Plaintiff 1 and two others (Attorney Han-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Han-chul, Counsel for the defendant-appellant)

February 17, 1982

Seoul Civil District Court Decision 79Da4051 delivered on March 14, 1980

Supreme Court Decision 81Da378 Delivered on November 10, 1981

1. The original judgment shall be modified as follows:

2. The defendant receives gold 2,834,228 won from the plaintiffs, and at the same time, he receives 2,834,228 won from the plaintiffs to the plaintiffs, and at the same time, he receives 626 Hobbebebebes from the second floor of the building listed in the annexed sheet No. 1, which connects each point of the annexed sheet No. 18,19,20,21,22, 23, 34, 25, 26, 27,

3. The plaintiffs' remaining claims are dismissed.

4. The total costs of the lawsuit shall be four minutes, which shall be borne by the defendant, and the remaining one shall be borne by the plaintiffs.

5. The above paragraph (1) can be provisionally executed.

Of the third floors of the building listed in the order of Paragraph 2 and the building listed in the annexed sheet No. 1, the defendant ordered the plaintiffs to name 275 Hobbes on board, which connects each point of the annexed sheet No. 17, 18, 19, 20, 21, 22, 23, 24, 25, and 17 in sequence, among the three floors of the building listed in the annexed sheet No. 2 and the attached sheet No. 1.

The plaintiffs shall revoke the part of the original judgment against the plaintiffs.

The defendant ordered the plaintiffs to order the building stated in the Disposition No. 2. The defendant's judgment that the costs of lawsuit shall be borne by the defendant in both the first and second instances shall revoke the part against the defendant in the original judgment. The plaintiffs' claim shall be dismissed. The plaintiff's claim shall be dismissed. The judgment that the costs of lawsuit shall be borne by the

According to the evidence evidence Nos. 5-4 (Lease Contract) which can be recognized as the authenticity by testimony of the court below's testimony for witness Gap who is not disputed in the formation, Gap evidence Nos. 2 (Certificate of Registration Right), and evidence Nos. 5-5 (Lease Contract) which can be recognized as the authenticity by the purport of the whole pleadings, the above witness's testimony, the court below's on-site inspection results and the appraisal results of the appraiser Kim Jong-chul, all of which are shown in the separate list No. 19, 20, 21, 22, 23, 24, 25, 26, 27, 18, and 19, the above part of the building No. 1 and 2, which are owned by the plaintiff No. 1 and 2, and the above part of the building No. 1 and 2, which are owned by the plaintiff No. 1 and 3, the above part of the building No. 97, which are owned by the plaintiff No. 1 and 215, the above 2197.

Next, regarding the third floor of this case, the plaintiff et al. asserted that the plaintiff et al. sought the order of the above part of the building on behalf of the non-party satise company which is the lessor and the owner of the non-party satise company on the basis of the above right of lease. However, even if based on the above fact of recognition, the right of subrogation of the above non-party 3 floor of this case under the premise that the above lease term has already been expired as of the date of the closing of argument, and there is no proof of the fact that the above lease term has already been expired, and there is no other evidence of the fact that the above lease term has already been renewed. Therefore

However, the defendant, on March 15, 1976, concluded a lease contract with the plaintiff et al. for a period of one year with respect to the second floor and occupied it on March 15, 1978, and extended the lease period of one year on March 14, 1979, but the above lease contract is still in existence for one year under the same conditions as before and under the agreement between the plaintiff et al., so the above lease contract is still in existence. Thus, considering the witness's testimony on the second floor between the plaintiff et al. and the defendant, the above witness's testimony on the second floor was not known to the plaintiff et al. for 1 year from March 15, 1978 to March 14, 1978, the above lease contract was concluded for 15,00,000 won, and the above lease contract was concluded for 20 years from March 14, 1979 with the plaintiff et al., the defendant was not aware that the above lease contract was renewed for 20 years from 30 years.

In addition, even if the lease contract between the plaintiff and the above 2nd floor has already been terminated, the defendant's right to purchase the above 15,00,00 won and the above 2nd floor facilities among the above 10th floor facilities and the above 16,349,00 won cannot be accepted until the plaintiff's purchase price is paid for the second floor facilities, it is acknowledged that the defendant paid 15,00,000 won to the plaintiff and the above 2nd floor facilities and the above 10th floor facilities and the above 4th floor facilities and the above 2nd floor facilities and the above 10th floor facilities and the above 4th floor facilities and the above 4th floor facilities and the above 5th floor facilities and the above 4th floor facilities and the above 4th floor facilities and the above 4th floor facilities and the above 5th floor facilities and the above 4th floor facilities and the above 1th floor facilities and the above 5th floor facilities and the above 5th floor facilities and the above 4th floor facilities are constructed.

In relation to the above right to purchase, the plaintiff et al. asserted that since the above contract of lease entered into a special agreement that the defendant delivers the leased object to the plaintiff et al. at the time of the termination of the lease, the defendant's right to purchase the attached object shall not be claimed for any reason, and therefore, it is unreasonable to exercise the right to purchase the attached object. However, Article 646 of the Civil Code, which provides the lessee's right to purchase the attached object, provides for the lessee's right to purchase the attached object, is a part of the lessee's protection

원고등은 다시 피고에게 위 인정과 같은 채권이 있다 하여도 원고등은 피고에 대하여 다음과 같은 합계금 18,763,300원의 반대채권이 있으므로 이와 대등액에서 상계하는바이고, 설사 위 반대채권의 전액이 인정되지 않는다 하여도 피고의 채권자인 소외 3이 집행력있는 판결정본에 기하여 위 임대차 보증금중 금 9,502,144원에 대하여 압류 및 전부명령을 받았으므로 피고에 대한 채무는 소멸된 셈이라고 주장하고, 반대채권의 내역으로는 위 본건 2층부분에 대한 1978. 10. 14. 이후 연체임료 금 2,500,000원 (나) 위 건물부분에 대한 1979.3.15.부터 원심판결에 의한 가집행으로 명도받은 1980. 5. 6. 까지의 부당이득내지 불법행위로 인한 손해금 8,220,000원 (다) 1979.4.부터 같은해 9. 까지의 청소비채납액 금 108,000원과 1979. 11.부터 1980. 4. 까지의 연체 전기료 금 845,611원, 1979년도 주민세 및 가산금액 금 145,693원, 1980년도 면허세 및 가산세액 금 23,700원, 1979년도 종합소득세, 가산세 및 방위세 합계 금 6,920,296원을 원고등이 대위 변제하여 동액상단의 구상금채권이 있다는 취지인바, 먼저 원고등의 주장채권에 대하여 본다. ① 성립에 다툼이 없는 갑제10호증(명도집행조서)의 기재와 환송전당심증인 강구정의 일부증언에 의하면, 피고는 원고등에게 1978. 10. 14. 까지만 지급하고 그이후 원심판결에 의한 가집행으로 본건 2층부분이 명도된 1980. 5. 7. 까지 임료나 부당이득금등을 지급하지 아니한 사실은 인정되나, 한편 공문서이므로 진정성립이 추정되는 을제4호증의 1(진정서처리) 갑제6호증(사업자등록증), 갑제7호증 (영업허가증) 및 위 갑제3호증, 공성부분과 변론의 전취지로 진정성립을 인정할수 있는 을제4호증의2(최고서)의 각 기재와 위 증인 김용연의 증언에 변론의 전취지를 종합하여 보면 원고등이 본건 2층 부분을 임대할시 소외 4 및 소외 2, 5 명의의 사업자등록 및 식품영업허가등, 싸롱영업허가권도 동시에 임대하였던 것인데 관계당국이 1979. 11. 24. 자로 원고등의 진정에 따라 위 영업허가 명의를 임대하였다는 이유로 피고에 대하여 영업정지처분을 내렸고, 그이후 원고등이 그 명의변경에 응하지 아니하므로 인하여, 피고는 같은달 27. 이후 위 영업소를 패문하고 관리조차 하지 아니한 사실이 인정되고 반증이 없으므로 피고에게는 1979. 11. 27. 이후 위 건물2층 사용으로인한 수익이 있다할수 없고, 앞서본바와 같이 임료보증금반환채권과 위 건물 명도가 동시 이행 관계이 있는한 불법행위도 성립될수 없다 할것이니 본건 2층 부분의 점유로 인한 원고등의 임료나 부당이득반환채권은 특별한 사정이 없는한 위 약정임료인 월 금 500,000원이된다 할것이므로 위 채권의 합계는 금 6,716,666원 (500,000원×13 ＋ 500,000원 × 13/30)원이 된다할것이고 ② 성립에 다툼이 없는 갑제8호증의 1, 5, 9 (전기요금 영수증) 갑제9호증의1, 2, 4 (각 세금독촉장) 및 위 갑제3호증의 각 기재와 환송전 당심증인 강구정의 증언 (다만 믿지 아니하는 부분제외)에 의하면 본건 2층부분 임대차 계약시 위 싸롱경영에 수반하는 제세공과금은 피고가 위 원고 및 소외인등 명의로 부과시마다 불입하기로 하고 연체시에는 본건 임차보증금에서 공제하기로 약정하였는데, 피고가 1979. 4.부터 같은해 9. 까지 청소비 합계금 108,000원과 동년 11. 전기료합계금 131,303원, 1979년도 주민세 및 그 가산세 합계금 145,693원을 미불하여 1980. 2. 20. 까지 사이에 원고등이 이를 각 대납한 사실을 인정할수 있고 반증이 없으므로 원고등의 반대채권은 합계금 7,101,662원이 된다.

(B) In the case of global income tax, the additional tax and the defense tax claimed by the plaintiff et al. in 1979, according to the results of the fact-finding inquiry before the remand, there is no evidence to deem that the above taxes were determined in addition to the witness's testimony that the plaintiff et al. did not believe to be the party members, and since then on December 1979, the electricity fee or the 80-year license tax was incurred between the defendant et al.'s failure of the place of business and the non-management even though the plaintiff et al. did not know about the second floor of this case, and the plaintiff et al. paid the claimed amount by the defendant et al.

In addition, the whole purport of the pleading is added to the statement of Gap evidence No. 11 (order for Assignment) without dispute over the establishment. The non-party 3, on April 10, 1980, based on the executory exemplification of the judgment on loans claim No. 799 (Gohap 3946), 2420 (No. 80-2419, 2420), which is composed of the defendant as the debtor, the plaintiff et al. as the third party debtor, and it is difficult to obtain attachment and assignment order of KRW 9,502,144 (15,00), and there is no counter-proof evidence to prove that the above decision original was delivered to the defendant et al., and the above decision original was delivered to the defendant et al. according to each of the above facts. Thus, according to each of the above facts, since the above opposing claims against the plaintiff were set-off against the plaintiff, etc., the whole amount of the deposit was returned to the plaintiff et al. within the set-off period of KRW 160,800.

In addition, the plaintiff et al. claims for the purchase price of the attached article against the defendant were deposited with the above claim amount at the time of provisional execution against the defendant's above non-party 1's above non-party 1's above provisional execution. Thus, since the plaintiff's simultaneous performance defense is not possible, the above non-party company's claim for the return of profit amounting to 8,332,084 won against the defendant, the debtor, the plaintiff et al. shall be the third party debtor on April 28, 1980 for the reason that the above non-party company has a claim for the return of profit amounting to 8,332,084 won against the defendant, and the provisional seizure decision was issued at the Seoul Civil District Court's Seoul Civil & Security Office to 2,834,28 won of the purchase price of the attached article at the time of the original provisional seizure and the fact that it was delivered to the plaintiff et al., such provisional seizure and deposited for this case's provisional execution. Therefore, the above assertion is without merit.

Therefore, the defendant received gold 2,834,228 won from the plaintiff et al. and had an obligation to clarify only the second floor of this case. Thus, the plaintiff et al.'s claim for objection is reasonable within the above scope of recognition and accepted it, and a claim for the second floor of this case and its claim for the third floor of this case shall be dismissed, respectively. Since it is improper to conclude part of the original judgment differently, it is so unfair as to revise the original judgment as stated in Paragraph 2 of this Article. It is so decided as per Disposition by the Civil Procedure Act, Articles 96, 89, and 92 of this Act, and Article 199 of the provisional execution declaration.

on March 10, 1982

Justices Kim Jae-hwan (Presiding Justice)