[Judgment of the court below]

Defendant

March 9, 2018

Gwangju District Court Decision 2016Gadan20164 Decided May 18, 2017

1. The judgment of the court of first instance is modified as follows.

A. Of the instant lawsuit, the part on the claim for payment of money calculated at the rate of KRW 500,000 per month from March 10, 2018 to the completion date of delivery of the building as indicated in the separate sheet shall be dismissed in entirety.

B. The defendant delivers the building indicated in the attached list to the plaintiff, and pays KRW 3,329,025 to the plaintiff.

C. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 50% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

3. The provisional execution may be effected as stipulated in paragraph (1).

1. Purport of claim

A. The Defendant shall deliver to the Plaintiff the building indicated in the attached list (hereinafter “instant building”).

B. From May 4, 2016 to the completion date of delivery of the building, the Defendant shall pay to the Plaintiff money calculated by applying the ratio of KRW 500,000 per month to unjust enrichment or damages.

2. Purport of appeal

A. The plaintiff

Of the judgment of the first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff the amount calculated by applying the rate of KRW 500,000 per month from May 4, 2017 to the completion date of delivery of the building in this case.

B. Defendant

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

1. Facts of recognition;

With respect to this part, the relevant part of the reasoning of the first instance judgment shall be cited pursuant to the main sentence of Article 420 of the Civil Procedure Act.

2. Determination as to the claim for extradition

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance, except for the following parts, and therefore, this part is cited by the main sentence of Article 420 of the Civil Procedure Act.

[Supplementary Use]

○ The reasoning of the judgment of the first instance is as follows. Section 2(b)(i) of the reasoning of the judgment.

[1] As to the above, the defendant asserts that since the building of this case does not directly or indirectly occupy it, it cannot respond to the plaintiff's request for extradition.

Unlike a matter of course, in cases where a claim for delivery of real estate is made on the ground of an illegal possession, the other party is not limited to a direct possessor if a claim for delivery is made pursuant to the agreement, and the other party is also allowed to demand the indirect possessor: Provided, That the same shall not apply to cases where the performance of the obligation of delivery is impossible due to the direct possession by the other party. In such cases, the impossibility of performance of the obligation of delivery is not merely absolute and physical impossibility, but also cases where the creditor cannot expect the realization of the obligor’s performance in light of the rules of experience and transaction in social life or the concept of transaction (see Supreme Court Decisions 200Da22850, Jan. 24, 2003; 90Da19695, Apr. 23, 199).

Therefore, in the claim for the delivery of this case based on the termination of the lease contract, it is not required that the defendant continues to possess and use the building of this case, but it is not possible to recover it because the defendant completely loses possession.

However, in full view of the facts indicated in the evidence Nos. 4, 6, 7, and 9, the lease agreement concluded between Nonparty 2 and the Plaintiff was terminated, and Nonparty 2 received all deposits upon termination of the lease agreement from the Plaintiff on December 30, 2015, upon introduction by Nonparty 2, the Plaintiff entered into a lease agreement with the Defendant, and thereafter Nonparty 2 was living in the instant building with the Defendant’s understanding, and Nonparty 2 was living in the instant building on October 20, 2016, and Nonparty 2 was residing in the instant building in order to receive KRW 3,00,000,000 from the Defendant. In addition to these facts, considering these facts, it can be acknowledged that the reasons for the first instance court’s conciliation were stated in the purport that the Defendant was residing in the instant building in order to receive KRW 3,00,000,000 from the Defendant. Thus, the Defendant’s assertion that the Defendant’s submission of the instant building alone was insufficient to deem the Defendant’s obligation to deliver the instant building to the Plaintiff.

3. Determination as to a claim for payment of money

A. A portion seeking the payment of the money calculated at the rate of KRW 500,000 per month from March 10, 2018 (the day following the closure of pleadings in the trial) to the date on which delivery of the instant building is completed.

In order to render a judgment ordering future performance, not only the time the performance period of the obligation arrives in the future, but also the time the cause for nonperformance of obligation remains final and conclusive at the time of the closing of pleadings. In a case where the period of liability is uncertain and it is impossible to make a final and conclusive decision at the time of closing of pleadings, a judgment ordering future performance cannot be rendered (see Supreme Court Decision 2000Da37517, Jun. 14, 2002, etc.).

As to this case, the non-party 2 directly occupies the building of this case at the time of the closure of the pleadings in the trial room and the trial room, regardless of the intention of the defendant, the occurrence of damages that the plaintiff is unable to use may not be determined at the time of the conclusion of arguments. Thus, the part of claiming money calculated at the rate of KRW 500,000 per month equivalent to the rent from the day following the day of the closing of arguments to the day of the completion of delivery of the building of this case cannot be ordered to perform the future execution. Thus, the part claiming for payment of unjust enrichment or tort damages for this period is unlawful.

B. A portion seeking the payment of money calculated at the rate of KRW 500,000 per month from May 4, 2016 to March 9, 2018 (the closing date of pleadings in the trial of the competent court)

1) Claim for unjust enrichment

The Plaintiff asserts that since the Defendant or Nonparty 2 obtained unjust enrichment equivalent to the rent calculated at the rate of KRW 500,000 per month from May 4, 2016, the Plaintiff should return the instant building to the Plaintiff.

In light of the above, in a case where a lessee continued possession of the leased building part after the lease contract relationship was terminated, but no substantial profit was acquired due to the failure to use it or make profit in accordance with the original purpose of the lease contract, the lessee’s obligation to return unjust enrichment is not established even if the lessor suffered loss. This is also true even if the lessee did not use or make profit from the leased building part due to the lessee’s circumstances, or the lessee did not take out his/her facility (see Supreme Court Decision 98Da8554 delivered on July 10, 1998).

Therefore, the evidence submitted by the Plaintiff alone is difficult to recognize that the Defendant gains a substantial profit equivalent to the rent of the instant building from May 4, 2016, and there is no ground to claim the return of unjust enrichment equivalent to the rent of the instant building acquired by Nonparty 2 against the Defendant. Therefore, the Plaintiff’s above assertion is without merit.

2) Claim for damages due to tort

A) Determination on the cause of the claim

In light of the following circumstances revealed through the facts recognized as seen earlier and macroscopic evidence, the Defendant, at least by negligence, was unable to have the Plaintiff use the instant building from May 4, 2016 to March 9, 2018, the date following the date on which the conciliation was completed, which is the date on which the instant conciliation was completed, thereby incurring damage to the Plaintiff’s rent 11,096,750 (=50,000 + (22+6/31) and thus, is liable to compensate the Plaintiff.

① Since Nonparty 2 was able to withdraw even after the termination of the lease agreement, it is difficult for the Defendant to expect that Nonparty 2 may continue to withdraw from the building of this case.

② The Plaintiff and the Defendant concluded a lease agreement at the office of a licensed real estate agent operated by Nonparty 3, and the Defendant seems to have sufficiently considered the key to the above licensed real estate agent office.

③ Nevertheless, the Defendant delivered the key to the instant building to Nonparty 2, and became unable to have the right of defense of simultaneous performance after the conciliation was completed.

As to this, the defendant alleged that the plaintiff had contacted the plaintiff to leave the building of this case, but it was inevitable to build the key to the non-party 2 who had been residing in the building of this case due to the lack of contact, but the plaintiff did not contact with the defendant, merely because the plaintiff did not contact with the defendant, the defendant cannot be exempted from the responsibility for delivering the key to the non-party 2. Thus, the above argument by the defendant

B. Negligence offsetting

However, the comparative negligence set-off system under the Civil Act is intended to take into account the obligee’s equivalent principle as to the occurrence of damages, in a case where the obligee fails to fulfill his/her duty required under the good faith principle. Thus, even if the damages were incurred or expanded due to such failure, it shall be deemed that there was negligence on the part of the injured party. If the injured party is found to have been negligent, the court shall take into account the liability for damages and the amount thereof in determining the damages, and even in a case where the obligor does not assert the fault on the part of the injured party, the court shall ex officio examine and determine the comparative negligence (see Supreme Court Decision 96Da30113, Oct. 25, 1996).

Therefore, according to the facts and evidence Nos. 3 through 5 (including each number) in this court, ① the Plaintiff sent 8 days from the date the conciliation was completed (e.g., May 3, 2016) to the Defendant on May 11, 2016, which indicated his address as “Gwanbuk-gu ( Address No. 1 omitted),” and ② the Defendant sent his address to the Plaintiff on May 13, 2016 without knowing the scope of restoration to the above address on May 16, 2016, and on May 17, 2016, the Defendant sent Nonparty 2 to the Plaintiff on the 6th day of the instant building, which was sent to Nonparty 1 to Nonparty 2 for lack of text, and Nonparty 2 did not have any other way to send Nonparty 1’s written reply to the Defendant on May 20, 2016, and Nonparty 2 did not have any other way to send it to Nonparty 2 to the lower court for the reason that it did not have any other way to send it to the Plaintiff.

Then, the following facts are revealed: (a) the Defendant appears to have attempted to deliver the instant building to the Plaintiff by telephone and content-certified mail; (b) the Defendant’s address was the address indicated in content-certified mail sent by the Plaintiff to the Plaintiff on the ground that mail was returned due to the closure of the building; and (c) the Defendant’s address was the address indicated in content-certified mail sent by the Plaintiff to the Plaintiff; (d) in the situation where the Plaintiff does not contact with the Plaintiff, Nonparty 2 was set up a key to the instant building; and (d) on July 6, 2016, the Plaintiff was served with the Defendant’s written response without any title to the Plaintiff; and (e) the Defendant was aware of the fact that Nonparty 2 occupied the instant building without any title to the Plaintiff; and (e) if the Plaintiff did not demand the Plaintiff to leave the building of this case or sought removal from the building of this case due to non-party 2’s absence of contact with the Plaintiff at the time of closing argument, etc., the Plaintiff could have prevented the Plaintiff from taking account of the Plaintiff’s fault and damages.

C) Sub-decision

Therefore, the Defendant is liable to compensate the Plaintiff for damages caused by the tort that prevents the use of the instant building (=1,096,750 won x 30%).

4. Conclusion

Therefore, since the part of the instant lawsuit claiming unjust enrichment or damages calculated at the rate of KRW 500,00 per month from March 10, 2018 to the completion date of delivery of the instant building is unlawful, all of the claims shall be dismissed. The remaining claims for damages and the delivery of the building shall be accepted within the scope of recognition as above, and the remainder shall be dismissed as it is without merit. Since the judgment of the first instance is partially unfair in conclusion, the Defendant’s appeal is partially accepted and the judgment of the first instance shall be modified as above.

[Attachment]

Judges Kim Sung (Presiding Judge)

1) Although the Plaintiff did not appear in the Plaintiff’s petition of appeal, the part against the Plaintiff in the judgment of the first instance against the Plaintiff is a claim for the money calculated at the rate of KRW 500,000 per month from March 17, 2017 to the completion date of delivery of the instant building. Therefore, the purport of the Plaintiff’s appeal is that “the part against the Plaintiff among the judgment of the first instance is revoked. The Defendant pays to the Plaintiff the money calculated at the rate of KRW 500,000 per month from March 17, 2017 to the completion date of delivery of the instant building”

2) The content that Nonparty 2 shall deliver the instant building to the Plaintiff by October 31, 2016 includes the fact that Nonparty 2 may deliver the instant building to the Plaintiff.