2016Na2071202 Money

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

Eastern Industry Ltd.

Seoul Central District Court Decision 2016Gahap509346 Decided September 30, 2016

January 12, 2017

January 26, 2017

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Purport of claim

Defendant 5,284,955 won, Plaintiff B 528,495 won, Plaintiff C, and D respectively.

The amount of KRW 6,606,193, KRW 3,963,716, and KRW 2,642,477, and KRW 3,963,716 to Plaintiff F, as well as KRW 5% per annum from March 29, 2016 to the date of the first instance judgment, and KRW 15% per annum from the following to the date of full payment.

2. Purport of appeal

The part against the plaintiff falling under the order of payment under the judgment of the first instance shall be revoked.

The defendant shall pay to the plaintiff A 5,284,955 won, 528, 528, 495 won, 606, 193 won, 3,716 won, 2,642,47 won, 3,716 won to the plaintiff E, 2,642,47 won, 3,963, 716 won, and each of them shall be 5% per annum from March 29, 2016 to the date of the pronouncement of this Court, and 15% per annum from the next day to the date of full payment.

1. Quotation, etc. of the judgment of the first instance;

The reasoning for the court’s explanation on the instant case is as follows, except for the addition of an additional judgment as set forth in Paragraph 3., the reasoning for the court’s explanation is as stated in the reasoning of the judgment of the first instance. Therefore, it is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Parts in height:

(a) revise the 3rd 6rd 6th o’s “o’s exclusive use” to “o’s exclusive use”;

(b)in addition, at the first place below four pages, to:

Article 7 (Non-performance of Obligations and Compensation for Damages) In the event of default under this Agreement, the other party shall be given written notice to the person who has defaulted and the other party may rescind the contract. In the event of rescission of the contract, the lessor and the lessee may claim damages against the other party, respectively. (m) In the event of cancellation of the contract, the lessor and the lessee shall be entitled to claim damages against the other party. (v)The Court shall revise the "Seoul Central District Court", respectively.

(d) Modification of six pages " August 1, 2015" to " August 31, 2015."

(e) Change 7 pages 10 to Category A 7 1, 2 to Category A 7 1, 2, 11, 14.

(f) revise each “B” of 7 Myeon 10 Ha and 11 Ha to “B”;

(g)in the first place of action on the 10th anniversary of the Civil Code add:

If the rate of damages for delay against a pecuniary obligation is separately agreed upon, it constitutes a kind of liquidated damages stipulated in Article 398 of the Civil Act (see Supreme Court Decision 9Da38637, Jul. 28, 2000);

(h)10 by inserting on the following 5 pages:

Meanwhile, in the application of Article 398(2) of the Civil Act, in determining whether the predetermined amount of compensation for damages is unreasonably excessive or the scope of adequate reduction thereof, the court shall comprehensively take into account all the above circumstances that occurred between the parties at the time of the closure of pleadings at the fact-finding court (see, e.g., Supreme Court Decisions 200Da54536, Dec. 24, 2002; 200Da35771, Dec. 8, 2000); and “predeterminedd amount of compensation” refers not to the total amount of compensation calculated according to such ratio, but to the estimated amount of compensation calculated according to such ratio (see, e.g., Supreme Court Decision 9Da38637, Jul. 28, 2000).

2) As seen earlier, Article 3 of the terms of the instant special agreement provides for the instant damages for delay that shall apply the rate of 20% per annum to the overdue rent in arrears regarding the instant lease agreement of I. As such, this constitutes a case where the rate of damages for delay in the performance of monetary obligation is separately agreed, and thus, it shall be subject to the application of Article 398(2) of the Civil Act as a kind of liquidated damages (Article 7 of the instant lease agreement provides that the lessor and the lessee may claim damages against the other party, respectively, if the instant lease contract is rescinded).

(i) revise the following 5 (2) above to 3) pages 10:

(j)in addition, on the right side of the first point without any driving on the 11st page, to:

( unless viewed otherwise, the Defendant’s claim for the return of the lease deposit of this case was transferred to a person who is in the position of the economically weak without any cause and is obviously unreasonable as it results in the Defendant’s disadvantage in his legal position.

(k)in addition, to the right side of "one-one-one (one1)", the following:

(The sum of the damages for delay is KRW 93,195,605,000,000,000 for the sum of the overdue rent of KRW 623,806,451)

(l)on the right side of "12, see the first parallel)" addition to:

Therefore, even if a lessee transferred a right to return a lease deposit to another person and notified the lessor of the transfer, the secured debt can be naturally deducted from the lease deposit until the lessee delivers the leased object (see Supreme Court Decision 2012Da49490, Sept. 27, 2012). Thus, the Defendant may oppose the Plaintiffs who acquired part of the claim for the refund of the lease deposit of this case from I on the ground that the lessee would be deducted from the rent for arrears, etc. of I as the lessee after the termination of the instant lease contract.

3. Additional Judgment

If the agreement of this case, as alleged by the plaintiffs, is deemed to have unfairly excessive rate of delay damages as the scheduled damages for damages, and the rate of delay damages should be reduced to 10% per annum, the claim of this case for lease deposit of this case shall be remaining within the scope of 29,595,749 won (=70,000,000 - 670,000 per annum from September 1, 2014 to March 28, 2016 and damages for delay calculated at the rate of 10% per annum.

However, as seen earlier, the lease deposit that the lessee pays to the lessor in the real estate lease guarantees all the lessee's obligations arising from the lease relationship until the lease relationship is terminated and the object is returned. In full view of the basic facts acknowledged by the first instance judgment cited by this court, Eul-A-A-B-1 through 15 and the whole purport of pleadings, it can be recognized that the Defendant paid 38,760,000 won out of the deposit such as sub-lease in subrogation of I who is the lessee in order to take over the portion possessed by the lessee, among the lessee, etc. of this case, in order to take over the portion possessed by the plaintiffs and M among the lessee, etc. of this case. Therefore, it is reasonable to deem that the Defendant may additionally deduct the amount of the debt such as the amount of the first installment, as well as the delayed rent and delay damages, and the amount of the claim for the refund of the lease deposit of this case, if all are deducted, the claim for the refund of the lease deposit of this case still remains.

Ultimately, the plaintiffs' assertion does not seem to be any mother or it is without merit.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed in its entirety due to the lack of reasonable grounds, and the judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed in its entirety, as it is without merit. It is so decided as per Disposition.

Judge exhauster of the presiding judge

Judges Park Jae-woo

Judges Park Jong-tae