Main Issues
[1] Whether a lessee may be deemed to have agreed to exempt the duty to restore the facility solely on the ground that the lessee agreed not to claim the facility for the commencement of business (negative)
[2] Where a lessor performs his/her duty to return the lease deposit after the termination of the lease, or fails to provide legitimate performance, whether the lessee is liable for damages arising from the delay in the repayment of the leased object (negative)
[3] The deadline for filing an appeal and its reasons (=the deadline for filing an appeal)
[Reference Provisions]
[1] Articles 615, 626, and 654 of the Civil Act / [2] Articles 390, 536, and 618 of the Civil Act / [3] Articles 403, 425, and 427 of the Civil Procedure Act
Reference Cases
[1] Supreme Court Decision 2002Da42278 delivered on December 6, 2002 (Gong2003Sang, 309) / [2] Supreme Court Decision 98Da6497 delivered on May 29, 1998 (Gong1998Ha, 1756) / [3] Supreme Court Decision 97Da38299 delivered on November 28, 1997 (Gong1998Sang, 998Sang, 98Da47542, 4759 delivered on July 9, 199 (Gong199Ha, 1587) and Supreme Court Decision 9Da50538 delivered on January 21, 200 (Gong2000, 482) 200Da3653638 delivered on March 23, 2019 (Gong206365 delivered on July 26, 2003).
Plaintiff-Appellant-Supplementary Appellee
Seocho-Jin (Law Firm Seo-soo, Attorneys Choi Byung-jin et al., Counsel for the defendant-appellant)
Defendant-Appellee-Supplementary Appellant
Mad money
Judgment of the lower court
Daegu District Court Decision 2005Na9645 Decided May 26, 2006
Text
The part of the lower judgment against the Plaintiff regarding the claim for refund of deposit is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. The remainder of the Plaintiff’s appeal and the Defendant’s supplementary appeal are all dismissed.
Reasons
1. First, we examine the Plaintiff’s ground of appeal.
A. As to the claim for refund of lease deposit
(1) Upon examining the reasoning of the judgment below in light of the records, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and held that since the lease contract of this case was implicitly renewed and its notice was terminated on December 15, 2004 after three months have passed since it was delivered to the defendant according to the plaintiff's notice of termination, it shall deduct the plaintiff's overdue rent of 15,329,032 won from the lease deposit to be returned to the defendant until that time, and there is no error of law such as misconception of facts or incomplete trial due to the violation of the rules of evidence,
(2) Upon termination of a lease agreement, the lessee shall restore the leased object to its original state and return it to the lessor, barring any special circumstances. The mere fact that the lessee agreed not to claim expenses for the facilities installed for his/her own business to the lessor, it cannot be deemed that there was an agreement to exempt the lessor from such obligation to restore the leased object to its original state (see Supreme Court Decision 2002Da42278, Dec. 6, 2002).
Examining the reasoning of the judgment below in light of the records and the above legal principles, on the premise that the Plaintiff, a lessee, is obligated to restore the store of this case upon the termination of the lease contract of this case, the court below acknowledged that the lessor incurred KRW 4,620,000 as construction expenses, etc. in order to restore the store of this case to its original state, and held that the Defendant should deduct the above expenses from the lease deposit to be returned. There is no error of law such as misunderstanding of facts against the rules of evidence, misunderstanding of legal principles as to the obligation to restore to original state, or incomplete deliberation, etc.
(3) According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that the plaintiff has a duty to pay 5,146,666 won to the defendant for damages equivalent to the rent during the above period, on the ground that the plaintiff was liable to pay 5,146,66 won to the defendant for damages on the ground that he was liable to pay 5,14,66 won for the lease deposit to be refunded by the defendant, on the ground that he received lawful performance of the obligation to return the lease deposit from the defendant, but did not order the defendant to restore the store of this case to the original state and without ordering the defendant to
In light of the records, the judgment of the court below that the plaintiff occupied the store of this case from the day after the termination of the lease contract of this case until June 28, 2005 is just, and there is no error of misconception of facts against the rules of evidence as alleged in the grounds of appeal, but there is no error of law such as misconception of facts against the rules of evidence, but it is not acceptable that the court below further held that
Since a lessee’s obligation to return the leased object arising from the termination of a lease agreement and the duty to return the lease deposit after deducting the lessor’s overdue rent from the lessor, the lessor is not liable for damages arising from the lessor’s delay in the duty to return the leased object, so long as the lessor did not perform the duty to return the remainder of the lease deposit or perform lawful performance and thereby lose the lessee’s right to defense of simultaneous performance. However, even if the lessee continues to possess the leased object without performing the duty to return the leased object, the lessee shall not be liable for damages arising from the lessor’s delay in the duty to return the leased object (see Supreme Court Decision 98Da
Therefore, according to the records as to whether the Defendant lost the Defendant’s right to defense of simultaneous performance of the lease deposit by performing the duty to return the remaining lease deposit or providing it to the Plaintiff, it is difficult to view that the Plaintiff had clearly expressed that the Plaintiff had no intent to perform his/her duty to return the lease deposit to the Plaintiff on December 8, 2004, and sent to the Plaintiff a certificate that the Plaintiff would return the remainder of the lease deposit after deducting the overdue rent and public charges from the lease deposit if he/she restores the store of this case to the original state. However, it is difficult to view that the Plaintiff had clearly expressed that the Plaintiff had no intent to perform his/her duty to return the lease deposit to the Plaintiff by restoring the store of this case to the original state and providing it to the Plaintiff (the first instance court, even though the Plaintiff received the above certificate, did not clearly indicate that the Plaintiff had no intent to perform his/her duty to return the lease deposit to the Plaintiff on the ground that the Plaintiff had no intent to return the remainder of the lease deposit to the Plaintiff. However, it cannot be viewed that the Defendant had not clearly expressed its duty to return it to the Plaintiff.
Therefore, in this case where there is no evidence to prove that the plaintiff continuously occupied the store of this case after the termination of the lease contract of this case, even though the plaintiff continued to possess the store of this case after the termination of the lease contract of this case, the plaintiff did not be liable for damages due to the delay in the repayment of the leased object to the defendant, as long as the plaintiff did not have the store of this case and claimed simultaneous performance with the defendant's obligation to return the leased object, the court below held that the plaintiff is liable for damages under the premise that the defendant provided a legitimate performance to the plaintiff with the obligation to return the leased deposit of this case. The court below held that the plaintiff was liable for damages under the premise that the plaintiff provided a legitimate performance to the plaintiff with the obligation to return the leased object of this case after the termination of the lease contract of this case. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the right to simultaneous performance or the provision of performance, which affected the conclusion of the judgment.
Therefore, since the argument in the grounds of appeal pointed out this is reasonable, it is reasonable to reverse the part against the plaintiff as to the claim for refund of the lease deposit.
B. As to the claim for damages
Upon examining the reasoning of the judgment below in light of the records, even if the store of this case was constructed in violation of the Building Act, etc., such circumstance alone is insufficient to deem that the defendant belongs to the plaintiff and caused damage to the plaintiff by concluding the lease contract of this case with the plaintiff. Thus, the court below is just in holding that the plaintiff's claim for this part of this case is without merit, and there is no error of law
2. Next, we examine the defendant's incidental appeal.
Appellee may make an incidental appeal even after the right to appeal is extinguished, but it is necessary to file an incidental appeal within the period for submitting the appellate brief and to submit the incidental appellate brief (see Supreme Court Decision 2004Da7286, Sept. 24, 2004). According to the records, the defendant did not enter the grounds for incidental appeal in the annexed appellate brief and did not submit the incidental appellate brief within the period for submitting the appellate brief. Thus, the defendant's incidental appeal cannot be dismissed.
3. Conclusion
Therefore, the part of the judgment of the court below against the plaintiff regarding the claim for return of the lease deposit shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff and the defendant's incidental appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on
Justices Kim Young-ran (Presiding Justice)