(영문) 부산지방법원 2017.5.24.선고 2016나5884 판결

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the following order for payment shall be revoked. 2. The defendant shall pay to the plaintiff 2,00,000 won with 5% interest per annum from November 19, 205 to May 24, 2017, and 15% interest per annum from the next day to the date of full payment.

3. The defendant's remaining appeal is dismissed.

4. 9/10 of the total litigation costs is assessed against the Plaintiff. The remainder is assessed against the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 21,115,00 won with 15% interest per annum from the day following the service date of a copy of the complaint of this case to the day of complete payment.

Reasons

1. Basic facts

A. On May 24, 2013, C, the Plaintiff’s land, entered into a lease agreement (hereinafter “instant lease agreement”) with D, the Defendant’s mother, to lease part of the land unit E (hereinafter “the instant real estate”). The main contents are as follows.

Article 1) In the lease contract for the above real estate, the lessee shall pay the deposit and the rent as follows.Article 2) The lessor shall deliver the above real estate to the lessee by no later than May 24, 2013 and the lease period shall be 24 months from the date of delivery until May 23, 2015.Article 4) If the lessee fails to pay the rent more than twice or violates the provisions of Article 3, the lessor may terminate this contract.[Special Provisions] 1. (Special Provisions] if the lessee fails to pay the rent, the lessee shall pay the overdue rent after deducting the overdue rent from the deposit if it fails to pay the rent.2. If the rent fails to pay the rent continuously, this contract shall be deemed terminated, and if the re-contract is not concluded within two months, the lessee shall be voluntarily disposed of for the leased portion.

In order to continue to maintain the contract, the delivery of will must be notified 10 days before the contract is terminated.

B. On September 24, 2013, D sent a content-certified mail to the effect that it would not pay a tea after the conclusion of the instant lease agreement to C, and thus, D sent the said contract to C by way of delivery of the house fixtures located in the instant real estate (hereinafter “house fixtures”). The said content-certified mail reached C around that time.

C. The Defendant was unable to contact with C, and around October 2013, the instant house boxes were all located in the instant real estate.

D. The Plaintiff is the owner of the instant house (the Plaintiff entered into the lease contract of this case to keep the Plaintiff’s house, etc. under guard) and on July 1, 2015, the Defendant filed a complaint against the Defendant under suspicion of intrusion of residence, etc. on the instant house, etc. on the disposition of the instant house, and the Defendant was subject to a non-prosecution disposition by the Busan District Prosecutors’ Office.

[Ground of recognition] Facts without dispute, Gap evidence 2, 4, Eul evidence 1, 2, and 3, the purport of the whole pleadings

2. Determination

A. Whether the instant lease contract has been terminated

1) According to Articles 4 and 3 of the instant lease agreement and Article 3 of the Special Agreement, the Defendant asserts that the said lease agreement was terminated on July 24, 2013, where C was in arrears at least twice a month, on the grounds that the said contract was terminated without any separate notice of termination.

2) Article 3 of the Special Agreement provides that "a lessee shall be terminated pursuant to Article 4 if he/she fails to pay a rent on more than two occasions," and Article 4 provides that a lessor may terminate this contract if he/she fails to pay a rent on more than two occasions." In light of the comprehensive meaning of the above provision, this is only a provision that "if he/she fails to pay a rent on more than two occasions, he/she may terminate the lease contract of this case on this ground," and it does not mean that the contract is terminated without any separate notice of termination. Article 2 of the Special Agreement provides that a lessee shall be deemed to have terminated the contract without any separate notice of termination, but this provision provides that "the lessee shall not be deemed to have terminated the lease contract of this case on more than six occasions without any separate notice of termination." Article 2 of the Civil Act provides that "the termination of the lease contract of this case shall not be applied to a lessee who has expressed his/her intention to set off a rent on more than two occasions, which is contrary to Article 260 of the Civil Act.3.

4) However, in full view of the description of evidence No. 2, part of witness C of the trial of the party, and the purport of the entire pleadings, the Defendant sent to C a certificate of content that contains a declaration of intent to terminate the above lease on the grounds of rent at least two occasions on September 23, 2013, and it is recognized that such certificate was delivered to C on September 27, 2013. However, according to Article 2 of the Clause of the Special Agreement on the Lease, if there is a shortage in the amount that can be treated as offset against the deposit due to the continued delay of the rent, this contract shall be deemed terminated, and since the time when the shortage of the deposit occurred on September 24, 2013, it is reasonable to view that the above lease was terminated on September 24, 2013.

B. According to Article 2 of the Terms and Conditions of the instant lease agreement, if the Defendant’s disposal act on the instant house constitutes a tort, it shall be deemed that the instant lease agreement is terminated, and if there is a shortage in the amount to be settled by offsetting from the security deposit because it is in arrears, it shall be deemed that the instant lease agreement is terminated, and the instant lease agreement has been terminated on September 24, 2013, and as seen earlier, it shall be deemed that the instant lease agreement has been terminated on September 24, 2013. Therefore, according to the foregoing special agreement, the Defendant may arbitrarily dispose of the instant house owned by the Plaintiff thereafter if it is not concluded by November 23, 2013.

2) Comprehensively taking account of the purport of evidence No. 6-1 and No. 6-2’s statement, the highest father F, the owner of the instant real estate, entered into a sales contract to sell the instant real estate with G on September 10, 2013, and completed the registration of ownership transfer on October 2, 2013. Around October 7, 2013, it can be recognized that the Defendant disposed of the instant house owned by the Plaintiff, which was the Plaintiff’s owner of the instant real estate. The said disposition was completed at the time when two months have not elapsed under the foregoing special agreement.

3) Therefore, the Defendant’s arbitrary disposal of the instant house owned by the Plaintiff constitutes a tort.

C. Occurrence and scope of liability for damages

1) Since the Plaintiff suffered damages equivalent to the value of the house of this case, which is one’s own possession by the Defendant’s unlawful act, the Plaintiff is liable for compensating the Defendant for damages equivalent to the above cost of house of this case.

2) However, in a lawsuit seeking compensation for damages, the court may determine a reasonable amount as damages by taking into account the overall purport of pleadings and all the circumstances acknowledged by the result of examination of evidence, where it is deemed difficult to prove the specific amount of damages in light of the nature of the case, even though the damage was incurred (see, e.g., Supreme Court Decision 202-2 of the Civil Procedure Act). In addition, in cases where the victim was negligent in causing or expanding the damage, or there is any ground to restrict the perpetrator’s liability, such reasonable amount should be taken into account as a matter of course when determining the scope of liability for damages (see, e.g.

3) The Plaintiff asserts that the content and value of the instant house are the same as the list of corporeal movables, such as household effects that were stolen by the attached sheet (hereinafter referred to as the “attached list”). However, it is not possible to confirm the exact details of the house period and the degree of damage, that is, whether the evidence submitted by the Plaintiff exists, that is, it is difficult to confirm the market value of the instant house as it is difficult to determine the amount equivalent to the disposal rather than that it was transferred at a cost. Therefore, it is difficult to deem that the specific amount of damages has been proven. Furthermore, as long as three years and seven months have passed since the date of the disposal of the instant house, it is difficult to prove the objection and the specific amount of damages. Accordingly, it is difficult to prove the specific amount of damages in this case, given the nature of the case.

If so, in light of the above evidence and the purport of the entire pleadings, it is difficult to recognize that the sum of the values of the collection period indicated in the attached list as alleged by the Plaintiff is all the goods claimed by the Plaintiff, and that it is difficult to recognize the value of the Plaintiff’s assertion. The Defendant explain that the instant building was sold to C and the instant lease agreement was terminated, and notifies twice that the instant lease agreement was terminated, and that part of the Defendant’s collection period owned by the Plaintiff was given an opportunity to collect the Plaintiff by keeping the Plaintiff for one year, it is reasonable to determine the damages incurred by the Plaintiff as KRW 2,00,000, which is about 10% of the Plaintiff’s claim amount.

D. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 2,00,000 won and damages for delay calculated at the rate of 5% per annum as stipulated by the Civil Act from November 19, 2015 to May 24, 2017, which is the date of the imposition of the judgment at the court of the first instance, where it is deemed reasonable that the defendant's dispute over the existence or scope of the obligation to pay to the plaintiff from November 19, 2015 to the date of full payment, as claimed by the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable within the above scope of recognition, and the remaining claims are dismissed as there are no grounds. The judgment of the court of first instance is unfair on the ground that part of the plaintiff's appeal is accepted, and the part against the plaintiff who ordered payment as above is revoked, and it is ordered to pay the corresponding money to the defendant, and the remaining appeal of the plaintiff is dismissed as it is so decided as per Disposition.