[1] Where the lease contract is terminated but the object is not clear, whether the lessee may refuse to pay the rent in arrears on the ground that the lease deposit exists (negative), and where the lessee’s debt amount is more than the lease deposit, the method of satisfaction of the lessee’s debt

[2] In a case where both a lease and a sub-lease are terminated, whether the sub-lease is obligated to return the amount of unjust enrichment equivalent to the rent from the end of the sub-lease to the completion date of the sub-lease (affirmative)

[3] In a case where a sub-lessee of land for the purpose of owning a structure owns a structure without authority on the relevant land even after the sub-lease has been lawfully terminated, whether unjust enrichment equivalent to the rent on the relevant land is obtained (affirmative)

[1] Since a lease deposit guarantees the rent and other tenant's obligations arising from the lease after the termination of the lease contract until the time when the lessee delivers the object, the secured amount is naturally deducted from the lease deposit without a separate declaration, barring any special circumstances, when the object is returned after the termination of the lease contract. Thus, even if the lease contract is terminated, unless there is any express circumstance, the lessee cannot refuse the payment of the rent in arrears on the ground that the object is the lease deposit, and in addition, if the lessee's obligation exceeds the lease deposit, the lessee shall comply with the order of legal appropriation as stipulated in Article 477 of the Civil Act.

[2] Since a lease takes effect when one of the parties agrees to allow the other party to use or benefit from an object and the other party agrees to pay a rent for it, the lessee is obligated to order the lessor to use the object and pay the rent for arrears until the end of the lease, barring any special circumstances, in a case where the lease contract is terminated, as well as to return the rent equivalent to the rent due to the possession and use of the object from the end of the lease to the completion date of the lease. Such legal principle applies to the lessee where the lessee has sub-leased the object but the lease and sub-lease are terminated.

[3] A person who owns a building on the land owned by another person without authority shall be deemed to gain, as his own, profits equivalent to the rent for the land owned by another person without any legal cause and thereby, to inflict damages equivalent to the rent for the land owned by another person. Barring special circumstances, in a case where the lessee of the land for the purpose of owning a structure other than the building owns a structure on the land without authority, such land should be treated equally.

[1] Articles 477 and 618 of the Civil Act / [2] Articles 618, 630, and 741 of the Civil Act / [3] Articles 618, 630, and 741 of the Civil Act

[1] Supreme Court Decision 99Da24881 delivered on July 27, 1999 (Gong1999Ha, 1783), Supreme Court Decision 99Da50729 delivered on December 7, 199 (Gong2000Sang, 147), Supreme Court Decision 2005Da8323, 830 delivered on September 28, 2005 (Gong2005Ha, 167) / [2] Supreme Court Decision 94Da54641 delivered on September 6, 1996 (Gong196Ha, 3095), Supreme Court Decision 200Da37777, 3784 delivered on November 24, 200, Supreme Court Decision 209Da37949 delivered on June 39, 205 (Gong37949 decided September 29, 209)

Plaintiff

Defendant

Seoul Western District Court Decision 2006Na6236, 6243 Decided February 1, 2007

The part of the judgment of the court below against the plaintiff as to the rent or equivalent return of unjust enrichment between the plaintiff and the defendant from July 18, 2004 to the completion date of delivery of the object of sub-lease contract is reversed, and this part of the case is remanded to Seoul Western District Court Panel Division. The remaining appeal by the plaintiff is dismissed.

The grounds of appeal are examined.

1. As to whether the deduction was made as a result of the refund of the sub-lease deposit, and the order of appropriation of performance

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff was not paid the rent from July 18, 2004 under the sub-lease contract of this case as indicated in the judgment of the court below, and that the plaintiff received the deposit of KRW 10 million from the defendant at the time of conclusion of the sub-lease contract of this case, and determined that the above deposit of KRW 10 million is deducted from the payment of rent for eight months from July 18, 2004 to March 27, 2005 under the sub-lease contract of this case, and the defendant bears the obligation to pay rent or unjust enrichment from March 28, 2005, unless there are special circumstances.

However, such judgment of the court below is not acceptable.

The lease deposit is a security for the rent and other lessee’s obligation arising from the lease after the lease contract is terminated until the time when the lessee delivers the object, and the secured amount is naturally deducted from the lease deposit without any separate declaration (see Supreme Court Decision 2005Da8323, 8330, Sept. 28, 2005). Thus, unless special circumstances exist, the lessee cannot refuse to pay the rent in arrears on the ground that the lease deposit exists unless it is clearly clarified even after the lease contract is terminated (see Supreme Court Decision 9Da24881, Jul. 27, 199). In addition, if the lessee’s obligation exceeds the lease deposit amount, the lessee’s legal appropriation order as provided in Article 477 of the Civil Act should be followed.

However, the lower court determined that the entire amount of the sub-lease deposit was deducted due to late March 27, 2005 as well as unjust enrichment equivalent to the overdue rent and the rent until March 27, 2005. In so doing, the lower court erred by misapprehending the legal doctrine by failing to exhaust all necessary deliberations as to the order of appropriation where the Defendant intended to clarify the subject matter of sub-lease or the amount of the sub-lease deposit exceeds the amount of the sub-lease deposit.

2. As to the damages equivalent to the rental fee for the period in which the duty of restoration is not fulfilled

A lease takes effect when one of the parties agrees to allow the other party to use or make a profit from an object and the other party agrees to pay rent for it. Thus, a lessee is not obligated to order the lessor to use the object and pay the overdue rent until the expiration date of the lease unless there are special circumstances. It is also obligated to return unjust enrichment equivalent to the rent due to the possession and use of the object from the expiration date to the completion date of the lease (see Supreme Court Decisions 94Da54641 delivered on September 6, 1996, 200Da3777, 3784 delivered on November 24, 200, and 200Da3777, 3784 delivered on November 29, 200, etc.). This legal principle applies to the lessee who has leased the object and terminated the lease and sub-lease, and a person who owns another person's own profit as 98Da68290 delivered on June 29, 201, without any special circumstances, without the authority of the other party.

According to the records, the sub-lease of this case is a land sub-lease for the purpose of the operation of the car center, and even after the lawful termination of the sub-lease contract of this case on October 2004, the defendant continued to conduct business in the land of this case and did not conduct business since May 21, 2005. However, on the ground that the sub-lease of this case is not installed with the main wall owned by the defendant, it is recognized that the car center building with a tent with a tent is remaining. Thus, if the sub-lease of this case is lawfully terminated, the defendant shall be deemed to possess the land of this case for the purpose of owning the above structure, and barring any special circumstances, the defendant is obligated to return the rent equivalent to the rent due to the possession and use of the land by the completion date of delivery of the land of this case.

Nevertheless, the court below rejected the plaintiff's claim for restitution of unjust enrichment after May 21, 2005 on the ground that the defendant suspended the business of the car center operated on the land of this case since May 21, 2005, without examining whether the defendant removed the above structure of this case and delivered the land, or whether the defendant received a claim for restitution of unjust enrichment equivalent to the claim for delivery of the land of this case or the claim for restitution of unjust enrichment from the non-resident, a lessor, upon termination of the lease contract between the plaintiff and the non-party. The court below erred by misapprehending the legal principles as to unjust enrichment, which affected the conclusion of the judgment. Thus, the appeal pointing this out is with merit.

3. As to the remaining grounds of appeal

As examined earlier, as long as part of the judgment below is reversed, the remainder of the grounds for appeal is without merit.

4. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff as to the rent from July 18, 2004 to the completion date of delivery of the land of this case and the claim for restitution of unjust enrichment is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)