[1] In a case where a lessee transfers a right of lease with the consent of a lessor after the claim for the refund of a deposit of lease was provisionally seized or seized, whether the due date for the claim for the refund of the deposit

[2] In a case where a lessee transfers a right of lease with the consent of a lessor after the claim for the return of a lease deposit was provisionally seized or seized, whether a new obligation, such as overdue rent, to be borne by the new lessee, may be deducted from the lease deposit to be refunded to the former

[3] In a case where a lessee transferred a right of lease with a lessor’s consent and ordered a new lessee to order the leased object, whether the former lessee’s duty to guide the lessor is completed (affirmative)

[4] The meaning of Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings where it is deemed reasonable for an obligor to resist the existence and scope of the obligation, and the meaning of "the reasonable scope"

[5] In a case where the debtor's assertion was accepted by the court below prior to the remanding of the case, the scope of the period during which the debtor's assertion is deemed reasonable to dispute as to the existence or scope of the obligation

[1] In a case where a lease deposit claim for the repayment of a lease deposit was transferred after a provisional attachment or attachment, if the lessor consented to the transfer of the lease, the lease relationship between the lessor and the former lessee is terminated, and the former lessee is relieved of the lease relationship. The former lessee’s claim for the repayment of the lease deposit shall be deemed to have arrived at the due date when the lessor consented to the transfer of the lease due to the termination of the lease relationship between the former lessee and the

[2] In the case of paragraph (1) above, the rights and obligations of the former lessee with respect to the lease deposit shall not be succeeded to the new lessee unless there are special circumstances such as the former lessee agrees with the lessor to secure the repayment of the lease deposit as security for the nonperformance of the obligation of the new lessee, or to transfer the claim for the repayment of the lease deposit to the new lessee. Even in a case where the former lessee agreed with the lessor to secure the obligation of the new lessee or to transfer the claim for the repayment of the lease deposit to the new lessee, if the claim for the repayment of the lease deposit is provisionally seized or seized by a third party, such agreement or transfer cannot be set up against the seizure right holder, etc. Therefore, the new lessee cannot deduct the overdue rent, etc. from the lease deposit to the former lessee on the ground that the new lessee had the obligation for the repayment of the deposit,

[3] If a lessor consented to the transfer of the right of lease and the new lessee was ordered by the former lessee, the former lessee should be deemed to have performed his/her duty of care by ordering the lessor to surrender the leased object, instead of ordering the lessor to the new lessee again, and the former lessee directly ordered the new lessee with the lessor’s consent.

[4] Article 3 (2) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings provides that "if it is deemed reasonable for an obligor to resist the existence or scope of the obligation until the adjudication of the fact-finding court declaring the existence of the obligation is rendered, the provisions of paragraph (1) shall not apply to a reasonable extent." Thus, the application of paragraph (1) of the same Article provides special cases concerning statutory interest rates which serve as the basis for calculating the amount of damages caused by the nonperformance of the obligation can be excluded." Thus, it is interpreted that "if it is deemed reasonable for an obligor to resist the existence or scope of the obligation," it is reasonable for the obligor to resist the obligor's argument as to the existence or scope of the obligation. Therefore, it is interpreted that the issue of whether it is reasonable for the obligor to resist as above is related to the fact-finding of the court as to the case in question and its evaluation, and on the other hand, "the reasonable extent" in the latter part of paragraph (1) of the same Article refers to the obligor's considerable period of time until the appellate court or fact-finding court has rendered a judgment.

[5] In a case where the judgment of the court of first instance, prior to the remanding of appeal by the defendant, accepted the defendant's appeal, and the judgment against the plaintiff in whole was rendered, but the judgment of the court below prior to the remanding of appeal was reversed, and the judgment of the court below partially accepting the plaintiff's claim as stated in the judgment of the court of first instance after the remanding of appeal, the defendant's assertion was accepted by the court below prior to the remanding of appeal, and therefore, it should be deemed that there was a reasonable ground for the defendant'

[1] Articles 618 and 629 of the Civil Act / [2] Articles 618 and 629 of the Civil Act / [3] Articles 618 and 629 of the Civil Act / [4] Article 3(2) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings / [5] Article 3(2) of the Act on Special Cases concerning the

[2] [3] Supreme Court Decision 82Da1696 delivered on November 22, 1983 (Gong1984, 92) / [4] Supreme Court Decision 92Da23827 delivered on October 13, 1992 (Gong1992, 3129), Supreme Court Decision 94Da2942 delivered on November 11, 1994 (Gong1994Ha, 3267), Supreme Court Decision 95Da51960 delivered on February 23, 1996 (Gong196Sang, 1075), Supreme Court Decision 97Da6988 delivered on May 9, 197 (Gong197, 197Sang, 197) / [47Da697589 delivered on May 26, 197] Supreme Court en banc Decision 97Da197589 delivered on July 16, 1985 (Gong1947575794)

Plaintiff

Defendant 1 and three others (Law Firm Kangdong General Law Office, Attorneys Kim Jong-soo et al., Counsel for the defendant-appellant)

Supreme Court Decision 95Da887 delivered on May 26, 1995

Seoul District Court Decision 95Na26017 delivered on February 16, 1996

The part of the judgment of the court below against the defendant as to the damages for partial delay which is revoked below shall be reversed. Of the part against the defendants in the judgment of the court of first instance, the part ordering payment exceeding 20 million won per annum from September 29, 1993 to May 26, 1995, and the part ordering payment with 25 percent per annum from May 27, 1995 to the date of full payment shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed. All of the remaining appeals shall be dismissed. The total costs of lawsuit shall be borne by the defendants.

The grounds of appeal are examined.

On the first ground for appeal

Based on its evidence, Nonparty 1 leased the lease deposit amount of KRW 20,00,000 from the Defendants, KRW 1,905,200 for monthly rent, KRW 7,000 for the lease period, and KRW 30,00 for the lease period from November 1, 1992 to October 30, and the Plaintiff obtained a provisional attachment order of KRW 20,000 for the above Defendants’ claim to return KRW 20,000 for the above Defendants and obtained the provisional attachment order of KRW 10,60 for the above provisional attachment on March 8 of the same year, and the court below did not err by misapprehending the legal principles as to the above provisional attachment order of KRW 10,00 for the above provisional attachment claim of KRW 10,000 for the above provisional attachment claim of KRW 30,00 for the above provisional attachment claim of KRW 50,000 for each of the above Defendants and the above provisional attachment order of KRW 15,000 for the above provisional attachment.

The grounds of appeal cannot be accepted.

On the second ground for appeal

The court below held that since the lease term expires on October 30, 1993, the defendants are obligated to pay KRW 20,000,000 to the plaintiff who received the entire claim for the refund of the lease deposit, the above non-party 2 is not obliged to order the above store to the defendants even after the termination of the lease contract of this case. Thus, the above non-party 1 or the above non-party 2 cannot respond to the plaintiff's claim of this case until the above non-party 2 ordered the above store, or the above non-party 2 did not pay monthly rent, management fee, electricity fee, etc. from September 1993 to the date of the closing of argument of the court below. Thus, the above non-party 1 already ordered the above non-party 2 to pay the above store, and the defendants were not entitled to the above non-party 2's claim for non-party 2's non-party 1's non-party 2's non-performance of the lease deposit after the delivery of the assignment order, and rejected the above assignment order of the above non-party 2's right.

In the event that a lease deposit claim for the return of the lease deposit is transferred after provisional seizure or seizure, if the lessor consented to the transfer of the lease, the relationship between the lessor and the former lessee is terminated, and the former lessee is relieved of the lease relationship. The claim for the return of the lease deposit of the former lessee shall be deemed due to the termination of the lease relationship between the former lessee and the lessor. In such a case, the rights and obligations of the former lessee regarding the lease deposit shall not be succeeded to the new lessee unless special circumstances exist, such as the former lessee agrees with the former lessee to make the deposit as security for the nonperformance of a new lessee, or to transfer the claim for the return of the lease deposit to the new lessee. Even if the former lessee agreed to have the deposit as security for the obligations of the new lessee or agreed to transfer the right for the return of the lease deposit to the new lessee, if the claim for the return of the lease deposit is provisionally seized or seized by a third party, such agreement or effect shall not be effective against the said seizure authority, etc.

Therefore, inasmuch as a lessor is liable to return a lease deposit to the former lessee at the time of consent to the transfer of the right of lease, the lessor cannot deduct the overdue rent, etc. from the lease deposit to be returned to the former lessee on the ground that the new lessee is liable for the repayment of the lease deposit, such as delayed payment, etc. In such a case, if the lessor consented to the transfer of the right of lease and the new lessee was ordered by the former lessee, then the former lessee should be deemed to have ordered the lessor to direct the new lessee with the consent of the lessor instead of ordering the lessor to direct the new lessee by the latter.

Although the judgment of the court below is somewhat insufficient in its explanation of its reasoning, it is justified in the conclusion of rejecting all the defendants' claims. Accordingly, the judgment of the court below is justified, and it is not erroneous in the misapprehension of legal principles as to assignment order and transfer of right of lease, which affected the conclusion

The grounds of appeal cannot be accepted.

On the third ground for appeal

The lower court dismissed the Defendant’s appeal in its entirety by determining that the Defendant’s amount to be paid to the Plaintiff is KRW 20,000,000, and that the Defendant is liable to pay the said amount in addition to damages for delay at the rate of twenty-five percent per annum as prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (hereinafter “Special Cases”) from May 27, 1994 to the date following the date of the first instance judgment.

However, Article 3 (2) of the Special Cases Concerning the Establishment and Scope of Obligations provides that "if it is deemed reasonable for an obligor to resist the existence and scope of such obligations until a fact-finding court declares the existence of such obligations, the provisions of paragraph (1) shall not apply to a reasonable extent." Thus, the application of Article 3 (1) of the Special Cases Concerning the Settlement of Damages, which provides for special cases concerning statutory interest rates, which serve as the basis for calculating the amount of damages caused by the nonperformance of monetary obligations, may be excluded." Thus, it is interpreted that "if it is deemed reasonable for an obligor to resist the existence and scope of such obligations," the time when the obligor's assertion that there is a reasonable ground for the obligor's assertion as to the existence and scope of such obligations is considered to be a matter concerning the fact-finding and evaluation thereof of the court concerning the relevant case." Meanwhile, the latter part of paragraph (2) of the same Article provides that "the extent of time after the obligor goes against the obligor's claims can be determined in writing by the court of first instance or appellate court."

In addition, in case where the judgment of the court of first instance was rendered by the defendant prior to the remand of a case where the defendant's appeal was accepted in the judgment of the court of first instance and the judgment against the plaintiff was rendered, but the judgment of the court of first instance prior to the remand was reversed as a result of the plaintiff's appeal, and the judgment of the court of first instance partially accepting the plaintiff's claim was accepted by the court of first instance prior to the remand of the defendant's assertion, and at least there was insufficient ground for dispute over the existence or scope of the defendant's obligation until the judgment is reversed (see, e.g., Supreme Court Decisions 94Da29942, Nov. 11, 1994; 95Da51960, Feb. 23, 1996; 97Da6988, May 9, 197).

However, according to the records, the court of first instance ordered the defendants to pay damages for delay at the rate of five percent per annum from September 29, 1993 to May 26, 1994, which is the day following the delivery date of a copy of the complaint of this case, to the plaintiff, and at the rate of twenty-five percent per annum from the next day to the day of the first instance judgment. Accordingly, the defendants filed an appeal as to the appeal of this case, the appeal of the defendants was accepted in whole, and the judgment of the court of first instance was delivered to the plaintiff. The judgment of the court of first instance was reversed, and the plaintiff's appeal against the defendants was remanded to the court of first instance. Accordingly, if the defendants' assertion was accepted by the court of first instance prior to the remand, the court below did not err in the misapprehension of legal principles as to the existence or scope of the defendants' obligation to pay damages for delay to the plaintiff at the rate of two hundred five percent per annum per annum, and the court below's appeal as to the defendants' damages for delay to the plaintiff.

Therefore, the part of the judgment of the court below on partial damages for delay is reversed, and this part is sufficient for this court to directly judge, and therefore, it is decided to render a self-determination in accordance with Article

As duly determined by the court below, the defendants are obligated to pay 20,000,000 won to the plaintiff. However, since a dispute over the existence or scope of the obligation to pay is deemed to have considerable grounds, the damages for delay shall be paid at the rate of five percent per annum from September 29, 1993 to May 26, 1995, which is the day following the delivery date of the copy of the complaint of this case, and the damages for delay shall be paid at the rate of twenty-five percent per annum under the Act on Special Cases concerning the Settlement from the next day to the full payment date. Thus, the plaintiff's claim of this case shall be accepted only to the above amount. Since the part concerning the damages for delay of the court of first instance exceeds the above cited limit is unfair, the plaintiff's claim for revocation shall be dismissed.

For the same reason, the part concerning delay damages in the appeal by the Defendants is partly with merit, and as above, it shall be accepted and the final judgment shall be rendered as above. The remaining appeals shall be dismissed as it is without merit. The total costs of the lawsuit are assessed against the Defendants. It is so decided as per Disposition by the assent of all participating Justices

Justices Seo Sung-sung (Presiding Justice)