In a case where a lessee Gap filed a lawsuit against a lessor Eul seeking the termination of a lease agreement due to nonperformance and the return of a lease deposit, etc. against a lessor Eul, and Eul filed a counterclaim against the lessor Eul seeking the termination of a lease agreement due to default and the return of land, etc., the case holding that the judgment of the court below does not constitute grounds for reversal ex officio, on the grounds that, although the lease deposit, which stated that Eul would not have any remainder in the case where the amount based on the rent ratio would be deducted from the lease deposit from the date of the counterclaim to the date of closing the argument of the court below, the order of the court below stating that Eul would deliver the leased deposit to the lessor Eul at the same time deducting the amount calculated by the rent ratio from the date of the counterclaim to the date of the completion of the delivery of the land from the date of the counterclaim to the date of

Article 208 of the Civil Procedure Act

Plaintiff

Defendant

Seoul Southern District Court Decision 201Na7241, 7258 decided December 15, 2011

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. (1) According to the reasoning of the lower judgment’s reasoning, the lower court found on July 25, 2009, based on the relevant adopted evidence, that (i) the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) leased each of the lands listed in the attached list of the lower judgment (hereinafter “instant land”) from the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) on July 25, 2009, with the lease deposit amount of KRW 30 million, monthly rent of KRW 180,000,000,000 from September 5, 2009 to September 4, 2012 (hereinafter “instant lease”). (ii) the Plaintiff did not pay a rent after October 5, 2009, and thus, acknowledged that the duplicate of the instant counterclaim, stating the Defendant’s declaration of intent to terminate the instant lease, was served on the Plaintiff on March 22, 2011.

(2) Furthermore, the court below rejected the Plaintiff’s assertion as to the counterclaim, such as the Plaintiff’s assertion that the lease contract in this case was terminated on the ground of the Defendant’s nonperformance and the Plaintiff’s claim for return of the lease deposit and damages, the Plaintiff’s assertion that there was a claim for rent reduction, the claim that there was a claim for claim for land purchase, and the claim that the land was delivered, and the Plaintiff’s claim as to the counterclaim was rejected on the ground that the lease contract in this case was terminated by the Defendant’s notice of termination on the ground of the Plaintiff’s delinquency in rent, and determined that the lease in this case was terminated by the Plaintiff’s main claim for the return of the lease deposit, the delivery of land, the rent, and the Defendant’s counterclaim seeking the payment of unjust enrichment equivalent to the rent in arrears as follows.

① At the same time with the delivery of the instant land from the Plaintiff, the Defendant shall pay to the Plaintiff the remainder of the money obtained by deducting the amount equivalent to KRW 1.8 million per month from October 5, 2009 to the completion date of delivery of the instant land.

② At the same time, the Plaintiff received from the Defendant an amount calculated by deducting the amount equivalent to KRW 1.8 million per month from October 5, 2009 to the completion date of the delivery of the instant land from KRW 30 million, and simultaneously delivered the instant land to the Defendant. If there is no remaining amount after the above deduction, the Plaintiff shall deliver the instant land, and if there is no remaining amount after the deduction, the Plaintiff shall pay the amount at the rate of KRW 1.8 million per month from the day the deducted amount is nonexistent to the day the delivery of the instant land is completed.

2. (1) The Defendant alleged in the grounds of appeal of this case that since the term of the instant lease agreement was three years from September 5, 2009 to September 4, 2012, the Plaintiff should pay the amount equivalent to the rent to the Defendant not later than the expiration date of the lease agreement or until the Defendant re-leases the instant land to a third party. However, this is a new assertion that the Defendant did not assert in the lower court’s judgment, and it cannot be a legitimate ground of appeal.

(2) Meanwhile, the text of the judgment must be able to specify the contents in the text itself, and it shall be simple and clear as soon as possible. If the amount is deducted from 30 million won to 1.8 million won per month from 5 October 2009 of the order of the judgment below to 1.8 million won per month from the date the delivery of the land of this case is completed, even if the amount already to be deducted is calculated by 17 months from October 5, 2009 to March 4, 2011, which is the day before the closing of argument of the court below (the date of closing the argument of the court below is November 3, 201), the amount to be deducted already exceeds 30 million won, and in such a case, it is dismissed the Plaintiff’s claim against the defendant, and with respect to the portion of the claim for rent and rent, it is desirable to order the delivery of the land of this case from the next day to the date of the completion of the argument of the court below to the specific amount of unjust enrichment or its payment.

However, although the order of the judgment below is inappropriate in terms of the unity and clarity, it does not constitute a ground for reversal ex officio, since it does not specify the contents of the obligation of the plaintiff and the defendant in the disposition itself, and it does not constitute a ground for reversal.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Il-young (Presiding Justice)