[Defendant-Appellee] Plaintiff 1 and 2 others

Defendant (Law Firm Grandmark, Attorneys Kim Shin-chul, Counsel for the defendant-appellant)

August 17, 2011

Suwon District Court Decision 2010Da33398 Decided April 1, 2011

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

[Claim]

The Defendant shall deliver to the Plaintiff the real estate stated in attached Form 1, and pay to the Plaintiff the money calculated by applying the ratio of KRW 568,965 per month from January 21, 2010 to the completion date of delivery of the real estate stated in attached Table 1.

【Purpose of Appeal】

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this part of the court's explanation is as follows. This part of the reasoning for the judgment of the court of first instance is the same as the reasoning for the judgment of the court of first instance, and this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

“Concurrent Performance”

Even if the defendant is liable for delivery, the defendant's combination of non-101 and non-102 with one purpose of one lease agreement, and the two locations, areas, and utility values of two lakes cannot be determined to be equal, and if the plaintiff's request for extradition of this case remains 101,00,000 won after the plaintiff's request for extradition was accepted, the defendant asserts that the plaintiff cannot respond to the plaintiff's request for extradition until the plaintiff is returned all of 40 million won.

In light of the facts that the Defendant combined 101 and 102 as one of the non-101 and non-102, and the Plaintiff’s request for the extradition of this case was made for the purpose of one lease agreement, as seen earlier, it is recognized that the use value of the Plaintiff would be reduced compared with the combination of non-101 and non-102. However, as long as the owners of non-101 and non-102 differ, each owner is liable to pay for the repayment of lease deposit in equal proportion to the Defendant (Article 408 of the Civil Act), and there is no ground to view that the value per unit area of non-101 and non-102 differs from that of the Plaintiff’s own ownership, it is not reasonable to deem that the Plaintiff is liable to have the Plaintiff refund all of the lease deposit amount exceeding the ratio of non-102 square meters and the non-10 million won.

Therefore, if the defendant calculates the deposit according to the ratio of the size of non-102 among the 40 million won that the defendant paid to Meart Development as the deposit for non-102 and non-101, 20,689,655 won [=40 million won x 64.50 square meters (non-102 square meters) ± [64.50 square meters + 60.20 square meters (non-101 square meters)]]]. Thus, the plaintiff is obligated to return the deposit to the defendant with the obligation to return the plaintiff's deposit and the obligation to deliver the defendant's non-102 non-1,000 won to the plaintiff simultaneously. Thus, the defendant is obligated to receive the plaintiff's 20,689,655 won and to deliver non-102 square meters to the plaintiff at the same time."

2. Conclusion

Therefore, the defendant is obligated to deliver 102 non-10 won to the plaintiff at the same time with the payment of deposit 20,689,655 won from the plaintiff. ② Since the plaintiff is obligated to pay the unpaid management expenses to the plaintiff 715,264 won and the amount of rent or unjust enrichment equivalent to 568,965 won per month from January 21, 2010 to the completion date of delivery of non-102, the plaintiff's claim shall be accepted within the above recognized scope, and the remaining claim shall be dismissed as it is without merit. The judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment List omitted]

Judges Kim Sung-soo (Presiding Judge)