Kim Jong-chul

Song-sung (Attorney Lee Young-young, Counsel for the defendant-appellant)

Lee Insan (Law Firm Gyeong & Yang, Attorneys Park Dong-tae et al., Counsel for the plaintiff-appellant)

October 19, 2004

Seoul District Court Decision 2001Da43824, 54855 (Counterclaim) Decided February 11, 2003

1. The part of the judgment of the court of first instance that lost a plaintiff (Counterclaim defendant) who falls under the following shall be revoked:

A. The Defendant-Counterclaim Plaintiff (Counterclaim Defendant)

⑴ ㈎ 별지 목록 2번 기재 좌판을 취거하고,

㈏ 1,474,657원 및 2001. 10. 21.부터 위 좌판 취거완료일까지 월 20만 원의 비율에 의한 금원을 각 지급하고,

Sheshes 12,279,452 won shall be paid.

B. The defendant-Counterclaim plaintiff's counterclaim is dismissed.

2. The remaining appeal by the Plaintiff (Counterclaim Defendant) is dismissed.

3.on the basis of a request for succession to participation in the trial:

A. The Defendant-Counterclaim Plaintiff (Counterclaim Plaintiff)

(i) order the store listed in Schedule 1;

B. From March 3, 2003, to the date of completion of the above coordinate, 750,000 won per month shall be paid.

B. The remainder of the primary claim and the conjunctive claim of the successor are all dismissed.

4. The total cost of the lawsuit is borne by the Defendant-Counterclaim Plaintiff.

5. The above paragraphs 1(a) and 3(a) may be provisionally executed.

1. Claims and purport of appeal

제1심 판결을 취소한다. 주위적으로, 주문 제1의 가⑴㈎항 및 피고(반소원고, 이하 ‘피고’라고만 한다)는 원고(반소피고, 이하 ‘원고’라고만 한다)에게 95만 원 및 2000. 10. 1.부터 2003. 3. 2.까지 월 95만 원의 비율에 의한 금원을, 그 다음날부터 별지 목록 2번 기재 좌판(이하 ‘이 사건 좌판’이라고 한다) 명도완료일까지 월 20만 원의 비율에 의한 금원을 각 지급하고, 주문 제3의 가⑴항 및 피고는 참가승계인에게 2003. 3. 3.부터 별지 목록 1번 기재 점포(이하 ‘이 사건 점포’라고 한다) 명도완료일까지 월 75만 원의 비율에 의한 금원을 지급하라. 예비적으로, 피고는, 원고에게 95만 원 및 2000. 10. 1.부터 2003. 3. 2.까지 월 95만 원의 비율에 의한 금원을 각 지급하고, 참가승계인에게 이 사건 점포를 명도하고, 이 사건 좌판을 취거하며, 2003. 3. 3.부터 이 사건 좌판 취거완료일까지 월 95만 원의 비율에 의한 금원을 지급하라. 주문 제1의 나항과 같다(이 사건 점포의 소유자가 원고로부터 참가승계인으로 변경되었음을 이유로 당심에서 원고는 청구취지 중 일부를 감축하였고, 참가승계인은 소송참가를 하였다).

2. Claim for a counterclaim

The plaintiff shall pay to the defendant 10,550,050 won with 5% per annum from October 1, 200 to the service date of the counterclaim of this case, and 25% per annum from the next day to the day of full payment.

1. Basic facts

A principal lawsuit and a counterclaim shall be deemed simultaneously.

A. Ownership and lease relationship of the instant store

(1) On October 15, 197, the store of this case located within the Central Market of Jung-gu, Seoul was originally purchased from Kim Hong on December 5, 1967, and used it as leased, etc., and completed the registration of ownership transfer on the ground of sale as of July 30, 197, and thereafter, the registration of ownership transfer was made on October 15, 1997 with respect to the store of this case on the ground of the testamentary gift under the Plaintiff’s name as of October 15, 1997.

On September 1971, 1971, the new underground shopping mall located in the underground of the road located in Jung-gu Seoul Jung-gu, 119-370, Jung-gu, Seoul, was completed in order to move into the underground shopping mall most of the above underground shopping mall at the time of the establishment of the above underground shopping mall, and the defendant also moved into the above underground shopping mall. On December 30, 1973, the above underground shopping mall, including the defendant, began to move into the road again.

The Defendant, from September 30, 1974, leased the instant store (hereinafter “instant lease contract”), and sold the collection office, etc. on the instant road by using a fire-fighting road (Seoul Jung-gu, 370-2, an owner’s country, and hereinafter “the instant road”) in front of the instant store. The Plaintiff continued to renew the instant lease contract between the said main shop and the order before receiving the legacy. On September 30, 1997, the Plaintiff received the said legacy, and the Plaintiff renewed the instant lease contract with the Plaintiff on September 30, 1997, by setting the lease contract as KRW 150,000,000 and KRW 950,000,000,000 for rent, from September 30, 1997 to 12 months for lease period, but the said lessor’s name was the order of the said lessor.

In addition, from June 1997 to June 200, the defendant set up a rental fee of 750,000 won to the moving-off of the instant store, and he continued to operate his business in the instant coordinate, and he paid 20,000 won per month to the plaintiff for the rent of 9,50,000 won to the instant store.

(v) The instant lease agreement was continuously renewed at an impliedly thereafter, and terminated by the agreement between the Plaintiff and the Defendant on September 30, 2000. The Defendant did not pay 950,000 won until the termination of the instant lease agreement.

⑹ 한편, 원고는 2002. 3. 30. 참가승계인에게 이 사건 점포(특약사항에 이 사건 좌판을 포함한다고 되어 있다)를 대금 3억 2,500만 원에 매도하였고, 2003. 3. 3. 이 사건 점포에 대하여 참가승계인 명의의 소유권이전등기를 경료하여 주었다.

B. On-site conditions of the store and coordinates of this case

(1) The instant coordinate is located below the delivery (240cm from the delivery boundary line in front of the instant store to the road in this case) in front of the instant store (240cm). The Defendant, after setting up two large coordinates, set up one board (90cm in length, 180cm in width, 140cm in width, 74cm in width, and 140cm in width) which is small, and carried out funeral services. The distance from the entrance of the instant store to the instant coordinate is 270cm in width, and the product display stand in front of the instant store (in relation to the instant store, the width from the delivery boundary line to the road in this case was measured based on the product display stand in front of the instant store) from the side to the next coordinate in front of the instant store (in case where the previous shop is installed and displayed with the goods in front of the instant case and the previous one can not actually pass the instant coordinate in front to the 90cm in width including the instant board).

Shebaly, in the instant store, water taps are attached to the outer wall, and the Defendant used tap water in the store from the time of leasing the instant store, and the Defendant extended the water pipe around June 2004 to the instant plate.

Then, in order to support the activation of conventional markets and to provide convenience to the market merchants, customers, etc., the Jung-gu Seoul Central Government Office promoted the business of “non-permanent” in which a transparent roof is installed according to the instant road side. Of the business cost of KRW 1 billion, 20% of the business cost shall be private capital, but the Seoul Central Market Operation Committee shall bear the burden of the shop owners. The above operation meeting determined that the store owners will bear it, and the participating successor paid KRW 5 million on January 30, 2003 according to the above decision.

C. Name map of the instant store

(1) On August 29, 200, the Defendant sent to the Plaintiff, from June 200, a document evidencing that the Plaintiff had a store in this case, and that the Plaintiff cannot renew the contract without reducing the rent, and on March 16, 2001, a document verifying the content of the claim for the return of the lease deposit. On March 21, 2001, the Plaintiff sent to the Defendant a document verifying the following: (a) on March 21, 2001, the road in this case was implicitly used by the lessee of the instant store; (b) the Plaintiff sent to the Defendant a document verifying that the Plaintiff would order the instant store and return the lease deposit upon the removal of the instant ticket; and (c) the Plaintiff did not refund the lease deposit amount of KRW 11.5 million up to now.

She, however, before the instant lawsuit is brought, the Defendant: (a) stockpiled the mash and various fresh units within the instant store; (b) opened locks when the instant store was locked with locks; and (c) discontinued piling up the goods in the instant store; and (d) opened the locks and opened the instant store; and (c) opened the instant store without the consent of the Plaintiff or the participant.

The Seoul Central Market Operation Committee has paid 500 won per day to the market merchants under the pretext of fire prevention and crime prevention activity expenses, and 10,000 won per day to the stores and shop workers who have no stores, and 10,000 won per month to the store workers who have a store and a store store. The defendant still has paid 10,000 won from the date of the instant lease contract until 2003.

D. Status of agreement after the pronouncement of the judgment of the first instance court of this case

(1) After the judgment of the court of first instance was rendered, the successor against the judgment of the court of first instance paid the Defendant the lease deposit amount of KRW 10,550,000,000 to the Defendant and KRW 18,000,000,000,000 to the Defendant as stated in the order of the court of first instance, which is a real estate broker, as well as KRW 10,550,000,000,000,000,000,0000,000,000,000,000,000,000 won

D. She, this paper argues that I wish to conclude the agreement, and that I would like to do so, this paper will give the case to the defendant on February 27, 2003, and that I agreed to pay the above KRW 18 million to the defendant with the money of this paper, but if the defendant takes the instant coordinate as a result of the formation of agreement, I would pay the above KRW 18 million and the premium of KRW 40 million to the defendant, and if the defendant did not take the instant coordinate upon receiving the above KRW 18 million, the payment of KRW 18 million will become null and void, and all legal issues will be resolved to solve this paper.

On February 27, 2003, in accordance with the above agreement, the title of this case was paid to the defendant 18 million won on February 27, 2003, but the agreement between the defendant and the defendant on the part of the purchase of the title of this case was not reached. On November 28, 2003, the defendant requested the return of the above KRW 18 million to the defendant, but did not have been returned until now.

[Based on Recognition: Facts without dispute; Gap evidence 1 through 5; Eul evidence 1, 2, 10; Eul evidence 13-1, 2, 14; Gap evidence 17-1, 2; Gap evidence 18; Gap evidence 23; Gap evidence 24-1, 25; Gap evidence 30-1, 2, Gap evidence 31, 33, 34; Eul evidence 1; Eul evidence 2-1, 2-2; Eul evidence 4-1, 5, 39-39; Eul evidence 1-4; Eul evidence 1-4; Eul evidence ; Eul evidence 1-4; Eul evidence ; Eul evidence 1-4; Eul evidence 1-4; Eul evidence ; Eul evidence 1-4; the testimony and verification results of the testimony at the Seoul High Court 1-1, 3-1, 3-1, and 1-4 of the witness at the scene; the testimony at the first instance court ; part of the testimony at the Seoul High Court 1-1-2, 3-13 of the testimony.

[Evidence evidence: Evidence No. 3-1, 2, Eul evidence No. 5-2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24 through 36, evidence No. 7-1, Eul evidence No. 10-1, Eul evidence No. 14, Eul evidence No. 15-1, Eul evidence No. 16-1, Eul evidence No. 24-1, evidence No. 24-1, evidence No. 13, evidence No. 13, evidence No. 5-2, evidence No. 5-2, evidence No. 5-2, evidence No. 5-2, evidence No. 1, evidence No. 10-1, evidence No. 24, witness No. 5 of the first instance court, witness No. 1, witness No. 5-2, and testimony of this order]

2. The parties' assertion

A. The plaintiff and the successor

(i)Evidence as to the primary principal claim

㈎ 이 사건 점포가 위치한 위 황학동 중앙시장에는 시장 중앙에 위치한 이 사건 도로의 양쪽으로 인접한 점포의 소유자가 위 도로의 일정 공간을 점유하면서 좌판을 설치하여 영업할 수 있는 권리가 상관습으로 인정되어 있고, 원고도 위와 같은 상관습에 따라 이 사건 점포와 함께 이 사건 좌판을 이 사건 임대차계약의 목적물에 포함시켜 피고에게 임대하였다.

㈏ 피고는 이 사건 임대차계약이 2000. 9. 30. 위와 같이 합의 해지될 때까지 위 임대차계약에 따른 임료로 95만 원을 연체하고 있고, 위와 같이 위 임대차계약이 종료되었음에도 불구하고 이 사건 좌판을 원고에게, 이 사건 점포를 소유권자인 참가승계인에게 각 명도하지 않고 계속 이를 점유·사용하고 있으므로, 위 임대차계약의 종료로 인한 원상회복으로서 원고에게 이 사건 좌판을 명도하고, 위 연체임료 95만 원 및 2000. 10. 1.부터 이 사건 점포의 소유권을 상실하기 전인 2003. 3. 2.까지 월 95만 원의, 2003. 3. 3.부터 위 좌판 명도완료일까지 월 20만 원의 각 비율에 의한 임료 상당의 부당이득을 반환할 의무가 있고, 참가승계인에게 소유물반환으로서 이 사건 점포를 명도하고, 이 사건 점포의 소유권을 취득한 2003. 3. 3.부터 위 점포 명도완료일까지 월 75만 원의 비율에 의한 임료 상당의 부당이득을 반환할 의무가 있다.

㈐ 또는 피고는 위와 같이 이 사건 임대차계약이 종료하여 이 사건 점포 및 좌판을 점유할 권원이 없음에도 불구하고 이를 점유하고 있는바, 이는 불법점유로서 그로 인하여 발생한 임료 상당의 손해를 배상할 책임이 있다.

Shesing on the Preliminary Claim

Since the Defendant’s possession and use of the instant coordinate makes it impossible to use and make profits from the instant store that is adjacent thereto, and the damages incurred from not obtaining the monthly rent of KRW 9,50,000 from the termination date of the instant lease agreement, the Defendant is obligated to compensate the Plaintiff for damages equivalent to the delayed rent of KRW 9,50,000,000 from October 1, 200 to March 2, 2003, before the Plaintiff loses the ownership of the instant store, for damages equivalent to the rent of KRW 9,50,000,000 per month. The instant store is ordered to order the Intervenor to use and make profits from the instant store. From March 3, 2003 to the completion date of the instant lease agreement, the Defendant is obligated to compensate for damages equivalent to the rent of KRW 9,50,000 per month from March 3, 200.

B. Defendant’s assertion

(1) This safety defense (unappeal to the Agreement)

㈎ 참가승계인은 이종헌으로부터 이 사건 좌판을 4,000만 원에 매수하여 주겠다는 약속을 받고, 우선 임대차보증금 잔액 1,055만 원과 소송비용 745만 원 합계 1,800만 원을 피고에게 지급하되, 항소하지 않고 이 사건 소송을 종결하는 내용의 합의를 추진하기로 하여, 위와 같은 내용으로 피고와 합의하고, 위 1,800만 원을 지급하는 것에 대한 대리권을 이종헌에게 수여하였다.

㈏ 이에 의해 이종헌이 이 사건 좌판 매수부분을 제외하고 위와 같은 내용으로 피고와 합의하고, 위 1,800만 원을 지급하였으며, 참가승계인은 이종헌의 위와 같은 합의 및 금전지급 행위에 대하여 추후 동의하였다.

㈐ 위와 같은 행위는 ① 이종헌의 적법한 대리행위로서, ② 또는 이종헌의 위 행위가 대리권의 범위를 벗어났다고 하더라도 피고가 이종헌에게 위와 같은 행위를 할 대리권이 있다고 믿은 데에 정당한 사유가 있는바 이는 권한을 넘은 표현대리로서, ③ 또는 참가승계인이 이종헌으로부터 이 사건 좌판의 매수부분의 누락을 보고 받고, 앞으로 이 사건 좌판의 매수부분에 대한 합의가 성사되면 이종헌에게 사례를 하기로 하면서 이미 이루어진 불항소 합의 및 금전지급에 동의함으로써 이종헌의 무권대리행위를 추인하였으므로, 참가승계인과 피고 사이의 불항소 합의는 유효하다.

㈑ 따라서, 원고 및 참가승계인의 이 사건 항소는 위 불항소 합의에 반하는 것으로서 부적법하다.

d. The argument on the main claim

㈎ 이 사건 좌판이 있는 장소인 이 사건 도로는 국가 소유로서, 이 사건 도로에서 영업을 할 수 있는 권리는 누구에게도 없으므로 이 사건 도로에 있는 이 사건 좌판을 사용할 권리가 있음을 전제로 하는 원고의 위 좌판에 대한 명도 청구에 응할 수 없다.

㈏ 원고가 주장하는 바와 같은 상관습은 존재하지 아니하며, 오히려 좌판 노점상의 위치나 규모가 상인들의 자치적인 확인에 의하여 특정됨으로써 좌판 운영권 자체가 독립적으로 매매되어 왔을 뿐만 아니라, 이 사건 임대차계약 체결 전부터 피고가 이 사건 좌판을 점유·사용하여 왔으므로, 이 사건 임대차계약의 목적물에는 이 사건 좌판이 포함되지 않으며, 또한 피고는 2000. 6.경 또는 늦어도 이 사건 임대차계약이 해지된 2000. 9. 30. 이 사건 점포를 원고에게 명도하였다.

【Priority as to Preliminary Claim

The central market in the Yellow-dong market was formed mainly on the left-on store stores, and even if temporary interference with the business of the shop owners was caused, the existence of the left-on shop has been admitted as commercial practice. Even if damage was incurred to the plaintiff and the participating successor, this is not only the burden to be reduced as the shop owner, but also the road in this case where the left-on market is located is owned by the state, so the plaintiff and the participating successor did not have the right to demand the removal of the left-on market. Thus, the plaintiff and the participating successor cannot respond to the preliminary claim for the main claim by the plaintiff and the participating successor.

x argument on counterclaims

Since the Plaintiff ordered the Plaintiff to recover the instant store before the termination of the instant lease agreement, the Plaintiff is obligated to pay to the Defendant the remainder of KRW 1050,050,000,000 calculated by deducting the Defendant’s overdue rental fee from KRW 11,50,000,000,000, which was paid by the Defendant to the Plaintiff, and the damages for delay from the day following the termination of the said lease agreement.

3. Determination

A. Determination on this safety defense

(1) First, according to the above facts of recognition as to whether there was power of representation on the agreement under the order of the court of first instance except for the part of the purchase of the instant piece of land, the successor to intervention shall pay 18 million won to the defendant as stated in the order of the court of first instance, and purchase the instant piece of land at KRW 40 million to the defendant, and thereby confer a power of representation on the conclusion of the dispute of this case. Thus, the defendant's assertion on the premise that this part of this case was the right of representation, excluding the part of the purchase of the instant piece of land, is without merit.

D. The following: (a) I examine whether the agreement on this kind of Constitution and the payment of money in excess of the authority has an effect as an expression agent to the participant successor; (b) as seen above, there was a power of representation on the purchase of the instant coordinate and the agreement on such agreement in the order of the first instance court judgment; (c) however, as to whether there is any justifiable reason to believe that this kind of Constitution has the authority to the defendant as to the agreement beyond the scope of the above power of representation, I would like to pay 18 million won to the defendant according to the purport of the evidence No. 18-1 of this case and the whole arguments, the defendant prepared a receipt that this kind of Constitution receives the above money from the lease deposit and attorney fees, and it is difficult to view that the defendant had no reasonable reason to believe that the Plaintiff had the right of representation after the first instance court's decision, and that there was no agreement on the first instance court's decision that the Plaintiff purchased the instant portion after the first instance court's decision and the first instance court's first instance court's decision that the Defendant purchased the instant portion of succession to the right of this case.

Secondly, the author examines whether the successor to the intervention has ratified the act of unauthorized Representation agreed upon under the order of the court of first instance except for the part of purchase of this case in this paper unconstitutional, and then confirms the act of Unauthorized Representation shall be made against the other party by an expression of intent to vest the effect of the act of Unauthorized Representation. As so argued by the defendant, if the successor to the intervention omitted the part of purchase of this case from this paper unconstitutional, and if the agreement on the purchase of this case has already been reached in the future, he shall make a case to this paper unconstitutional. In other words, the successor shall first pay 18 million won to the defendant with the money of this paper unconstitutional, and if the above conditions have not been terminated, it is difficult to see that the successor to the intervention made a request for the return of this part of this case to the defendant 18 million won, in light of the facts alleged in the above.

B. Determination as to the main claim and counterclaim

(1) First of all, as to whether the Plaintiff’s restoration upon the termination of the instant lease agreement is a state-owned restitution, and whether the Plaintiff is entitled to seek an indication of the instant coordinates on the road of this case, which is a state-owned state-owned country-owned country-owned country-state-owned country-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state.

Luxembourg Next, since the unit of this case purchased and used the store of this case on December 5, 1967 as the object of the lease contract of this case, and the order of the net rent of this case was leased the store of this case from 1974 to the defendant from 2 years due to fire of the new underground street, the defendant used the store of this case from 1974. The defendant set the store of this case to 7,50,000 won and sub-lease the store of this case to the Lee Jong-ri, and the goods display the unit of this case on the front of the store of this case, and it is reasonable to view that the building of this case was not the object of this case's lease contract of this case as the object of this case's lease contract of this case's right to use the house of this case's lease of this case's right to use the house of this case's 90,000 square meters of the leased object of this case's lease contract of this case's 27,000,000.

Secondly, in the process of concluding the lease agreement between the plaintiff and the plaintiff on whether the pertinent store was named or not, there was a dispute as to whether the instant coordinate is included in the object of the instant lease agreement. Even after the termination of the lease agreement, the defendant kept spice in the instant store and filed a lawsuit in this case, and the defendant still paid 10,000 won market management expenses imposed on the store's store's store's store's store's store's store's store's store's store's store's store's store's store's store's store's store's store's store's store's store's store's store's name. The defendant has the right to install and use the instant coordinate as seen above, and the instant coordinate is also included in the object of the lease agreement with the store's store's name. Thus, as long as the Plaintiff did not participate in the instant case's store's store's lease contract's name, the instant coordinate's store's name and the object of lease.

Finally, the Plaintiff’s remaining amount of the lease deposit and the remainder of the lease deposit were 50,00,000 won for the remainder of the lease deposit and 10,000 won for the remainder of the lease deposit and 20,000 won for the remainder of the lease deposit and 50,000 won for the remainder of the lease deposit and 10,000 won for the remainder of the lease deposit and 50,000 won for the remainder of the lease deposit and 20,000 won for the remainder of the lease deposit and 50,000 won for the remainder of the lease deposit and 10,000 won for the remainder of the lease deposit and 50,000 won for the remainder of the lease deposit and 10,000 won for the remainder of the lease deposit and 10,000 won for the remainder of the lease deposit and 20,000 won for the remainder of the lease deposit and 10,000 won for the remainder of the lease.

(v)the theory of smallity;

Therefore, the defendant is obligated to pay to the plaintiff the share of this case as restitution for the reason of the termination of the lease contract of this case, and to pay the plaintiff the unjust enrichment equivalent to the rent of KRW 200,000 per month from October 21, 2001 to October 2001 after deducting the lease guarantee amount from the amount of the unjust enrichment claim equivalent to the rent of the amount of the lease from October 20, 201 to the amount of the lease deposit, and to pay the plaintiff the unjust enrichment of KRW 1,474,657 from October 21, 201 to the date of the completion of the above share of the lease contract of this case. The plaintiff and the successor are obligated to order the plaintiff to return the share of this case as the return of the property. (The plaintiff and the successor claim that the defendant's store of this case and the right of the share of this case are liable to the defendant as illegal possession, but the obligation to return the leased property of this case and the obligation to return the lease deposit to the defendant does not fall under the plaintiff's succession and the above assertion.

C. Determination on the main claim

(1) As to whether to judge the conjunctive claim even though the main claim of the plaintiff and the intervenor partly accepted the main claim, the plaintiff may file a claim with the order of a trial where there is a reasonable need for the plaintiff to file a claim with the order of the trial, even in cases where the main claim is compatible with the main claim. In such a case, if the main claim is not wholly accepted, the plaintiff may file a lawsuit with the purport that the main claim should be judged within the scope of the amount not accepted from the main claim, and that the main claim should be tried at the same time (see Supreme Court Decision 2002Da23598, Oct. 25, 2002, etc.). The issue of whether to examine the conjunctive claim is based on the interpretation of the parties' intentions. Thus, there is no reason to allow the conjunctive claim only for the main claim with the condition that the part may be partially accepted, unless it harms the stability of the conjunctive claim, or is contrary to the nature of the main claim.

In the case of this case, as seen above, the plaintiff and the participant claim for the return of unjust enrichment equivalent to the rent on the premise that the store and the unit of this case are included in the object of the lease contract of this case. In preparation for the case where unjust enrichment does not occur, the plaintiff and the participant claim for damages equivalent to the rent on the ground that the defendant's possession and use of the unit of this case caused damages which the plaintiff and the participant could not use or gain profit from the lease, etc. of the store of this case as a result of the plaintiff's possession and use of the unit of this case. This is compatible with the main claim of this case where it is possible to make the main claim and the conjunctive claim of this case, and it is deemed that the purport of this claim is to claim for damages due to the tort against the defendant on the ground that the main claim of this case is not accepted on the ground that there was no unjust enrichment, and this form of preliminary consolidation of this case does not undermine the stability of litigation procedures or it does not violate the nature of the conjunctive claim, and thereafter, the plaintiff will examine the main claim within the scope not cited in the main claim

According to the reasoning of the judgment of the court below, it is difficult for the plaintiff and the successor to the above store to use or make profits from the above 10-day store, and according to the witness testimony of the court of first instance, it is hard for the plaintiff and the successor to the above 1-day store to easily purchase the above 4-day store with the plaintiff's 4-day store, but it is hard for all customers to view that the above 1-day store's 4-day store's studal or 4-day store's studal or the above 4-day store's studal or 4-day store's studal or 9-day market's studal or 9-day market's studal or 9-day market's studal or 2-day market's studal or 2-day market's studal or 3-meter's studal studal.

【Court Decision】

Therefore, to the extent that the primary principal claim is dismissed, the defendant shall pay to the plaintiff and the participating successor the amount of damages equivalent to the rent amounting to 12,279,452 won per month from October 21, 2001 to March 2, 2003 (750,000 won x 498 days ± 365/12 months) and pay to the plaintiff and the participating successor the amount of damages equivalent to the rent amounting to 7,50,000 won per month from March 3, 2003 to the completion of the above left-down.

4. Conclusion

Therefore, the plaintiff's main claim and the main claim in this case are accepted within the scope of the above recognition, each of the remaining main claim and the main claim in this case are dismissed as without merit, and the defendant's counterclaim is also dismissed as well. Since the judgment of the court of first instance which concluded otherwise is unfair, part of the plaintiff's appeal is accepted, and the part against the plaintiff corresponding to the part cited in the judgment of the court of first instance among the judgment of the court of first instance is revoked, the part against the defendant is ordered, and the remaining appeal of the plaintiff is dismissed. The plaintiff's main claim and the main claim in this case are accepted within the scope of the above recognition, and each of the remaining main claims and the conjunctive claims are accepted within the scope of the above recognition. It is so decided as per Disposition.

Judges Kim Dong-ho (Presiding Judge)