Managing Body of 2nd floor every nautical miles

Orien Seacom Co., Ltd. (Law Firm White, Attorney Kim Jae-chul, Counsel for the plaintiff-appellant)

March 21, 2012

Seoul Central District Court Decision 2010Da456207 Decided May 13, 2011

1. Of the judgment of the court of first instance, the part against the defendant against the plaintiff exceeding the amount ordered to be paid below shall be revoked and the plaintiff's claim corresponding to the revoked part shall be dismissed.

The defendant shall pay KRW 31,569,728 to the plaintiff.

2. The defendant's remaining appeal is dismissed.

3. Of the total litigation costs arising between the plaintiff and the defendant, 4/5 shall be borne by the plaintiff, and the remainder by the defendant, respectively.

1. Purport of claim

From July 15, 2010 to May 31, 201, the Defendant paid to the Plaintiff money calculated at the rate of KRW 19,125,00 per month (the Plaintiff reduced the purport of the claim at the trial).

2. Purport of appeal

The part of the judgment of the first instance against the plaintiff and the defendant shall be revoked. The plaintiff's claim against the defendant shall be dismissed.

1. Basic facts

A. The nautical miles management body is a management body comprised of sectional owners of the buildings listed in the separate sheet (hereinafter “instant building”). The Plaintiff is a management body comprised of sectional owners of the second floor among the instant buildings for the purpose of leasing the second floor.

B. On October 19, 209, the Plaintiff and the lower management body (hereinafter referred to as “the Plaintiff, etc.”) provided that on the 2nd floor of the instant building, KRW 1,2,3,4,5, and 1 of the 2nd floor of the building, the additional amount of KRW 40,5,6,7,8,9, and 4 of the said drawing (B), 14,15, 17, 19, 20, and 14 of the said drawing (hereinafter referred to as “the Plaintiff, etc.”) shall be 14, 10, 11, 22, 13, 14, 20, and 200,000,000,000 KRW 15,00,000,000,000,000,000,000,000,000,000 KRW 1,30,000,00,000.

C. Meanwhile, at the time of the conclusion of the instant lease agreement, the Plaintiff et al. delivered a sub-lease agreement stating that “the consent to sub-lease the store of this case by arbitrarily dividing the store into the ground volume” to the land volume at the time of the conclusion of the instant lease agreement. The aforementioned (Ga) portion of the instant store was KRW 81.6 million, monthly rent was 20%, general management expenses were 2,448,00 won (excluding value-added tax), and the period was set from October 30 to October 28, 201, each of which was sub-leaseed (the sub-lease agreement was drawn up as of September 22, 2009, with the signature and seal of the Defendant after the conclusion of the instant lease agreement, including the aforementioned (Ga) portion of the instant store as KRW 81.6 million, monthly rent was modified, including the aforementioned (Ga) portion of the value-added tax to KRW 600,80,000, the instant sub-lease agreement with the Defendant (hereinafter referred to as “the instant sub-lease agreement”).

D. From March 2010, the Plaintiff et al. did not pay monthly rent under the instant lease agreement to the Plaintiff et al. from March 201, and if the Plaintiff et al. did not pay the overdue rent to the Plaintiff et al. by May 24, 2010, the Plaintiff et al. notified the Plaintiff et al. that the instant lease agreement was automatically terminated pursuant to Article 6 of the instant lease agreement (if the rent and management fee are delayed for more than 2 months, the Plaintiff et al. may terminate the instant contract without the prior peremptory notice and demand the presentation of the instant store), if the instant lease was not paid to the Plaintiff et al. by June 9, 2010. Thereafter, the Plaintiff et al. requested the Plaintiff et al. to leave the instant store and order the instant store to be issued to the Plaintiff et al.

E. On the other hand, the Defendant paid the monthly rent to the branch office from November 16, 2010 to November 30, 201 under the instant sub-lease contract, and the rent is KRW 5,365,524 to December 30 of the same year, KRW 10,507,684, KRW 637,180, KRW 3615,162, and KRW 3,474, KRW 140 to April 30 of the same year, and KRW 1,70,038 of the same year.

F. Until the end of April 201, the Defendant operated the instant sub-lease, and the instant sub-lease was delivered to the Plaintiff, etc. on May 201.

[Reasons for Recognition] Uncontentious Facts, Gap evidence Nos. 1 through 5, Gap evidence No. 7, Eul evidence Nos. 1, 3, 4, and 5 (including branch numbers), the testimony of the non-party witness at the trial and the purport of the whole pleadings

2. Determination:

A. The plaintiff's assertion

The instant sub-lease contract was terminated as of June 1, 201 without the consent of the Plaintiff, a lessor, etc., or the instant lease contract was lawfully terminated as of June 1, 2010. Therefore, the Defendant, as unjust enrichment, is obligated to pay the Plaintiff money at the rate of KRW 19,125,00 per month from July 15, 201, when the instant sub-lease store was delivered to the Plaintiff, etc. from July 31, 201, when it was appropriated to the unpaid monthly rent, etc. due to which the deposit was paid to the Plaintiff, etc. under the instant lease contract.

(b) Period for causing unjust gains;

1) Return of unjust enrichment

A) According to the above facts, it is clear that the instant sub-lease contract was concluded with the consent of the Plaintiff, etc., a lessor, and barring any other special circumstances, it is reasonable to view that the instant lease contract was terminated on June 2010 by the notice of termination on the ground that the instant lease contract was terminated by June 2010, on the ground that it was in arrears for not less than 2 months, since it was called a b

B) Although the lessor’s right of lease on the basis of the lessee’s right of lease is established on the basis of the lessee’s right of lease, it is reasonable to view that the lessee’s right of lease on the basis of the lessee’s right of lease is not immediately extinguished solely on the ground that the lessee’s right of lease expires due to the expiration of the lease period or termination, etc., and only when the lessee terminates the sub-lease contract or the lessor claims the return of the object or the return of unjust enrichment to the lessee, etc., and thereafter, the sub-lease cannot oppose the lessor by payment of the rent to the sub-leased in principle

In light of the above legal principles, the facts that the plaintiff et al. filed the lawsuit in this case against the defendant seeking the delivery of the instant sub-lease and the return of unjust enrichment from the possession and use of the instant sub-lease, and served on the defendant on November 29, 2010, are apparent (According to the evidence Nos. 7-1 and 2, the plaintiff et al. was prohibited from sub-lease of the instant sub-lease, and the lease contract of this case was terminated on November 5, 2010. Thus, it is recognized that the plaintiff et al. sent a certificate to the defendant on November 30, 2010 that "the sub-lease of this case is prohibited, and the lease contract of this case was terminated." However, there is no evidence to prove that the above content certification was delivered to the defendant. Thus, the plaintiff et al. did not accept the plaintiff's assertion that the plaintiff et al. notified the termination of the instant lease contract to the defendant on November 5, 2010.

C) Meanwhile, the lessor, who obtained the lessor’s consent, has the duty to pay the rent to the lessor (Article 630(1) of the Civil Act). If the lessor requested the lessee before the time of payment of the rent under the sub-lease contract, the sub-lessee cannot set up against the lessor by paying the rent to the sub-lease. According to the statement Nos. 3-1 and 2-2, it is recognized that the monthly rent payment under the sub-lease contract of this case was within 10 days after the end or end of each month, and that the duplicate of the complaint of this case seeking the payment of the amount equivalent to the unjust enrichment due to the possession of the sub-lease of this case was served on the Defendant on November 29, 2010 (i.e., the date of payment after November 16, 2010). Ultimately, the Defendant cannot set up against the Plaintiff for the period after November 16, 2010.

D) Furthermore, on or before July 15, 2010, under the premise that the instant sub-lease contract has been terminated, the Plaintiff sought a payment of unjust enrichment equivalent to the rent due to the possession and use of the instant sub-lease after July 15, 2010, and contrary to the Plaintiff’s assertion, it is reasonable to deem that the purpose of seeking a payment of the rent equivalent to the rent according to the instant sub-lease contract is included in the period where the instant sub-lease contract remains effective after July 15, 2010.

E) Therefore, barring any special circumstances, the Defendant is obligated to pay to the Plaintiff the monthly rent under the instant sublease contract for the period from November 16, 2010 to the 29th day of the same month during which the instant sublease contract is terminated, and the Defendant is obligated to pay to the Plaintiff the amount equivalent to the unjust enrichment from the occupation and use of the instant sublease store until April 30, 201, operated by the instant sublease store from the next day to April 30, 201. Ultimately, the Plaintiff’s claim for the period other than the said recognition period is groundless.

2) Judgment on the defendant's assertion

A) The Defendant asserts that the termination of the instant lease agreement shall take effect against the Defendant at least six months after the Defendant was notified of the termination of the lease agreement under Articles 638 and 635 of the Civil Act. However, Articles 638 and 635 of the Civil Act do not apply where the lessor terminates the lease agreement on the ground of the lessee’s delayed rent, as in the instant case. Therefore, the Defendant’s assertion is without merit.

B) In addition, the Defendant asserts to the effect that the agreement was concluded around May 201 with the Plaintiff, etc., and that the Plaintiff could not seek the amount equivalent to the above unjust enrichment from the Defendant.

According to the evidence No. 7, the court below found that the agreement was reached to the effect that, on May 11, 2011, "the rent and management expenses incurred as of April 30, 201, are offset against each other, and that, on the condition that, as of April 30, 201, there is no obligation to pay to the management body what she should pay to the nautical miles, it is hard to believe that some testimony of the non-party witness of the non-party, who appears to meet the above agreement, on the ground that the management body reached the above agreement under the delegation of the plaintiff, etc., and that the non-party witness of the non-party witness of this case, who was considered to meet the above agreement, cannot be found to be guilty, and there is no reason to acknowledge it differently.

(c) Amount of unjust gains;

Unless there are other special circumstances, it is reasonable to view that the Defendant’s profits earned by continuously occupying and using the instant sub-lease after the completion of the instant sub-lease contract with the consent of the Plaintiff, etc., a lessor, are equivalent to the rent under the instant sub-lease contract, and the sum of monthly rents for the period from November 16, 2010 to April 30, 201 (i) 31,569,728 won based on the instant sub-lease contract (=5,365,524 + 10,507,684 + 6,837,180 + 3,615,62 + 3,474,140 + 140,170 + 183,67,684 + 3,615,162 + 3,474,140 + 1,770,038) is clear.

3. Conclusion

Therefore, the defendant is obligated to pay the plaintiff 31,569,728 won of the above recognition as monthly rent or unjust enrichment. Thus, the plaintiff's claim of this case is justified within the extent of the above recognition, and the remaining claims are dismissed as it is without merit. Since the part against the defendant against the plaintiff who ordered payment in excess of the above recognition amount in the judgment of the court of first instance is unfair, the plaintiff's claim corresponding to the revoked part is revoked, and the defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-chul (Presiding Judge)