In case where a lessee has sub-leased a leased object and the lease and sub-lease are terminated, whether the sub-lessee has the obligation to return unjust enrichment equivalent to the rent after the expiration of the sub-lease period (affirmative with qualification)

Inasmuch as a lease is established when one of the parties agrees to allow the other party to use or make a profit from an object and the other party agrees to pay the rent for it, it is not established that the lessor has ownership or other right to lease the object. Thus, even if the leased object is owned by the other party, barring special circumstances, such as requesting the lessor to return the object or pay the rent or the equivalent amount thereof, the lessee is obligated to order the lessor to order the object and pay the lessor the overdue rent from the end of the lease to the end of the lease, and as well as to return the amount of the rent equivalent to the rent due to the possession and use of the real estate from the end of the lease to the completion date of the lease order. This legal principle applies to the lessee where the lessee sub-leases the leased object and the sub-lease is terminated, unless there are special circumstances.

Articles 630 and 741 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 15 others, Counsel for plaintiff-appellant)

Plaintiff

Defendant (Law Firm Ho et al., Counsel for the defendant-appellant)

Seoul District Court Decision 2000Na29911 Delivered on November 15, 2000

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. As to the assertion of violation of the rules of evidence and misapprehension of the legal principle on lease contract

Even if a lessor does not have the right to own the leased object or to make a lease thereof, the lease contract is effective, and accordingly, the lessee is obligated to pay the lessee the rent for the use and profit unless the lessor performs the obligation to have the lessee use the object completely and make a profit from the leased object, and upon the termination of the lease, the lessee bears the contractual obligation to return the leased object to the lessor. In such a case, if the de facto owner requests the lessee to deliver the object to the lessee and delivers it, the lessor becomes unable to perform the obligation to use and make profit from the leased object. Unless there are special circumstances to deem such nonperformance temporary, the lease is naturally terminated without the need to indicate the intention of termination by the party (see, e.g., Supreme Court Decisions 95Da15087, Mar. 8, 1996; 94Da54641, Sept. 6, 196). Therefore, even if the lessee sub-lease the leased object and all of the lease and sub-lease periods have expired, the lessee can still recover the leased (the sub-lessee).

According to the reasoning of the judgment below, the court below, based on the evidence adopted by the court below, acknowledged that the plaintiff sub-lease from the non-party 1 corporation to the defendant that the above sub-lessee leased the store of this case from the non-party 3 corporation with the permission of occupation and use from the non-party 1 corporation and sub-lease contract of this case, and that the sub-lease contract of this case was lawfully terminated at the defendant's rent, i.e., (1) the above company's lease contract of this case concluded between the above company and the plaintiff was terminated and the contract of this case was terminated, and the defendant decided to lease the store of this case between the above company and the non-party 3 corporation of Seoul Special Metropolitan City with the right to manage the above sub-party 1 and the defendant's obligation to use and make profits from the above sub-lease contract of this case was not fulfilled, and therefore, the plaintiff cannot seek the name of the sub-lease contract of this case to the defendant, which is the non-party 2, as a new owner of the above sub-lease contract of this case.

In light of the records, the fact-finding and judgment of the court below are just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the lease contract or in violation of the rules of evidence as otherwise alleged in the

2. As to the assertion of misapprehension of legal principles as to unjust enrichment

As seen earlier, one of the parties agrees to allow the other party to use or take profit from an object and the other party agrees to pay rent for it. Furthermore, a lessor does not have ownership or right to lease the object. Thus, even if the object of lease is owned by the other party, barring special circumstances, such as requesting the return of the object or payment of rent or the corresponding amount thereof, the lessee is obligated to order the lessor to return the object and pay the lessor the overdue rent until the end of the lease. In addition, the lessee is also obligated to return unjust enrichment equivalent to the rent for occupying and using the real estate from the end of the lease until the completion of the name of the real estate from the end of the lease (see, e.g., Supreme Court Decisions 94Da54641, Sept. 6, 1996; 200Da37777, 37784, Nov. 24, 200); and such legal doctrine also applies to the lessee who has leased the object and the sub-lease, unless there are special circumstances.

According to the records, the defendant seems to have paid rent of KRW 239,400 per month to the Seoul Facilities Management Corporation in accordance with the provisional contract of this case. However, there is no evidence to prove that the defendant received or paid a claim for return of unjust enrichment equivalent to the amount the plaintiff seeks in this case from the above Facilities Management Corporation (excluding the above amount of KRW 239,400). Thus, the court below's order the defendant to return unjust enrichment equivalent to the rent of the pre-sale by the pre-sale date in accordance with the above legal principles is just and there is no error in the misapprehension of legal principles as to unjust enrichment, as otherwise alleged in the ground of appeal.

3. As to the assertion of misapprehension of legal principles as to abuse of rights

In light of the records, the decision of the court below is just in holding that it cannot be viewed as an abuse of rights solely on the ground that the defendant's efforts to demand the order of the store of this case, which is the object of the sub-lease, and to demand the payment of the rent in arrears, etc. due to the termination of the sub-lease contract of this case, and there is no misapprehension of the legal principles as to abuse of rights as otherwise alleged in the ground

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)