(영문) 서울서부지방법원 2017.8.18.선고 2016가단251614 판결

1. The Defendants jointly pay to the Plaintiff the amount calculated by applying the respective rates of KRW 104 and KRW 166 per month from March 8, 2016 to August 10, 2018, and KRW 271 and KRW 667 per month from the following day to the completion date of delivery of the building listed in the attached list.

2. The plaintiff's remaining claims against the defendants are all dismissed.

3. 3/5 of the costs of lawsuit is assessed against the Plaintiff, and the remainder is assessed against the Defendants.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendants deliver to the plaintiff the building listed in the attached list (hereinafter referred to as the "building of this case").

Gohap jointly with the Plaintiff from February 12, 2016 to the date on which delivery of the instant building is completed.

480,000 won shall be paid with money calculated in proportion to 480,000 won.

Reasons

1. Basic facts

On July 27, 2010, Defendant ○○○ entered into a contract under which the building of this case is to be leased (hereinafter referred to as “instant lease contract”) with Park○○, who was the owner of the instant building at the time of the instant building, during the period from August 1, 2010 to August 10, 2012, between the lease deposit amount of KRW 75 million, and the term from August 11, 2010 to the term of the lease term of August 10, 2012, and obtained a fixed date on the lease agreement on August 18, 2010. The said lease contract thereafter was concluded on August 8, 2012.

11. Around August 11, 2014, an implied renewal was made on two occasions, both around 11 and around 2014.

○ Meanwhile, on the other hand, as of August 16, 2010, the registration of creation of the best collateral security with the mortgagee Kim○○ and the maximum debt amount of KRW 65 million was completed as of August 16, 2010. However, the above Kim○ filed an application for voluntary auction and rendered a voluntary decision to commence voluntary auction (Seoul Western District Court Decision 2015Hu6599) on May 27, 2015.

Defendant ○○○○ filed a move-in report to the location of the instant building on March 9, 2015, and subsequently received a demand for distribution in the said voluntary auction procedure on March 8, 2016, as a small lessee of the instant building, KRW 25 million.

○ The Plaintiff was awarded a successful bid for the instant building at the above auction procedure and acquired ownership on February 12, 2016.

○ Meanwhile, Defendant U2○ is the spouse of Defendant ○, who is the child of Defendant ○○○, and the relocation report was made on August 11, 2010 with ○○ and 3 children, to the location of the instant building, and thereafter, he/she occupies the instant building until now.

[Ground of Recognition: Facts without dispute, Gap evidence 1, 2, 4, Eul evidence 1 to 5, the purport of the whole pleadings]

2. The parties' assertion

A. The plaintiff's assertion

The Defendants do not have any opposing power under the Housing Lease Protection Act and do not have the right to occupy the instant building. Therefore, the Defendants must deliver the instant building to the Plaintiff and return unjust enrichment equivalent to the rent.

B. The defendants' assertion

Defendant U2S○, who is a model of Defendant U2S○○, filed a move-in report to the location of the instant building.

8. On August 11, 201, Defendant ○○ also acquired the opposing power under the Housing Lease Protection Act. Since the Plaintiff acquired the ownership of the instant building and did not express the Defendants’ intent to refuse to renew, the instant lease agreement is valid until August 10, 2018, as it was implicitly renewed on August 11, 2016. Therefore, the Defendants are entitled to lawfully occupy the instant building.

3. Determination

A. Determination on the claim for extradition of the instant building (1) as to the point of time when the Defendants acquired opposing power

As seen earlier, Defendant ○○○ had to move-in to the instant building on March 9, 2015, which was after the establishment of the highest priority collective security right on the instant building, and thus, he/she cannot claim opposing power against the Plaintiff, who acquired ownership through the said voluntary auction procedure, on the ground of his/her move-in report.

However, in full view of the following legal principles and grounds, Defendant ○○○○, one’s own form of penalty, filed a move-in report on the delivery of the instant building around August 1, 2010, prior to the creation of the highest priority collective security right, and thereafter acquired opposing power under the Housing Lease Protection Act. Since Defendant ○○ was unable to receive the full deposit in the said voluntary auction procedure, the Plaintiff may assert the opposing power of the instant lease against the Plaintiff (proviso of Article 3-5 of the Housing Lease Protection Act). As a result, Defendant ○○, as the sub-lessee of the instant lease agreement, may also assert the right to possess the instant building as the lessee of the instant lease.

The opposing power stipulated in Article 3 (1) of the Housing Lease Protection Act can be acknowledged not only in a case where the lessee resides in the relevant house and directly occupies it, but also in a case where the lessee occupies it indirectly through means of other person's possession. However, since the tenant who does not actually reside in the relevant house is not a "person who has an address or residence in the relevant house" (Article 6 (1) of the Resident Registration Act), the tenant's resident registration cannot be deemed a legitimate resident registration under the Resident Registration Act. Therefore, the tenant who is only an indirect occupant cannot be deemed as a legitimate resident registration under the Resident Registration Act. Therefore, the tenant's lease can legally acquire opposing power only when the direct occupant who actually resides in the relevant house completes his resident registration in accordance with the opening relationship with the tenant (see Supreme Court Decision 200Da56451 delivered on January 19, 201).

(1) Article 3(1) of the Housing Lease Protection Act provides that a lessee may be deemed to have lawfully satisfied the requirements for counterclaim under the aforementioned Act if the lessee is deemed to have occupied the leased house and owns it indirectly by means of his/her possession (see Supreme Court Decisions 200Da5645, Jan. 19, 201). Even if the lessee does not possess the leased house directly and reside, it can be sufficiently announced that the lessee has continuously leased the leased house with the lessor’s consent and completed the lessee’s resident registration by delivery of the house. Thus, the lessee cannot be deemed to have lawfully satisfied the requirements for counterclaim under the aforementioned Act if the lessor’s act of using the leased house is deemed to have been deemed to have existed without the lessor’s consent (see Supreme Court Decisions 87Da2509, Apr. 25, 198; 94Da3155, Jun. 24, 199).

In the instant case, Defendant ○○○ entered into the instant lease agreement and thereafter, Defendant 1’s ○○○ and his/her spouse (hereinafter collectively referred to as “family member of Defendant UOO”) could actually move to the instant building by allowing them to reside in the instant building. However, even if the instant lease agreement was concluded on or after July 27, 2010, until around five (5) years from the date on which the said decision to commence voluntary auction was rendered, it cannot be deemed that the lessor’s ○○○ and the Defendants to reside in the instant building, and thus, the lessor’s ○○○○○ and his/her ○○○○○’s ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○.

Next, we examine whether the Plaintiff’s implied renewal of the instant lease agreement was made after acquiring the ownership of the instant building.

Article 6 (1) of the Housing Lease Protection Act "where a lessor fails to notify the lessee of a rejection of renewal, or to notify the lessee that the lessee would not renew the term without changing the terms and conditions of the lease, the lease shall be deemed to have been renewed under the same conditions as the former one at the time the term expires. This provision shall also apply to cases where the lessee fails to notify one month before the term of the lease expires. In light of the purport of the above provision, in order for the lessor to deny implied renewal, he/she must voluntarily prove the fact that he/she would not renew the term without changing the terms and conditions of the contract within the above period. However, in order for the lessor to deny implied renewal, he/she must voluntarily prove the fact that he/she did not notify the lessee of the refusal of renewal or renewal without changing the terms and conditions of the contract within the above period, after acquiring the ownership of the building of this case on February 12, 2016, the lease of this case shall continue to exist until August 10, 2016 (Article 6).

(3) Sub-decisions

Therefore, the Defendants have the right to lawfully occupy the instant building until August 10, 2018, and thus, the Plaintiff’s request for extradition of the instant building cannot be accepted.

B. Determination as to claim for unjust enrichment equivalent to rent

The Plaintiff filed a claim for unjust enrichment equivalent to the rent from February 12, 2016 to the date the delivery of the instant building is completed. As such, the following is examined: (a) whether unjust enrichment exists from February 12, 2016 to March 7, 2016, which the Plaintiff acquired the ownership of the instant building; (b) whether Defendant ○○○○ was unjust enrichment of KRW 25 million from February 12, 2016 to March 7, 2016, which was the day before the date when the Plaintiff was apportioned the ownership of the instant building; and (c) as such, the Defendants did not entirely receive the lease deposit from the Plaintiff during the said period, the Defendants may assert the opposing power of the instant lease; and therefore, there is no room to deem that the Defendants obtained unjust enrichment equivalent to the rent during the said period from February 12, 2016 to March 18, 2016.

Next, the amount of the unjust enrichment from March 8, 2016 to August 10, 2018, which is the expiration date of the lease term by implied renewal, by Defendant ○○○, out of the lease deposit, is considered as the amount of the unjust enrichment from March 8, 2016 to the expiration date of the lease term.

Since a lease agreement by implied renewal is deemed to have been renewed under the same conditions as the existing lease agreement, it is deemed that the building of this case is leased at KRW 75 million as the terms and conditions of the lease agreement in this case. However, as seen earlier, Defendant ○○ received dividends of KRW 25 million out of the existing lease deposit amount of KRW 75 million at the above auction procedure on March 8, 2016, and the Defendants are obliged to pay to the Plaintiff the amount of unjust enrichment equivalent to KRW 25 million returned to the Plaintiff during the remainder of the lease period. According to the appraisal by ○○○○, the monthly conversion rate of KRW 25 million applicable to the building in this case can be recognized as 5% per annum, and thus, the amount equivalent to KRW 16,500,000 is below KRW 160,500,000, KRW 165 million per annum.

(3) As to the amount of unjust enrichment from August 11, 2018 to the date of completion of delivery of the building of this case, the last amount of unjust enrichment from August 11, 2018 to the date of completion of delivery of the building of this case, which is the day following the expiration date of the lease term by implied renewal.

According to the appraiser ○○○’s appraisal result, if there is no lease deposit, the monthly rent of the instant building is 480,000,000. Thus, the amount of unjust enrichment equivalent to the monthly rent that the Defendants should pay to the Plaintiff during the said period is 208,333 won (50,000 won x 0.05 x 0.05 : 12 months : 00 won) remaining after deducting the monthly rent of 271,667 won (480,00 won - 208, 3333 won (4) equivalent to the monthly rent of 50,000 won, which is the balance of the lease deposit, from the above 480,000 and 00 won).

Therefore, Defendant ○○ is a lessee. Defendant ○ is jointly obligated to pay to the Plaintiff the amount of unjust enrichment equivalent to the rent calculated by applying the respective rates of KRW 104,166 per month from March 8, 2016 to August 10, 2018, and the following day to August 271, 667 per month from the date the delivery of the instant building is completed.

4. Conclusion

The plaintiff's claim for unjust enrichment during the plaintiff's claim shall be accepted only within the scope of the above recognition, and all of the remaining claims shall be dismissed. It is so decided as per Disposition.