Large Construction Co., Ltd. (Japjin-jin, Counsel for defendant-appellant)

Defendant (Attorney Lee Ho-hee, Counsel for defendant-appellant)

September 21, 2012

1. The defendant shall deliver to the plaintiff the real estate stated in the attached list.

2. The costs of lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. Conclusion of the instant lease agreement and the Defendant’s occupancy

1) On May 23, 2006, the Plaintiff entered into a lease contract with the Defendant on the condition that, with respect to the ○○○○○○ apartment (Dong, lake, lake, and marsh area 198.99 square meters) (hereinafter “instant lease contract”) newly constructed on a block in Seongdong-gu, Sungnam-si, with the approval of the project plan for the construction of publicly constructed rental housing, the Plaintiff shall set the first rental deposit at KRW 246,940,00, and the initial rent at KRW 593,000 per month (hereinafter “the instant lease contract”). Article 9(1)5 of the instant lease contract entered into by the Defendant stipulates that the Plaintiff may terminate the contract if the lessee has failed to pay rent for at least three months.

2) The first rental deposit and rent under the instant lease agreement were based on the amount calculated by mutual conversion of the standard rental deposit and standard rental fee at the rate of 3.45% per annum (after setting the rental deposit higher than the standard rental deposit, the difference between the standard rental deposit and conversion rental deposit applying the above 3.45% interest rate) based on the relevant laws, such as the former Rental Housing Act.

3) On January 9, 2009, the Defendant paid 246,940,000 won to the Plaintiff for the first time deposit, and occupied the apartment as indicated in the separate sheet (hereinafter “the apartment of this case”) and paid 593,000 won monthly thereafter.

B. Progress of litigation between the Plaintiff and the Defendant, etc.

1) Around May 2009, the Defendant filed a lawsuit claiming that the difference in excess of the standard rental deposit out of the initial rental deposit paid by the Defendant is unjust enrichment and seeking the return thereof (the Suwon District Court 2009Gahap5663 case) as well as other lessees of the ○○○ apartment house (the above case, the Defendant; hereinafter the same shall apply).

2) In the above lawsuit, the court of first instance ruled that the lease deposit under the instant lease agreement is null and void within the limit exceeding the standard rental deposit, or that if the plaintiff knew that it would not be able to mutually convert the lease deposit and the standard rental fee without the consent of the lessee such as the defendant, etc., it would enter into the lease contract with the defendant, etc., and therefore, the legal principle of partial invalidation applies to the judgment that "limited to the standard rental deposit and the part of the standard rental fee calculated on the basis thereof, were legally and legally effective and remaining," and the plaintiff ordered the defendant to refund the amount of KRW 11,038,335, the difference between the initial rental deposit and the standard rental deposit.

3) The Plaintiff appealed against the judgment of the first instance court. The Plaintiff asserted that, during the course of the appellate trial, if the initial rental deposit of the instant lease contract is lower than the standard rental deposit, the rent should be higher according to the conversion rate. The Plaintiff offsets against the Defendant’s unjust enrichment claim with the rent claim equivalent to the difference of the rent incurred by the date of the closing of argument in the appellate trial. On the other hand, the Plaintiff filed a preliminary counterclaim seeking a rent equivalent to the difference between the standard rent and the initial rent from the date of delivery of the instant apartment after the closing of argument in the appellate trial (Seoul High Court 2010Na14461 (Main Claim), 2010Na60525 (Counterclaim), 12109 (Intervention)).

4) On December 23, 2011, the appellate court accepted the Plaintiff’s claim for the said conjunctive counterclaim, and ruled that “The instant lease agreement is legally effective from the beginning in accordance with the legal doctrine of partial invalidation, only the portion of the standard lease deposit and standard rent is remaining. Therefore, the Defendant is obligated to pay to the Plaintiff a monthly rent of KRW 316,00,00, the difference between the standard rent of KRW 909,000 and the initial rent of KRW 593,000, which is the difference between KRW 593,000 at the time of conclusion of the instant lease agreement, and the Defendant paid to the Plaintiff the amount calculated at the rate of KRW 316,00 each month from December 25, 2010 to the delivery date of the instant apartment.”

5) The plaintiff appealed against the above appellate judgment, but the Supreme Court rendered a judgment dismissing the plaintiff's appeal on June 24, 201, and the above appellate judgment became final and conclusive as it is.

C. The defendant's rent and the plaintiff's termination of contract

1) After the decision of the Supreme Court was rendered, the Defendant requested a review on the appellate court’s judgment. On the other hand, even after the decision of the appellate court became final and conclusive, the Defendant paid only KRW 593,000 for the initial rent for the instant lease agreement, and did not pay KRW 316,000

2) Accordingly, the Plaintiff urged the Defendant to pay the difference between the standard rent and the initial rent in four times from September 22, 2011 to December 16, 2011. However, the Defendant did not comply therewith, and the Plaintiff did not pay the difference between the total amount of KRW 3,476,00 (316,000 x 11 months) from January 2, 201 to November 201.

3) On December 22, 2011, the Plaintiff notified the Defendant that the instant lease contract was terminated on the basis of Article 9(1)5 of the instant lease agreement, as the Defendant did not pay monthly rent for at least three months.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 5, Gap evidence 7 and 8-1, 2, Gap evidence 9, Eul evidence 1 and 3, the purport of the whole pleadings]

2. Determination

A. Determination on the cause of the claim

According to the above facts, since the lease contract of this case remains legally effective from the beginning with the determination of the above appellate court, the Defendant was obligated to pay the rent of KRW 316,00,00, which is the difference between the standard rent, in addition to the first rent of KRW 593,00 according to the contractual relationship finalized by the judgment after the judgment of the appellate court became final and conclusive. Nevertheless, the Defendant did not pay the rent of KRW 3,476,00, which exceeds the three consecutive months for at least three consecutive months until November 201, as the lease contract of this case was lawfully terminated by the Plaintiff’s notice of termination of the lease contract of this case around December 22, 2011.

B. Defendant’s assertion and judgment

1) The Defendant asserts that the instant lease agreement is valid, since it filed a petition for review of the said appellate judgment after the Supreme Court’s ruling was rendered and the lawsuit was pending until February 8, 2012. After the dismissal of the petition for retrial and the final and conclusive judgment became final and conclusive, the Defendant transferred the instant claim to the Plaintiff’s deposit account.

In full view of the purport of the arguments in the evidence No. 1, No. 1, and No. 3, the defendant alleged that there exists a ground for retrial under Article 451(1)9 of the Civil Procedure Act in the above appellate judgment. However, the retrial court dismissed the petition for retrial on February 8, 2012 on the ground that it cannot be said that there was an omission in judgment, which is a ground for retrial under Article 451(1)9 of the Civil Procedure Act, due to the circumstance that the defendant et al. al. al. satise, the defendant calculated the difference of rent to be paid until March 28, 2012 and remitted the rent to the plaintiff's account, and then remitted KRW 9,000 each month thereafter. However, since the defendant applied for retrial does not affect the validity of the final judgment, the defendant was obligated to pay the rent under the above appellate judgment even during the period of the retrial lawsuit. Therefore, the plaintiff's termination of the contract on the ground that the contract of this case was null and void.

2) On March 26, 2012, the Defendant notified the Defendant of the payment of the rental deposit and rent on the premise that the instant lease agreement continues to exist effectively, which asserts that the Plaintiff has withdrawn the intention of termination of the contract.

According to the evidence No. 2, the plaintiff is found to have dispatched a statement of increase in the deposit money of ○○○ apartment on March 26, 2012 to the defendant on March 26, 2012, but it is not sufficient to recognize that the above fact of recognition alone has withdrawn the declaration of termination of the contract, and there is no other evidence to acknowledge it. Thus, the above argument by the defendant is without merit.

3) The Defendant asserts that in calculating the fire insurance premium, tax and public charges, etc. to be used as the basis for calculating the standard rent under the instant lease agreement, the Plaintiff is obligated to return the total amount of KRW 1,935,648, which the Plaintiff received unfairly from the Defendant from January 9, 2009 to September 8, 2012.

On the other hand, the above appellate court's final and conclusive legal relationship concerning the rent of the lease contract of this case is already final and conclusive, and the defendant set off a claim for the overdue rent with unjust enrichment prior to the termination of the lease contract of this case, unless it is acknowledged that the defendant had any claim, such as the plaintiff's right to claim the return of unjust enrichment according to the calculation of excessive rent of the standard rent, even if the defendant had any claim such as the plaintiff's right to claim the return of unjust enrichment, it cannot be deemed that the payment of rent of the

4) The Defendant asserts that, in accordance with the purport of the relevant statutes, “where rent has been overdue for at least three months,” Article 9(1)5 of the instant lease agreement, the Defendant shall be construed as “where the lessee has failed to pay the rent in full for at least three consecutive months,” and that, since the Defendant has paid the first rent every month from the date of the conclusion of the instant lease agreement to November 201, it does not constitute grounds for termination.

In full view of the language and text of Article 9(1)5 of the instant lease agreement, and Articles 640 and 652 of the Civil Act, Article 32(1) and (2) of the Rental Housing Act, and Article 9(1)5 of the Enforcement Rule of the Rental Housing Act, etc., the reason for termination of Article 9(1)5 of the instant lease agreement shall be construed as “where a lessee has been in arrears for at least three consecutive months and has reached three months in arrears,” and it shall be construed as “where the rent has been in arrears for at least three consecutive months” (other than this, there is no ground to interpret that the above provision is limited to “where the rent has been paid in full for at least three consecutive months,” and the Defendant does not have any ground to interpret that the appellate court ordered the payment of rent equivalent to the difference between the standard rent and the initial rent for at least three consecutive months from Jun. 24, 2011 to Nov. 1, 2012.

C. Sub-decision

Therefore, since the instant lease contract was terminated due to the reasons attributable to the defendant, the defendant is obligated to deliver the instant apartment to the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

[Attachment]

Judges Park Jin-young