since the other defendants did not prove that they have the right to occupy the above site, they have the duty to leave the building from each occupation.
Therefore, since the plaintiff's claim of the principal lawsuit is reasonable, and the judgment of the court below as stated in this conclusion is justified, and the defendants' appeal is without merit. Therefore, it is dismissed in accordance with Article 384 of the Civil Procedure Act, and it is so decided as per Disposition by applying Article 95 and Article 89 of the same Act with respect to
Judges Lee Tae-ho (Presiding Judge)