(영문) 서울고등법원 춘천재판부 2017.4.5.선고 2016나1606 판결

1. Of the judgment of the first instance, the part of the judgment against the Defendant ordering the Plaintiff to pay the amount calculated at the rate of KRW 1,600,000 and KRW 2,400,000 per annum from March 3, 2016 to the completion date of delivery of KRW 149,304 for the land for stock farm in Hongcheon-gun, Hongcheon-gun, Hongcheon-gun, the Plaintiff was revoked, and the Plaintiff’s claim corresponding to the revocation portion is dismissed.

2. The defendant's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Defendant.

Purport of claim and appeal

The purport of the claim: The defendant shall deliver to the plaintiff 149,304 meters of Gangwon-gun Hongcheon-gun C farm site, and shall pay to the plaintiff 1,60,000 won and the amount calculated by applying the ratio of KRW 2,400,000 per annum from March 3, 2015 to the delivery date of the above land.

The purport of appeal: The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

Reasons

1. Basic facts

A. On January 30, 2006, the Plaintiff leased KRW 149,304m (hereinafter referred to as the “instant land”) and KRW 198m (hereinafter referred to as the “instant building”) of the rent for the Defendant, including KRW 10 million (i.e., KRW 2 million/year X5/2 million, and KRW 2 million) from January 30, 2006 to December 30, 201 (hereinafter referred to as “the instant lease contract”) by setting the lease term from January 30, 2006 to December 30, 2010 (hereinafter referred to as “the instant building”). In the lease contract, the Defendant determined that the instant building was extended from five years to May 5 (5) years to the instant building (hereinafter referred to as “the instant building”).

B. On March 2, 2011, the Plaintiff leased the instant land and building to the Defendant for a fixed period of KRW 2.4 million per annum, and five years for lease (hereinafter “Attachment 2 lease”). On May 26, 2011, the Defendant paid to the Plaintiff KRW 2 million out of the rent for the year 2011, and KRW 4 million out of the remainder of the rent for the year 2011 on January 10, 201, respectively. On May 8, 2012, the Plaintiff paid KRW 2 million out of the rent for the year 2012, and KRW 2 million out of the rent for the year 2013, 2014, and each year 2 million out of the rent for the year 2015.

C. On February 14, 2016, the Plaintiff notified the Defendant of the transfer of the instant land upon the lapse of March 2, 2016, as the Plaintiff did not intend to renew the second lease agreement to the Defendant.

【No dispute over the ground for recognition, Gap’s evidence No. 1 (a lease contract, the defendant’s assertion that the establishment of the appeal was revoked on the date of the first instance court’s pleading, but no evidence exists to prove that the establishment of the appeal was contrary to the truth and due to mistake, the above revocation is valid), Gap’s evidence No. 2, and the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

1) The Defendant delayed the payment of rent at least twice, and the Plaintiff, on the ground of this, terminated the lease contract on February 14, 2016.

2) In addition, the second lease contract was terminated upon the expiration of the period.

3) Therefore, the Defendant is obligated to deliver the instant land to the Plaintiff, and pay the unpaid rent of KRW 1.6 million and the interest calculated at the rate of KRW 2.4 million per annum from March 3, 2015 to the delivery date of the instant land.

B. Determination

1) As to the allegation of termination due to delayed rent

According to the evidence No. 1, Article 4 of the Lease Contract No. 2 is acknowledged as follows: "The lessor may terminate this contract immediately when the lessee has failed to pay the rent more than twice consecutively, or when the lessee has violated Article 3."

However, according to Articles 640 and 641 of the Civil Act, in cases of land lease the object of which is the ownership, planting, collecting salt, or cutting-up of a building or any other structure, if the lessee’s delayed amount falls short of the rent of two terms, the lessor may terminate the contract. According to Article 652 of the Civil Act, the lessor’s agreement in violation of Articles 640 and 641 and is disadvantageous to the lessee has no effect.

Therefore, Article 4 of the 2 lease agreement is not effective pursuant to the above provisions, and the plaintiff can terminate the 2 lease agreement with the defendant's delayed delayed rent amounting to the amount of two rents.

However, the Defendant’s delayed rent amount of KRW 1.6 million (i.e., KRW 4 million/year X 4) does not reach 4.8 million (i.e., KRW 2.., KRW 2.4 million/year x 2 years). Thus, the Plaintiff cannot terminate the Defendant’s secondary lease contract on the grounds that the Plaintiff’s delayed rent amount is reasonable.

Therefore, this part of the plaintiff's assertion is without merit.

2) As to the assertion that the expiration has expired

According to the facts acknowledged earlier, since the lease contract of this case was terminated on March 2, 2016 after the expiration of 24:00 on March 2, 2016, the Defendant is obligated to deliver the land of this case to the Plaintiff, barring any special circumstance, and pay the Plaintiff the amount equivalent to the rent of 1.6 million won which is calculated at the rate of 2.4 million won per annum from March 3, 2016 to the completion date of delivery of the land of this case.

However, there is no reason for the Plaintiff’s claim for payment of unjust enrichment equivalent to the rent of KRW 2,40,000 per annum from March 3, 2015 to March 2, 2016.

3. Determination on the defense

A. Defendant’s defense

The Defendant purchased the instant building from D, the owner of the instant building, in the amount of KRW 6,500,000,000 from D. Since the Defendant requested purchase of the instant building through the instant written response, the Defendant cannot respond to the Plaintiff’s claim for extradition of the instant land.

B. Determination

In the case of a lease of land for the purpose of owning a building as prescribed by Article 643 of the Civil Act, the lessee’s right to request the purchase of a building on the ground, which is owned by the lessee, is the right to request the lessor to purchase the building at a reasonable price in the event that the building on the ground is existing, and the lessee who has faithfully complied with the lease contract is able to preserve the remaining value of the building from a national light perspective, and to protect lessee who is easy to sacrifice due to the landowner’s exclusive exercise of ownership and/or any possible sacrifice. Thus, barring special circumstances, a lessee’s right to request purchase of a building may be the object of a lessee’s right to request disposal of the building within the scope of the right, unless there is a legitimate building permitted by an administrative agency. Moreover, even if the purchaser of the building did not have the name of the owner, the lessee is legally or de facto in light of the purpose of the above right to request purchase and the legal status of the purchaser of the building without permission, barring any special circumstance.

In addition to the statements in Gap evidence Nos. 6 and Eul evidence Nos. 2 through 6, the purport of the whole pleadings is added. ① D, on December 20, 2005, after leasing the land and building of this case from the plaintiff in 1997, used the building of this case as a stable; ② D, upon hearing the phrase that the building should have been constructed to be supplied with feed, etc.; ② on February 3, 1997, Hongcheon-gun reported that the building of this case was constructed to the head of Hongcheon-gun Gun; ③ on December 20, 2005, upon the termination of the lease agreement between the plaintiff and Eul, the defendant paid the owner of the building of this case as D; ③ on December 20, 2005, the purchase price of D's 2003, 2004, 2005, and 38 million,000,0000,000,000,000 won to the plaintiff.

Even if a lessee who purchased and possessed a unregistered building from the previous lessee in accordance with the aforementioned legal doctrine fails to acquire the ownership due to the lack of the title of registration as the owner, in order to hold that he/she is in a position to exercise the right to demand a ground object against the lessor, he/she should have performed an act of effective cause of acquisition of ownership, such as purchase in sequence, by the owner of the unregistered building (the above Supreme Court Decision 2013Da48364 Decided 2000).

Therefore, in order for the Defendant to exercise the right to purchase the instant building against the Plaintiff, D sale of the instant building to the Defendant should be the owner of the instant building or the owner of the instant building.

The building of this case is presumed to be owned by D because D was registered in the building ledger of this case as the owner of the building of this case. However, the presumption of this case merely has the meaning that the building of this case is a material with strong probative value, and it does not have the presumption power that brings about a change in the burden of proof (see Supreme Court Decision 78Da913, Feb. 27, 1979; 78Da913, Feb. 27, 197). In other words, the following circumstances revealed from the statement of evidence No. 6 and the above facts, i.e., (i) A filed a report stating that "D was a building constructed by itself to be supplied with feed, etc. while occupying and using the land and the building of this case owned by the plaintiff at around 197 without the permission of the plaintiff, and (ii) the building owner of this case was registered in the building ledger of this case as the object of lease of this case.

Therefore, unless D is the owner of the building of this case or the owner of the building of this case, even if the defendant purchased the building of this case from D, it cannot exercise the right to purchase the building of this case against D, and eventually, the defendant's defense is without merit.

4. Conclusion

Therefore, the defendant is obligated to deliver the land of this case to the plaintiff, and pay unfair benefits calculated at the rate of 1.6 million won for unpaid rent and 2.4 million won per annum from March 3, 2016 to the completion date of delivery of the land of this case. Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the part against the defendant who ordered payment exceeding the above recognition amount among the judgment of the first instance that partially different conclusions is unfair, it is revoked, and the plaintiff's claim corresponding to the cancellation portion is dismissed, and the defendant's remaining appeal is dismissed as it is without merit