2018Da243676 Deposit

A

person

B

Attorney Cho Jong-tae, Counsel for the plaintiff-appellant-appellee

Seoul High Court Decision 2017Na2026797 Decided May 11, 2018

October 12, 2018

The part of the lower judgment against the Defendant regarding the claim for reimbursement of beneficial costs is reversed, and that part of the case is remanded to the Seoul High Court.

The plaintiff's appeal and the defendant's remaining appeals are all dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal on the cost of restitution, the lower court determined that the cost of restitution to be borne by the Plaintiff, who is a lessee, is reasonable to determine the amount of KRW 16,789,195, which is 50 per cent of the cost of restoring the balcony, underground entrance, external fences, external fences, external temporary facilities, underground inside, windows, windows, entrances, toilets, toilets, entrance doors, and dumgs, among the instant real estate, to be incurred by the lessee as new products.

Examining the reasoning of the judgment below in light of the records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal by the plaintiff and the defendant, the court below did not err by exceeding the bounds of the principle of free evaluation

2. As to the ground of appeal on the claim for reimbursement of beneficial expenses

A. “The beneficial cost for which the lessee may claim reimbursement of the cost” refers to the cost disbursed for the improvement of the object of lease to objectively increase the value of the object, and does not correspond to the cost disbursed for the purpose of subjective interest or a specific business of the lessee. In addition, when a lease contract is concluded, the lessee may rebuild or alter the part of the building which is the object of lease under the approval of the lessor, but if the lessee is to deliver the object to the lessor, if the lessee has agreed to restore the leased object to its original state with the burden of the cost, it is reasonable to deem that the lessee has given up in advance the right to claim reimbursement of all the beneficial costs incurred for the object of lease (see, e.g., Supreme Court Decision 94Da20389, 2039

B. According to the reasoning of the judgment below, the Plaintiff, a lessee, filed a claim with the lessor for reimbursement of beneficial costs of KRW 55,00,000 for the remodelling construction cost of the instant real estate, KRW 6,745,00 for electricity construction cost, KRW 4,80,00 for the construction cost of urban gas facilities, and KRW 4,80,00 for the construction cost of urban gas facilities. The court below cited the Plaintiff’s claim for reimbursement of beneficial costs of KRW 55,00 for remodeling construction cost of KRW 5,00 for the purpose of operating the instant real estate which was originally owned as a restaurant, as it cannot be deemed as an input cost to increase the objective value of the instant real estate in order to operate the instant real estate as a restaurant. This part of the Plaintiff’s claim for reimbursement for beneficial costs of KRW 6,745,00 for the ground that the evidence submitted to the Plaintiff alone is insufficient to acknowledge that the Plaintiff spent the above construction cost of the instant real estate.

C. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and the record, the lower court’s determination that dismissed the Plaintiff’s claim for reimbursement of beneficial costs regarding remodeling construction costs and electricity construction costs cannot be deemed as having been erroneous as otherwise alleged in the Plaintiff’

D. However, the court below which admitted the plaintiff's claim for reimbursement of beneficial costs as to the cost of urban gas facilities construction.

It is difficult to accept the judgment for the following reasons.

(1) According to the evidence duly admitted by the court below, if the plaintiff and the defendant deliver the contract of this case to the plaintiff to the present facility condition, the plaintiff will accept and use the contract during the term of lease. In the event that the lease contract is terminated, the plaintiff shall restore the real estate of this case to the original state and return it to the defendant: Provided, That the plaintiff and the defendant may return it to the defendant without restoring to the original state and return it to the defendant, and in this case, the plaintiff does not claim for beneficial expenses and necessary expenses to the defendant.

(2) However, in light of the foregoing legal doctrine, there is room to view the foregoing restitution agreement as a special agreement to the effect that the Plaintiff, a lessee, has given up in advance the right to demand reimbursement of various beneficial costs incurred in the instant real estate.

(3) In addition, according to the reasoning of the judgment below and the record, the defendant agreed to restore the real estate of this case to its original state on the date of pleading of the court below, and it has waived the right to claim reimbursement of beneficial non-performance, so the plaintiff's assertion of beneficial non-performance is without merit.

(4) Therefore, the lower court should have deliberated whether the Plaintiff agreed in advance to waive the right to demand reimbursement of the beneficial cost incurred to the instant real estate at the time of concluding the instant lease agreement, and then have determined the validity of the Plaintiff’s claim for reimbursement of beneficial cost reimbursement regarding the cost

(5) Nevertheless, the lower court accepted the Plaintiff’s claim for reimbursement of beneficial costs regarding the cost of urban gas facility construction solely based on its stated reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the waiver of the right to claim reimbursement of beneficial costs and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Defendant

3. Conclusion

Therefore, the part of the lower judgment against the Defendant regarding the claim for reimbursement of beneficial costs is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal and the remainder of the Defendant’s appeal are all dismissed. It is so decided as per Disposition by the assent

Justices Kim Jae-sik, Counsel for the defendant

Justices Cho Jong-hee

Justices Min Min-young

The chief Justice Justice shall mobilized