[1] Whether the obligation secured by the lease deposit in the lease contract is naturally deducted from the lease deposit without any separate declaration of intent when the lease deposit is returned after the termination of the lease contract (affirmative)

[2] Location of the burden of asserting and proving the cause of the lease deposit such as the lease deposit (=leaser) and location of the burden of asserting and proving the claim for the termination of the lease deposit(=Lessee)

[1] In a lease agreement, a lease deposit is naturally deducted from a security deposit without a separate declaration of intent, barring any special circumstance, since the lease deposit is obliged to return only the remainder after deducting the secured debt from the security deposit to the lessee, as it is incurred until the lessor issues an order to the lessor for the lease after the termination of the lease agreement. The amount equivalent to the secured debt is returned after the termination of the lease agreement.

[2] In the case of a lease agreement, in order to deduct the secured obligation, etc. from the lease deposit, the lessor must claim that the lessor should deduct the overdue rent, overdue management fee, etc., which is the secured obligation, from the lease deposit. Furthermore, the lessor should claim and prove the cause of the lease deposit, such as the rent claim, management fee claim, etc. to be deducted from the lease deposit. However, the lessee bears the burden of assertion and burden of proof as to whether the claim occurred due to repayment, etc.

[1] Article 618 of the Civil Code / [2] Article 618 of the Civil Code, Article 288 of the Civil Procedure Act

[1] Supreme Court Decision 9Da50729 delivered on December 7, 1999 (Gong2000Sang, 147), Supreme Court Decision 2004Da5654 delivered on December 23, 2004, 56561, 5678, 5658, 5658, 56592, 5608, 5615, 56222, 5639, 56646, 5653, 566660 (Gong205, 205Sang, 187) / [2] Supreme Court Decision 95Da1464, 14671 delivered on July 25, 199 (Gong195Ha, 295Ha, 295Ha, 2951), Supreme Court Decision 2000Da816481 delivered on August 16, 2005

Samsan Co., Ltd. (Attorney Han-type et al., Counsel for the defendant-appellant)

Defendant-Counterclaim Plaintiff (Law Firm Rogo, Attorneys White-gu et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Seoul High Court Decision 2003Na74670, 2004Na9277 delivered on December 28, 2004

All appeals are dismissed. The costs of appeal are assessed against each appellant.

1. The judgment on the appeal by the defendant (the title of the party to the counterclaim is omitted)

Based on its employment evidence, the lower court acknowledged that the Defendant agreed to pay every month the sum of KRW 1,411,400, and value-added tax of KRW 1,552,540, calculated at the rate of KRW 6,500 per square day on the leased object, separately from monthly rent, electricity, water supply, and heating expenses stipulated in the lease agreement at the time of the conclusion of the instant lease agreement with the Plaintiff, and that the Defendant would pay every month the sum of KRW 1,552,540, which was calculated after March 1, 202.

In light of the judgment of the court below and the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law such as violation of the rules of evidence, misunderstanding of facts, or misunderstanding of legal principles as to the interpretation of disposition documents,

2. Judgment on the Plaintiff’s appeal

In a lease agreement, a security deposit for a lessee’s obligation arising from the lease agreement until the lease is ordered to the lessor after the termination of the lease agreement. The amount equivalent to the secured obligation is naturally deducted from the security deposit, barring any special circumstance, when the object is returned after the termination of the lease agreement. Thus, the lessor is obligated to return only the remainder after deducting the secured obligation from the security deposit to the lessee (see Supreme Court Decision 2004Da5654, Dec. 23, 2004, etc.). However, in order to deduct the secured obligation from the security deposit, the lessor must assert that the secured obligation should be deducted from the security deposit, and further, the lessor should assert and prove the grounds such as the rent claim, management fee claim, etc. to be deducted from the security deposit, and the lessee bears the burden of assertion and proof as to whether the secured obligation has been extinguished due to the repayment, etc. (see Supreme Court Decision 2004Da5654, Apr. 16, 197, etc.).

According to the records, the plaintiff did not at all assert that the lease deposit, which the defendant claimed to return as a counterclaim until the closing of argument in the court below, should be deducted from the rent, electricity, water supply, heating, management expenses, etc. not paid by the defendant, but only sought an explanation of the overdue management expenses and the object thereof as the principal lawsuit. Thus, the plaintiff's assertion that the lease deposit, which the defendant claimed to return as a counterclaim, is obviously offered only when it reaches the final appeal, cannot be a legitimate ground for appeal against the court below.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)