Plaintiff (Attorney Shin Young-chul et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Jeon-hwan et al., Counsel for the defendant-appellant)

April 24, 2003

1. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) the amount of KRW 2,00,000 per annum and KRW 406,933 per annum from March 12, 2002 to October 12, 2004.

2. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) 4,297,667 won with 5% interest per annum from June 9, 2002 until July 16, 2003 and 20% interest per annum from the next day to the date of full payment.

3. The remaining claims of the Plaintiff (Counterclaim Defendant) and the remaining claims of the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

4. The costs of litigation incurred by the principal lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by the Defendant (Counterclaim Plaintiff), respectively, and the costs of litigation incurred by the counterclaim shall be borne by the Plaintiff (Counterclaim Defendant).

5. Paragraphs 1 and 2 of this Article may be provisionally executed.

The principal lawsuit: the Defendant (Counterclaim Plaintiff; hereinafter the Defendant) pays to the Plaintiff (Counterclaim Defendant; hereinafter the Plaintiff) the amount calculated by the ratio of KRW 19,210,00 and KRW 581,333 per month from March 12, 2002 to October 12, 2004.

Counterclaim: The plaintiff shall pay to the defendant 4,586,953 won and interest thereon at the rate of 25% per annum from the day following the service of a copy of the counterclaim to the day of full payment.

1. Judgment on the plaintiff's main claim

(a) Facts of recognition;

(1) From December 198, the Plaintiff: (a) operated a private teaching institute under the trade name of (name omitted); and (b) around October 7, 2001, the Plaintiff entered into an oral contract with the Defendant to rent 55 square meters of the three floors of the above building (hereinafter the instant building portion); (c) from around December 1998, it is difficult for the Plaintiff to request the Defendant to make payment of 2 million won of the above deposit to obtain alteration registration for the relocation of the private teaching institute; and (d) around October 7, 2001, the Plaintiff agreed to pay 8 million won of the remainder of the deposit to the Defendant at the time of entering into the lease agreement (name omitted); (c) it is difficult for the Plaintiff to enter the remainder of the deposit into the lease agreement with the Defendant on the same date as the date on which the Plaintiff applied for alteration registration for the relocation of the private teaching institute, such as partitions, and (d) it is difficult for the Plaintiff to pay the remainder of the deposit to the Defendant on the same date.

(2) Therefore, with the Defendant’s consent, the Plaintiff started to operate the said private teaching institute by moving into the instant building on the 22th of the same month, after the construction of partitions, floor areas, signboards, and interior facilities was completed.

(3) However, on the 25th of the same month, the Defendant, on the ground that the Plaintiff occupied the building part of the instant case without paying the remainder of eight million won, and occupied it without permission, may confiscate the said two million won. However, since the Plaintiff was granted, he was removed from the building of the instant case, and notified the cancellation of the said lease. Accordingly, the Plaintiff intended to pay the remainder of eight million won among the deposit around the 27th of the same month, but refused to receive it, and demanded the Plaintiff to resume the order of the part of the instant building.

(4) However, when the Plaintiff continued to operate the pertinent private teaching institute without ordering it to do so, the Defendant, on November 19 and 23 of the same year on the ground that the Plaintiff failed to pay electricity charges, provided that if the Plaintiff shut off electricity on November 19 of the same year on the ground that the Plaintiff did not properly pay electricity charges, the Plaintiff would stop the entrance unless the Plaintiff ordering it to stop, and on the 29th of the same month, the Plaintiff took measures to cut electricity on the instant building.

(5) Meanwhile, on the 20th of the same month, the Defendant had already concluded a verbal contract to lease the entire building (name omitted) to the non-party et al., and on December 1 of the same year, the Plaintiff agreed to consult with the non-party et al. about the above issue of electrical recovery when the Plaintiff demanded restoration of electricity taken a short measure, and the Plaintiff agreed to restore electricity if he agreed to the non-party et al. by February 28, 2002 as the result of consultation with the non-party et al. that the building portion of the instant building was unreshed by February 28, 2002. As such, the Defendant promised to give the non-party et al. a part of the instant building by February 28, 202.

(6) Thus, although the above electric facilities were restored, the plaintiff continued to operate the above private teaching institute without moving out from the part of the building of this case until February 28, 2002, the non-party et al. commenced the remodelling construction of hospital in the building of (building name omitted) building from March 9 of the same year, and thereafter, the above private teaching institute became difficult to operate due to noise and vibration, etc., and the concrete walls between the above private teaching institute, the lecture room and the corridor, and the part of the building of this case were destroyed by the government.

[Evidence] The fact that the defendant does not dispute or is the defendant's person, Gap-4, 6, 7, 10 (part), Eul-1 (part), 3-2, and 6 (part), the witness's inner nature (part), the witness Kim Jong-hwan (part), and the purport of the whole argument

B. Determination

(1) Occurrence of damages liability

According to the above facts, the defendant notified the cancellation of the above lease agreement without demanding the plaintiff to pay the balance of the above deposit to the plaintiff at the time of moving in without demanding the plaintiff to pay the remainder of the deposit that the plaintiff would pay at the time of moving in with the knowledge that the plaintiff had installed facilities, such as partitions for the operation of the above private teaching institute. This shall not be effective as notification of illegal cancellation without demanding the payment of the remainder of the deposit under Article 544 of the Civil Act. Thus, even though the defendant still is obligated to receive the balance of the deposit provided by the plaintiff in accordance with the above lease agreement and to allow the plaintiff to use and make profits from the building part of the building of this case, the defendant refused to receive the balance of the deposit deposit and obstructed the business of the plaintiff, such as demanding the plaintiff to stop electricity, etc., and after double lease the building part of this case to the non-party, etc., which led the plaintiff to move out from the building part of this case during the lease period. Thus, the defendant is liable to compensate the damages suffered by the plaintiff.

After the notification of cancellation, the defendant agreed to voluntarily order the part of the building of this case from February 28, 2002 by the plaintiff around December 15, 2001, which was concluded with the non-party et al. a lease contract for the entire building of the building of this case (name omitted) with the non-party et al. after the above notification of cancellation. Thus, the defendant alleged that the plaintiff is not liable to the plaintiff with respect to the above lease contract for the building of this case, but it is difficult to recognize the above assertion by the non-party et al., but the above argument by

(2) Scope of damages

(A) Property losses

The plaintiff asserts that the plaintiff sought operating income of 581,33 won per month from March 12, 2002, which could have been accrued if the plaintiff had operated the above private teaching institute normally from March 12, 2004, especially 2 million won of the above deposit and 1,1210,000 won of the above facility costs incurred by the defendant's damage to the above inside facilities, 1,1210,000 won of the damage amount equivalent to the above facility costs incurred by the defendant's damage to the above inside facilities, and 1,000 won of the director's expenses incurred by the plaintiff's removal from the building part of the building of this case from March 12, 2002 to October 12, 2004.

The part of the above deposit 2 million won paid by the Plaintiff was deducted from the sum of 6,297,67 won, such as electricity charges, and the amount of damages 1,1210,000 won due to the above facility costs in the part of the building of this case by the Plaintiff, as seen in the determination on the counterclaim claim by the Defendant under Paragraph (2) below. In addition, the part of 1,1210,000 won equivalent to the above facility costs is difficult to be recognized only by the 1,1210,000 won as to the fact that the Plaintiff's installation of the above partitions and other facilities was required for the above part of the building of this case, and there is no evidence to support that the Defendant conspired with the Nonparty, etc. to damage the above internal facilities, and there is no evidence to support that the above part of 1,00,000 won of the above director's expenses was actually required. Thus, it is difficult to accept the Plaintiff's assertion on this part.

However, from March 12, 200 to October 12, 2002, the Plaintiff suffered losses equivalent to operating income which the Plaintiff could have obtained if he had operated the said private teaching institute normally due to the Defendant’s default. According to Gap 14, it can be recognized that the Plaintiff obtained net income equivalent to the total of KRW 6,976,00 in operating the said private teaching institute for one year. Since it is confirmed that the Plaintiff could obtain operating income from the same amount when the Plaintiff normally operates the said private teaching institute, the Defendant may obtain operating income from the same amount from March 12, 2002 to March 12, 2004, from March 12, 2002 to October 12, 2004, from March 12, 2004 to October 36, 2004, the Plaintiff did not pay the remainder of operating income from the said private teaching institute for 30% damages from the said private teaching institute, and thus, the Defendant did not pay the amount of damages to the Plaintiff as above 30.

(b) Mental damage

As seen above, since around October 7, 2001, the plaintiff operated the above private teaching institute from around 1998 to around Gyeongnam (Seoul). Since the contract of this case was concluded on October 7, 2001, the above private teaching institute was not operated normally due to the defendant's default, and the above private teaching institute was not operated normally due to the defendant's default, and the part of the building of this case was discontinued for five months, and the above private teaching institute was discontinued, so it can be sufficiently confirmed that the credit rating has fall between students and parents in the above (the name omitted) area. As a result, it is obvious in light of the empirical rule that the plaintiff suffered considerable mental pain, the defendant is obligated to pay the above money and the above money to the defendant. In consideration of various circumstances shown in the argument of this case, such as the circumstance and result that caused the defendant's default of obligation, the defendant should pay 2 million won to the plaintiff as consolation money.

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff the amount of money calculated by the ratio of KRW 406,933 per month from March 12, 2002 to October 12, 2004, as damages for losses incurred by nonperformance of the above obligation. Thus, the plaintiff's claim on the principal lawsuit is justified within the above scope of recognition.

2. Judgment on the defendant's counterclaim

On October 7, 2001, the Plaintiff entered into the above lease agreement with the Defendant and entered into a facility for the operation of the pertinent private teaching institute, such as partitions, etc. on March 12, 2002, and up to November 2, 2001, the Plaintiff had an obligation to use and profit from the building of this case to November 2, 200, to pay rent of 210,910, and public electricity charges of 494,883, and water rates of 1,381,160, and rent of 4,210,714 [2,90,000 won + (4 months + 199/280] from 20,000,0000 to 10,0000,000 won from 20,000,000 won from the building of this case, and the Plaintiff has no obligation to pay rent of this case to the Defendant under the above lease agreement for rent of this case, and thus, the Plaintiff cannot be paid the remainder of 6675,67.

The plaintiff argued that at the time the defendant notified the cancellation of the above lease agreement, the plaintiff agreed not to receive public charges, such as electricity and water rates, and monthly rent, which accrue from the part of the building of this case until the time of leaving the building of this case. However, it is difficult to recognize it solely with Gap 10 and witness awareness, and it is difficult to accept

Therefore, the plaintiff is obligated to pay to the defendant the above 4,297,667 won and the damages for delay calculated at the rate of 5% per annum under the Civil Act from June 9, 2002 to the day following the delivery of a copy of the counterclaim of this case, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Thus, the defendant's counterclaim claim is justified within the above scope of recognition.

3. Conclusion

Therefore, it is so decided as per Disposition by admitting the plaintiff's main claim and the defendant's counterclaim within the scope of each recognition.

Judges Kim Jin-type