2016Na1156 Agreements

A

B

Daejeon District Court Decision 2015Da38627 Decided November 29, 2016

June 28, 2017

August 23, 2017

1. The plaintiff's appeal is dismissed.

2. The plaintiff's conjunctive claim added at the trial is dismissed.

3. All of the appeal costs and the costs of the preliminary claim shall be borne by the plaintiff.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 45,00,000 won with 5% interest per annum from October 1, 2015 to the delivery date of a duplicate of the complaint of this case, and 15% interest per annum from the next day to the day of full payment (the plaintiff added the claim for damages due to nonperformance of duty to restore in the trial).

1. Basic facts

A. On January 12, 2013, the Plaintiff leased a commercial building 102, Seo-gu, Daejeon (hereinafter “instant commercial building”) from EO, and the main contents of the said lease are as follows (hereinafter “the first lease agreement”).

○ Boslifies: 30 million won

○ Rental Period: From December 13, 2013 to January 3, 2016

B. On May 16, 2015, the Plaintiff, while running a business in the instant commercial building with the trade name “D”, intended to transfer the right to lease and goodwill of the instant commercial building, and the entire facilities to the Defendant (hereinafter “instant transfer contract”), and the main contents thereof are as follows.

○ Transfer Amount: KRW 70 million (30 million in lease deposit and premium KRW 40 million in premium) ○○.

- KRW 10 million out of the lease deposit of KRW 30 million: on the date of the instant transfer contract: KRW 20 million: on June 12, 2015, KRW 40 million: July 20, 2015; August 20, 2015; KRW 10 million on September 20, 2015; and KRW 30 million on September 30, 2015. Under the instant transfer contract, the Defendant entered into a lease contract for the instant and the instant commercial building from May 20, 2015 to January 8, 2016 (hereinafter referred to as “lease contract”).

D. The Defendant paid to the Plaintiff a total of KRW 25 million on May 16, 2015, and KRW 10 million on June 6, 2015, and KRW 25 million on December 15, 2015, and did not pay the remainder of KRW 45 million.

E. The Plaintiff and the Defendant agreed to terminate the instant contract on September 30, 2015. F. The second lease agreement was terminated on January 8, 2016.

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 1 to Eul evidence 6, and all pleadings 2. Judgment as to the main claim

The Plaintiff primarily claims the payment of the unpaid transfer price under the instant transfer contract. However, the Plaintiff and the Defendant agreed on September 30, 2015 to terminate the instant transfer contract as seen earlier (the instant transfer contract constitutes so-called so-called continuous transactional relationship)

As such, the above "Termination" shall be deemed to mean "cancellation that retroactively terminates the validity of the contract," and hereinafter the transfer contract of this case shall be determined on the premise that the contract of this case is terminated." The plaintiff's primary claim is not accepted on the premise that the transfer contract of this case is valid.

3. Judgment on the conjunctive claim

A. The issue of this part of the claim derived from the plaintiff's assertion

1) The Plaintiff asserts as follows.

As the contract for the transfer of this case was rescinded, the Defendant was liable to restore the Plaintiff’s status to the Plaintiff. However, the Defendant returned the commercial building of this case without any notification to the Plaintiff, thereby making it impossible to perform such duty. Accordingly, the Plaintiff lost the opportunity to receive the premium amounting to KRW 40 million by transferring the goodwill, etc. to a third party. Accordingly, the Defendant is liable to pay the Plaintiff the amount equivalent to the said premium as compensation for damages pursuant to Article 750 of the Civil Act.

2) In order to accept the Plaintiff’s assertion, the right of lease based on the first lease contract ought to be recovered to the Plaintiff due to the retroactive effect following the rescission of the agreement on the transfer contract of this case. If the right of lease is not recovered to the Plaintiff due to the rescission of the agreement, the damage of the Plaintiff’s assertion cannot be recognized. Therefore, the issue of this part is whether the right of lease under the first lease is recovered to the Plaintiff due to the cancellation of the agreement on the transfer contract

B. Determination on issues

When one of the parties cancels a contract, each of the parties has a duty to reinstate to the other party. The transfer contract of this case is terminated by the rescission of agreement as seen earlier. Accordingly, the plaintiff and the defendant shall be liable to restore to the other party.

However, performance of duty to restore should be performed within the extent not impairing the rights of a third party (Article 548(1) of the Civil Act). The third party here refers to a person who has a new interest before the rescission based on the legal effect arising from the cancelled contract (see Supreme Court Decision 2003Da33004, Jan. 14, 2005). E, a lessor of the first and second lease contract, agreed impliedly with the Plaintiff based on the transfer contract of this case, and entered into the second lease contract with the Defendant. In other words, E, based on the legal effect arising from the cancellation of the transfer contract of this case, is a person who has a new interest by cancelling the first lease contract before the cancellation of the transfer contract of this case and concluding the second lease contract. Therefore, even if the transfer contract of this case was rescinded, the Plaintiff cannot assert that the first lease contract of this case was restored in accordance with the rescission of the transfer contract of this case. Furthermore, the Plaintiff’s conjunctive claim cannot be accepted without examining any other claim.

4. Conclusion

Therefore, all of the plaintiff's main and conjunctive claims shall be dismissed. The judgment of the court of first instance, which dismissed the plaintiff's main claims, is just in conclusion. Thus, the plaintiff's appeal and the conjunctive claims added in the court of first instance are all dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judges and motion pictures

Judges Choi Young-young

Judges Park Jong-young