Plaintiff (Law Firm Gyeongnam, Attorney Park Jong-tae, Counsel for the plaintiff-appellant)

Defendant (Law Firm Kimhae & World, Attorneys Yellow-hun et al., Counsel for the defendant-appellant)

January 20, 2005

Changwon District Court Decision 2002Da3913 delivered on July 16, 2003

1. Paragraph 1 of the text of the judgment of the first instance, including the claim of the Plaintiff (Counterclaim Defendant) expanded in the trial, shall be modified as follows:

A. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) 54,658,50 won with 49,658,500 won and 5,000 won with 54,658,500 won per annum from October 13, 2004, 5,000 won with 5% per annum from March 12, 2002 to February 3, 2005, and 20% per annum from the next day to the day of full payment.

B. The remaining claims of the Plaintiff (Counterclaim Defendant) (including the part expanded in the trial) are dismissed.

2. The plaintiff's counterclaim is dismissed.

3. The total costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, against the Plaintiff (Counterclaim Plaintiff).

4. Among the parts ordering a payment of the amount under paragraph (1), the portion for which no provisional execution is declared by the first instance court may be provisionally executed.

1. Purport of claim

The principal lawsuit: The defendant (Counterclaim plaintiff; hereinafter the defendant) shall pay to the plaintiff (Counterclaim defendant; hereinafter the plaintiff) 105,20,929 won with 5% per annum from October 13, 2004 to the sentencing date of this case and 20% per annum from the next day to the day of complete payment, with 18,210,00 won with 5% interest per annum from March 12, 2002 to the day of complete payment, and with 20% interest per annum from the next day to the day of complete payment (the plaintiff extended its claim from the trial).

Counterclaim: The plaintiff shall pay to the defendant 4,586,953 won and 25% interest per annum from the day following the service of a copy of the counterclaim of this case to the day of complete payment.

2. Purport of appeal

The part against the plaintiff in the judgment of the court of first instance is revoked, and the defendant's counterclaim is dismissed. The defendant shall pay to the plaintiff 105,200,929 won and 86,990,029 won with 5% interest per annum from October 13, 2002 to the day of the judgment of this case, and 20% interest per annum from the next day to the day of full payment, 18,210,00 won with 5% interest per annum from March 12, 2002 to the day of delivery of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively considering the whole purport of pleadings in Gap evidence 1, 4, 7-1 through 12, Gap evidence 11, Eul evidence 1, 2, Eul evidence 3-1, 2-2, and testimony of part of the witness sworn by the court of first instance (excluding the part not trusted in this case).

A. In order to operate a private teaching institute in the vicinity of the expiration of the lease term of the above private teaching institute building from around December 1998, the Plaintiff entered into a contract with the Defendant on September 2, 2001 under which the part (55 square meters; hereinafter referred to as the building in this case) of the three floors (5 square meters; hereinafter referred to as "building omitted) of the building on the ground (55 square meters) owned by the Defendant and the Defendant among the three floors of the building on the ground (55 square meters omitted) owned by the Defendant (the building in this case shall be paid first, and the remaining eight million won shall be paid at the time of occupancy), monthly rent of 90,000 won, and three years from the lease term of the building in this case (hereinafter referred to as "the lease in this case"). The Plaintiff entered into an oral contract with the Defendant to lease the building in this case after completing the permission to establish the private teaching institute within the building in this case.

B. On October 13, 2001, the Plaintiff paid a certain amount of deposit to the Defendant pursuant to the instant lease agreement, and drafted the instant lease agreement. Since then doing construction of partitions, floor areas, signboards, and interior facilities in the instant building, the Plaintiff occupied the instant building from around 22th of the same month, and operated a private teaching institute for students who had been previously located in the instant building.

C. However, on the 25th of the same month, the Defendant, on the grounds that the Plaintiff occupied the building of this case and occupied it without permission without paying the remainder of eight million won among the above deposit, may confiscate the above two million won. However, since the Plaintiff introduced the above, it was ordered to leave the building of this case and notified the cancellation of the above lease. On the 27th of the same month, the Plaintiff intended to pay the Defendant the above deposit amount of eight million won, but the Defendant refused to receive it, and demanded the Plaintiff to re-issue the order of the building of this case.

D. However, when the Plaintiff continued to operate a private teaching institute without ordering the instant building, the Defendant obstructed electricity on November 19, 2001 on the instant building on the ground that the Plaintiff failed to pay electricity charges, and the Plaintiff’s failure to order the instant building to stop the entrance. On November 29, 2001, the Plaintiff removed the electric measuring instruments of the instant building from the electric measuring instruments of the instant building, thereby completely blocking the supply of electricity.

E. Meanwhile, on the 20th of the same month, the Defendant already concluded a verbal contract to lease the entire building of the said (name omitted) building to the non-party et al. (the lease contract was drafted around December 15, 2001), and around December 1 of the same year, the Plaintiff agreed to consult with the non-party et al. about the above electrical recovery issue, as the Plaintiff entered into a request to restore electricity that was temporarily taken measures, and the Plaintiff agreed to restore electricity to the non-party et al. by February 28, 2002 upon consultation with the non-party et al., and thus, the Plaintiff agreed to restore electricity once he agreed to the non-party et al. to non-party et al. by February 28, 2002.

F. Accordingly, the above electric facilities were restored, and the plaintiff continued to operate the above private teaching institute without leaving the building of this case until February 28, 2002, and the non-party et al. commenced the reconstruction construction of the hospital in the building of (building name omitted) building from March 9 of the same year, and thereafter, the above private teaching institute became difficult to operate due to noise and vibration, etc. due to the above construction, and the plaintiff suspended the operation of the above private teaching institute on the 12th of the same month and moved out of the building of this case.

2. Determination on the main claim

A. The plaintiff's assertion

The plaintiff could not use the building of this case due to the double lease of the building of this case and the measures for the short lease of the building of this case. The defendant asserts that ① the plaintiff could have accrued from March 12, 2002, out of the part of the building of this case to October 12, 2004, when operating a private teaching institute normally from March 12, 2002 to October 12, 2004, which is the expiration date of the lease term of this case, ② the deposit money paid to the defendant under the above contents of the contract, ③ the defendant is obligated to pay the facility cost of the building of this case which the defendant agreed to compensate the plaintiff as the termination of the lease contract of this case due to the reasons attributable to the defendant.

B. Determination

(1) Occurrence of damages liability

According to the above facts, the defendant had already concluded a lease contract for the building of this case with the plaintiff and received two million won which is part of the deposit money, and the plaintiff knew that the operation of the private teaching institute was commenced after the construction of facilities necessary for the operation of the private teaching institute in the building of this case. Thus, although the plaintiff was obligated to make the plaintiff use and profit from the building of this case under the lease contract of this case, the defendant unilaterally notified the cancellation of the lease contract of this case without legitimate procedure just because the plaintiff delayed payment of the remaining deposit money, and refused to receive the deposit money. The plaintiff's operation of the private teaching institute of this case was obstructed by abnormal methods such as blocking electricity, and the whole (the name omitted of the building of this case) building including the building of this case was leased again to two persons other than the non-party, and eventually, according to the whole hospital renovation construction of the building of this case including the building of this case, the plaintiff was forced to suspend the operation of the private teaching institute during the lease period of this case and forced to leave the part of this case, the defendant is liable for damages suffered by the plaintiff.

(2) Scope of damages

(A) Property losses

(1) Operating profits.

The plaintiff suffered losses equivalent to the business profit that the plaintiff could have gained if he had operated the building of this case normally from March 12, 2002, which was the expiration date of the lease contract of this case, from March 12, 2002 to October 12, 2004, due to the above acts of the defendant. Thus, the defendant is liable to compensate the plaintiff for the amount equivalent to the above business profit.

Therefore, with respect to the amount of business profits that the Defendant is liable for, the amount of damages of the obligee who had earned a certain amount of income at the time of the obligor’s nonperformance shall be calculated based on objective and reasonable data to determine the amount of income actually earned by the obligee at the time of the nonperformance. In this case, in principle, when the obligee has any income reported to the tax authority, the reported amount of income shall be deemed the amount of income at the time of the accident. However, if objective and reasonable data exists to determine that the reported amount of income is substantially low or that there was any income other than the reported income, only the reported amount of income may not be deemed the amount of income of the obligee (see, e.g., Supreme Court Decisions 93Da37885, Sept. 30, 199; 97Da36507, Dec. 12, 1997

The plaintiff's annual income reported to the tax office in 2001 is recognized as 6,976,00 won per month when it is converted into monthly income. Thus, the above reported amount cannot be deemed as grounded on the plaintiff's operating income, and the fact that the plaintiff could have actually earned monthly income before he leaves the building of this case after the lease contract of this case, 30,000 won was 60,000 won per month, 460,000 won per month, 60,000 won per month, 360,000 won per month, 46,000 won per month, and 96,000,000 won per month, 56,000 won per month, after considering the fact that the plaintiff was 66,00,000 won per month, 166,000 won per month, 36,000,0000 won per month, and 16,000,000 won per month.

Therefore, the Defendant is liable to pay the Plaintiff KRW 49,658,50 (=1,596,666 x 12 x 946/365), which is the amount equivalent to the operating profit from the operation of a private teaching institute that was able to obtain during the above period.

(2) Deposits.

The facts that the Plaintiff paid part of the deposit to the Defendant under the instant lease agreement are as seen earlier. However, there is no dispute between the parties on the fact that the Plaintiff left the instant building from October 22, 2001 to March 12, 2002, as to the unpaid amount of KRW 4,210,714 (90,000 x 4 months + 19 days/28 days). Thus, it is reasonable to deem that the said deposit paid by the Plaintiff was appropriated for the unpaid amount and extinguished.

As to this, the plaintiff asserted that the defendant agreed not to receive monthly rent from the building of this case until the plaintiff leaves the building of this case, but the above argument is without merit, since it is difficult to believe that the statement of No. 10 No. 10 and the testimony of the witness of the first instance trial and the result of the plaintiff's personal examination in the trial of the court of first instance, it is difficult to recognize the facts of the above agreement.

(3) Facility costs.

The Plaintiff asserts that, due to the Defendant’s double lease, the Plaintiff, who was unable to operate private teaching institutes in the instant building, demanded the Defendant to compensate for the facility cost, etc. of the instant building, and that the Defendant agreed to compensate the Plaintiff for the facility cost of the instant building 1,1210,000 won on condition that the Plaintiff ordered the instant building.

Therefore, as to whether the Defendant agreed to pay the Si facilities, it is difficult to believe the results of the Plaintiff’s personal examination in Gap evidence Nos. 10 and 15, and the testimony and trial of the witness of the first instance trial as they are, and the records of the Plaintiff’s personal examination in the trial of the party concerned are insufficient to acknowledge the above contract facts, and there is no other evidence to acknowledge them. In addition, even if it can be acknowledged that there was the above agreement between the Plaintiff and the Defendant for domestic affairs, the Defendant did not pay the money in accordance with the terms and conditions of the agreement, and it is reasonable to view that the above agreement was lost due to the failure of both parties to perform the agreement, such as the Plaintiff’s failure to order the building of this case, etc., and thus, the Plaintiff’s claim seeking an amount equivalent to the facility cost is without merit.

(b) Mental damage

As seen earlier, the Plaintiff, who operated a private teaching institute from around 1998 (SIS omitted) and caused difficulties in operating a private teaching institute due to the Defendant’s suspension of operation of the private teaching institute under the circumstances where the continued operation of the private teaching institute under the Defendant’s double contract was impossible, due to the Defendant’s suspension of operation of the private teaching institute. During that period, the hospital renovation work started for the entire (building name omitted) building including the building of this case, which led to forced suspension of operation of the private teaching institute due to noise and vibration due to the lack of credit rating between the students and their parents in the (SIS omitted) area, and eventually, the fact that the operation of the private teaching institute in the above area was impossible any longer due to the decline of credit rating between the students and their parents, it is acknowledged in light of the empirical rule that the Plaintiff suffered, or could have known, a considerable mental distress to the extent that the compensation for property damage was unable to recover. Accordingly, the Defendant has the obligation to pay the Plaintiff the consolation money to the Plaintiff.

C. Sub-decision

Therefore, with respect to the Plaintiff’s damages amounting to KRW 54,658,500 (=49,658,500 + KRW 5,000 + KRW 49,658,500) and operating losses amounting to KRW 49,658,50,00 from October 13, 2004 following the expiration date of the lease contract term of this case, and with respect to KRW 5 million from March 12, 2002, which is the eviction date of the Plaintiff’s moving-out from the building of this case, it is highly reasonable to dispute the existence and scope of each Defendant’s performing obligation from March 12, 202 to February 3, 2005, which is the sentencing date of this case, 5% per annum under the Civil Act, and 20% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

3. Determination on a counterclaim

The reasoning for this part of the court's explanation is as stated in the reasoning of the judgment of the court of first instance, except for the entry of evidence No. 15 against the facts recognized by the court of first instance and the rejection of the result of the plaintiff's principal examination of this court. Thus, it shall be accepted by Article 420 of the Civil Procedure Act

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim of this case is dismissed as it is without merit. Since the judgment of the court of first instance was partially different according to the plaintiff's expansion of the plaintiff's claim of this lawsuit, the plaintiff's appeal of this case was partially accepted, and the judgment of the court of first instance was modified as above, and the plaintiff's appeal of the counterclaim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yoon Jin-hun (Presiding Judge)