(영문) 서울북부지방법원 2019.03.22 2018가단147867

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(영문) 서울북부지방법원 2019.03.22 2018가단147867

건물명도(인도)

Text

1. The defendant shall be the plaintiff.

(a) deliver the real estate listed in the annex;

(b) 2,390,830 won and 2,284,950 won among them;

Reasons

1. On September 28, 2016, the Plaintiff, as indicated in the claim, leased the real estate attached thereto (hereinafter “instant real estate”) to the Defendant, under an agreement that the lessor may terminate the lease deposit, KRW 85,00,000, monthly rent of KRW 135,00, the lease term from October 25, 2016 to October 24, 2018, and the lessee may terminate the lease contract if he/she delays monthly rent, etc. for at least three months.

Since July 2017, the defendant delayed to pay monthly rent from July 2017 for at least three months, and the plaintiff shall terminate the above lease contract with the delivery of the complaint of this case on the basis of the above agreement.

Accordingly, the Plaintiff seeks to transfer the real estate of this case to the Defendant, and also seek rent in arrears, delay damages therefor, monthly rent, and unjust enrichment equivalent to the same amount.

2. Judgment with no basis for recognition (Articles 208 (3) 1 and 257 (1) of the Civil Procedure Act);

3. Part 3 of the dismissal

A. The plaintiff asserts that the rent in arrears shall be paid at the rate of 15% per annum from the day after the copy of the complaint of this case is served to the day of complete payment.

B. First of all, even if a lease deposit has been granted to a lessor, the lessor may freely choose whether to cover the overdue rent from the lease deposit while the lease relationship continues.

Therefore, the overdue rent is not naturally deducted from the lease deposit without any separate declaration of intention, such as deduction, before the termination of the lease contract, and the lessee cannot refuse to pay the rent on the ground of the existence of the lease deposit (see, e.g., Supreme Court Decision 2016Da211309, Nov. 25, 2016). If the payment on the rent is finalized, the obligation to pay the rent is due and due to the cause of delay occurs from the date following the due date, and the liability to pay the rent ceases to exist only when it is deducted from the deposit, and thus, the obligation and the liability to pay the rent on the overdue rent should be extinguished

참조조문

-민사소송법 제208조 제3항 제1호

-민사소송법 제257조 제1항

참조판례

-대법원 2016. 11. 25. 선고 2016다211309 판결

유사 판례

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