[Judgment of the court below]

Defendant (Attorney Han-dong et al., Counsel for defendant-appellant)

August 27, 2012

1. The defendant shall pay to the plaintiff 30,492,00 won with 5% interest per annum from March 6, 2012 to September 24, 2012, and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 50% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

5. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 5,492,00 won and 30,492,000 won among them, 5% per annum from September 1, 2008 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the full payment date, and shall pay to the plaintiff 25,000 won with money calculated by 20% per annum from the day after the delivery date of the copy of the complaint of this case to the full payment date.

1. Basic facts

A. On January 15, 2004, the Plaintiff leased the first floor store of ○○ Building located in Yongsan-gu Seoul Metropolitan Government ( Address omitted) from the Nonparty, with a deposit of KRW 45 million, monthly rent of KRW 100,000 (excluding value-added tax, and payment on January 15, 2004) and the period from January 15, 2004 to January 15, 2006, and operated the sales and repair store of Austria at the instant store by paying the said deposit.

B. After that, the Defendant acquired the ownership of the instant store, on May 15, 2005, the Plaintiff entered into a lease agreement with the Defendant to lease the instant store with the same content as the previous lease agreement (hereinafter “former lease agreement”).

C. On January 16, 2006, the Plaintiff renewed a lease agreement with the Defendant prior to renewal, and increased the deposit amount by KRW 50 million per month, and KRW 2 million per month, respectively, and entered into a lease agreement on the instant store (hereinafter “instant lease agreement”) with the period from January 16, 2006 to January 15, 2008.

D. Meanwhile, the store of this case was incorporated into an urban environment rearrangement project zone conducted by the Urban Environment Rearrangement Project Association (hereinafter referred to as the “Urban Environment Improvement Association”), and the non-party union filed a lawsuit against the defendant to request the delivery of the store of this case as Seoul Western District Court 2008Gahap14817, Jun. 27, 2008. On September 23, 2009, the lawsuit was pending, the non-party union asserted that the balance of the deposit amount of the lease contract of this case after deducting the non-party union from the overdue rent is 20,635,890 won (hereinafter referred to as the “the deposit of this case”). On August 25, 2011, the above court ordered the Seoul Western District Court to deposit the above amount (hereinafter referred to as the “the extradition judgment of this case”).

E. From September 1, 2008, the Plaintiff did not pay rent. Around January 20, 2009, the Plaintiff notified the Defendant of the termination of the instant lease agreement on the grounds of nonperformance, and then delivered the instant store to the Nonparty Union around November 23, 201, which was after the extradition judgment of the instant case.

【Ground of recognition】 The fact that there has been no dispute, Gap Nos. 1, 2, 4, Eul Nos. 1 and 2, the purport of the whole pleadings

2. Determination on the claim for refund of deposit

(a) Occurrence of the obligation to return the deposit;

According to the above facts, since the lease contract of this case was terminated on January 20, 2009, the defendant is obligated to return to the plaintiff the balance of deposit 25 million won, barring any special circumstance.

B. Judgment on the defendant's assertion

After receiving the instant deposit money, the Defendant asserted that, around October 27, 2011, the Plaintiff agreed to receive the final amount of the business compensation from the Nonparty Union and deliver the instant store by November 15, 201, and that the Plaintiff’s claim for the refund of deposit did not exist any longer upon the fulfillment of the said agreement.

Therefore, the facts that the Plaintiff deposited the instant case with the balance of the deposit after deducting the overdue 50, 10.2, 2, 14-2, 15-2, and 2 of the evidence No. 2, 10-1, 2, 300, 30-1, 40, 200, 10-1, 30, 10-1, 40, 10-1, 200, 30, 10-1, 40, 206, 10, 200, 300, 40, 1000, 100, 200, 100, 205, 100, 206, 30, 40, 106, 30, 106, 30, 109, 197, 30, 107, 2010.

As acknowledged above, the delivery judgment of this case, the plaintiff did not make any special reservation on the refund of deposit, and received only the above business compensation and delivered the store of this case. However, the above business compensation seems to have been reflected in the part of the deposit because the deposit was included in the deposit money deposited by the non-party association as the refund of deposit. Further, the plaintiff delivered the store of this case after the following agreement with the defendant on the business compensation and rent between the defendant and the plaintiff, and immediately after that agreement, paid the amount of KRW 25 million which the defendant would have been expected to settle the relationship with the plaintiff. At the time of the agreement of this case, the plaintiff would not raise any objection in connection with the delivery of the above store, and it is reasonable to view that the plaintiff's claim for the refund of deposit was settled and completed as the plaintiff's claim for the refund of deposit was implemented. Thus, the above argument of the defendant is reasonable.

C. Sub-committee

Therefore, the plaintiff's claim for refund of deposit is without merit.

3. Determination on the claim for restitution of unjust enrichment

A. Occurrence and scope of return of unjust enrichment

Article 10(1) of the Commercial Building Lease Protection Act provides that a lessor may not refuse a request for the renewal of a contract between six months and one month before the expiration of the lease term without justifiable grounds. Article 10(3) of the same Act provides that a renewed lease shall be deemed to have been renewed under the same conditions as the former lease: Provided, That the rent and deposit may be increased or decreased within the extent provided for in Article 11. Article 11 of the same Act provides that where the rent or deposit is unreasonable due to increase or decrease in taxes, public charges, and other burdens on the leased building or fluctuations in economic circumstances, the parties may request an increase or decrease in the rent or deposit in the future, but in cases of increase, it shall not exceed the ratio in accordance with the standards prescribed by Presidential Decree. Accordingly, a claim for the renewal of the lease contract under Article 10(1) of the former Enforcement Decree of the Commercial Building Lease Protection Act (amended by Presidential Decree No. 2010, Aug. 21, 2008; Presidential Decree No. 22010, Jan. 15, 2006).

In addition to the above facts, the Defendant notified the Plaintiff of the refusal of renewal on November 9, 2005, which was about two months prior to the expiration of the term of the lease prior to the renewal, and notified the Plaintiff of the refusal of renewal on or around November 16, 2005. The Plaintiff sent the notice of the request for renewal of the lease prior to the expiration of the term of the lease prior to the renewal, and thereafter notified the Defendant at that time. The Defendant entered into the lease prior to January 16, 2006, immediately after the expiration of the term of the lease prior to the renewal, and the lease prior to the renewal continues to be renewed upon the Plaintiff’s renewal request. The lease prior to the renewal of the term of the lease prior to the expiration of the term of the lease prior to the renewal, the lease prior to the renewal of the term of the lease prior to the expiration of the term of the lease prior to the expiration of the term of the lease prior to the expiration of the term of the lease prior to the expiration of the term of the lease prior to the expiration of the term of the term of the lease.

B. Judgment on the defendant's assertion

1) First, the Defendant’s refusal of the Plaintiff’s request for renewal due to the scheduled rebuilding of the instant store, and the Plaintiff’s refusal to renew the lease agreement was not possible. The Plaintiff asserted that Article 10(3) of the Commercial Building Lease Protection Act is not applicable as the Plaintiff and the Defendant separately concluded the instant lease agreement according to the agreement between the Plaintiff and the Plaintiff. Thus, according to the statement in the evidence No. 2, it is reasonable to deem the Defendant’s assertion that the instant lease agreement was renewed upon the Plaintiff’s request for renewal of the lease agreement as follows: (a) on December 13, 2006, when one year or more has passed since the Plaintiff exercised the Plaintiff’s right to demand renewal; (b) the Plaintiff obtained authorization for the establishment of the Plaintiff’s association on September 17, 2007; and (c) the exercise of the right to claim renewal and its objection was not time for reconstruction of the said store at the time of entering into the instant lease agreement; and (c) in light of the developments and contents of the instant lease agreement.

2) The Defendant also asserts to the effect that the rent that the Plaintiff paid in excess of 12/100 of the rent prior to renewal constitutes illegal consideration and cannot be claimed as return thereof. However, the “illegal illegality” of illegal consideration as stipulated in Article 746 of the Civil Act is not simply a violation of social order, not in the case of a violation of the mandatory law, and it is deemed that the rent was paid in excess of the above statutory limit, and it cannot be deemed an act anti-social order. Therefore, the Defendant’s assertion is without merit.

C. Sub-committee

Therefore, the defendant made unjust enrichment to the plaintiff 30,492,00 won [30,00 won x 31 months (from January 16, 2006 to August 15, 2008) + 968,000 won x 15 days (from August 16, 2008 to August 31, 2008) / 15 days (1) / 30 days after delivery of a copy of the complaint of this case, which is the day following the delivery date of the complaint of this case, 5% per annum under the Civil Act from March 6, 2012 to September 24, 2012, which is the date of the judgment of this case, the defendant made a reasonable appeal, and 20% per annum under the Special Act on the Promotion, etc. of Litigation until the date of full payment (the plaintiff's last damages for delay are the day following the notice of the complaint of this case).

4. Conclusion

Thus, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.

Judges Park Jong-young

Note 1) The original amount of KRW 499,612 (=968,000 x 16 days/31 days) shall be calculated, but the Plaintiff’s claim shall be made.