Plaintiff (Law Firm Kai Law Firm et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Ro-Hy, Attorney Kim Dong-son, Counsel for defendant-appellant)

January 24, 2017

Incheon District Court Decision 2015Da33068 Decided December 23, 2015

1.The judgment of the first instance, including any claims added in the trial, shall be modified as follows:

A. The Plaintiff’s claim for restitution of unjust enrichment from May 6, 2017, among the instant lawsuit, is dismissed.

B. The Defendant received money from the Plaintiff at the rate of KRW 5,08,00 per month from January 16, 2017 to the completion date of delivery of the instant real estate from the Plaintiff and at the same time deliver each real estate listed in attached Forms 1 through 3.

C. The plaintiff's remaining claims are dismissed.

2. 3/5 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

3. Paragraph 1-b. above may be provisionally executed.

1. Purport of claim

The defendant delivers to the plaintiff the attached Form 1 or 3 real estate, and pays the money calculated at the rate of KRW 11,00,000 per month from September 16, 2015 to the completion date of delivery of the above real estate (the plaintiff added the claim for the payment of money at the trial).

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant shall deliver to the plaintiff the real estate in attached Forms 1 through 3.

1. Basic facts

This Court's explanation is consistent with the reasoning of the judgment of the court of first instance, except for deletion of the part of section 3(c) of the judgment of the court of first instance. Thus, this Court's explanation is acceptable by the main sentence of Article 420 of the Civil Procedure Act

2. The plaintiff's assertion

The Plaintiff’s lease contract with the Defendant was terminated on May 16, 2015, or the Defendant delayed to pay the rent after September 16, 2015. Without obtaining the Plaintiff’s consent and approval, the Plaintiff transferred the right to lease of the said aggregate building to Nonparty 1 and Nonparty 3, etc. without obtaining the Plaintiff’s consent and approval, forged the Plaintiff’s name, and prepares the lease agreement with the Plaintiff without permission. On June 28, 2014, the lease contract between the Plaintiff and the Defendant (hereinafter “the instant lease contract”) was damaged due to the Defendant’s fault, such as arbitrarily concluding the lease contract with respect to the pharmacy in the Seoul Special Self-Governing City, Metropolitan City, or the lease contract with the Defendant (hereinafter “the instant lease contract”) was terminated by serving a copy of the complaint of this case on June 8, 2015 or by notifying the Plaintiff on February 12, 2016, and the Defendant is equivalent to the Plaintiff’s delayed possession or profit from each of the leased property (hereinafter “the instant lease”).

3. Determination as to the cause of action

First, we examine whether the lease contract of this case terminated at the expiration of the lease term.

In full view of the aforementioned facts and the purport of the entire arguments, the term of lease under the instant lease agreement was two years from March 30, 2013 to March 30, 2015, and the term of lease was changed to 24 months from May 16, 2013 to March 29, 2013. However, the special agreement on the instant lease agreement (hereinafter “instant special agreement”) provides that “The term of lease shall be ten years from the date of initial use, and the rent increase may be increased from two years after the date of initial use,” and the agreement on the sub-lease agreement as of March 29, 2013 stipulated that “the term of lease was 10 years from May 16, 2013 to the date of re-lease,” and that the Plaintiff, upon entering into the instant lease agreement as of March 29, 2015 to the Defendant’s construction or alteration of the land category to the Defendant’s construction or alteration of the land category to the Defendant’s construction or alteration of the land category of the instant building.

In light of the following circumstances, each of the above facts, Gap evidence Nos. 13, 21, Eul evidence Nos. 6-1, and Eul evidence Nos. 6-3, the testimony of non-party No. 4 and the purport of the whole pleadings, the special agreement of this case can be acknowledged by comprehensively taking into account the following circumstances: the term of the lease contract of this case shall be two years; and it is reasonable to deem the contract of this case to fall under the so-called priority clause that guarantees the priority and the period of the renewal contract to the lessee at the expiration of the contract of this case, so that the lessee can recover the investment cost sufficiently by guaranteeing the lessee's business right and the right of lease; thus, it is difficult to regard the lease contract of this case as setting the term of ten years; thus, the contract of this case terminated on May 16, 2015. Accordingly, the defendant has a duty to deliver the real estate of this case to the plaintiff with restitution following the termination of the lease contract of this case, and the right to terminate the lease of this case shall be determined separately.

① Under the instant lease agreement, the term of lease is 24 months, and the term of lease is stipulated as 24 months: Provided, That the phrase “a lease period”, which is distinguishable from the term of lease due to a separate special agreement, is used for the expression “10 years.”

② The conversion deposit under the instant lease agreement is 1.2 billion won (=deposit 100,000,000 + monthly rent 11,000,000 (10,000 won x 1.1,000 x value-added tax consideration) x 100] (The Commercial Building Lease Protection Act does not apply pursuant to the proviso of Article 2(1) of the Enforcement Decree of the Commercial Building Lease Protection Act in excess of the amount guaranteed under Article 2(1) of the Commercial Building Lease Protection Act, and the right to request renewal, etc. under the said Act is not acknowledged accordingly.

③ Under the instant special agreement, the term of lease shall be secured and the rent shall be increased from two years after the date of the first use.

④ On May 14, 2015, the Plaintiff requested the Defendant to increase KRW 30,00,000 of the lease deposit (the point at which the lease term expires by 24 months under the instant lease contract). Accordingly, the Defendant requested the increase of the lease deposit by 9% in lieu of the deposit increase, and the Plaintiff requested the increase by 9% in the monthly rent in the contract. In short, in currency, the Plaintiff and the Defendant used an expression that the contract should be renewed (as of June 4, 2015, evidence No. 6-2), or “re-contract” (as of June 4, 2015, evidence No. 6-2), or used an expression that “the lease term expires by Kakao Stockholm text messages between the Defendant and Nonparty 5, and evidence No. 21). Meanwhile, with respect to the increase of rent under the instant special agreement, it is difficult to view the possibility and the period of increase of rent (from 2 years to 3 years) as an important factor of increase in the lease deposit and the amount of rent.

⑤ On the other hand, the leased object of this case was a building located in the ▽▽▽▽▽△ building, but its use was changed from May 30, 2013 to Class II neighborhood living facilities around the time when the lease contract of this case was concluded. The Plaintiff’s part of the expenses and the lessee’s source of funds for the change of its use and structure (the subject of investment in expenses and source of funds may be disputed between the Plaintiff, the Defendant, and the Nonparty 1, but the subject of investment and source of funds shall not be determined separately in this case) were invested in a considerable amount of funds to recover the input cost. In light of this, it seems that a considerable period of time was necessary to recover the input cost from the lessee. Considering this, the lease term seems to have a particularly important meaning to the lessee among the parties to the lease of this case. If the lease of this case was determined for ten years beyond the preferential status guaranteed to recover input cost itself, the reason seems to have been separately prescribed in the main sentence of the lease agreement of this case as the term of lease of this case.

④ In light of the aforementioned circumstances and the fact-finding that the Plaintiff prepared to the Defendant on March 29, 2013, and written confirmation of the fact-finding on April 13, 2015, and other contents of conversations divided by the Plaintiff and the Defendant around the expiration date of the contract term under the instant lease agreement, the expression “10 years have been secured” is used. However, in light of the aforementioned circumstances and the fact that the Plaintiff and the Defendant are not legal experts, such expression is merely merely an expression of re-contract that is not legally organized, and it is difficult to view it as the premise that the term of the lease itself is set 10 years.

4. Judgment on the defendant's assertion

A. Determination on simultaneous performance of the refund of lease deposit

As to this, the defendant shall make a simultaneous performance defense that the plaintiff cannot respond to the request for extradition of the real estate of this case until he receives KRW 100,000,000 from the plaintiff.

In full view of the facts acknowledged above and the evidence and the purport of all the arguments mentioned above, it can be acknowledged that the Defendant paid the Plaintiff KRW 100,000,000 to the Plaintiff under the lease agreement of this case. Since the lessee’s duty to return the leased object and the lessor’s duty to return the leased deposit are in a simultaneous performance relationship upon the termination of the lease, the Defendant is obligated to deliver the instant real estate to the Plaintiff at the time of receiving KRW 100,000,000 from the Plaintiff, barring special circumstances.

(b) The amount of unjust enrichment equivalent to the rent;

앞서 본 바와 같이 이 사건 임대차계약은 2015. 5. 16. 기간만료로 종료되었으므로, 피고는 원고에게 그 기간만료 이후 이 사건 부동산을 사용·수익한 데 대한 차임 상당의 부당이득을 반환하여야 할 것인 바, 갑 제42 내지 59호증의 각 기재 또는 영상(가지번호 있는 것은 가지번호 포함) 및 변론 전체의 취지를 종합하면, 피고가 이 사건 임대차계약 기간만료일 이후이자 원고에게 차임 상당 부당이득금 명목으로 11,000,000원을 지급한 2015. 9. 16.(차임의 후불 지불 약정에 따른 2015. 9. 15.까지의 차임 상당 부당이득금을 지급한 것이다.) 이후에도 이 사건 임대차계약 목적물 중 □동 ◇◇◇호, ◎◎◎호를 제외한 전부를 직접점유 또는 전차인들을 통하여 간접점유하면서 사용·수익하고 있는 사실을 인정할 수 있으므로, 피고는 원고에게, 피고가 점유 중인 위 각 부동산의 인도 완료일까지의 차임 상당액을 부당이득으로 반환하여야 한다. 한편 당심 감정인 소외 6의 차임감정 결과 및 변론 전체의 취지에 의하면, 2015. 5. 16.부터 2016. 11. 15.까지 위 각 부동산에 대한 차임이 월 5,082,000원(△동 ◁◁◁호 631,000원 + △동 ▷▷▷호 338,000원 + △동 지하 ♤층 165,000원 + □동 ◁◁◁호 1,055,000원 + □동 ▷▷▷호 525,000원 + □동 ♡♡♡호 432,000원 + □동 ●●●호 525,000원 + □동 ▲▲▲호 500,000원 + □동 ■■■호 411,000원 + □동 ◆◆◆호 500,000원)이고, 그 이후의 차임도 같은 금액일 것으로 추인되므로, 피고는 원고에게 특별한 사정이 없는 한 2015. 9. 16.부터 위 각 부동산 인도 완료일까지 월 5,082,000원의 비율로 계산한 차임 상당 부당이득금을 지급할 의무가 있다.

[On the other hand, the benefit in return of unjust enrichment on the ground that the tenant has benefit without any legal ground refers to the substantial benefit. Thus, even if the tenant continued to possess the leased building after the lease contract relationship was terminated, if the tenant did not use or benefit from the leased building in accordance with the original purpose of the lease contract, and the tenant's obligation to return unjust enrichment is not established. This is also the same even if the lessee did not use or benefit from the leased building due to the lessee's circumstances, or the lessee did not take out his own facility (see Supreme Court Decision 98Da854 delivered on July 10, 1998, etc.). Thus, since the evidence submitted by the plaintiff alone by the defendant is insufficient to recognize that the tenant has a substantial benefit by continuously using or benefit from the leased building in accordance with the purpose of the lease contract of this case after September 16, 2015, the tenant's claim for rent 11,000,000 won for the first time or rent 20,000 won, and there is no evidence to acknowledge that the plaintiff's claim for rent 1615.

(c) Mutual aid;

Meanwhile, in a lease agreement, security deposit for a lessee’s obligation arising from the lease agreement between the termination of the lease agreement and the delivery of the object to the lessor. The amount equivalent to the secured obligation is naturally deducted from the security deposit without a separate declaration of intention when the object is returned after the termination of the lease agreement, barring any special circumstances (see Supreme Court Decision 2005Da8323, 830, Sept. 28, 2005). As such, the lessor is obligated to return only the remainder after deducting the secured obligation from the security deposit to the lessee (see Supreme Court Decision 2005Da8323, 830, Sept. 28, 2005). The amount of unjust enrichment equivalent to the rent calculated at the rate of KRW 5,082,00 from September 16, 2015 to January 15, 2017, should be deducted from the security deposit for the above period of 81,312,000 (5,000,000 won).

D. Sub-committee

Therefore, the Defendant is obligated to receive money from the Plaintiff at the same time from January 16, 2017 to receive the amount calculated by deducting the amount calculated by the rate of KRW 5,082,00 per month from the balance of the lease deposit to the time of receiving the instant real estate from the Plaintiff. Since the Defendant is only entitled to claim a return of unjust enrichment in advance on May 5, 2017 (18,688,000 = 5,000 + 5,082,000 x 320 days) where such delivery is not possible due to the absence of the balance of the said deposit, the amount of unjust enrichment equivalent to the rent that will occur up to the point of time shall be naturally deducted from the balance of the said deposit, and the subsequent amount of unjust enrichment shall not be delivered up to the point of time, the Plaintiff may claim a return of unjust enrichment in advance on the premise that the Defendant still uses and benefits from the instant leased property. Accordingly, there is no need to claim a return of unjust enrichment after May 6, 2017.

5. Conclusion

Therefore, the plaintiff's request for extradition of this case is justified within the above scope and it is unlawful to accept the corresponding part of the claim after May 6, 2017, and the plaintiff's remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance is partially accepted the plaintiff's appeal and it is so decided as per Disposition 1, including the claim added at the court of first instance, and it is so decided as per Disposition.

[Attachment Omission]

Judges Kim Jong-sung (Presiding Judge)