School Foundation (Law Firm Squa, Attorneys Kim Sun-tae et al., Counsel for the defendant-appellant)

Defendant 1 and two others (Attorneys Kim Young-soo et al., Counsel for the defendant-appellant)

June 27, 2012

Seoul Central District Court Decision 2010Gahap88991 Decided September 9, 2011

1. The part of the judgment of the court of first instance, including the Plaintiff’s claim against the Defendants as modified in the trial, is modified as follows.

The plaintiff's claim against the defendants is dismissed in entirety.

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendants paid to each of the Plaintiff 890,084,172 won and interest thereon at a rate of 20% per annum from February 17, 2011 to the day of full payment [the Plaintiff first filed a claim with C&C Co-Defendant C&C Co-Defendant of the first instance trial (hereinafter “C&C”) for the payment of KRW 1,100,000 to the Plaintiff jointly and severally with C&C Co-Defendant of the first instance trial and jointly with C&C Co-Defendant of the first instance trial on the delivery of KRW 1,10,00,000 per annum from the day of full payment.]

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked and the Plaintiff’s claim against the Defendants corresponding to the revocation part is dismissed, respectively.

3. Purport of incidental appeal;

Of the judgment of the court of first instance, the part against the plaintiff seeking payment is revoked. At the same time, the defendant shall pay 836,259,600 won to each plaintiff among the buildings listed in the separate sheet from the plaintiff, and at the same time, the defendants shall pay 836,259,600 won to each plaintiff (the plaintiff stated in the incidental appellate brief of May 29, 2012 that the part against the plaintiff in the judgment of the court of first instance should be revoked, but the incidental appellate brief of May 29, 2012 did not specify the part against the plaintiff. However, according to the reasons for incidental appeal, the purport of additionally seeking an additional amount of 50,357,40 won which is equivalent to the excessive amount of the rent deducted, is the purport of seeking an amount of unjust enrichment of 50,357,

1. Basic facts

A. On September 5, 2005, the Plaintiff entered into a lease agreement with the Defendants (Defendant 1’s share was 45.64/100, Defendant 2, and Defendant 3’s share was 27.18/100, respectively) under which they owned the building listed in the separate sheet (hereinafter “the instant building”) as indicated in the separate sheet (hereinafter “instant building”) and paid KRW 1 billion to the Defendants the lease deposit amount of KRW 1 billion among the instant building. A lease agreement was concluded between KRW 1 billion, monthly rent and management fee of KRW 33,50,000 (excluding value-added tax) and KRW 33,50,000 (excluding value-added tax), and from March 1, 2006 to December 31, 2007.

B. On January 25, 2006, the Plaintiff entered into a lease agreement with the Defendants under which the fiveth floor on the ground of the instant building is leased KRW 100 million, monthly rent of KRW 5,200,00 (excluding value-added tax), and the lease period from February 1, 2006 to December 31, 2007. At that time, the Plaintiff paid KRW 100 million to the Defendants.

C. Under each of the above lease agreements, the Plaintiff entered into a lease agreement with the Defendants on December 5, 2007, with the following: (a) the lease deposit amount of KRW 1 billion; (b) the monthly rent of KRW 27,712,500 (excluding value-added tax); (c) the lease deposit amount of KRW 1 billion; (d) the lease deposit of KRW 27,712,500 (excluding value-added tax); (e) the lease deposit of KRW 100,00,00 (excluding value-added tax); and (e) the lease deposit of KRW 5,00,00 (excluding value-added tax); and (e) the lease deposit of KRW 6,540,00 (excluding value-added tax); and (e) the lease period of KRW 10,00,00,000 from January 1, 2008 to December 31, 209.

[Reasons for Recognition] Facts without dispute, each entry of Gap evidence 1 to 3 (including the number of each branch; hereinafter the same shall apply)

2. Determination

A. Determination on the cause of the claim

The Plaintiff entered into each of the instant lease agreements with the Defendants and paid a total of KRW 1.1 billion. As seen earlier, each of the instant lease agreements is terminated on December 31, 2009 with the expiration of the period of validity on December 31, 2009 (Notwithstanding the expiration of the period of validity on December 31, 2009, even if each of the instant lease agreements was explicitly renewed, each of the instant lease agreements, claiming the payment of the lease deposit, based on the termination of each of the instant lease agreements, is deemed terminated upon delivery to the Defendants on September 13, 2010, barring any special circumstance.) The Defendants, as a co-lease, have the obligation to pay each of the instant lease agreements to each of the Defendants the remainder of the lease deposit,09,084,170,109,1000,000 won after deducting the Plaintiff’s use and benefit from each of the instant lease contracts until February 16, 2011 (i.e., the remaining lease deposit amount (i., the Plaintiff).

B. Determination as to the defendants' assertion

1) Whether Defendant 2 and Defendant 3 are parties to each of the instant lease agreements

Defendant 2 and Defendant 3 asserted that only Defendant 1 was the party who entered into each of the instant lease agreements with the Plaintiff, and that Defendant 2 and Defendant 3 were not the party to each of the instant lease agreements.

According to the statement No. 2-1 and No. 2 of each of the lease agreements of this case, although it is recognized that only Defendant 1’s name was entered and only his seal was affixed to the lessor at the end of each of the lease agreements of this case, the following circumstances are indicated as follows, namely, “Defendant 1 and two others” as the lessor at the upper end of each of the lease agreements of this case, and each of the lease agreements of this case was written as “Defendant 2 and two others.” The lessor at the end of September 5, 2005 prior to each of the lease agreements of this case was written as the Defendants’ all and the three seals were affixed. The lessor at the end of each of the lease agreements of this case was written as of Jan. 25, 2006, each of the lease agreements of this case was renewed, and Defendant 2 and Defendant 3 did not have any special reasons for excluding Defendant 3’s co-owners.

2) Whether the Plaintiff consented to the succession of the status of the lessor of SamchiC

A) The defendants' assertion

The Defendants asserted that CCCC has no obligation to refund the lease deposit, since they succeeded to the status of a lessor under each of the instant lease agreements from the Defendants, and the Plaintiff also consented to the succession to the status of a lessor.

B) Whether the status of the lessor of C&C is succeeded

According to Gap evidence Nos. 3, 15, 6, and 7, there is no dispute between the parties, or according to the defendants' statements, on February 13, 2008, the defendant sold the building and each of the land in the building in this case and its location to Sam CCCCC in the purchase price of KRW 39,080,101,00 (the value-added tax on the purchase price of the building part (2,59,69,000)). The defendants are obligated to return the lease deposit at the time of the sale, but the defendants are obligated to return the lease deposit. However, on May 13, 2008, after deducting the amount equivalent to the deposit money under each of the lease contracts in this case from the purchase price and to take over the obligation to return the lease deposit under each of the lease contracts in this case. Accordingly, the defendants were not paid the lease deposit under each of the above lease contracts to Sam CCCCCCC in accordance with the above sale contract.

According to the above facts, the purchaser of the building, etc. of this case and the Defendants, the seller, agreed to take over the obligation to return the lease deposit for the object of sale, etc., and to deduct the amount of debt from the purchase price. C&C agreed to succeed to the status of the lessor under each lease agreement of this case from the Defendants.

C) Whether to accept the Plaintiff’s consent

Where the buyer of a real estate takes over the obligation to return a lease deposit with respect to the subject matter of sale and the buyer agrees to deduct the amount of the debt from the purchase price, such acquisition shall be deemed as an acceptance of performance, not an obligation to exempt the seller, unless there are special circumstances, and in order to see the lessee as an obligation to assume the obligation with immunity, the lessee’s consent must be required. In this case, the lessee’s consent is not necessarily required to be explicitly expressed, but it is possible by implied declaration of intention, but it is also possible by an implied declaration of intention to accept the obligation to return the lease deposit. However, whether a certain act of the lessee constitutes an implied declaration of consent to the repayment of the lease deposit should be carefully determined by taking into account all the circumstances including the objective possibility of recovery of the lease deposit at the time of the act (see Supreme Court Decision 2008Da39663, Sept.

According to the reasoning of the judgment below, Defendant 1 and Defendant 1 and Defendant 2, Defendant 1 and Defendant 1 and Defendant 2, Defendant 1 and Defendant 1 and Defendant 1 and Defendant 2 were notified of the following facts: Defendant 2 and Defendant 1 and Defendant 1 and Defendant 2 were notified of the following facts: Defendant 3 and Defendant 1 and Defendant 2 were to be returned of each of the lease agreements at the time of the conclusion of the instant lease agreement on February 13, 2008, and Defendant 3 and Defendant 2 were to have purchased the instant building on February 29, 2008. Defendant 1 and Defendant 2 were to have purchased the instant lease agreement at KRW 7,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00,00.

In addition to the above facts of recognition, the aforementioned facts and evidence Nos. 8 through 13 can be comprehensively seen as follows; in other words, the notice No. 3 C&C on February 9, 2009 and September 17, 2009 of C&C, respectively, succeeded to the status of the Defendants’ lessor. However, the Plaintiff did not raise any objection against C&C and the Defendants, and rather, C&C were to pay rent monthly rent to C&C only after June 2008, and at least KRW 1,70,000, C&C acquired the status of C&C lessee from C&C, which was not the Defendants, with the exception of KRW 1,70,000,000, and KRW 1,000,000, KRW 3,000,00,000, KRW 1,300,000,000, KRW 3,000,00,00,00.

C. Sub-decision

Ultimately, the Plaintiff’s assertion seeking the return of lease deposit to the Defendants is without merit, on the premise that the Defendants still have a lessor’s status even after the Defendants transferred the ownership of the instant building to SamchiCC.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is dismissed in its entirety as it is without merit. Since the part against the defendants in the judgment of the court of first instance is unfair in its conclusion differently, the defendant's appeal is accepted, while the court of first instance decides to change the part against the defendants in the judgment of the court of first instance, including the plaintiff's claim against the defendants altered in the trial, and it is so decided as per Disposition.

[Attachment]

Judges Kim Yong-open (Presiding Judge)