[Judgment of the court below]

Defendant 1 and two others (Law Firm Han-soo et al., Counsel for the defendant-appellant)

November 2, 2017

Suwon District Court Decision 2016Kadan49707 Decided May 23, 2017

1. The part against Defendant 2 in the judgment of the court of first instance is revoked, and the plaintiff's claim against Defendant 2 is dismissed.

2. The appeal filed by Defendant 1 (Counter-board: Nonparty) and Defendant 3 (Counter-board: Defendant) are dismissed, respectively.

3. The costs of appeal incurred between the Plaintiff and Defendant 2 shall be borne by both the Plaintiff, Defendant 1 and Defendant 3, respectively.

1. Purport of claim

The Defendants shall deliver to each Plaintiff real estate listed in the separate sheet. The Defendants shall pay to each Plaintiff 17,324,00 won with 5% interest per annum from November 10, 2016 to the service date of a duplicate of the instant complaint, and 15% interest per annum from the next day to the day of complete payment. The Plaintiff shall pay to the Plaintiff the amount calculated at the rate of KRW 11,00,000 per annum from November 10, 2016 to the completion date of delivery of real estate listed in the separate sheet, and Defendant 1 and Defendant 2 shall pay to the Plaintiff the amount calculated at the rate of KRW 3,30,000 per annum from among Defendant 1, Defendant 2, and each of the above money.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Basic facts

A. On October 19, 201, the Plaintiff entered into a lease agreement with Defendant 1 to lease real estate listed in the separate sheet (hereinafter “instant building”) to Defendant 1, including KRW 30,000,00,00 for lease deposit and KRW 11,00,00 for monthly rent from December 10, 201 to December 9, 2021, and KRW 10,000 for monthly rent (including value-added tax). The first month is exempted from the first month, and the lease agreement was concluded with Defendant 1 to pay in advance from January 11, 2012 to the tenth day of each month (hereinafter “instant lease agreement”).

B. Defendant 1 demanded the Plaintiff to prepare a lease contract on the instant building in Defendant 2’s name in order to make business registration under Defendant 2 regarding the business of the instant building, and the Plaintiff prepared and implemented a lease contract with Defendant 2 on May 10, 2013.

C. The Plaintiff transferred the instant building to Defendant 1 pursuant to the instant lease agreement, and Defendant 2 completed business registration in the instant building.

D. Meanwhile, between Defendant 1 and Defendant 3 on September 4, 2012, Defendant 1 entered into a sub-lease contract (hereinafter “sub-lease contract”) with the effect that the second floor of the instant building is 419.54 square meters (hereinafter “second floor of the instant building”) and Defendant 3 will be sub-leaseed as KRW 30,000,000 from October 20 to October 19, 2012 during the sublease period, and the monthly rent is 2,50,000,000 and KRW 3,000,000 each month from February 20, 2013 (hereinafter “sub-lease contract”).

E. Defendant 3 is operating a sports center on the second floor of the instant building that was handed over by Defendant 1 around that time.

F. Defendant 1 paid KRW 7,00,000 as the rent to the Plaintiff on September 13, 2016, and did not pay the rent until now. As of November 9, 2016, Defendant 1’s delayed payment amounting to KRW 147,324,00 (=the aggregate of the rent by November 9, 2016 + KRW 638,000,000 (=11,00,000 x 58 months) - the sum of the rent for the previous payment plus KRW 490,676,000).

G. On December 23, 2016, a duplicate of the instant complaint containing the Plaintiff’s declaration of intent to terminate the instant lease agreement on the grounds of the delinquency in payment of two or more rents reaches Defendant 1.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 5, purport of the whole pleadings

2. Determination as to claims against Defendant 1 and Defendant 3

A. Determination on the cause of the claim

1) Determination as to the claim for delivery of the instant building

According to the above facts, since the lease contract of this case was lawfully terminated on December 23, 2016 (the plaintiff asserts that the lease contract of this case was terminated by Defendant 1 on November 7, 2016, stating the declaration of intent to terminate the lease contract of this case. However, it is insufficient to recognize that the document of evidence No. 5 alone reached Defendant 1 on November 9, 2016, and there is no other evidence to prove otherwise) the lessee, Defendant 1 and Defendant 3, the lessee of the second floor of the building of this case, have the duty to deliver the real estate of this case to each of the plaintiff.

2) Determination as to the claim for overdue rent and unjust enrichment equivalent to the rent in arrears

A) Legal principles

If a lessee has sub-leased the leased object with the consent of the lessor, the lessee assumes the obligation directly to the lessor (Article 630(1) of the Civil Act), and the lessee is obligated to deliver the leased object to the lessor and pay the lessor the overdue rent to the end of the lease, barring any special circumstances where the lease contract is terminated, as well as to return unjust enrichment equivalent to the rent due to the possession and use of the leased object from the end of the lease to the end of the lease. This legal principle applies to the lessee, unless there are special circumstances, where the lessee sub-leases the leased object but the lease and sub-lease are terminated (see Supreme Court Decision 2007Da21856, 21863, Aug. 23, 2007). The lessee and the sub-lessee are jointly and severally liable to each lessor.

B) Determination

Therefore, barring any special circumstance, Defendant 1 and Defendant 3 are obligated to pay to each Plaintiff delay damages calculated at the rate of 117,324,00 won plus 30,000 won of lease deposit until November 9, 2016, plus 117,324,000 won after the date of delinquency in the lease deposit, as well as the annual rate of 5% from November 10, 2016 to December 23, 2016, which is clear from the date of delinquency in the lease, to the date of delivery of a copy of the complaint of this case; 15% per annum from the following day to the date of full payment; 20% per annum from the following day to the date of full payment; 15% per annum from the date of delinquency in the lease; 30% per annum from the date of delinquency in the lease deposit to the date of full payment; 15% per annum from the date of delinquency in the first instance judgment to 20% per annum 15% per annum from the date of full payment.

In addition, Defendant 1 and Defendant 3 are obligated to pay the Plaintiff the rent from November 10, 2016 to December 23, 2016, which is the date of termination of the instant lease contract. Since the date of termination of the lease contract to December 23, 2016, Defendant 1 and Defendant 3 are obligated to return unjust enrichment equivalent to the rent from the date of termination of the lease contract to the date of completion of delivery of the instant building. In ordinary cases, the amount of profit from possession and use of real estate is the rent of the said real estate. The amount of profit from the possession and use of the said real estate is the monthly rent which is the 11,00,000 won, and the monthly rent is the 3,300,000 won which is the monthly rent

Therefore, from November 10, 2016 to the completion date of delivery of the building of this case, the Plaintiff is liable to return unjust enrichment equivalent to the rent or the rent of this case. Defendant 1 is liable to pay the Plaintiff the amount calculated by each ratio of KRW 11,00,00 per month, and Defendant 3 is liable to pay the amount of KRW 3,300,00 per month (On the other hand, Defendant 3 agreed with Defendant 1 to reduce the rent of KRW 2,850,000 per month. However, even if the lessee agreed to reduce the rent, the lessee is liable to pay the lessor the amount of money calculated by paying the rent to the lessor, in light of the provisions of Article 630 of the Civil Act that the lessee cannot set up against the Plaintiff, which is the lessor.).

B. Determination of the defendants' assertion

1) Determination on Defendant 1’s assertion

A) Determination as to a claim for offset

Defendant 1 asserts that Defendant 1 set off the Plaintiff’s damages claim against the Plaintiff for rent, etc., on the ground that, without Defendant 1’s consent from April 2013 to June 2013, the Plaintiff caused Ansan-si to perform sewerage construction works, etc. at the entrance of the instant building, and incurred losses from operating the instant building during the said period.

However, there is no evidence to acknowledge that the Plaintiff had Ansan-si allow Defendant 1 to carry out sewerage construction at the entrance of the building of this case and prevented Defendant 1 from doing business for three months from the building of this case. Thus, the above assertion by Defendant 1 is without merit without further review.

B) Determination of the assertion on the right to purchase accessories

Although Defendant 1 asserted that the Plaintiff shall exercise the right to purchase the attached article on the instant building, Defendant 1’s assertion that the right to purchase the attached article was terminated due to the lessee’s nonperformance of obligation, the lessee did not have the right to purchase the attached article pursuant to Article 646 of the Civil Act (see Supreme Court Decision 88Meu7245, Jan. 23, 190, etc.). As seen earlier, Defendant 1’s refusal to pay the attached article for more than two months and the lease of this case was terminated. Therefore, the above assertion by Defendant 1 is without merit.

C) Determination as to the assertion of unjust enrichment claim

Defendant 1 asserts that Defendant 1 should compensate Defendant 1 for the amount equivalent to the existing value due to the return of unjust enrichment pursuant to Article 261 of the Civil Act, inasmuch as the part of the interior facility was not attached to the building, but reverted to the Plaintiff with the accessory of the existing building.

Article 261 of the Civil Act provides, “A person who has suffered damage may claim compensation in accordance with the provisions on unjust enrichment in a case where the acquisition of ownership pursuant to the legal provisions is recognized as attachment (Articles 256 through 260 of the Civil Act).” The above provision aims to coordinate interests between the parties in the case of changes in ownership due to attachment, and the application of the above provision is excluded in a case where there is an agreement between the other parties.

In light of the records in Gap evidence No. 1, "if the lease contract is terminated, the lessee shall restore the above land and building to its original condition as at the time it is leased, and return it to the lessor", "the lessee shall not claim any amount under any pretext for all expenses, such as beneficial expenses, facility expenses, goodwill, transfer expenses, etc. when the lease contract is terminated due to the termination of the lease contract period or the violation of the contract," and "the lessee shall not claim or demand all expenses (including sewage burden charges), rights expenses (including facility expenses, premium, beneficial expenses, goodwill, transfer expenses, etc.) incurred in changing the swimming pool to the facilities for the purpose of the lease when the lease contract is terminated due to the termination of the lease contract period or the circumstances of the lessee, and it is reasonable to deem that defendant 1 agreed to waive the right to claim the return of unjust enrichment due to the attachment of the lease contract in advance to the lessor without any condition after the expiration of the lease contract period. Accordingly, this part of the above assertion is without merit.

2) Determination as to Defendant 3’s assertion

Since Defendant 3 used the small portion of the instant building from Defendant 1, Defendant 3 asserts that, pursuant to Article 632 of the Civil Act, the application of Article 630 of the Civil Act is excluded, and there is no obligation to pay rent to the Plaintiff, and that it can be asserted against the Plaintiff with the rent paid to Defendant 1. As such, Defendant 1 paid all the rent to the Plaintiff, it is not the vehicle to be paid to the Plaintiff.

The fact that the area of the instant building leased by Defendant 1 from the Plaintiff is 1,085.2m2m2, and among which the part leased by Defendant 3 is 419.54m2, the entire two floors of the instant building is 419.54m2, among the instant buildings, there is no dispute between the parties. In light of Defendant 3’s aforementioned ratio of occupation of the instant building and the type of use, etc., it is difficult to view that Defendant 3’s case constitutes a case where the small portion of the building stipulated in Article 632 of the Civil Act is transferred from the lessee, and the above argument by Defendant 3 is without merit.

3. Determination as to the claim against Defendant 2

A. The plaintiff's assertion

Since Defendant 2 leased the instant building in collaboration with Defendant 1, Defendant 1 and each Plaintiff are obligated to deliver the instant building to Defendant 1 and pay the Plaintiff the overdue charge of KRW 117,324,00 and the delay damages therefor, and the amount of rent and the amount of unjust enrichment equivalent to KRW 11,00,000 per month from November 10, 2016 to the completion date of delivery of the instant building.

B. Determination

In light of the following circumstances: (a) the Plaintiff, at Defendant 1’s request, drafted a lease agreement with Defendant 2 as the lessee; and (b) Defendant 2 completed business registration with the trade name “○○○○○○○” on the instant building; (c) however, the following circumstances acknowledged by the overall purport of each of the evidence and arguments, namely, ① the lease agreement on the instant building was entered into between the Plaintiff and Defendant 1; (d) the agreement was entered into between the Plaintiff and Defendant 2 after a lapse of one year and seven months after the conclusion of the instant lease agreement; and (e) the Plaintiff appears to have been aware of all of such circumstances; (b) the lease deposit and rent pursuant to the instant lease agreement were paid by Defendant 1; and (c) the Plaintiff sent only a document verifying the intent to terminate the instant lease agreement to Defendant 1, the mere fact of the recognition alone is insufficient to acknowledge that Defendant 2 had a relationship jointly leased the instant building with Defendant 1; and there is no reason to deem otherwise.

4. Conclusion

Therefore, the plaintiff's claim against the defendant 3 is justified, and the claim against the defendant 1 is accepted within the above scope of recognition, and the remaining claim against the defendant 2 is dismissed as it is without merit, and the part against the defendant 2 in the judgment of the court of first instance as to the defendant 2 is unfair. Since the part against the defendant 2 in the judgment of the court of first instance is revoked, the plaintiff's claim against the defendant 2 in the judgment of the court of first instance is dismissed, and the part against the defendant 1 and the defendant 3 in the judgment of the court of first instance is just in conclusion. Thus, the appeal against the defendant 1 and the defendant 3 in the judgment of the court of first instance is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Ground (Presiding Judge)