(영문) 서울중앙지방법원 2013.12.30. 선고 2013가단57434 판결

(a) deliver the attached Form No. 1, (2), (3), (4), (5), (6), (7), and (1) the part inside the ship, which connects each point, to the second floor of the real estate indicated in the attached Form No. 128.12 square meters;

(b) pay 31,142,627 won and the interest thereon at each rate of 6% per annum from September 4, 2013 to December 30, 2013 and 20% per annum from the following day to the date of full payment;

C. From March 29, 2013 to the date the delivery as described in the above A is completed, the amount of money calculated at the rate of KRW 3,845,179 per month shall be paid.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 30% is borne by the Plaintiff, and 70% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall provide the plaintiff with the money calculated at the rate of 20% per annum from March 29, 2013 to March 29, 2013 to the day of complete payment, and shall pay the money calculated at the rate of 4,774,332 won per annum from March 29, 2013 to the day of complete payment, and the money calculated at the rate of 4,175.179 won per month from March 29, 2013 to the day of complete delivery.

Reasons

1. Facts of recognition;

A. On October 22, 199, the Defendant leased the instant private teaching institute from C with the lease deposit of KRW 35,000,000, monthly rent of KRW 800,000 (after December 30), the lease term of KRW 1 to November 30, 1999 (hereinafter “former lease”).

B. The Defendant continued to renew the above lease agreement and operated the Dental Institute. The Plaintiff purchased the instant building from C and completed the registration of ownership transfer in the name of the Plaintiff on August 10, 201.

C. On November 2001, 200, the Plaintiff entered into a lease agreement with the Defendant with each of the following terms: (a) deposit KRW 50,000,000, monthly rent of KRW 2,000,000 (value added tax, KRW 30,000 per month); (b) lease period of KRW 2001, November 18, 2001; and (c) lease period of KRW 12 months.

A person shall be appointed.

D. The Defendant occupies and uses the instant private teaching institute even by the closing date of pleadings of the instant case with unpaid amounts exceeding three months during the period of the first to seventh lease, as well as the period of the eighth lease.

E. Meanwhile, around November 3, 2011, the Plaintiff urged the Defendant to pay the monthly rent, etc. sealed between them, and sent a certificate of content that the Plaintiff would be aware that the Plaintiff did not have any contact until November 7, 2011.

[Ground for Recognition] Facts without dispute, Gap evidence 1-1, 2-2, Gap evidence 2-3, Gap evidence 4-1, 2-2, Gap evidence 5-1, 2, 3, 4, 5, 6, 7, and 8, and the purport of the whole pleadings

2. Determination as to the request for extradition

(a) Termination of lease and occurrence of obligation of delivery;

According to the premise facts, since the lease contract of Article 8 was terminated upon the expiration of the period from November 17, 201, which is the expiration date of the lease term (the plaintiff sent a certificate that contains the plaintiff's expression of intent to terminate the lease due to the defendant's default on rent, on November 2, 2011, and on November 5, 201, the expiration date of the reasonable period from which the plaintiff's expression of intent to terminate the lease was lawfully terminated and terminated, it is difficult to say in the premise that the purport of the content certification is the expression of intent to terminate the lease on the ground of default on rent. However, the plaintiff is seeking a monthly rent, etc. from November 17, 201, along with the request for the delivery of the lease term to the plaintiff, and the defendant is obligated to deliver the lease property of this case to the plaintiff (the lease property of this case).

B. The defendant's simultaneous performance defense and the plaintiff's second defense

The defendant set up a defense for simultaneous performance of the lease deposit amounting to 50,000,000 won, and the plaintiff's obligation to return the lease deposit and the defendant's obligation to deliver the private teaching institute of this case are in the simultaneous performance relationship.

As to this, the plaintiff re-appeals that the lease deposit does not remain after all deductions due to the defendant's unpaid monthly rent, etc.

In the lease contract, the lease deposit guarantees all the obligations of the lessee with respect to the lease arising from the lease after the termination of the lease contract until the delivery to the lessor, and the secured obligations include the obligations related to the management fees, water supply fees, electricity fees, etc. that have arisen during the use and profit-making of the lessee, and is naturally deducted from the deposit without any separate declaration of intention (see, e.g., Supreme Court Decision 2005Da8323, 830, Sept. 28, 2005), and 3.b. (5) and (c), as seen in the corresponding column of paragraph (c), 50,000,000 won of the lease deposit by the defendant is deducted from all the obligations of the defendant. Therefore, the plaintiff's re-claim has merit, and the defendant's simultaneous performance claims have become groundless.

3. Determination on the claim for KRW 44,774,32 and damages for delay

A. The plaintiff's assertion

The plaintiff asserts as follows, and the defendant's lease deposit was deducted from the defendant's unpaid monthly rent, etc. Rather, the defendant is obligated to pay the remaining debt amount of 44,774,32 won and delay damages from the day after the delivery date of the complaint of this case after deduction to the plaintiff.

A person shall be appointed.

B. The scope of the Defendant’s obligations until February 17, 2012 and the balance of the lease deposit after deduction.

(1) Unpaid monthly rent, etc. under the former lease agreement

The plaintiff asserts that from August 2001 to November 2001 (including value-added tax on November 17, 2001), the total sum of KRW 3,180,000 of unpaid monthly rent (including value-added tax) was deposited in only KRW 540,540,000, and the defendant claimed that all of them were paid.

In full view of the purport of Gap evidence 5-1 and Eul evidence 4-1 and Eul evidence 4-2 and the whole arguments, the plaintiff did not have any indication that there remains unpaid monthly rents under the former lease agreement between the defendant and the former owner C at the time of filing the lawsuit in this case. The defendant paid 540,000 won in cash for the monthly rent on August 30, 2001 between the plaintiff and the defendant. Meanwhile, the first lease agreement was concluded on November 20, 2001 between the plaintiff and the defendant with the commencement date of the lease term of November 18, 2001. However, the defendant paid 1,00,000 won to the plaintiff on February 19, 2002 as part of the monthly rent of December 19, 2001. In light of the above recognition of the above lease agreement, it is reasonable that the plaintiff did not pay 1,000,000 won in cash for the first time between the plaintiff and the defendant.

(2) Monthly rent, value-added tax, management expenses until the expiration date of the 8 lease period.

Unless there are special circumstances, an obligor who has delayed the performance of a monetary obligation bears the obligation to pay damages at least at a statutory rate (Article 397 of the Civil Act). This is likewise applicable to a lease agreement for which the payment date of monthly rent is fixed. Thus, if a lessee delays the payment of monthly rent, management fee, etc., and the amount paid is insufficient to cover the principal and interest, and there is no special agreement on the appropriation of performance, the method of statutory appropriation of performance under the Civil Act, i.e., compensation for delay,

In full view of each of the statements and arguments in Eul evidence 4-2, Eul 5, 6, and 7 and the whole purport of the pleadings, the specific details of the amount paid by the defendant as the name of monthly rent, value-added tax, management expenses, etc. from February 19, 2002 to the expiration date of the lease period from February 8, 2002 are acknowledged as having the same facts as the amount in the column of the repayment amount out of the attached sheet (it is not evidence that the defendant claimed that he paid the above amount in excess of the amount in the column of the repayment amount out of the attached sheet, but there is no evidence that it is deemed that he paid the above amount in excess of the amount in the column of the repayment amount out of the attached sheet). The defendant's monthly rent, value-added tax, management expenses, etc. of the defendant who recognized the above amount by the expiration date of the lease period from November 17, 2011, which is the expiration date of the eight lease period.

(3) Water charges and septic tanks charges until the expiration of the 8-term lease period.

The Plaintiff asserted that the Defendant paid KRW 10,000 per month (120,000 per year) and KRW 2,500 per month of the septic tank fees (30,000 per year) but the Plaintiff did not pay it on behalf of the Plaintiff, and that the Plaintiff did not pay it on a 10-year basis. The Plaintiff asserted that the total amount exceeded KRW 1,50,000 per year. The Defendant asserted that the remainder, excluding the water rate and the water rate of KRW 100,00,00, out of the water rate and the septic tank fees claimed by the Plaintiff, was paid in cash.

The plaintiff's assertion that Gap evidence 8-1, 2, 3, 4, 5, 11, 12, 13, and 14, 15-1, 2, and 16-1, 18-2 of Gap evidence 18-1, 2, and 18-2 cannot be viewed as the plaintiff's substitute payment of the water rate and septic tank charges to be borne by the defendant, and the tenant of the building of this case stated that Eul bears a direct burden because the tenant of the water rate and septic tank are walking, and the tenant of the building of this case bears a burden directly. The plaintiff's assertion that the defendant paid the purification charges for 2012, 12, 13, and 14, 15-1, 2, and 18-1, and 2 cannot be viewed as the plaintiff's substitute payment of the purification charges for 10 years, but the plaintiff's assertion that the plaintiff's direct payment of the purification charges for 10 years after the expiration of the purification period.

(4) Unjust gains from November 18, 201 to February 17, 2012

The Plaintiff asserts that the Defendant, from November 18, 201 to February 17, 2012, as of the day following the expiration date of the lease term of Article 8, obtained unjust enrichment of the amount of KRW 2,322,50 in total each month, including rent of KRW 2,00,000, management fees of KRW 100,000, and value-added tax of KRW 210,000, water supply fees of KRW 10,000, and KRW 2,500, under the lease agreement of Article 8.

In the event that an amount equivalent to the value-added tax on the rent for a lease is returned as unjust enrichment due to continuous possession after the termination of the lease agreement, if there is an agreement under which the lessee would bear the amount equivalent to the value-added tax on the rent for the lease under the previous lease agreement, barring any special circumstance, it is reasonable to deem that the lessee who continues to possess the amount equivalent to the value-added tax on the rent for the rent paid as unjust enrichment should also bear the burden of the lessee, barring any special circumstance (see Supreme Court Decision 2002Da38828, Nov. 22, 2002). The lessee shall be deemed to bear the liability due to the nature of the lease relationship, unless there exist special circumstances, such as that the lessee agreed otherwise in the lease agreement, for the use and profit-making of the leased object, during the period of returning the leased object after the termination of the lease agreement. (See Supreme Court Decision 2005Da8323, Sept. 28, 2005).

According to the premise facts and the purport of the oral argument, the monthly rent of KRW 2,00,00 is KRW 10,00,000 for the monthly rent of KRW 100,00 for the monthly rent of KRW 3 months, and the value-added tax for the monthly rent of KRW 10,00 for the Defendant was assessed against the Defendant (excluding value-added tax on the management expenses). Meanwhile, since the Defendant’s monthly rent of KRW 10,00 for the water to be borne by the Defendant and the purification tank fee of KRW 2,50 for the purpose of occupying and using the instant private teaching institute, unjust enrichment of KRW 2,312,50 for the Defendant’s monthly rent of KRW 10,00 for the management expenses + KRW 100,000 for the monthly rent of KRW 100 for the management expenses + KRW 10,500 for the purification expenses of KRW 2,500 for the aforementioned 3 months is the unjust enrichment of KRW 6,937,500 for the Defendant

(5) The balance of the lease deposit after the deduction

As seen above, up to February 17, 2012, the Defendant’s obligation is KRW 47,483,560 (=40,446,060 + KRW 100,00 + KRW 6,937,500 + KRW 6,500). However, according to the evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence Nos. 8,8,00,000 on November 30, 201; KRW 4,00,000 on December 31, 201; KRW 13,00,000,000 on January 20, 201; KRW 13,00,000,000 on the aggregate of KRW 13,50,000,000 on the remainder of the Defendant’s obligation is KRW 348,56,005,305,00 on the remainder of the lease deposit (=136,504,04000,05,0405).

If the Defendant deducts the Defendant’s obligation from February 17, 2012, the Plaintiff asserts that unjust enrichment that the Defendant earned every month is the sum of KRW 3,486,527 in a state in which no deposit is available, management expenses, 300,000, each value-added tax of KRW 378,652, and the water rate of KRW 10,00 in total, KRW 4,175,179 in a state in which no deposit is available to the Defendant.

According to the court's appraisal commission of this case, since the above 8th 18 November 18, 201 requires expenses, namely, depreciation costs, maintenance expenses, taxes and public charges (fixed assets tax, urban planning tax, fire-fighting facility tax, etc.), bad debts, etc. are 3,486,527 won per month if there is no security deposit for lease, and 2,736,527 won per month if the security deposit for lease remains 50,000 won (3,486,527 - 50,000 won per annum 16.5% per annum) of the above 14th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 14th 6th 6th 6th 6th 6th 17th 2012 6th 3th 6th 15th 6th 6th 24th 6th 24th 6th 6th 2.

D. The scope of the defendant's obligation to pay

Therefore, the Defendant is obligated to pay the Plaintiff the amount of KRW 31,142,627 with the remaining unjust enrichment after deducting the lease deposit and the damages for delay calculated at the rate of 6% per annum under the Commercial Act from September 4, 2013 to December 30, 2013, which is the day following the day when a copy of the application for extension of claim and alteration of the cause of claim, as of August 28, 2013, which was the day when the Defendant served on the Defendant, for the extension of claim and alteration of the cause of claim, as of August 28, 2013.

4. The portion of the claim for unjust enrichment from March 29, 2013 to the date of India

The plaintiff asserts that unjust enrichment earned by the defendant every month is KRW 3,486,527, KRW 300,00 for management expenses, KRW 378,652 for each value-added tax, and KRW 4,175,179 for the aggregate of KRW 10,00 for water supply fees.

3. As seen in paragraph (c) of the same Article, since the Defendant’s lease deposit remains as the Defendant’s debt deduction, the Defendant received unjust enrichment of the sum of KRW 3,845,179 (=3,486,527 x 1.1 + the water rate of KRW 10,000 (the Plaintiff is also seeking management fees and the value-added tax, but is already included in the above monthly rent as seen in paragraph (c) of this Article, the Defendant’s share of KRW 3,486,527 in a state in which the Plaintiff did not have this lease deposit, and its value-added tax, and KRW 3,85,179 in a sum of the water rate of KRW 10,000 (=3,486,527 x 1.1 + the water rate of KRW 10,000).

Therefore, the Defendant is obligated to return unjust enrichment calculated by the ratio of KRW 3,845,179 per month from March 29, 2013 to the delivery date of the instant private teaching institute, as the Plaintiff seeks.

5. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Park Jae-sung

Note tin

1) The remaining lease deposit actually asserted by the Plaintiff is KRW 2,10,072 when calculating the amount of KRW 4,867,428. This is because the remaining lease deposit is KRW 4,857,428 in the course of calculating the amount of KRW 4,827,428 (=4,857,428 - 4,827,428) was insufficiently counted.

Attached Form

A person shall be appointed.

참조조문

참조판례

-대법원 2002. 11. 22. 선고 2002다38828 판결

-대법원 2005. 9. 28. 선고 2005다8323, 8330 판결

유사 판례

-서울북부지방법원 2019.02.15 2018가단17768

-서울중앙지방법원 2014.12.11 2014가단186162

-울산지방법원 2020.06.19 2019가단124214

-서울동부지방법원 2018.08.17 2018가단5783

-서울북부지방법원 2017.07.07 2017가단1308