In a case where a lessee leaves the leased object from the leased object but did not notify the lessor of such fact, whether there was a provision to perform the surrender of the leased object (negative)

Inasmuch as a lessee’s obligation to specify the leased object and a lessor’s obligation to return the deposit are in a simultaneous performance relationship, in order to extinguish a lessor’s defense of simultaneous performance and to recognize a lessor’s obligation to delay the repayment of the deposit, the lessee must provide the lessor with an explanation of the leased object. In a case where the lessee did not notify the lessor of the fact while leaving the leased object, it cannot be deemed that there was a provision of performance of an explanation of the leased object.

Articles 460, 536, and 618 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

Plaintiff

Defendant

Seoul High Court Decision 2000Na39584 delivered on October 24, 2001

The part of the judgment of the court below which ordered payment to the defendant in excess of the following part of the order ordering payment is reversed, and the plaintiff's claim extended at the court below corresponding to this part is dismissed. The defendant shall pay to the plaintiff the amount equivalent to five percent per annum from May 15, 2001 to February 26, 2002, and twenty-five percent per annum from the next day to the date of full payment. The defendant's remaining grounds of appeal are dismissed. The total costs of the lawsuit shall be four minutes to the plaintiff and the remainder shall be borne by the defendant.

1. As to the third ground for appeal

The court below acknowledged that: (a) the Plaintiff leased the apartment of this case from Nonparty 1, who represented by the Defendant around February 1993 to KRW 55,00,00; (b) on October 194, the Plaintiff increased the lease deposit to KRW 60,00,000 between Nonparty 1 and Nonparty 1; and (c) on October 15, 1997, the lease contract was renewed with Nonparty 1 to increase the lease deposit to KRW 75,00,000; and (d) on October 15, 1997, Nonparty 1 notified the Defendant of the increase of the lease deposit amount to KRW 75,00,000; and (e) the Defendant did not raise any objection to the validity of the lease contract until before the lawsuit of this case is transferred; and (e) based on the above recognition, Nonparty 1 leased the apartment of this case to the Plaintiff and increased the deposit over the two occasions, the Plaintiff’s right to represent the Defendant.

In light of the records, the above fact-finding and decision of the court below are justified, and there is no error of law such as misunderstanding of facts against the rules of evidence as otherwise alleged in the ground of appeal ( so long as it is recognized that a non-party 1 entered into each of the above lease agreements with the plaintiff based on the authority to represent the defendant, whether it constitutes an act of expression representation beyond the authority under Article 126 of the Civil Code shall not affect the conclusion of the judgment of this case, and

2. As to the grounds of appeal Nos. 1 and 2

On May 28, 200, the court below acknowledged the fact that the plaintiff moved from the apartment of this case to the security guard that the key to the apartment of this case was entrusted to the security guard, and determined that this should be deemed to have been ordered. The court below ordered the defendant to pay damages for delay at the rate of 25% per annum from May 31, 2000 to the full payment date, which is stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings on Lease Deposit (hereinafter referred to as the "Special Cases Act").

Since the tenant's duty to specify the object of lease and the duty to return the deposit of the lessor are in a simultaneous performance relationship, in order to extinguish the lessor's right to defense of simultaneous performance and to recognize the lessor's obligation to delay the repayment of the deposit, the lessee must provide the lessor with the explanation of the object of lease. If the lessee did not notify the lessor of the fact while leaving the leased object, it cannot be deemed that there was a provision of performance of the explanation of the object of lease.

However, even after examining the record, there is no evidence to support the fact that the plaintiff notified the defendant of the fact that the incidental appeal filed by the plaintiff on May 11, 2001 was delivered to the defendant on or before May 14, 2001. Thus, in light of the above legal principles, damages for delay due to delay of the above lease deposit can only be recognized from the 15th of the same month on the following day of May 14, 201. Therefore, it is reasonable that the defendant raised a dispute as to the scope of the obligation to pay damages for delay as to the plaintiff's claim seeking the payment of damages for delay after May 31, 200, the court below ordered the payment of damages for delay on the ground that the defendant's obligation to return the lease deposit was omitted on or before May 31, 200, since the rate of damages for delay was 25% per annum as stipulated in the Act on Special Cases Concerning the Payment of Lease Deposit, and it is unlawful for this part of the grounds for appeal.

3. Determination on damages for delay

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 defendant is liable to pay 75,00,000 won to the plaintiff. However, since a dispute on the starting date of damages for delay is recognized to have considerable grounds for the plaintiff's payment of damages for delay, the damages for delay is liable to pay damages for delay at the rate of 5% per annum prescribed by the Civil Act from May 15, 2001 to February 26, 2002, which is the day following the day on which the petition for incidental appeal, which is recognized to have been served on the plaintiff for the payment of damages for delay, is deemed to have been served on the plaintiff, and it is also liable to pay damages for delay at the rate of 75,00,000 won per annum under the Civil Act from the next day to the day on which the court below delivered the petition for incidental appeal, which is recognized to have been served on the defendant for the payment of the damages for delay, the part exceeding the above cited scope is dismissed, and it is dismissed and the plaintiff's claim for delay as extended from the judgment below

4. Conclusion

Therefore, since the part of the Defendant’s appeal on delay damages is with merit, it shall be accepted and the final judgment shall be rendered as above. The remaining appeals shall be dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench by setting the total cost of lawsuit between the

Justices Song Jin-hun (Presiding Justice)