(영문) 대구지방법원 2015.10.29. 선고 2015가합200290 판결

2. The Plaintiff (Counterclaim Defendant) shall deliver to the Defendant (Counterclaim Plaintiff) a part cafeteria of 365 square meters on the ship, which connects each point of the attached Form No. 1, 2, 3, 4, 5, 6, 7, 8, and 1 among the real estate listed in the attached Form No. 1, 2, 3, 5, 6,

3. The costs of lawsuit shall be borne by the plaintiff (Counterclaim defendant).

4. Paragraph 2 can be provisionally executed.

Purport of claim

Main Office:

1. The primary purport of the claim

A. Ascertainment that there exists a lease relationship as described in the separate sheet between the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) and the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) with respect to the first floor restaurant 365.0 square meters (hereinafter referred to as the “instant restaurant”) of the Library Specializing in C law in Gyeongsan-si (hereinafter referred to as the “instant restaurant”) from November 1, 2014 to October 31, 2015;

B. The defendant shall not engage in such conduct as posting a notice to the effect that it goes against the lease agreement as stated in the separate sheet on the D University homepage or public notice board, or as interfering with business such as notifying the president's office, headquarters, university, graduate school, affiliated institution, other institution, university council, university council, faculty council, employee labor union, industry-academic cooperation foundation, professors and staff, students, etc. by e

C. On October 27, 2014, the Defendant posted to the Plaintiff a written notice to revoke the notice to suspend the operation of the public library specializing in law, a restaurant, and a lodging establishment, on the website of the D University.

D. The Defendant shall pay KRW 50,000,000 as of the last day of each month from November 1, 2014 to the time the obligation under sub-paragraph (c) is discharged.

2. Preliminary purport of claim

The Defendant shall pay KRW 100,00,000 to the Plaintiff at the same time, along with the delivery of the portion of 365 square meters on the ship (A) which connects each point of the attached Form 1, 2, 3, 4, 5, 6, 7, 8, and 1 among the real estate listed in the attached Table among the real estate listed in the attached Table from the Plaintiff.

Counterclaim: The same shall apply to the text of the judgment.

Reasons

1. Basic facts

A. On June 1, 2006, the Plaintiff entered into a lease agreement with the Defendant by setting the lease deposit of KRW 10 million with respect to the instant restaurant from May 19, 2006 to June 30, 201. At the time of entering into the said lease agreement, the Plaintiff entered into a lease agreement by a negotiated contract with the Defendant. In consideration of the Plaintiff’s initial facility investment expenses, the Plaintiff’s rent is exempted; the Plaintiff’s subsidiary facilities installed by the Plaintiff, as the lessee, may not claim any right against the Defendant or the next lessee; and the Plaintiff agreed to restore the leased agreement to its original state when the lease agreement is terminated.

B. On October 17, 201, the Plaintiff concluded a lease contract with the Defendant for a lease deposit of KRW 10 million, rent of KRW 12 million, contract term, and contract term from October 17, 201 to June 30, 201, the Plaintiff agreed to donate facilities installed by the Plaintiff or additional investments within the existing contract term or within the term of contract to the university operated by the Defendant without any condition after the lease contract term expires, and not to claim the Defendant for the facility investment cost.

C. In the case of April 16, 2012 between the Plaintiff and the Defendant, Daegu District Court 2012No. 11, the protocol of compromise containing the following (hereinafter referred to as “instant protocol of compromise”).

(1) Paragraphs (1) through (4) omitted.

5. The respondent may install or alter incidental facilities necessary for operation at the expense of the respondent only when he/she has obtained approval in writing from the applicant, and may not claim the value or goodwill of the incidental facilities after the completion of the contract to the applicant or the lessee.

(6), (7) omitted.

8.(Repair and repair)

(a) The respondent shall bear the costs of subsequent facility investment and repair and repair after completion of all facility investment and facility investment, and shall not require the applicant to pay the facility investment cost after completion of the contract, and shall donate all facility investment cost to the applicant without conditions, without regard to the applicant;

(hereinafter omitted)

D. The Defendant concluded a lease contract with the term of June 30, 2014 from July 1, 2014 to August 31, 2014 (hereinafter referred to as “lease contract as of June 30, 2014”) so that the Plaintiff may temporarily operate the instant restaurant prior to the expiration of the said term of lease, and entered into a lease contract with the term of August 29, 2014 from September 1, 2014 to October 31, 2014 (hereinafter referred to as “lease agreement”).

E. On October 27, 2014, the Defendant requested the Plaintiff to deliver the instant restaurant on the ground of the expiration of the lease agreement term, and on November 19, 2014, requested the Plaintiff to deliver the instant restaurant.

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 1 and 2 (including each number), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

In the meantime, the Defendant did not express his/her intention to refuse the renewal of the lease within one month from October 31, 2014, which was the expiration date of the lease term of the last lease term of August 29, 2014, which was concluded by the Plaintiff, to the Plaintiff. Therefore, the above lease contract is an implied renewal pursuant to Article 10(1) of the Commercial Building Lease Protection Act, and the lease relationship between the Plaintiff and the Defendant exists under the same condition that is one year for the lease term between the Plaintiff and the Defendant, thereby seeking confirmation of the lease relationship and prohibition of interference with business.

Preliminaryly, at the Defendant’s request, the Plaintiff requests the purchase of accessories installed to remodel the instant restaurant.

B. Defendant

After the termination of the existing lease agreement, the lease agreement between the plaintiff and the defendant on August 29, 2014 was a lease agreement that allows the plaintiff to temporarily use the instant restaurant while the procedures for selecting a new operator of the instant restaurant are being followed. Therefore, the Commercial Building Lease Protection Act was not applicable and the term of validity has expired. Therefore, the plaintiff must deliver the instant building to the defendant.

Since the plaintiff waived the right to purchase the accessory in the conciliation protocol of this case, the plaintiff's right to exercise the above right to purchase is against res judicata of the conciliation protocol of this case, and the plaintiff's refusal of the right to purchase was made in lieu of setting the plaintiff's payment in consideration of the facility investment cost, and thus, is not disadvantageous to

3. Determination

A. Judgment as to the plaintiff's primary principal lawsuit and the defendant's counterclaim

According to Gap evidence No. 2 (Lease), the term of lease is set as 2 months for the plaintiff to operate the restaurant even after the expiration of the term of lease, and as the lease contract was concluded on June 30, 2014, as the lease contract was concluded on August 29, 2014, the extension contract was concluded on August 29, 2014, and other contents shall be governed by E (O. 17, 201). Thus, each of the above lease agreements is set as 2 months for the plaintiff to be allowed to operate the restaurant even after the expiration of the term of lease, and the plaintiff's claim for extension of the term of lease was not made on June 16, 2014, and it is reasonable to view that the term of lease was extended to 20 months prior to the expiration of the term of lease on June 30, 2014 as the lease contract was extended to 14.14.

B. Judgment on the Plaintiff’s main claim

Inasmuch as the protocol prior to the filing of a lawsuit has the same effect as that of a final and conclusive judgment, res judicata takes effect between the parties. Therefore, even if the content of the protocol is in violation of compulsory provisions, it is merely a defect in the settlement prior to the filing of a lawsuit, and thus, it cannot be asserted that the protocol is null and void (see, e.g., Supreme Court Decision 2002Da44014, Dec. 6, 2002). If the subject matter of a lawsuit is identical to that of a subsequent lawsuit, even if the subject matter of a lawsuit is identical, and the subject matter of a lawsuit becomes a prior legal relationship in the subsequent lawsuit, the court of the subsequent lawsuit cannot render a judgment inconsistent with the judgment prior to the filing of the subsequent lawsuit (see, e.g., Supreme Court Decision 9Da5472, Feb. 25, 2000). In addition, Article 643 of the Civil Act regarding the lessee’s right to demand the purchase, and thus, the lessee cannot be deemed disadvantageous to the lessee.

According to the facts acknowledged above, the plaintiff renounced the right to purchase the attached article and the right to claim reimbursement of expenses related to the lease of this case under paragraphs 5 and 8 of the reconciliation agreement of this case. Since this has the same effect as a final and conclusive judgment, the plaintiff cannot assert that the plaintiff exercised the right to purchase in violation of the reconciliation agreement of this case and the court cannot make a decision contrary to the above reconciliation agreement of this case. In addition, the following circumstances, which can be known by the above facts, are determined that the plaintiff and the defendant were not monthly in consideration of the plaintiff's facility investment expenses related to the restaurant of this case when concluding a lease agreement on the restaurant of this case around June 2006, and the plaintiff and the defendant decided to waive the plaintiff's right to purchase instead of the above, and concluded a renewal agreement of this case after the plaintiff and the defendant, and made a special agreement to waive the plaintiff's right to purchase the plaintiff's right to purchase the attached article of this case, and thus, the plaintiff cannot exercise the right to purchase the plaintiff's right to purchase the attached article of this case.

4. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. The defendant's counterclaim against the plaintiff is justified and it is so decided as per Disposition.