Plaintiff (Law Firm LLC, Attorneys Ba-soo et al., Counsel for the plaintiff-appellant)

Defendant (Lihee, Counsel for defendant-appellant)

January 23, 2013

1. The defendant shall pay to the plaintiff 42,00,000 won with 5% interest per annum from September 13, 2012 to February 6, 2013, and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 3/5 shall be borne by the defendant and the remainder by the plaintiff.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 5,164,00 won with 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of full payment.

1. Basic facts

The following facts may be acknowledged, either in dispute between the parties or in full view of the statements in Gap evidence 1 through 5 (including additional numbers), Eul evidence 1-1, and all the arguments.

A. On July 2, 2012, the Plaintiff paid the deposit deposit of KRW 52,00,000,000 on the date of the contract, and pays the remainder of KRW 468,000,000 on August 5, 2012. The lease term is determined from August 5, 2012 to August 4, 2014 (hereinafter “the lease of this case”). The lease term is determined from August 5, 2012 to August 4, 2014 (hereinafter “the lease of this case”).

B. The Plaintiff and the Defendant agreed that when the lessor or the lessee fails to fulfill the lease contract in the instant lease, the other party may notify the lessor or the lessee in writing and cancel the contract, claim damages arising from the cancellation of the contract, and claim the down payment as the basis for compensation for damages (Article 6 of the

C. On July 19, 2012, the Plaintiff: (a) performed the service on the leased object; (b) spent KRW 2,800,000 at its expense; and (c) performed cleaning around the 28th day of the same month; and (b) spent KRW 364,000 at its expense.

D. The Plaintiff paid 52,00,000 won the down payment of the instant lease to the Defendant, but did not pay the remainder on August 5, 2012, which is the remainder payment date.

E. On August 8, 2012, the Plaintiff intended to move into the leased object. However, the Defendant opposed to the Defendant, and the Defendant’s wife was unable to move into the leased object, and the Defendant’s wife could not move into the leased object.

F. Since then, there was no discussion between the Plaintiff and the Defendant on the lease of this case, and on August 30, 2012, the Defendant notified the Plaintiff of the termination of the lease of this case on the grounds of the Plaintiff’s nonperformance of the obligation to pay the remainder.

2. The assertion and judgment

The Plaintiff tried to move into the leased object without preparing any balance on August 8, 2012, which was three days after the payment date of the remainder of the lease of this case, but the Defendant refused to comply with the lessor’s duty to deliver the leased object, and accordingly, the lease of this case was cancelled. As such, the Defendant returned KRW 52,00,000, which was paid as the deposit for the lease of this case, to the Plaintiff as unjust enrichment, and the Plaintiff should compensate the Plaintiff for damages incurred by the Plaintiff’s disbursement of KRW 364,00,00 for the lease of this case.

In light of the fact that the plaintiff's husband and the defendant's wife did not move into the object of the lease of this case on August 8, 2012, it is interpreted that the plaintiff's husband and the defendant's wife agreed to cancel the lease of this case as the representative of the plaintiff and the defendant, respectively, in light of the situation that the plaintiff did not attempt to move into the object of the lease of this case and the defendant did not demand the payment of the lease deposit.

However, as to the cause for cancellation of the lease of this case, the Plaintiff asserted that the Plaintiff prepared the remainder on August 8, 2012 and did not perform the obligation to provide the leased object while refusing to receive the remainder, despite the lapse of three days from the payment date of the remainder, but the Plaintiff intended to move into the leased object under the condition that the lease of this case was not rescinded, but did not perform the obligation to provide the leased object. However, in full view of the Plaintiff’s assertion that the Plaintiff prepared the remainder, it is difficult to believe that the entry of the evidence No. 6, which corresponds to the Plaintiff’s assertion, and there is no other evidence to acknowledge it, and rather, the Plaintiff appears to prevent the Defendant from moving into the leased object without preparing the remainder of the lease deposit as of August 8, 2012, and thus, the cause for termination of the lease of this case was the lessee’s default of the obligation to pay the remainder, and if the Plaintiff’s remainder of the lease deposit was paid in public room, it cannot be said that the Defendant maintained the obligation to deliver it to the Defendant.

Thus, the plaintiff's assertion of damages on the premise of the defendant's non-performance under the lease of this case is without merit.

In addition, according to the above facts, the plaintiff and the defendant estimated 52,00,000 won, the down payment of 52,00,000 won, the down payment of 52,00,000 won, which is the down payment, from the lease of this case, as long as the lease of this case was cancelled due to the plaintiff's failure to perform his obligation to pay the remainder, is in principle confiscated to the defendant. However, considering the situation that the lease of this case was cancelled 30,000,000 from the payment date of the remainder, the above estimated amount of damages is excessive unfairly. Thus, the amount of damages should be reduced pursuant to Article 398 (2) of the Civil Act to determine the appropriate amount of damages as 10

Ultimately, the defendant is obligated to return 42,00,000 won exceeding the above damages amounting to 10,000,000 won out of 52,00,000 won as down payment to the plaintiff as unjust enrichment. After receiving a claim for refund through service of the copy of the complaint of this case as to the above money, the defendant is obligated to pay damages for delay calculated at each rate of 20% per annum under the Civil Act from September 13, 2012, the day following the delivery date of the copy of the complaint of this case until February 6, 2013, which is deemed reasonable for the defendant to resist the existence and scope of the obligation, as the plaintiff seeks.

On the other hand, the defendant argued that two preceding lights of the family was damaged while the plaintiff removed the facilities installed in the leased object, and that the defendant should be compensated for the above damages because it was damaged by the brokerage commission of the lease of this case, but all of the above damages are included in the amount of damages agreed upon. Thus, the defendant cannot claim additional damages in addition to the agreed damages. Thus, this part of the defendant's assertion is without merit.

3. Conclusion

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

Judges Lee Jin-jin