(영문) 대구고등법원 2016.6.29. 선고 2015나24103 판결

A) Ascertainment that the lease relationship between the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) and the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) exists as described in the attached Form (3) with respect to the first floor restaurant 365.0 square meters (hereinafter referred to as the “instant restaurant”) of the Library Specializing in C law in Gyeongsan-si (hereinafter referred to as the “instant restaurant”) from November 1, 2014 to October 31, 2015; and

B) The Defendant shall not engage in such conduct as posting a notice to the effect that it violates the lease agreement as shown in the attached Form (3) on the website of the D University, public notice board, or as interfering with business such as notifying the president, headquarters, university, graduate school, affiliated organizations, other institutions, board of trustees, university councils, university councils, staff and labor union, university, industry-academic cooperation foundation, affiliated professors, teachers and staff members, students, etc.

C) On October 27, 2014, the Defendant posted to the Plaintiff a notice to revoke the notice to suspend the operation of the public library specializing in law, a restaurant, and a lodging establishment, at the home page of the D University.

D) The Defendant shall pay KRW 50,000,000 as of the end of each month until the performance of the obligation under sub-paragraph (c) from November 1, 2014.

2) The gist of the preliminary claim

The Defendant shall pay KRW 100,00,000 to the Plaintiff at the same time with the delivery of KRW 365 square meters in part of the restaurant on the ship, which connects each point of the attached Form (2) No. 1, 2, 3, 4, 5, 6, 7, 8, and 1 among the real estate listed in the attached Form (1) list from the Plaintiff.

B. Counterclaim: The plaintiff shall deliver to the defendant the 365 square meters of the part cafeteria in the ship (A) which connects each point of the attached Form No. 1, 2, 3, 4, 5, 6, 7, 8, and 1 among the real estate listed in the attached Form No. 1 list to the defendant in sequence.

2. Purport of appeal

A. Main suit: The part against the plaintiff falling under the part against which payment order is rendered under the following among the part concerning the main suit of the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiff KRW 100,00,000 at the same time with the delivery of KRW 365,00,00 to the plaintiff on the ship connecting each part of the real estate listed in the attached Form (2) among the real estate listed in the attached Form (1) by the plaintiff in sequence 1, 2, 3, 4, 5, 6, 7, 8 and 1.

B. Counterclaim: Revocation of the part concerning the counterclaim of the judgment of the court of first instance. The defendant's counterclaim is dismissed.

Reasons

1. Scope of the judgment of this court;

At the first instance court, the Plaintiff filed a claim for the payment of money from the date of the principal suit, ① the confirmation of the existence of a lease agreement, ② the claim for prohibition of interference with business, and the notice on the notice, ② the Defendant filed a claim for the attached object, ② the first instance court, ③ the first instance court, and ③ the claim for the delivery due to the expiration of the lease agreement term. The first instance court dismissed the Plaintiff’s claim on the ground that both the Plaintiff’s primary claim and the conjunctive claim are groundless, and rendered a judgment citing the Defendant’s counterclaim. Accordingly, the Plaintiff filed an appeal for the part of the main suit, ② the claim for the attached object, the conjunctive claim, and ③ the claim for the delivery due to the expiration of the lease agreement term. Accordingly, the first instance court filed an appeal only for the part of the main claim, ② the claim for the attached object, the conjunctive claim, and the claim for delivery due to the expiration of the lease agreement term.

2. Basic facts

A. On June 1, 2006, the Plaintiff entered into a lease agreement with the Defendant by setting the lease deposit of KRW 10 million with respect to the instant restaurant from May 19, 2006 to June 30, 201. At the time of entering into the said lease agreement, the Plaintiff entered into a lease agreement by a negotiated contract with the Defendant. In consideration of the Plaintiff’s initial facility investment expenses, the Plaintiff’s rent is exempted; the Plaintiff’s subsidiary facilities installed by the Plaintiff, as the lessee, may not claim any right against the Defendant or the next lessee; and the Plaintiff agreed to restore the leased agreement to its original state when the lease agreement is terminated.

B. On October 17, 201, the Plaintiff agreed with the Defendant to make a lease agreement again (hereinafter “lease agreement”) with regard to the instant restaurant as to the facilities or additional investments established by the Plaintiff during the term of the contract or the expiration of the term of the lease agreement, and not to claim the Defendant for the facility investment cost.

C. On April 16, 2012 between the Plaintiff and the Defendant, Daegu District Court Decision 2012No. 11, which included the following content (hereinafter referred to as “instant protocol of conciliation”).

(1) Paragraphs (1) through (4) omitted.

5. The respondent may install or alter incidental facilities necessary for operation at the expense of the respondent only when he/she has obtained approval in writing from the applicant, and may not claim the value or goodwill of the incidental facilities after the completion of the contract to the applicant or the lessee.

(6), (7) omitted.

8.(Repair and repair)

(a) The respondent shall bear the costs of subsequent facility investment and repair and repair after completion of all facility investment and facility investment, and shall not require the applicant to pay the facility investment cost after completion of the contract, and shall donate all facility investment cost to the applicant without conditions, without regard to the applicant;

(hereinafter omitted)

D. The Defendant concluded a lease agreement with the term from July 1, 2014 to August 31, 2014 (hereinafter referred to as “lease agreement from June 30, 2014”) on June 30, 2014 so that the Plaintiff may temporarily operate the instant restaurant before the said lease term expires, and entered into a lease agreement with the term of August 29, 2014 from September 1, 2014 to October 31, 2014 (hereinafter referred to as “lease agreement”).

E. On October 27, 2014, the Defendant requested the Plaintiff to deliver the instant restaurant on the ground of the expiration of the lease agreement term, and on November 19, 2014, requested the Plaintiff to deliver the instant restaurant.

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 1 and 2 (including branch numbers where no special indication is made; hereinafter the same shall apply) and the purport of the whole pleadings

3. The parties' assertion

A. The plaintiff

1) Since the Defendant did not express his/her intent to refuse the renewal of the lease within one month from August 29, 2014, which was the date when the lease agreement was terminated on August 29, 2014, which was last concluded by the Plaintiff, to the Plaintiff, the said lease agreement was implicitly renewed pursuant to Article 10(1) of the Commercial Building Lease Protection Act, and the Plaintiff and the Defendant continue to have the same lease relationship under the same conditions with the term of one year, and thus, the Plaintiff is not obligated to deliver the instant building to the Defendant.

2) Even if the lease contract has expired, the Plaintiff’s request for the purchase of the accessories installed to remodel the instant restaurant at the Defendant’s request, and the Defendant must purchase the accessories. In addition, even if the Plaintiff renounced the right to purchase the accessories in the instant protocol, the effect of the protocol of conciliation is limited to the lease agreement dated October 17, 201, and it does not extend to the lease agreement dated June 30, 201 and the lease agreement dated August 29, 2014.

B. Defendant

1) Since the lease agreement of the Plaintiff and the Defendant on August 29, 2014 concluded the existing lease agreement, the lease agreement is a lease that allows the Plaintiff to temporarily use the instant restaurant during the process of selecting a new operator of the instant restaurant after the termination of the existing lease agreement, so the said agreement does not apply to the Commercial Building Lease Protection Act and is terminated upon the expiration of the period of validity. Accordingly, the Plaintiff must deliver the instant building to the Defendant.

2) Since the Plaintiff waived the right to purchase the accessory in the instant protocol of conciliation, the Plaintiff’s right to claim the accessory is against the res judicata effect of the instant protocol of conciliation, and the Plaintiff’s waiver of the right to request the accessory was made instead of determining the Plaintiff’s rent for facility investment, and thus, is not disadvantageous to the Plaintiff.

4. Determination

A. Determination on the defendant's counterclaim claim

According to the following circumstances, Gap 2, 3, and Eul 3, which can be acknowledged by comprehensively taking account of the overall purport of arguments, i.e., the lease agreement dated June 30, 2014 and the lease agreement of August 29, 2014, 'the contract number : E., library rental contract number : E., library cafeteria)' 2-month extension contract for 17 October 17, 201 - the lease agreement of 10 - 16 months was extended to 4. 6 months for 16 months for 20 years after the expiration of the lease period (the lease agreement of this case : E.), the lease agreement of this case was extended to 10. 4 months after the expiration of the lease period of 20 months for 16 months before the expiration of the lease period of 10. 3 months after the expiration of the lease period of 14. 6 months before the expiration of the lease period of this case.

B. The plaintiff's main claim (the plaintiff's claim for the purchase of accessorys)

The protocol of protocol prior to the filing of a lawsuit has the same effect as that of a final and conclusive judgment, and thus, res judicata takes effect between the parties. Thus, even if the contents of protocol of protocol prior to the filing of a lawsuit violate compulsory provisions, it is merely a defect in the settlement prior to the filing of a lawsuit, and thus, it cannot be asserted that the protocol of protocol of quasi-deliberation is null and void (see, e.g., Supreme Court Decision 2002Da44014, Dec. 6, 2002). In addition, even if the subject matter of a lawsuit is identical to that of a subsequent lawsuit, if the subject matter of a lawsuit becomes a prior legal relationship in the subsequent lawsuit, the court of the subsequent lawsuit cannot render a judgment inconsistent with the judgment prior to the filing of the subsequent lawsuit (see, e.g., Supreme Court Decision 9Da5472, Feb. 25, 2000). Article 643 of the Civil Act regarding the lessee’s right to demand the purchase of attached materials, and thus, it cannot be deemed disadvantageous to the lessee.

According to the facts acknowledged above, the plaintiff renounced the right to purchase the attached article and the right to claim reimbursement of expenses related to the lease of this case under paragraphs 5 and 8 of the reconciliation agreement of this case. Since this has the same effect as the final and conclusive judgment, the plaintiff cannot assert that the plaintiff would exercise the right to purchase the attached article against the provisions of the reconciliation agreement of this case, and the court may not make a decision contrary to the above reconciliation agreement of this case. In addition, the following circumstances, which can be known by the above facts, are determined as being the monthly rent in light of the plaintiff's facility investment cost related to the restaurant of this case when the first plaintiff and the defendant entered into a lease agreement on the restaurant of this case at June 2006, the plaintiff and the defendant decided to waive the plaintiff's right to purchase the attached article instead of being the next, and the plaintiff and the defendant agreed to waive the plaintiff's right to purchase the attached article while entering into the renewal agreement of this case after the plaintiff and the defendant and specified the above contents in the protocol of conciliation of this case, the plaintiff cannot exercise the right to purchase attached.

In addition, as seen earlier, the lease agreement dated June 30, 201 and the extension of the lease agreement dated August 29, 201 as of October 17, 201, other than those stipulated in each lease agreement, are subject to the terms of the lease agreement dated October 17, 201, and the waiver of the right to purchase the attached object is subject to the terms of the lease agreement dated October 17, 201. As such, the effect of the instant protocol of settlement on the lease agreement dated October 17, 2011 on the waiver of the right to purchase the attached object extends to the lease agreement dated August 29, 2014.

Therefore, the plaintiff's assertion that the plaintiff has the right to purchase the appurtenances based on the lease of this case is without merit.

5. Conclusion

Therefore, the plaintiff's main claim is dismissed as it is without merit, and the defendant's counterclaim is justified, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.