2014 Ghana 1176888 Delivery of Building

Co. ***

Seoul

Park representative director* *

Attorney Kim Jong-soo et al.*

Jin 00

Seoul

Law Firm* [Attorney Yoon-ho et al., Counsel for the plaintiff-appellant]

May 15, 2015

June 19, 2015

1. Of the instant lawsuit, the part of the claim for payment of money calculated by the rate of KRW 1,40,000 per month from May 15, 2015 to the date the delivery of real estate listed in the separate sheet is completed shall be dismissed.

2. The defendant shall deliver to the plaintiff the real estate stated in the attached list.

3. The plaintiff's remaining claims are dismissed.

4. Of the costs of lawsuit, 50% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

The judgment as referred to in Paragraph (2) of this Article and the defendant are real estate listed in the attached Table from May 15, 2014 to the plaintiff.

by the date of the completion of delivery, the sum of 1,400,000 won per month shall be paid.

1. Determination on the cause of the claim

(a) Facts of recognition;

1) On April 3, 2007, the Plaintiff concluded a registration of ownership transfer with respect to the building of Gangdong-gu Seoul Metropolitan Government************************************************************ on May 11, 2012 (hereinafter referred to as the above-owned ownership) and the above-owned ownership transfer with respect to the building of this case (hereinafter referred to as the above-owned ownership).

3) On November 3, 2012, 000 entered into a sublease contract with the Defendant that is sub-leaseed between the Defendant and the Defendant ** * 1000,000, KRW 100,000,000, and KRW 770,00,00,000, and the period from November 4, 201 to November 3, 2014, and the sub-lease ***** and the Plaintiff, a lessor, approved the conclusion of the said sub-lease contract.

4) From November 2012, the Defendant has occupied ** head from November 2012 to the present date.

[Grounds for recognition] A 1- 1 - 1 - 3, 2, 3, 4, 5, 8, 9, 11-9 each entry and the purport of the entire pleadings.

B. Determination

The right of rent of the sub-lease is established on the basis of the right of lease of the sub-lease. Thus, if the right of rent of the sub-lease terminates on the basis of the expiration of the lease period, the right of rent of the sub-lease expires on the basis of the lessee’s right of lease. Therefore, the Defendant is obligated to return the lease directly to the Plaintiff, a lessor upon the expiration of the lease period after May 12, 2014, pursuant to Article 630 of the Civil Act as the sub-lessee who obtained the lessor’s consent. In addition, the Defendant has the obligation to return the lease ***** by continuing possession of the above lease and sub-lease **** by using and making profits from the above use and profit without legal cause. Accordingly, according to the appraisal under the rules of the appraiser, the Plaintiff has the obligation to return the rent equivalent to the rent due to the above use and profit, ** after May 15, 2014 * from May 14, 2014 to the date of delivery * there is no special reason for the Plaintiff.

2. Judgment on the defendant's assertion

A. The defendant's defense of simultaneous performance 1) defenses that the defendant cannot deliver 1504 to the time when the defendant receives a refund of 100 million won of the sub-lease deposit from 000 or 2000 won of the lease deposit from the plaintiff until 90 million won is refunded.

2) First of all, as to ① a defense, the Defendant, the lessee, cannot set up against the Plaintiff’s claim for the delivery of the lessor due to the repayment claim of the sublease deposit against the lessee, 000 (Supreme Court Decision 12, 190.12, 1990).

7. The above argument is unacceptable as to the defense (see, e.g., Supreme Court Decision 90Meu24939, Feb. 3, 200). Although the lessor’s obligation to return the deposit and the obligation to return the object of the lessee’s performance are concurrently performed, the lessee cannot exercise the right to simultaneous performance, as it is a principle that the lessee cannot exercise the right to simultaneous performance.

Of course, the Defendant, a lessee, may exercise the right of simultaneous performance on behalf of the lessee, but according to the legal principles stated in Supreme Court Decision 9Da38699 Decided May 8, 2001, the Defendant’s right to preserve (the right to simultaneous performance) in order to exercise the right of simultaneous performance on behalf of the Defendant (the right to return a sub-lease deposit) is closely related to the Defendant’s right to exercise the right of simultaneous performance on behalf of the Defendant in subrogation. The Defendant’s exercise of the right of vicarious performance on behalf of the Defendant is necessary to ensure the validity and proper performance of his own claim because there is a risk of not being able to exercise the right of simultaneous performance on behalf of the Defendant in subrogation of the right of simultaneous performance on behalf of the lessee. However, the Defendant’s exercise of the right of vicarious performance on behalf of the Plaintiff cannot be deemed as closely related to the exercise of the right of simultaneous performance on the sub-lease deposit and the right of simultaneous performance on the sub-lease deposit cannot be deemed as necessary to secure the performance of the right of simultaneous performance on the Plaintiff’s 1.

As to this, the defendant's refusal agreement between 000 and the plaintiff was concluded by the plaintiff's coercion, the above waiver agreement is revoked by the exercise of the right to cancel 000 on behalf of the plaintiff, or 2) The waiver agreement is null and void by a false declaration of agreement or 3000 is a condition precedent that "the plaintiff actually pays the remainder of the lease deposit to the sub-lessee", and as long as the plaintiff does not actually pay the lease deposit, the above waiver agreement is null and void by the non-performance of the condition precedent, but there is no evidence to support that the waiver agreement is concluded by the plaintiff's duress and the contract is a condition precedent. Thus, each of the above arguments cannot be accepted.

B. Offsets based on the claim for return of unjust enrichment

The defendant asserts as follows as a defense. The plaintiff, without any legal ground, was directly paid by the sub-lessee that the deposit and the sub-lease that should be paid by 000 is the deposit and the sub-lease, and as a result, losses equivalent to the same amount were incurred by the sub-lessees. Thus, the defendant is obligated to return to 000 unjust enrichment equivalent to the above sub-lease deposit and the sub-lease deposit. The defendant can exercise the right to return the lease deposit against 000 as the right to be preserved and exercise the right to exercise the right to return unjust enrichment against the plaintiff. Thus, the plaintiff's right to return the above unjust enrichment is offset against the amount equal to the plaintiff's right to return unjust enrichment equivalent to the amount of the rent to the defendant. However, there is no evidence to acknowledge that the plaintiff was directly paid by the sub-lessees and the amount of the sub-leases due to Gap, 13, 14-14-24 and 200 of the whole account and the purport of the plaintiff's direct pleading between the plaintiff and the entire account.

Therefore, the above argument cannot be accepted.

C. The Defendant asserts that the aforementioned part of the defense is as follows. The employee in charge of the Plaintiff asserts that the aforementioned part of defense is as follows. Although 000 employee and real estate real estate agent did not wish to guarantee the period of sub-lease contract even if the sub-lease contract was concluded with the Defendant, 000 employee and real estate agent are actually leased to the Defendant, 'in fact', '00 and 'the re-contract between the Plaintiff is guaranteed', 'the deposit should not be refunded to the Plaintiff, 'the said sub-lease deposit should not be refunded to the Plaintiff', or 'the above sub-lease deposit should be returned to the Plaintiff by making the Plaintiff deposit deposit deposited with the Plaintiff's account. Accordingly, the above 10 million won is offset against the Defendant's claim for damages based on the above employer's liability and the amount equivalent to the Defendant's claim for unjust enrichment against the Plaintiff.

However, it is not sufficient to recognize that the officials in charge of the Plaintiff committed the said deception in collusion with the 0000s only with the entries in Section B-7 and 11, and there is no other evidence to recognize it. Therefore, the above part of the assertion cannot be accepted.

2) However, comprehensively taking account of the following facts: Gap 1- 1- 3, Eul 7 and 11's statement and witness * 000 won on May 13, 209 and the purport of the whole pleadings, 200 won was 0.5 billion won for the first time, 40 billion won for apartments and 12 households among the instant buildings from the Korea Land Trust Co., Ltd., the plaintiff and the plaintiff, 100 million won, 200 million won for officetels and 40 billion won for each of the above lease contracts with the defendant on May 11, 2012, 300 won for the first time, 10.5 billion won for the first time, 200 million won for the first time, 30 billion won for the second time for the lease contracts with the plaintiff on May 11, 201, 100 won for each of the above lease contracts with the plaintiff and the plaintiff on June 20, 2000.

15. Until September 15, 15, 100, 123, 017, 043 won was investigated by the Seoul Central District Prosecutors' Office for criminal facts, such as "the arbitrary use of 1.23, 017,043 won from the sub-lessees during the period of his/her business," and the plaintiff's employees were investigated as witnesses for the above case.* on September 27, 2013, Seoul Central District Court 2013Da1026 was prosecuted for the above criminal facts and convicted of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), ** the plaintiff's 000 - the building of the above 00 - the building of the 00 - the plaintiff's 1,000 - the 1,000 - the 1,000 - the 1,000 - the 1,000 - the 01, 2001.

The purpose of Article 629(1) of the Civil Act, which requires the consent of the lessor in the sub-lease contract, is, in principle, for the protection of the lessor. In other words, if the methods of using and taking profits from the object are different, so the lessor may be free to sub-lease the leased object, so that the lessor may obtain the consent of the lessor. Therefore, the lessor may entirely have the effect of the sub-lease contract by 000 and the Defendant’s *** 600 on November 2012, 200 and 200 on the above sub-lease * 200 on the above sub-lease * 200 on the 5th anniversary of this case’s embezzlement * 200 on the 15th anniversary of this case’s embezzlement * 200 on the 200 on the 15th anniversary of this case’s embezzlement * 200 on the 100 on the 15th day of this case’s embezzlement* 200 on the 14th day of this case’s 15th day.

Inasmuch as each of the Plaintiff’s employees stated that the aforementioned funds were embezzled by making disbursement of KRW 3740,000 to the U.S. travel expenses, the Plaintiff’s employees and clerks* appears to have been in a considerable relationship with her employees. Therefore, in such a situation, the employee in charge of the Plaintiff was paid due attention.

If the approval of such sub-lease contract is refused, modified, or notified to sub-lessees of the financial status of 000 (i.e., the method of making a sub-lease contract to reduce the amount of the lease deposit and increase the monthly rent, or immediately terminating the lease contract with 000 in de facto insolvent condition) by various methods, such as denying or modifying the approval of such sub-lease contract or notifying the sub-lessees of the financial status of 000

Without doing so, the Defendant agreed to the sub-lease contract between 000 won and the Defendant, thereby causing damages that could not be refunded to the full amount of the above sub-lease deposit. Since a person who could avoid such damages at the lowest cost (lest Co.) as the owner of the building of this case, it is reasonable to impose such damages on the Plaintiff because the actual effect of the sub-lease contract could have been reduced, it is reasonable to impose damages on the Plaintiff. This is similar to imposing damages on the Defendant where the number of 5 dangerous franchises (e.g., 00 and **) was not properly managed, thereby causing damages to the same citizens as the Defendant. Accordingly, the Plaintiff’s consent to the above sub-lease contract exceeds the limit of consent, i.e., all damages arising from the sub-lease contract’s fault before and after the lapse of 00 billion won, and thus, the Plaintiff is obliged to pay damages to the Defendant for all damages due to the above sub-lease contract’s fault and 00 billion won.

Therefore, the defendant is obligated to pay unjust enrichment equivalent to the rent of KRW 1.4 million per month since May 15, 2015 as a result of the date of the closing of argument above *** since the completion of delivery under the subparagraphs 1.4 million per month. However, as seen above, insofar as the plaintiff bears the obligation to compensate the defendant for damages of KRW 63.2 million as seen above, it is not necessary to claim in advance. Thus, the above part of the claim is illegal as a lawsuit for future performance, and therefore, the above defense is justified within the scope of recognition above.

D. Violation of the good faith principle or abuse of rights

The defendant, after the plaintiff leased the whole building of this case to 000, had the lessee enter into a sub-lease contract in the name of 000 by using 000 de facto topographicalized type, but was paid by the sub-lessee directly from the sub-lessees for the sub-lease deposit and sub-lease, and actually, the plaintiff gained considerable profits while operating the lease business in the building of this case, but in fact, the plaintiff exceeded the obligations to the sub-lessees, especially the obligation to return the sub-lease deposit and the obligation to return the sub-lease deposit, which is de facto insolvent. Under this circumstance, just because the lease contract between the plaintiff and the 000 between the plaintiff and the 000 is terminated, it cannot be allowed as it constitutes a violation of the principle of good faith or an abuse of rights. However, the plaintiff's right to immediately demand delivery of the building of this case against the sub-lessees cannot be accepted, since the plaintiff's claim of this case constitutes a violation of the good faith or abuse of rights.

3. Conclusion

If so, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claim is dismissed or dismissed as it is not reasonable.

Judges Bo Jong-ho

A person shall be appointed.