In a case where a lessor of a real estate files a lawsuit against a lessee seeking the delivery of the real estate which is the object of lease and the payment of the overdue rent due to the termination of the lease contract due to the delayed rent, whether such litigation costs may be naturally deducted from the lease deposit to be refunded (affirmative); and whether the same shall apply to cases where the lessee has already transferred the right to return the lease deposit to another person and notified the lessor of

In the lease of a real estate, the deposit paid by a lessee to a lessor in the lease relationship guarantees all the obligations of a lessee arising from the lease relationship until the lease relationship terminates and the lessee returns the object. The legal costs for the lessor’s claim against the lessee for the delivery of the property in arrears and the payment of the rent for the lease due to the termination of the lease contract due to the rent delay are the expenses for restoration to the original state to be borne by the lessee and the expenses incurred by the lessee due to nonperformance of the obligation to pay the rent, and thus, can be naturally deducted from the lease deposit to be returned. Meanwhile, in the event the lease relationship terminates, the lessor’s obligation to return the lease deposit reaches the due date only for the remainder after deducting all the obligations of the lessee arising from the time the object is returned from the lease deposit. Therefore, the lessor’s obligation to return the lease deposit reaches the due date. Therefore, even if the lessee transferred the lease deposit to another person and notified the lessor

Articles 615, 618, and 654 of the Civil Act

[Plaintiff-Appellant] Plaintiff 2002Da52657 delivered on December 10, 2002 (Gong2003Sang, 361)

Plaintiff

Defendant (Attorney Kim Jong-he et al., Counsel for defendant-appellant)

Busan District Court Decision 2011Na8413 Decided May 10, 2012

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

In the lease of a real estate, the deposit paid by a lessee to a lessor is secured by the lessee’s all obligations arising from the lease relationship until the lease relationship terminates and the lessee returns the object. The costs for the lessor’s claim against the lessee for delivery and overdue rent of the object of the lease due to the termination of the lease contract due to the delayed delay are attributable to the lessee’s nonperformance of the obligation to restore to the original state and the lessee’s obligation to pay the rent, and thus, can be naturally deducted from the lease deposit due to the lessee’s obligation arising from the lease relationship. Meanwhile, in the event the lease relationship terminates, the lessor’s obligation to return the deposit reaches the due date only for the remainder after deducting all obligations arising from the lessee’s obligation to return the object from the deposit. Thus, even if the lessee transferred the deposit to another person and notified the lessor of the transfer, the lessor may naturally deduct the above legal costs from the lease deposit until the lessee delivers the object of the lease (see, e.g., Supreme Court Decision 2002Da52657, Dec. 10, 2002).

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the defendant transferred the right to return the lease deposit of this case to the plaintiff on December 1, 2009, and the building of this case to KRW 100 million, KRW 4,500,00 ( KRW 5,000 on December 1, 2010) and the lease contract of this case to the defendant on December 1, 201, and KRW 36 months from December 1, 2009. This case's lease deposit was paid to the defendant around that time, and this case's lease deposit was paid to the defendant around December 30, 201, and the plaintiff entrusted the right to return the lease deposit of this case to the defendant on January 6, 201, notified the defendant of the transfer of the above transfer deposit amount to Busan District Court on June 21, 201, which became final and conclusive on June 21, 2012.

Examining the above facts in light of the above legal principles, the above litigation costs for which the defendant sought the delivery, etc. of the building of this case against the lessee, constitutes the lessee's obligation arising from nonperformance of the lessee's obligation to restore the leased property to its original state and the lessee's obligation to pay the rent, and thus, can be naturally deducted from the lease deposit of this case to be returned by the defendant. Even if Lee Business Holdings transferred the Plaintiff's obligation to return the lease deposit of this case to the Defendant and notified the transfer thereof, the defendant can naturally deduct the above litigation costs from the lease deposit of this case until he returned the building of this case to the Defendant.

Nevertheless, the court below's decision to dismiss the defendant's defense against the above legal costs based on its reasoning is erroneous in the misapprehension of legal principles as to the effect of the security against the real estate lease deposit, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)