[1] In a case where a lessee has provided an explanation of a building without fulfilling his/her duty to restore the small amount of lease deposit, whether the lessor may exercise his/her right to defense of simultaneous performance against which he/she refuses to return the large amount of lease deposit (negative)

[2] The case holding that the lessor cannot exercise the right of defense of simultaneous performance against the repayment of the remaining lease deposit amount of KRW 125,226,670 on the ground that the lessor could not exercise the right of defense against the simultaneous performance, in case where the lessee provided the order of the building to perform the order without restoring the electric facilities requiring the deposit amount of KRW 326,00 to the original state

[1] The right to defense of simultaneous performance is fundamentally recognized in accordance with the concept of fairness. It is unfair that a lessor may refuse to return a large amount of remaining lease deposit until the lessee performs his/her duty of restoration until the lessee performs his/her duty of restoration, and it goes beyond the portion of damages due to nonperformance until the lessee performs his/her duty of restoration, or until the lessor receives an order of restoration due to the reality, it goes against the concept of fairness, and thus it is unreasonable that a lessor's defense of simultaneous performance is contrary to the principle of good faith. Such defense of simultaneous performance is not permissible.

[2] The case holding that the lessor cannot exercise the right of defense of simultaneous performance against the repayment of the remaining lease deposit amount of KRW 125,226,670 on this ground where the lessee provided the order of the building without restoring to the original state the electric facilities requiring the deposit amount of KRW 326,00.

[1] Articles 2, 536, 615, and 654 of the Civil Act / [2] Articles 2, 536, 615, and 654 of the Civil Act

[1] Supreme Court Decision 73Da584 delivered on October 12, 1976 (Gong1976, 9387) Supreme Court Decision 91Da2972 delivered on April 28, 1992 (Gong1992, 1698)

Plaintiff (Attorney Kim Jung-chul et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Dong-soo, Counsel for defendant-appellant)

Daegu High Court Decision 98Na5471 delivered on May 27, 1999

The part of the lower judgment against the Plaintiff is reversed and remanded to the Daegu High Court. The Defendant’s appeal is dismissed.

1. We examine the defendant's grounds of appeal.

According to the reasoning of the judgment below, the court below determined that the non-party leased the 143.64 square meters of the 1st floor (62.32 square meters of a retail store, 43.7 square meters of a house, 37.62 square meters of a parking lot; hereinafter the same shall apply) among the 3rd floor in Daegu-gun, Daegu-gun, which is owned by the defendant, from the defendant, and decided to restore the original part of the building at the time of the termination of the lease contract after using the original part of the building as the store. The plaintiff acquired the part of the building in this case from the defendant who leased the building in this case and used it as it was at the time of the termination of the lease contract in this case, and did not restore the building in this case to its original condition while ordering the defendant to restore it to its original condition. Thus, the court below erred in the misapprehension of the legal principles as to the defendant's defense that the amount should be deducted from the lease deposit to the plaintiff.

2. We examine the Plaintiff’s grounds of appeal.

A. As to the Plaintiff’s ground of appeal No. 1

According to the reasoning of the judgment below, the non-party, who is the lessee of the building of this case, agreed to restore electricity facilities with 3KW originally leased the building of this case from the defendant to 10KW at the time of termination of the lease contract. The plaintiff agreed to restore electricity facilities extended by the non-party at the time of lease of the building of this case from the defendant to the original original state at the time of termination of the lease contract. The plaintiff did not restore the expanded building of this case to the original state at the time of termination of the lease contract of this case. The plaintiff did not order the defendant to restore the expanded electric facilities until the order of the defendant, and the amount of KRW 326,00 should be deducted from the lease deposit to be returned to the plaintiff. Considering the relevant evidence after examining the records, the fact finding by the court below is just, and there is no violation of law of misunderstanding of facts due to the violation of the rules of evidence as discussed by the plaintiff. The plaintiff's ground of appeal No. 1 is without merit.

B. As to ground of appeal No. 2 by the Plaintiff

Where a building lease contract is terminated, the lessor’s obligation to restore the object to the lessor and return it to the lessor, and the lessor’s obligation to return the remainder of the lease deposit to the lessee by deducting the lessee’s obligation to restore the leased object and the damage claim, etc. up to the performance of the duty to specify the building. In principle, even if the lease contract is terminated, the lessee may refuse to return the object to the lessor by restoring it to the lessor, or the lessor may refuse to return the lease deposit by exercising his/her right to defense of simultaneous performance, and the lessor is not liable to delay the performance of the obligation to return the lease deposit

In addition, according to the court below's duly admitted, the plaintiff in this case bears the duty to restore the electricity facilities extended by the non-party to the defendant and return the part of the building of this case to the defendant. Thus, even if the plaintiff requested that the plaintiff prepare the order by entering the house located in the part of the building of this case and return the key of the building of this case after the termination of the lease contract of this case, if the plaintiff did not restore the electricity facilities extended by the plaintiff to the original state and provided the above obligation to explain, then it is difficult to deem that it is a legitimate performance in principle, and therefore, it is reasonable to refuse to accept it and refuse to return the lease deposit by exercising the right to defense of simultaneous performance.

However, according to the court below's duly admitted, the remaining lease deposit amount of KRW 125,226,670 (the amount calculated by deducting the overdue rent of KRW 24,00,000 from the original lease deposit of KRW 150,000 and the public charges of KRW 773,30,00 from the overdue rent of KRW 150,000) that the defendant should return is less than the owner, and even if examining the record, it is difficult to view that the right to defense of simultaneous performance is recognized in accordance with the concept of fairness because the above electrical facilities were not restored to the original state, thereby hindering the ordinary use of the building. Thus, the duty to restore the non-performance of the tenant is insignificant, and the amount of damages therefrom is also minor, and it is reasonable to view that the lessor's repayment of the remaining portion is in violation of the principle of trust and good faith until the lessee performs the duty to restore it, and it is reasonable to permit the lessor to return the remaining portion of the building as a result of simultaneous nonperformance.

Nevertheless, after the termination of the lease agreement of this case on December 8, 1997, the court below failed to restore the above electricity facilities of this case and prepared the order to return the key of the building of this case and demanded the defendant to return the lease deposit. However, the defendant refused the plaintiff's request while requesting the restoration of the key of the building of this case. The defendant, while refusing the above electric facilities on November 2, 1998, did not restore the above electric facilities to the original state and ordered the order of the building of this case. According to the recognized facts, the plaintiff did not restore the building of this case to the original state and provided the defendant with the duty of explanation of the part of the building of this case without restoring the original state to the original state. Thus, it cannot be said that the provision of the performance was lawful, and therefore, the defendant's obligation to pay the remainder of the lease deposit of this case by November 2, 1998. Thus, the court below erred in the misapprehension of legal principles as to the plaintiff's right to lease deposit.

3. Therefore, the part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the court below. The defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-sik (Presiding Justice)