In case where a lessee is unable to use an object at all due to a lessor’s failure to perform his/her duty to use or profit from the object in a lease agreement, whether the lessee may refuse to pay the whole rent (affirmative)

Article 618 of the Civil Act

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

Plaintiff (Law Firm Han, Attorneys Kim Jong-ho et al., Counsel for plaintiff-appellant)

Defendant

Seoul Central District Court Decision 2008Na29481 Decided April 30, 2009

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. The plaintiff's appeal is dismissed.

1. Judgment on the Plaintiff’s appeal

The plaintiff did not state the grounds for appeal in the petition of appeal, and did not submit the appellate brief within a legitimate period.

2. Judgment on the Defendant’s grounds of appeal

Since the duty of the lessor to use and make profits from the object in a lease agreement and the duty of the lessee to pay rent for a rent is in a mutually responding relationship, if the lessor is unable to use the object at all due to his/her failure to perform his/her duty to use and make profits from the object, the lessee may refuse to pay the rent in full (see, e.g., Supreme Court Decisions 8Da1332, 1349, Jun. 13, 1989; 96Da4778, 44785, Apr. 25, 197).

According to the facts acknowledged by the court below and the records, since January 1, 2003, the period of this case's store owned by the plaintiff was set as one year, and the contract was renewed every year as a golf-specialized store. The defendant was unable to pay monthly rent from March 2005, the plaintiff was temporarily set up in the store of this case with corrective devices around October 2005 and entered the store of this case. The plaintiff was temporarily set off with corrective devices and entered the store of this case. The plaintiff was immediately placed in the store of this case. The plaintiff was placed in the corrective devices again in this case, and the condition was continued not only until December 31, 2005 but also thereafter.

Examining these facts in light of the legal principles as seen earlier, the Plaintiff, around October 2005, was unable to use and benefit from the store of this case by using the correction device at the store of this case. Thus, the Defendant may refuse to pay rent during that period.

Nevertheless, the lower court determined otherwise, on the ground that it is difficult to view that the Plaintiff’s use of the correction device in the instant store to prevent the Defendant from running its business by using the instant store, and that the Defendant was liable to pay the Plaintiff arrears corresponding to the period from October 2005 to December 31, 2005. Therefore, the lower court erred by misapprehending the legal doctrine on the lease agreement, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating

Justices Kim Young-ran (Presiding Justice)