(a) The case holding that the judgment of the court below which rejected the buyer's claim for return of unjust enrichment against the lessee on the ground that the buyer took over the seller's obligation to return the lease deposit and the above obligation and the name of the building are persons in the simultaneous performance relationship, does not go against the party disposition right or the principle of pleading

(b) Whether it is effective as a repayment in cases where a letter of confirmation that a building was ordered to be ordered is attached to the deposit for repayment of the lease deposit in the simultaneous performance relationship with the name of the building (negative)

(c) The case holding that the court's measures not receiving an application for resumption of pleadings for submission of useful and non-defensive defenses are not incomplete;

(d) Whether it is illegal unless the appellate court mentions the validity and maintenance of a provisional execution declaration in the appellate court

(a) The case holding that the judgment of the court below which rejected the buyer's claim for return of unjust enrichment against the lessee on the ground that the buyer, at the time of purchasing real estate in the complaint, stated that the seller agreed to pay the lease deposit from the lessee to the lessee at the same time after the expiration of the lease period by subrogation of the seller from the purchase price, and that the buyer's acceptance of the above lease deposit and the above obligation and the name of the building are in the simultaneous performance relationship, does not

B. If, in making a deposit for the repayment of the lease deposit in the simultaneous performance relationship with the name of the building, the letter of confirmation that the building was ordered was attached to a counter-performance condition, the above deposit for repayment shall be deemed to have been subject to prior performance of the name of the building. Therefore, it shall be deemed that there is no validity of the repayment.

(c) The case holding that the court's measures not receiving an application for resumption of pleadings for submission of useful and non-defensive defenses shall not be incomplete.

(d) The declaration of provisional execution is naturally effective unless the appellate court has declared that provisional execution or the judgment on the merits is modified, and it cannot be deemed unlawful on the ground that the court below did not mention whether it is valid or not.

A. Article 188 of the Civil Procedure Act: Articles 487, 491, and 536 of the Civil Act; Article 9 of the Deposit Act; Articles 132 and 183(d) of the Civil Procedure Act; Article 201 of the same Act

B. Supreme Court Decision 78Nu378 delivered on October 30, 1979 (Gong1980, 12350), 84Da77 delivered on April 10, 1984 (Gong1984, 816), 90Da9872 delivered on April 12, 1991 (Gong1991, 1368) (Gong1368 delivered on July 24, 1979)

[Judgment of the court below]

Defendant-Appellee et al., Counsel for the defendant-appellee

Seoul High Court Decision 91Na355 delivered on June 25, 1991

Each appeal by the plaintiff and the defendant is dismissed.

The costs of appeal shall be assessed against each appellant.

1. We examine the Plaintiff’s attorney’s grounds of appeal.

(1) According to the reasoning of the judgment below, the court below found that the plaintiff acquired the obligation of return of KRW 100,00,000 from the non-party to the above non-party to the above non-party in lieu of the payment of part of the purchase price. The above obligation of return of lease deposit and the above obligation of the defendant to specify the above building is concurrently performed, and the above lease contract is an obligatory lease contract that provides only rent deposit without monthly rent, and the defendant acquired the transplant of lease deposit in return for the use and profit-making of the building of this case. Thus, even if the defendant obtained profit by continuously occupying the building of this case until the above lease deposit was returned, it cannot be deemed that the damage of the rent party was caused to the plaintiff, and thus, the plaintiff's claim for return of unjust enrichment is groundless. Accordingly, even if the plaintiff did not assert the obligation of return of lease deposit to the above non-party to the above non-party, or the defendant did not stand a defense that the above obligation and the name of the defendant's building are simultaneously performed, the court's decision of unjust enrichment or unlawful.

However, according to the records, when the plaintiff purchases the real estate of this case from the non-party in the complaint, it is clear that the plaintiff made a statement that the above non-party would pay 100,000,000 won to the defendant at the same time after the expiration of the lease period on behalf of the non-party on behalf of the non-party on behalf of the non-party on behalf of the non-party on behalf of the non-party on behalf of the non-party on the part of the non-party on behalf of the non-party on the part of the non-party.

(2) If, in making a deposit for repayment of the lease deposit in the simultaneous performance relationship with the name of the building, the document confirming that the building was ordered is attached to the counter-performance condition, the above deposit for repayment is subject to prior performance of the name of the building. Therefore, it shall be deemed that there is no validity of the repayment.

The court below's decision to the purport of the above is justified in denying the effect of the Plaintiff's repayment deposit of this case, and there is no error of law by misunderstanding legal principles or misunderstanding the contents of the consideration, such as the theory of lawsuit, and the theory of lawsuit is not appropriate in this case

2. We examine the Defendant’s attorney’s grounds of appeal.

In light of the records, the court below rejected the above defendant's assertion that the defendant entered into a lease agreement between the plaintiff and the plaintiff about KRW 150,000,000 with respect to the building of this case, and the lease agreement between the plaintiff around October 1989, and the lease period of three years for the building of this case on the ground that there is no evidence to acknowledge it, and there is no error of law of misunderstanding of facts due to incomplete deliberation, such as the theory of lawsuit.

In addition, even though the plaintiff's obligation to return the lease deposit and the defendant's obligation to order simultaneous performance are in a simultaneous performance relationship, unless the defendant exercises his right of defense of simultaneous performance as a deferred defense against his own obligation, the court below cannot order the restoration of the lease deposit and the obligation to pay the lease deposit simultaneously. In addition, since there is no trace of the defendant's defense of simultaneous performance by the time of the closing of argument at the court of fact-finding, the measures that the court below did not order simultaneous performance are just and there is no violation of law in the exercise of the right of explanation or incomplete hearing and there is no obligation to receive an application for resumption of argument in order to give the defendant an opportunity to submit a defense of beneficial non-performance to the lawsuit, and therefore

In addition, the declaration of provisional execution on the part of the name of the building in the first instance judgment is naturally effective unless the judgment on the merits of the provisional execution or the second instance is changed in the appellate court, so it cannot be deemed unlawful on the ground that the court below did not mention the validity of the judgment. All arguments are without merit.

3. Therefore, each appeal by the plaintiff and the defendant is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)