[1] The scope of rent which a sub-lessee of a sub-lease with a lessor’s consent under Article 630(1) of the Civil Act cannot set up against a lessor due to a payment of rent to a sub-lease

[2] The case holding that, at the time of the termination of the sub-lease contract and the return of the sub-lease object, the sub-lessee's overdue loan is naturally deducted from the sub-lease deposit and extinguished from the sub-lease deposit, and the sub-lessee can set up against the lessor on the ground that the sub-lease becomes a cause of extinction of the

[1] Article 630 (1) of the Civil Code provides that if the lessee has sub-leased the object with the consent of the lessor, the sub-lessee assumes the obligation directly to the lessor, and in this case the sub-lessee cannot set up against the lessor by payment of the rent to the sub-lease. The scope of the rent which cannot be set up against the lessor under the above provision is limited to the rent paid to the sub-lease based on the time of the sub-lease payment under the sub-lease contract, and the rent paid thereafter can be set up against the lessor.

[2] The case holding that, at the time of the termination of the sub-lease contract and the return of the sub-lease object, the sub-lessee's overdue loan is naturally deducted from the sub-lease deposit and extinguished, which is the cause of extinction of the obligation that occurred after the time of the sub-lease payment under the sub-lease contract.

[1] Article 630 (1) of the Civil Code / [2] Article 630 (1) of the Civil Code

Plaintiff (Law Firm Rops, Attorneys Kim U-young et al., Counsel for the plaintiff-appellant)

Defendant

Incheon District Court Decision 2005Na9760 Decided May 18, 2006

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

Article 630 (1) of the Civil Act provides that if the lessee has sub-leased the object with the consent of the lessor, the sub-lessee assumes the obligation directly to the lessor, and in this case the sub-lessee cannot set up against the lessor by payment of the rent to the sub-lease. Thus, it is reasonable to view that the scope of the rent which the sub-lessee cannot set up against the lessor under the above provision is limited to the rent which the sub-lessee has paid to the sub-lease prior to the sub-lease on the basis of the time of payment of the rent under the sub-lease contract, and it can set up against the lessor thereafter.

On the other hand, the security deposit received in the lease of real estate guarantees all the lessee's obligations arising from the lease relationship, such as rent and damages liability arising from the loss, damage, etc. of the object, and the amount equivalent to the secured obligation is naturally deducted from the security deposit without any separate declaration of intention unless special circumstances exist when the object is returned after the termination of the lease relationship (see, e.g., Supreme Court Decision 2005Da8323, Sept. 28, 2005).

In the same purport, at the time of the termination of the sub-lease contract in this case and the return of the object of sub-lease, the Defendant’s delayed rent was naturally deducted from the deposit for sub-lease and extinguished, and the judgment of the court below that the sub-lessee may oppose the lessor for the above reasons is just and acceptable, and there is no error of law such as misunderstanding of legal principles as to the sub-lease, as otherwise alleged in the grounds of appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Hwang-sik (Presiding Justice)