Plaintiff (Law Firm Rops, Attorneys Kim U-young, Counsel for the plaintiff-appellant)

Defendant (Attorney Yu Hong-han, Counsel for defendant-appellant)

may 2, 2006

Incheon District Court Decision 2003Da40339 Delivered on July 22, 2005

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 48,258,064 won with 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

This part is the same as the statement of 1. Basic Facts in the judgment of the court of first instance, and this part is cited by Article 420 of the Civil Procedure Act as it is.

2. Determination on the cause of the claim

A. According to the above facts, upon the Plaintiff’s consent based on the instant lease agreement between the Plaintiff and the Nonparty, a sub-lease contract was concluded between the Defendant and the Nonparty, which provides a deposit of KRW 50 million per month, and KRW 1.7 million per month for the corresponding part of the instant purchase and sale complex. The Defendant did not pay the rent to the Nonparty or the Plaintiff from March 1999, and the Nonparty did not pay the rent to the Plaintiff. The lessee is obligated to directly pay the lessor the rent from March 1999 to the termination of the sub-lease contract (Article 630(1) of the Civil Act). If the lessee sub-leases the leased object with the lessor’s consent, the former lessee is obligated to pay the Plaintiff the rent from March 199 to the termination of the sub-lease contract. Even if the instant lease contract was terminated by the agreement between the Plaintiff and the Nonparty, the lessor, the lessor, and the Defendant, the lessee, the lessee, to the extent that he directly occupies and uses the leased object (Article 631 of the Civil Act).

Thus, the defendant, barring special circumstances, is obligated to pay to the plaintiff 48,258,064 won in arrears at the rate of 1.7 million won per month from March 1, 1999 to July 12, 2001, which is the date of loss of the plaintiff's ownership, within the scope of 48,270,684 won [=1.7 million won x [28,12 + (12 + 365/12), and less than won], and damages for delay calculated at the rate of 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from July 28, 2003 to the date of full payment.

3. Judgment on the defendant's assertion

A. First of all, the Defendant asserts to the effect that the instant sub-lease contract between the Nonparty and the Defendant was terminated due to a successful bid on July 13, 2001, and that there was an implied agreement between the Nonparty and the Defendant to set off the Nonparty’s obligation to return the sub-lease deposit to the Defendant and the Defendant’s obligation to pay the non-party in arrears on an equal amount, and that the said obligation to return the sub-lease deposit exceeds the amount of the non-party’s obligation to pay the non-party in arrears. This is a cause for the extinguishment of the obligation incurred after the time of the payment of the rent, and thus, the Defendant may oppose the Plaintiff’s claim.

There is no evidence to acknowledge that the non-party and the defendant agreed to set off the non-party's obligation to return the sub-lease deposit against the non-party and the defendant's obligation to pay the non-party in arrears on an equal amount. Thus, the defendant's assertion on the above part is without merit without further review.

B. Next, in light of the legal principles that the rent obligation is naturally deducted from the lease deposit even if there is no separate declaration of intention at the time of the return of the object after the termination of the lease relationship, the Defendant asserts to the effect that the Plaintiff’s claim based on the premise that the Defendant’s obligation to pay the rent in arrears exists is unreasonable, since the rent in arrears is deducted from the Defendant’s deposit at the time of the termination of the sub-lease contract in this case,

In this case, the lessee assumes the duty of the lessor to sub-lease the object with the consent of the lessor and the lessee cannot set up against the lessor by paying the rent to the lessor (see Article 630(1) of the Civil Act). It is reasonable to view that the scope of the rent which the sub-lessee cannot set up against the lessor is limited to the rent paid to the sub-lease on the basis of the time of the sub-lease payment under the sub-lease contract, and that the rent paid thereafter can be set up against the lessor ( unless the aforementioned interpretation is made, it is unreasonable that the legal status of the sub-lease with the consent of the lessor remains too unstable and too unstable). Meanwhile, since the deposit received from the lease of real estate guarantees all the obligations of the lessee due to the lease relationship, such as damages liability arising from the destruction, damage, etc. of the object, and the amount equivalent to the obligation of the sub-lease is still set up as a defense against the lessor by the date of the termination of the sub-lease contract of this case by 00 days after the termination of the sub-lease contract of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Lee Jae-chul (Presiding Judge)