Integnb Co., Ltd. (Attorney Lee Jong-ho, Counsel for the defendant-appellant)

Defendant (Law Firm Cheong, Attorneys Kim Sejong-tae et al., Counsel for the defendant-appellant)

June 9, 2016

1. The defendant shall pay to the plaintiff 40,391,100 won with 19% interest per annum from May 1, 2010 to March 5, 2015; 20% interest per annum from the next day to September 30, 2015; and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

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

4. Paragraph 1 can be provisionally executed.

The defendant seeks to pay to the plaintiff the amount of KRW 40,391,100 and the amount of KRW 19% per annum from May 1, 2010 to the service date of the payment order of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

(a) Conclusion of a lease or sale contract;

On May 21, 2008, the Plaintiff entered into a lease sale contract (hereinafter referred to as the “lease contract of this case”) with the Defendant setting the total sales price of KRW 125,950,00 for one unit (118,00,000 + value-added tax on the sales price excluding deposit deposit 7,950,000 for the leased sale price) with respect to the second unit of 0,000, Jung-gu, Seoul ( Address omitted) commercial building 2,000,000,000, and the main contents of the lease sale contract of this case are as follows.

본문내 포함된 표 제1조(임차부동산의 표시) ② 구체적인 점포 위치는 잔금 납부 후 추첨하고, 추첨에 의해 결정된 점포의 면적에 따라 분양대금을 정산한다. ③ 점포 추첨 후 임대인과 직접 임대차계약서를 작성하며, 신규임대차계약서 작성 후 이 분양계약서는 무효로 하고, 임대인과의 관계는 신규 임대차계약서에 의한다. 제2조(대금의 지불) ① 아래 임대분양대금 중 임대보증금은 다음과 같으며, 점포추첨 이후 면적의 증감이 있을 경우 제4조 및 제5조에 따라 최종 정산하고 부가세는 별도로 한다. 구분 금액(원) 임대분양대금 총액 일금 일억일천팔백만원정 (￦118,000,000) 임대보증금 일금 삼천팔백오십만원정 (￦38,500,000) 임대보증금을 제외한 분양대금 일금 칠천구백오십만원정 (￦79,500,000) ② 분양대금은 아래와 같이 분할하여 지정달의 25일까지 납부하여야 하고, 임대보증금을 제외한 분양대금의 부가세는 별도로 한다. 구분 납부일자 납부비율 분양대금내역(원) 임대보증금 임대보증금 제외한 분양대금 부가가치세 납부의 계 계 약 금 계약시 20% 7,700,000 15,900,000 1,590,000 25,190,000 1차중도금 2008년 6월 15% 5,775,000 11,925,000 1,192,500 18,892,500 2차중도금 2008년 8월 15% 5,775,000 11,925,000 1,192,500 18,892,500 3차중도금 2008년 10월 15% 5,775,000 11,925,000 1,192,500 18,892,500 4차중도금 2008년 12월 15% 5,775,000 11,925,000 1,192,500 18,892,500 잔 금 2009년 10월 20% 7,700,000 15,900,000 1,590,000 25,190,000 계 100% 38,500,000 79,500,000 7,950,000 125,950,000 제3조(연체료) 수분양자가 분양대금을 기한 내에 납부하지 않는 경우, 그 체납금은 연체기간에 따라 연 19%의 요율을 적용하여 납부지정일의 다음날부터 산정된 연체료를 가산하여 납부하여야 한다. 제4조(임대분양면적) ① 점포 임대분양면적은 전용면적에 공용면적을 더한 면적으로 하되, 임대분양대금은 층별 1구좌 기준 전용면적에 상당하는 금액이므로, 점포추첨 후 전용면적의 증감이 있을 경우 증감율에 비례하여 분양대금을 가감하는 방식으로 정산한다. 제5조(임대보증금) ① 분양대금에 포함된 임대보증금은 층별 1구좌 전용면적에 대한 금액이므로, 수분양자는 추첨 후 배정된 점포의 임대분양면적에 따라 임대보증금을 정산하여야 한다. ② 임대차계약 종료시 임대인은 임대분양대금 중 임대보증금을 반환할 의무를 부담하고, 임대보증금을 제외한 분양대금에 대해서는 반환의무를 부담하지 아니한다. 제7조(점포의 위치) ① 점포의 위치는 입점지정기간 개시일 2개월 전에 추첨으로 결정한다. 제12조(입점절차) ① 수분양자는 분양대금 총액을 정해진 기간 내에 완납하고 주식회사 인텔로그디앤씨에서 요청하는 입점에 필요한 제반서류를 입점일 전까지 제출한 후 입점일이 명시된 입점증을 발급받아 입점하여야 한다. ② 주식회사 인텔로그디앤씨는 건축공정에 따라 잔금 지급기일 전이라도 입점일을 지정할 수 있으며, 이에 대해 수분양자는 이의를 제기하지 아니한다. 수분양자는 해당 입점지정일 이전일까지 미납된 분양대금을 일시에 납부하여야 한다. 제17조(권리의무의 이전) ① 잔금 납부 후 수분양자는 임대인과 직접 본 임대분양계약서의 내용을 승계한 신규 임대차계약서를 체결하고, 본 임대분양계약은 소멸한다. 제18조(기타) ③ 본 계약에 관한 소송의 관할법원은 서울중앙지방법원을 전속적, 배타적 관할법원으로 한다.

(b) Reduction in the lot and size of commercial buildings;

1) On February 23, 2010, the Defendant: (a) opened a store by drawing a location pursuant to Article 7(1) of the instant lease agreement; and (b) won was awarded in the second floor △△△△△△△△ (hereinafter “instant store”); (c) the exclusive use area of the instant store is 3.89 square meters; and (d) the public area is 7.87 square meters and the total area is 11.76 square meters.

2) On March 19, 2010, the Plaintiff notified the lessee, including the Defendant, that (i) the sales price, excluding the rental deposit, was settled in accordance with the exclusive area (based on 3.9 square meters); (ii) the rental deposit was settled in accordance with the sale area (based on 13.22 square meters); and (iii) the remaining settlement date of the rent to be settled was notified that the payment should be made by the balance settlement date.

C. The Defendant paid only KRW 81,082,50 to the Plaintiff out of the rent of this case, and did not pay the remainder by the date of closing argument of this case.

D. Progress of the Defendant’s lawsuit

The Defendant filed a lawsuit for damages claim (hereinafter “prior lawsuit”) against the Plaintiff and the Plaintiff, the Plaintiff, and the Plaintiff, and the Plaintiff, and the Plaintiff, and the Plaintiff, etc., on January 2, 2014 regarding the preceding case (hereinafter “instant compulsory mediation decision”). In particular, the instant compulsory mediation decision pursuant to Paragraph (1) of the instant compulsory mediation decision, “a civil and criminal lawsuit filed after the final decision in lieu of the instant mediation decision was withdrawn from all civil and criminal lawsuits, and the Defendant did not file a criminal complaint against the instant commercial building, which is the compulsory execution, in relation to the instant case.”

[Ground of recognition] Facts without dispute, Gap 1 through 5 evidence, Eul 1 and 2 evidence, the purport of the whole pleadings

2. Determination on this safety defense

A. Summary of defendant's defense

The defendant asserts that, in the preceding case, in relation to the above contract for the lease and sale of the commercial building, the decision of compulsory mediation of this case was finalized with the purport that it would not bring any dispute, such as a mutual additional lawsuit, compulsory execution, criminal complaint, etc., and thus, the lawsuit of this case is unlawful against the agreement of the non-committee.

B. Determination

1) A decision in lieu of a final and conclusive conciliation shall have the same effect as a judicial compromise, and a judicial compromise shall have the same effect as a final and conclusive judgment. The scope of effect of a judicial compromise, etc. shall be limited to the matters agreed to be agreed upon by the parties on the mutual concession of each other, and shall not take effect with respect to the matters which have not yet been proved by the parties, as well as those which are premised on the settlement (see, e.g., Supreme Court Decision 9Da17319, Apr. 27, 2001). In addition, the same effect as a final and conclusive judgment recognized as a substitute for a final and conclusive conciliation shall be limited to matters concerning the existence of a legal relationship which is a subject matter of a lawsuit, unless there are special circumstances where a decision in lieu of a final and conclusive conciliation becomes final and conclusive during litigation proceedings, it shall be recognized that the legal relationship, which is a subject matter of a lawsuit, has become a legal relationship by the contents of the decision in lieu of a claim (see Supreme Court Decision 2014Da72525, Feb. 26, 2015).

2) As to the instant case, this Court rendered the instant compulsory adjustment order as indicated in the attached Form on January 2, 2014 with respect to the health stand and the preceding case, and the fact that the instant compulsory adjustment order was finalized between the Defendant and the Plaintiff and the Plaintiff and the Association of the Reconstruction Project of the Seodaemun-gu Injury Market was as seen earlier.

However, in full view of the purport of the entire argument in the statement in Eul evidence No. 1, the causes of the preceding case are asserted that the lessee, including the defendant, had concluded a contract for the lease of ○○○ commercial building by fraudulent or exaggerated advertisement, and seek compensation for damages caused by tort. The issues of the preceding case relate to whether false or exaggerated advertisements are acknowledged in the process of concluding a contract for the lease of commercial building, and the issue of whether the balance of the sale price is paid or the settlement of the sale price due to the increase or decrease in the area of the commercial building by drawing lots is not the subject of dispute (litigation). Furthermore, even if the decision of the compulsory adjustment of the instant case is anywhere to be decided, there is no part that can be viewed as having been the relation of the right by the compulsory adjustment of this case, such as where the contents of the settlement of the sale price due to the increase or decrease in the area of the commercial building by drawing lots are specified as the decision

Therefore, the defendant's defense of the above principal safety is without merit.

3. Determination on the cause of the claim

According to the above facts, it is reasonable to view that the Plaintiff and the Defendant agreed to settle the sale price, excluding the rental deposit, according to the exclusive use area, and the rental deposit, according to the sale area (exclusive use area + public use area) on the premise that the exclusive use area is 3.9 square meters and 13.22 square meters. Accordingly, if the Defendant settled the final lease price to be paid, the lease price of the instant store that reflects the settlement amount due to the decrease in the area, shall be KRW 121,473,60 in total [34,248,00 (38,50,000 x 38.76/13.222 x 11.9 square meters) + the exclusive use area is 79,296,000 won (79,709,709,900,9000 won) x 906,900 won x 3.89 square meters (7.9,090 won).

Therefore, the Defendant is obligated to pay to the Plaintiff 40,391,100 won (one hundred and twenty percent per annum from September 30, 2015 until after the settlement of the area, - KRW 81,082,50 per annum from May 1, 2010 to March 5, 2015, which is the day following the last payment deadline for the rent, to the day following the last payment deadline for the rent, to the Plaintiff, 19% per annum interest rate for delay of agreement, and damages for delay calculated at 15% per annum from the following day to September 30, 2015 and from the next day to the day of full payment.

4. Judgment on the defendant's assertion

A. The Defendant asserts that the Plaintiff did not grant the registration right to the buyer, and that it is unfair to demand the buyer to pay the unpaid sales price for the commercial buildings whose revenue is not guaranteed, so it cannot respond to the Plaintiff’s claim. However, the above circumstance cited by the Defendant cannot be deemed as a justifiable ground for refusing the Plaintiff’s claim for the rent of commercial buildings by itself. Thus, the Defendant’s assertion on this part is without merit.

B. Next, the defendant asserts that under the lease contract of this case, the plaintiff has a duty to enter into a lease contract with the owner of the building of this case and to have the defendant acquire the right to lease of the store of this case. Since such duty of the plaintiff is in a concurrent performance relationship with the defendant's obligation to pay the rent of this case and the consideration for the payment of the rent of this case, such duty of the plaintiff is in a concurrent performance relationship, the simultaneous performance defense is made. In addition, the plaintiff asserts that even if he receives the full payment from the defendant,

On the other hand, Article 17 of the Lease Contract of this case provides that the defendant shall make a new lease contract (the sectional owner) with the lessor (the sectional owner) who succeeded to the lease contract of this case after the payment of the remainder and the defendant shall pay the purchase price preferentially. Thus, the plaintiff cannot be deemed to bear the obligation to acquire the right of lease. Even if the plaintiff bears such obligation, it cannot be deemed that there is a relationship of simultaneous performance with the defendant's obligation to pay the lease price. Further, it is insufficient to recognize the circumstance that the statement of the certificate No. 5 and No. 6 alone is insufficient to acknowledge the fact that the defendant is in danger of not acquiring the right of lease of the store of this case even if the defendant pays the lease price in full,

Therefore, all of the defendant's arguments are without merit.

5. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Lee Jin-sung