Plaintiff (Law Firm Shin & Lee, Attorneys Oi-de et al., Counsel for the plaintiff-appellant)

Mio Co., Ltd. (Attorney Shin Young-young et al., Counsel for the defendant-appellant)

July 20, 2017

Seoul Southern District Court Decision 2016Kahap102819 Decided January 13, 2017

1. The plaintiff's appeal and the defendant's incidental appeal are all dismissed.

2. The costs of appeal shall be borne by each party.

[Claim]

The Defendant, as the Plaintiff

1. The amount of KRW 42,933,00 and interest thereon shall be 5% per annum from January 14, 2016 to the service date of a copy of the complaint of this case, and 15% per annum from the next day to the day of complete payment;

2. 23,309,352 won and the interest thereon at the rate of 15% per annum from September 13, 2016 to the date of complete payment:

3. Money calculated by the rate of KRW 91,667 per month from February 25, 2016 to the date on which he/she fully pays the money provided for in paragraphs (2);

D. The payment shall be made respectively.

[Purpose of the Plaintiff’s Appeal]

Among the judgment of the first instance, the part against which the plaintiff is ordered to pay is revoked (the part against which the plaintiff's claim is dismissed).

The Defendant, as the Plaintiff

1. The amount of KRW 15,130,00 and the amount calculated with 5% per annum from January 14, 2016 to the service date of a copy of the complaint of this case, and 15% per annum from the next day to the day of complete payment;

2. 22,243,314 won and the interest thereon at the rate of 15% per annum from September 13, 2016 to the date of complete payment;

3. Money calculated by the rate of KRW 91,667 per month from February 25, 2016 to the date on which he/she fully pays the money provided for in paragraphs (2);

D. The payment shall be made respectively.

【Defendant’s Incidental Appeal】

Of the judgment of the court of first instance, the part against the defendant ordering payment of KRW 1,066,038 to the defendant in excess of the amount calculated by applying the rate of 6% per annum from September 13, 2016 to January 13, 2017, and the rate of 15% per annum from the next day to the date of full payment (the part accepting the plaintiff's claim) shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Acknowledgement of the first instance judgment

The reasons for this Court concerning this case are as follows. The reasons for this Court are written or added as stated in Paragraph 2 below, and the arguments emphasized by the Plaintiff and the Defendant in this Court are as stated in the reasoning of the judgment of the first instance except for the additional determination as described in Paragraphs 3 and 4. Thus, they are cited as they are, as they are, in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Parts used or added;

The "this Court" in the 13th and 10th and 3th, respectively, shall be deemed to be "the first instance court", and the 8th and 13th "Expert" shall be deemed to be "the appraiser of the first instance court".

○ Following the third page, the 6th line " November 17, 2015" shall be applied to " November 18, 2015".

○ Part 4 of the 16th page "(1) proviso of Article 11(1) and Article 4 of the Enforcement Decree of the same Act, referring to the provisions of Article 10(3) and Article 11(3) shall apply mutatis mutandis."

○ The fifth page 13 is added to the following:

In addition, on January 15, 2016, Nonparty 1 withdrawn his/her declaration of intent to enter into a new lease contract with the Defendant, because the Defendant demands the Defendant to pay a deposit and monthly rent significantly high in light of the market price.

○ From 6th to 11th, the following shall apply:

On February 24, 2016, the Plaintiff sent to the Defendant a content-certified mail to the effect that “the Defendant was unable to refund the instant lease deposit, and the Plaintiff inevitably obtained a loan of KRW 44 million from the bank in charge of the payment of the deposit, and the Defendant is also liable to pay the Plaintiff the amount equivalent to the interest on the said loan in compensation for damages,” and attached a content-certified mail to the Plaintiff and the Bank of the Bank of Korea (the first day of the loan: February 25, 2016; the loan was KRW 40 million; the loan was 40 million; the loan was 2.5% per annum).

○ 11 On the 1st day “the date on which the damage occurred” added “after February 3, 2016, the delivery date of a copy of the complaint of this case.”

Pursuant to the 11th sentence and 13th sentence, each "date of the pronouncement of this judgment" shall be written by each "date of the pronouncement of the first instance judgment".

3. Additional determination on the Plaintiff’s assertion

A. As to the premium at the time of termination of lease

(1) Summary of the Plaintiff’s assertion

The value of intangible property among premiums should be recognized as KRW 15,130,000, which is calculated by reflecting the “rent (lease deposit: KRW 50 million, monthly rent: KRW 6 million) under the instant lease agreement in the cost item.”

(2) Determination

(A) According to Article 3(3) of the Act on Appraisal and Certified Appraisers (i.e., the Act on Appraisal and Certified Appraisers), in order to ensure the fairness and rationality of appraisal, detailed principles and standards to be observed by an appraisal business entity shall be prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport. According to Article 2 Subparag. 10 of the said Rules, the term “the Act on the Return of Profits” means the method of calculating the value of an object by returning or discounting the net profit expected to be computed in the future or the future cash flow of the object. According to Article 23(3) of the said Rule, an appraisal business entity shall apply the profit reduction method when appraising business licenses, patent rights, utility model rights, design rights, trademark rights, copyrights, exclusive right to use, and other intangible assets. According to Article 28 of the said Rule, the appraisal business entity shall determine and publicly notify detailed standards to be observed when conducting an appraisal other than those prescribed by the said Rule.

According to the appraisal practice standards (Public Notice of the Ministry of Land, Infrastructure and Transport No. 2016-895), premium is composed of tangible and intangible property; intangible property is a property without physical and specific form, such as customers, credit, business know-how, and business interest points according to the location of a building, etc. used by a business operator or a person who intends to conduct a business; when appraising intangible property, in principle, the profit exchange method shall apply; when appraising intangible property under the profit exchange method, the intangible property shall be appraised at a discount or at a discount on the current value; Provided, That where there exists any other method that can reasonably appraise intangible property based on the profit-making method, the intangible property may be appraised accordingly.

(B) According to the appraisal law, the rules on appraisal and appraisal, and the appraisal practice standards as above, the appraisal of intangible property among premiums is in principle based on the profit reduction method. Since the profit reduction method is the appraisal law that calculates the value of an intangible property by returning or discounting the net profit expected to be calculated “presible” or the cash flow of “presible” subject matter, the value of intangible property may not be assessed on the basis of the difference determined at the time of concluding the instant lease agreement on June 13, 2014, and the value of intangible property should be assessed on the basis of the difference at the market at the time of termination of the instant lease agreement.

Therefore, the plaintiff's above assertion is without merit.

B. As to the Plaintiff’s duty of restoration

(1) Summary of the Plaintiff’s assertion

① The instant lease agreement states that “the state at the time of the conclusion of the contract” should be restored to the original state. The facilities that the Defendant removed are not installed by the Plaintiff but installed by the former lessee. ② The facilities that the Defendant removed are attached to the instant store, and are owned by the Defendant, and ③ the Defendant, instead of claiming reimbursement of beneficial expenses, etc., decided not to demand restitution to the Plaintiff. Therefore, the Plaintiff does not bear the duty of restitution. Therefore, the cost of restitution KRW 17 million paid by the Defendant cannot be deducted from the lease deposit.

(2) Determination

(A) As to whether the Plaintiff bears the duty to restore only the newly established facilities

1) Even in cases where a lessor entered into a lease agreement with a third party after the existing lease agreement, there may be cases where a lessee comprehensively transfers the rights and obligations under the existing lease agreement to a third party, such as transferring the existing lease agreement status to a third party, or solely transfers the existing lease deposit to another person. Here, whether the aforementioned act completely terminates the existing lease agreement relationship and the claim for the repayment of the deposit and the claim for the return of the deposit for lease to a third party, or whether the existing lease agreement is comprehensively transferred the rights and obligations under the existing lease agreement or transferred the existing claim for the return of deposit for lease to a third party constitutes a matter of contract or intent to form an act. Therefore, the determination of whether a lessee entered into an act in accordance with logical and empirical rules should be based on a comprehensive consideration of the motive and background leading up to the act, the purpose and genuine intent of the parties to the act, transaction practice, etc., and the determination of whether a new lease agreement and the existing lease agreement are to be made and the amount of the deposit for the existing lease agreement and the new lease agreement should be based on various circumstances such as payment of the new lease agreement or payment relationship between 20.

2) According to the evidence mentioned above, Eul evidence and the purport of the argument in the above 7: (1) around February 2010, the non-party 2 entered into a lease agreement with the defendant, which is the store store in Paris, for the first time to operate the coffee shop, which is the store in Paris, which is the store in Paris, and the non-party 2 entered into a lease agreement with the non-party 3, including the lease agreement between the plaintiff 2 and the non-party 4, and the plaintiff asserted that the non-party 2 purchased necessary goods from Paris, and the lease agreement between the plaintiff 2 and the non-party 6, which was established by the non-party 2, including the lease agreement between the non-party 1 and the non-party 4, which was the lease agreement of this case, and that the non-party 2 and the non-party 4, which was the lease agreement of this case, was the lease agreement of this case to the non-party 2, the lease agreement of this case to the non-party 2, the expiration of the lease agreement between the plaintiff 2 and the non-party 3.

In full view of all the above circumstances, it is reasonable to recognize that the status of the tenant of the instant store was transferred from helicopters to the Plaintiff, and therefore, even if the Plaintiff, other than the Plaintiff, installed the facilities in the instant store, such as helicopters, the Plaintiff is obligated to restore the status to its original state.

(B) As to whether the Plaintiff does not bear the duty of restoration on the ground that the facilities removed by the Defendant were consistent with the instant store

According to the main sentence of Article 256 of the Civil Code, an owner of a real estate acquires ownership of an article attached to such real estate, but the proviso does not apply to an article attached with the authority of another person. For the application of the proviso of Article 256 of the Civil Code, an article attached to the real estate shall not be a constituent part of the real estate and shall have independence, and the article attached thereto

According to the statement in Eul evidence No. 17, the defendant can recognize the fact that the wall mast, maud, and tent were removed due to the restoration of the store in this case. The above wall masts, etc. are installed in the store in this case based on the right of lease, it is difficult to see that the plaintiff has independence, and it is difficult to see that there is economic value if separated, it can be recognized that the defendant acquired ownership.

However, even if the Defendant acquired the ownership of the facility, pursuant to the main sentence of Article 615 of the Civil Act, which is applied mutatis mutandis to the lease pursuant to Article 654 of the Civil Act, when the borrower returns the object borrowed, it shall be restored to its original condition. Since Article 17(2) of the Lease Agreement provides for the lessee’s duty to restore the object borrowed, it is difficult to deem that the Plaintiff is not liable to remove the facility on the ground that the removed facility conforms to the store of this case.

Meanwhile, at the time of termination of the lease agreement under Article 17(1) of the instant lease agreement, the Plaintiff stipulated that the Plaintiff shall remove the goods and property owned by the Plaintiff and return the keys and property of the Defendant to the Defendant. However, the said provision appears to stipulate the lessee’s general duty to return the leased property at the time of termination of the lease agreement, and it does not appear to be the content that the Plaintiff’s duty to return the attached property to the Defendant is exempted pursuant to the main sentence

(C) As to whether the Defendant decided not to demand reinstatement to the Plaintiff

1) According to the evidence mentioned earlier, the Plaintiff may acknowledge the fact that the instant lease agreement allows the Defendant not to claim the Defendant’s beneficial cost, necessary cost, etc. (Article 11(4)).

2) However, solely on the fact that the lessee agreed not to claim expenses for the facilities installed for one’s own business to the lessor, it cannot be deemed that there was an agreement between the lessee and the lessee to exempt the lessee from the obligation to restore to its original state (see, e.g., Supreme Court Decision 2002Da42278, Dec. 6, 2002), and whether there was an agreement between the lessee and the lessee to exempt the duty to restore to its original state should be determined in accordance with the interpretation of the intent

As acknowledged earlier, the facility removed by the Defendant was established in accordance with the criteria for store facilities in Paris, which are “○○○○○○,” and where operating “○○○○○○” at the instant store, it is unnecessary to use the necessary and beneficial facility and the instant store for purposes other than that. Therefore, even if the Plaintiff renounced the right to claim reimbursement of expenses, it is difficult to recognize that the Defendant exempted the Plaintiff from the duty to restore facilities that can be used only for the said limited purpose, and there is no other evidence to acknowledge the Plaintiff’s assertion.

(3) Sub-decisions

Therefore, the plaintiff's above assertion is without merit.

C. As to the claim for damages equivalent to loan interest

(1) Summary of the Plaintiff’s assertion

The Plaintiff intended to receive the refund of the lease deposit of this case from the Defendant and use it as the deposit for the lease on a deposit basis, but the Defendant received the loan by delay and notified the Defendant of such circumstances. As such, the Defendant is obligated to pay the Plaintiff the amount of the loan interest and the amount to be borne by the Plaintiff as compensation for damages arising from the nonperformance of the obligation

(2) Determination

According to Article 397(1) of the Civil Act, the amount of damages for non-performance of monetary obligations is statutory interest rate, but if there exists an agreement that does not violate the limitation of statutes, the said interest rate shall apply. According to Article 397(2) of the Civil Act, the obligee cannot assert that there was no fault on the part of the obligor without the proof of damages.

In principle, monetary creditors may claim compensation in cases where the damage is caused by the obligor’s nonperformance of obligation and the damage is within the scope of compensation such as Article 393 of the Civil Act. However, since today’s use of money is definite due to the nature of money, it would be easy to recognize that the damage caused to the obligee, such as deprivation of availability due to the nonperformance of monetary obligation, would occur to the obligee. On the other hand, according to the general principle above, the specific amount of compensation can be calculated according to the above general principle, so it would lose balance. Therefore, the main text of Article 397(1) of the Civil Act, which is based on the amount calculated at the statutory rate, as an abstract damage, to handle the issue of compensation for damage caused by the nonperformance of monetary obligation, was prepared (see Supreme Court Decision 2009Da85342, Dec. 24, 2009, etc.).

Therefore, even if the obligor proves that the damage incurred was smaller than the damage calculated at the statutory rate, the obligee cannot claim exemption or reduction within the scope of the liability, even if the obligee proves that the damage actually incurred was larger than the damage calculated at the statutory rate, the obligee cannot claim compensation for the actual damage. There is no other proof or ground on exceptional circumstances, and the Plaintiff’s above assertion is without merit.

4. Additional determination as to the Defendant’s assertion

A. Summary of the defendant's assertion

The Defendant made a proposal for the first and second parties to Nonparty 1, who are in conformity with the level of rental fees of neighboring commercial buildings, taking into account the rent of △△△△△△ △△△, △△△△△△△△, in which the instant store is located, and the rent of △△△△△△△△△△, and the rent of △△△△△△△△△△△, and thus, it does not require Nonparty 1 to rent and deposit an amount substantially high, and thus,

B. Determination

(1) An appraisal requires special knowledge and experience in determining certain matters, and it is nothing more than to use such knowledge and experience as a means to assist the appraisal (see Supreme Court Decision 2008Da45491, Nov. 13, 2008, etc.). However, the appraisal result of an appraiser should be respected unless there is obvious fault, such as the appraisal method, etc. is contrary to the empirical rule or unreasonable (see Supreme Court Decision 2010Da93790, Nov. 29, 2012).

According to Article 2 subparag. 8 of the Rules on Appraisal and Evaluation, the term “rental comparison method” means the appraisal method for calculating the rent of an object through the process of correcting circumstances, modifying the timing and comparing the factors of value formation, etc. in comparison with the lease cases of an object, which are the same or similar in terms of the same or similar factors in terms of the subject matter. According to Article 22 of the said Rules, an appraisal business entity shall apply the rent comparison method when appraising rent.

(2) According to the evidence mentioned above, the appraiser calculated the appropriate rent for the store of this case in accordance with the Lease Case Law, based on the lease cases of △△△ △△△, the lease cases of △△△ △△△△, and the lease cases of △△△ △△, etc., by comparing them. There is no evidence to prove that the appraisal result of the appraiser was in violation of the Appraisal and Assessment Act, the rules on appraisal, logic and experience, etc., and as such, as recognized earlier, the defendant 1 and the second proposal was considerably higher than the reasonable rent for the store of this case calculated by the appraiser, and the non-party 1 demanded the defendant to enter into a new lease contract by demanding a lease deposit and monthly rent which is remarkably high to the defendant.

(3) Therefore, the defendant's above assertion is without merit.

5. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and both the plaintiff's appeal and the defendant's incidental appeal are dismissed (the representative director omitted in the indication of the judgment of the court of first instance is Nonparty 3).

Judges Man-gu (Presiding Judge) Yang-hunon Park Don-hee