The Defendant-Counterclaim Plaintiff (Counterclaim Defendant) pays KRW 4,241,095 to the Plaintiff (Counterclaim Defendant).

2. Of the part against the counterclaim in the judgment of the court of first instance, the part against the Defendant (Counterclaim Plaintiff) corresponding to the amount ordered to pay below shall be revoked.

The Plaintiff (Counterclaim Defendant) pays 4,500,000 won to the Defendant (Counterclaim Plaintiff) and 5% per annum from December 22, 2012 to September 17, 2013, and 20% per annum from the next day to the day of full payment.

3. The remainder of the appeal against the Defendant-Counterclaim Plaintiff and the remainder of the counterclaim are dismissed, respectively.

4. Of total litigation costs, 50% of total litigation costs and counterclaims shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by the Defendant (Counterclaim Plaintiff) respectively.

5. The portion ordering a payment of money under paragraph (2) may be provisionally executed.

A. Main suit: The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) delivered the real estate indicated in the separate sheet to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and the real estate indicated in the separate sheet to the Plaintiff, and paid the amount of KRW 3,000,000 per month from December 13, 2012 to the completion date of the delivery.

B. Counterclaim: The plaintiff shall pay to the defendant 10,300,000 won with 20% interest per annum from the day following the service of a copy of the claim and the amendment of the cause of the counterclaim of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance shall be revoked. The plaintiff's main claim shall be dismissed, and the judgment such as the purport of the counterclaim shall be sought.

The following facts are not disputed between the parties, or may be recognized by taking into account the overall purport of the pleadings in each description or image of Gap evidence 1, 3 through 5 (including a serial number; hereinafter the same shall apply).

A. On April 13, 2011, the Plaintiff entered into a lease agreement with the Defendant, setting the period from April 13, 2011 to April 12, 2013, with each of the real estate listed in the separate sheet owned by the Defendant (hereinafter “each of the instant real estate”), with a rice of KRW 30,500,000 for annual rent (hereinafter “instant lease agreement”), and received KRW 4.5 million for annual rent from the Defendant, and handed over each of the instant real estate to the Defendant.

B. At the time of entering into the instant lease agreement, each of the lands listed in attached Tables 1, 2, and 4 (hereinafter “each of the instant lands”) was used as farmland, such as culture and cultivation.

C. On February 2012, the Plaintiff agreed with the Defendant to reduce the term of the instant lease agreement by April 12, 2012.

2. Judgment on the principal lawsuit

A. Claim for extradition of each real estate of this case

Since the fact that the Defendant delivered each of the instant real estate to the Plaintiff on March 22, 2013 is recognized by the Plaintiff itself, the part demanding the delivery of each of the instant real estate is without merit.

B. Claim for damages

(1) The parties' assertion

(A) Summary of the Plaintiff’s assertion

The instant lease agreement terminated on April 12, 2012. The Defendant continued to occupy and use each of the instant real estate in an unlawful manner even thereafter, thereby causing damage to the Plaintiff, and thus, is obliged to compensate the Plaintiff for such damage.

(B) The defendant's argument

Since the instant lease agreement is null and void in violation of Article 23 of the Farmland Act, the Defendant is not obligated to pay the Plaintiff the amount equivalent to the rent of each of the instant real estate.

(2) Determination

(A) The validity of the instant lease agreement

1) Article 23 of the Farmland Act provides that no one may rent or rent farmland unless it falls under exceptional cases prescribed by each subparagraph, and any person who violates this provision shall be subject to criminal punishment pursuant to Article 60 subparagraph 2 of the same Act. The purpose of this provision is to efficiently utilize and manage farmland by prescribing matters necessary for the ownership, use, and preservation, etc. of farmland, and to contribute to strengthening the competitiveness of agriculture based on the stabilization of farmers’ management and improvement of agricultural productivity, balanced development of the national economy and preservation of national land environment (Article 1). In addition, in addition, the basic concept of farmland is to preserve farmland as a foundation for food supply and environmental conservation and to ensure public welfare and to manage farmland properly, and to ensure that the exercise of the right to farmland is subject to restrictions and obligations (Article 3(1)). In addition, considering the public interest purpose of Article 23 of the Farmland Act, which prohibits the lease and the use of farmland, in principle, is a mandatory provision, and thus, the lease of farmland should be deemed null and void.

Since the fact that each of the instant lands was used as farmland at the time of the instant lease agreement is as seen earlier, each of the instant lands constitutes farmland stipulated in Article 2 subparag. 1 of the Farmland Act, and therefore, insofar as there is no evidence to deem that each of the instant lease agreements constitutes grounds for exception under each of the subparagraphs of Article 23 of the same Act, it shall be deemed null and void in violation of the aforementioned provisions (the Plaintiff’s lease of each of the instant lands to the Defendant following inevitable migration to Seoul in order to treat the diseases caused by the diseases caused by the death of a farmer while living together with the death of a farmer in the instant land and to support his studies, and thus, the Plaintiff’s above assertion is not acceptable).

2) Meanwhile, Article 137 of the Civil Act provides, “If a part of a legal act is null and void, such part shall be null and void. However, if a part of the legal act is deemed null and void even if it does not exist, the remaining part shall not be null and void.” In a case where a part of the legal act is null and void because it violates the validity clause, which is a mandatory law, and thereby becomes null and void, if an individual law has a provision on the validity of partial invalidation, the individual law shall govern, and if there is no such provision, Article 137 of the Civil Act shall apply (see Supreme Court Decision 2010Da23425, Jul. 22, 2010).

Since the Farmland Act does not provide for any particular provision on the validity of the remaining parts in cases where a lease agreement is partially null and void in violation of Article 23, the issue of whether the invalidation of each part of the instant lease agreement on each of the instant land affects the loss or invalidity of the part concerning a building listed in attached Table No. 3 (hereinafter “instant building”) which is the remainder of the part shall be determined in accordance with the legal doctrine stipulated in Article 137 of the Civil Act.

The Defendant entered into the instant lease agreement with the Plaintiff in order to set up farm houses in each of the instant land, and the fact that the instant building was a warehouse facility built to use in cultivating each of the instant land is either a dispute between the parties, or a dispute exists between the parties, or the entire purport of the pleadings in the entries or videos in the evidence Nos. 2 through 5, and No. 3, respectively.

According to the above facts, if the defendant knew that the part of the lease contract of this case concerning each of the land of this case is null and void, it would not conclude the lease contract of this case. Thus, it is reasonable to view that the lease contract of this case is null and void in its

(B) Liability to compensate for damages caused by an illegal possession

1) Even if the instant lease agreement violates Article 23 of the Farmland Act and becomes null and void automatically, the agreed term of the instant lease agreement is up to April 12, 2012. Thus, the Defendant’s possession of each of the instant real estate even thereafter cannot be deemed to have been subject to the instant lease agreement.

Therefore, the Defendant’s possession of each of the instant real estate after April 13, 2012 constitutes an illegal possession in relation to the Plaintiff, who is the owner, insofar as there is no evidence to deem that there was a legitimate title, barring any special circumstance, and thus, the Defendant is obligated to compensate the Plaintiff for damages incurred from such possession from April 13, 2012 to the end date of possession of each of the instant real estate.

2) As to the completion period of possession of each of the instant real estate, the Defendant asserts that the Plaintiff voluntarily terminated possession of each of the instant real estate on March 22, 2013, while the Defendant had already terminated possession of each of the instant real estate prior to that time.

However, there is no evidence to deem that the Defendant terminated the possession of each of the instant real estate before March 22, 2013. Thus, the completion period of possession of each of the instant real estate by the Defendant should be deemed March 22, 2013, as the Plaintiff was the owner.

3) Furthermore, as to the scope of damages, it is reasonable to view that the amount of ordinary damages caused by the illegal possession of real estate is the same as the amount equivalent to the rent, barring special circumstances. According to the facts acknowledged earlier, the amount equivalent to the rent where each of the instant real estate is leased without a deposit from April 23, 2012 to March 22, 2013, is confirmed to be the same as the amount at the rate of KRW 4.5 million per annum stipulated in the instant lease agreement (the Defendant asserted that the above contract fee under the instant lease agreement was set on the premise of cultivating high-income crops by the installation of vinyl houses, but there is no evidence to acknowledge it, and thus, it is difficult to accept the Defendant’s above assertion).

Therefore, the amount of damages that the Defendant shall pay to the Plaintiff is KRW 4,241,095 (=4,500,000 x 344/365 x less than KRW 344/365).

3. Judgment on the counterclaim

A. Requests for restitution of unjust enrichment

(1) On the ground that the instant lease agreement is null and void, the Defendant sought a return of unjust enrichment in an amount equivalent to KRW 4.5 million already paid to the Plaintiff as a rental fee.

As seen earlier, even if the instant lease agreement violates Article 23 of the Farmland Act and thus null and void as a matter of course, payment of rent does not constitute illegal consideration in violation of good morals and social order. As such, the Plaintiff is obligated to return the lease of each of the instant real estate to the Defendant in violation of the provisions of the Farmland Act and the Plaintiff received 4.5 million won as the rent, barring any special circumstance, since the Plaintiff leased each of the instant real estate to the Defendant in violation of the provisions of the Farmland Act and received 4.5 million won as a malicious beneficiary from the time the Defendant received the rent from the Defendant (see Supreme Court Decision 70Da1390, 1391, Oct. 30,

(2) As to this, the Plaintiff asserts that, if the instant lease agreement is null and void as a matter of course, the Defendant did not have a legitimate title to possess each of the instant real estate from April 13, 201 to April 12, 2012, and as a result, the Defendant occupied and used the instant real estate, it would result in the Plaintiff’s liability to compensate the Plaintiff for damages worth KRW 4,50,000,000, which is the amount equivalent to the rent accrued therefrom. Therefore, the Defendant’s claim against the Defendant is offset against the Defendant’s claim

However, it is reasonable to deem that the lease of each of the instant real estate by the Plaintiff to the Defendant in violation of Article 23 of the Farmland Act, which is a mandatory provision, constitutes illegal consideration in violation of good morals and social order, and such interpretation is consistent with the purpose of legislation of the Farmland Act (In this regard, conflicting with the fact that the rent paid by the Defendant to the Plaintiff under the instant lease agreement does not constitute illegal consideration)

Therefore, the Defendant’s possession and use of each of the instant real estate during the period of the instant lease agreement, and the Plaintiff cannot seek a return of unjust enrichment equivalent to the rent or a claim for damages from the Defendant. Therefore, the Plaintiff’s assertion is without merit.

B. Claim for damages

(1) The defendant's argument

The Defendant concluded the instant lease agreement with the Plaintiff to install a vinyl on each land of the instant case and cultivate swimming houses, and it is necessary to register each land of the instant case in the farmland ledger in order to receive a subsidy equivalent to 50% of the costs of installing a vinyl house from Jincheon-gun. As such, the Plaintiff promised to cooperate with the Defendant in the registration of the said farmland ledger.

Accordingly, the Defendant believed that it would be able to receive subsidies for the installation cost of plastic houses, and disbursed 4.8 million won for the purchase cost of steel framed materials to install plastic houses on each land of this case, and 1.6 million won for the purchase cost of composts in plastic houses, 1.4 million won for the purchase cost of composts in plastic houses, and 1.4 million won for personnel expenses.

However, unlike the above promise, the Plaintiff did not take all measures necessary to register each of the instant lands on the farmland ledger, and the Defendant did not take such measures, and the Defendant is obliged to compensate the Defendant for the damages equivalent to KRW 2.8 million in total, including KRW 1.6 million in the purchase cost of steel materials, KRW 1.6 million in the purchase cost of retirement, KRW 1.4 million in the labor cost, KRW 1.4 million in the purchase cost of steel materials, and KRW 5.8 million in the labor cost.

(2) Determination

It is insufficient to recognize that the Plaintiff entered into a legal binding agreement by providing the Defendant with cooperation necessary for the registration of each of the instant land in the farmland ledger, or that the Plaintiff failed to comply with the obligation to provide cooperation necessary for the registration of the farmland ledger due to the Plaintiff’s fault, and there is no other evidence to acknowledge otherwise.

Therefore, this part of the defendant's assertion is without reason to further examine the occurrence and scope of damage.

4. Conclusion

Therefore, the defendant is obligated to pay KRW 4,241,095 to the plaintiff. Thus, the plaintiff's claim of the principal lawsuit shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. However, since the part of the judgment of the court of first instance as to the principal lawsuit in part is unfair, the part against the defendant exceeding the above recognition scope among the part concerning the principal lawsuit in the judgment of the court of first instance is revoked, the plaintiff's claim for the principal lawsuit corresponding to the revoked part is dismissed, and the defendant's remaining appeal as to the principal

In addition, as of the date of payment of the plaintiff's 4.5 million won and its corresponding claim, the plaintiff is obligated to pay damages for delay at each rate of 5% per annum prescribed by the Civil Act and 20% per annum prescribed by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from September 17, 2013, the day following the delivery of a copy of the application for counterclaim and modification of the purport of the claim in this case sought by the defendant, which is the date of the plaintiff, to the defendant, from December 22, 2012, which is the day following the day of the decision of the court of first instance, until September 17, 2013, which is the day of the decision of the court of first instance, and the existence and scope of the plaintiff's obligation to pay damages for delay from the next day to the day of full payment. Thus, the defendant's counterclaim claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit.

[Attachment]

Judges Lee Young-chul (Presiding Judge)