In a case where Party A claimed a set-off against Party A’s damage claim on the ground that Party A’s claim for rent claim was made until the expiration of the lease term, and that Party A’s claim for compensation for damages arising from restitution of unjust enrichment or tort after the expiration of the lease term, the case holding that Party B is liable for compensation for damages suffered by Party A, and that Party B’s claim for set-off is dismissed in entirety, in a case where Party A’s claim for compensation for damages was made by mistake in the Plaintiff’s association, while Party A’s reduction of capital had lost the value of goods caused by disease, etc.

In a case where Party A claimed a set-off against Party A’s damage claim on the ground that Party A’s claim for rent claim was made until the expiration of the lease term, and Party B’s claim for compensation for damages arising from restitution of unjust enrichment or tort after the expiration of the lease term, on the grounds that Party B violated Party A’s duty to maintain the temperature of low temperature storage and temperature as required by Party A, and the violation of Party B’s duty to maintain temperature is the direct cause of disease, etc., the Court held that Party B is liable for compensation for damages suffered by Party A, and the lease agreement was discharged by Party B’s declaration of intent of cancellation due to nonperformance of its duty to maintain temperature due to Party B’s fault, and there was no substantial benefit from keeping capital to Party A, as long as the value of capital was lost due to Party A’s goods, and that Party A continued to occupy the low temperature storage and tort after the expiration of the lease term, and that the obligation to provide compensation for damages cannot be deemed to continue to exist on the ground that Party A’s failure to perform its duty to provide it.

Articles 390, 393, 396, 492, 536, 546, 548, 549, 61, and 750 of the Civil Act

Plaintiff (Law Firm Ulul, Attorney Park Jong-young, Counsel for plaintiff-appellant)

Daegu Gyeongbuk-gu Agricultural Cooperative (Attorney Park Tae-ho, Counsel for the plaintiff-appellant)

Daegu District Court Decision 2013Gahap649 Decided November 21, 2013

July 17, 2014

1. The part of the judgment of the court of first instance against the plaintiff, which ordered additional payment, shall be revoked.

The defendant shall pay to the plaintiff 28,634,186 won with 5% interest per annum from January 26, 2013 to August 21, 2014, and 20% interest per annum from the next day to the day of full payment.

2. All remaining appeals by the plaintiff and the defendant are dismissed.

3. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

1. The plaintiff;

A. Purport of claim

The defendant shall pay to the plaintiff 177,821,811 won with 5% interest per annum from the day following the service of a copy of the complaint of this case to the day of the judgment of the court of first instance, and 20% interest per annum from the next day to the day of full payment.

B. Purport of appeal

The part against the plaintiff in the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiff 120,553,439 won with 5% interest per annum from the day following the delivery of a copy of the complaint of this case to the judgment of the court of first instance, and 20% interest per annum from the next day to the day of full payment.

2. The defendant;

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

1. Basic facts

A. On June 22, 2012, the Plaintiff leased 45 square meters (hereinafter “instant contract”) from the Defendant on the part of the Defendant on the ( Address omitted) the ○○○ Agricultural Products Distribution Center located in the building of the ○○○ Agricultural Products Distribution Center, one-story warehouse of the first floor and 2-dong, respectively (hereinafter “instant low temperature storage house”). (hereinafter “instant contract”). The main contents of the instant contract are as follows.

Article 2 (Period of Lease) 1. The lease agreement period of June 25, 2012 to March 31, 2013 is the period from June 25, 2012 to March 31, 2013. Article 3 (Lease Deposit and Rent) 1. The rent shall be KRW 2,00 per PVC box (Lease Deposit and Rent) and the Plaintiff shall pay the said rent to the Defendant immediately after the delivery of the final goods. 2. In the event that the Plaintiff is in arrears with the rent, the payment shall be made by adding the overdue charge calculated by applying the highest interest rate of the financial institution corresponding to the number of overdue days to the delinquent amount at the request of the Plaintiff. 1. The Defendant shall maintain the low temperature and temperature at the request of the Plaintiff, and shall not be liable for the deterioration of goods during the storage. 2. The Defendant shall not be held liable for all damages incurred by the Plaintiff or a third party due to earthquakes, storm and flood, war, riot, or any other force majeure.

B. According to the instant contract, from June 25, 2012 to July 13, 2013 of the same year, the Plaintiff entered 113,485 kilograms of 113,485 kilograms (hereinafter “instant capital reduction”).

C. On November 2012, 2012, after the death of this case, corruption or black and fluoral diseases were found in the capital reduction of this case.

D. On December 6, 2012, the Plaintiff requested the Korea Agency and a stock company to sell 650 kilograms (20 kilograms per box) from among the capital reduction stored in the instant low temperature storage box. However, the sales cost of KRW 2,237,500 exceeds KRW 1,718,500, and the sales cost of capital reduction exceeded KRW 1,718,50.50.

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 1 through 4, evidence Nos. 6 through 8, evidence Nos. 10, and evidence Nos. 14 (including each number; hereinafter the same shall apply), part of Non-Party 1's testimony by Non-Party 1, the result of the entrustment of appraisal by Non-Party 2 to Non-Party 1, the result of the inquiry by the elderly Agricultural Research Center of the first instance, the purport of the whole pleadings

2. Judgment on the ground of the Plaintiff’s claim

A. The plaintiff's assertion

Although the Defendant had a duty to maintain the temperature of the low temperature storage machine of this case at the Plaintiff’s request, in violation of this duty, thereby damaging the reduction of the capital of this case, the Defendant sought payment of KRW 177,821,81.

B. Occurrence of liability for damages

(1) In light of the following circumstances acknowledged by the above evidence of the facts, the defendant is obligated to maintain the temperature of the low temperature storage in this case as requested by the plaintiff, taking into account the following circumstances: "The defendant shall maintain the low temperature storage and temperature at the plaintiff's request; when capital reduction is kept excessively high temperature, he/she is growing so that he/she can grow up; and when he/she keeps it at excessively low temperature, he/she will suffer the same damage; therefore, it is essential to maintain an appropriate temperature in the storage; the low temperature storage in this case is installed with a cooling system operated automatically in accordance with the temperature; when setting a desired temperature at the low temperature storage in this case; and such cooling system is managed by the defendant.

Furthermore, according to each of the above evidence, the Plaintiff demanded that the temperature of the low temperature storage house in this case be set at 8°C around June 25, 2012, which began to put the reduction into the low temperature storage house in this case. However, around July 24, 2012, the Plaintiff demanded a change of the temperature to 5°C, and around September 12, 2012, the Plaintiff demanded a change of the temperature respectively. However, around September 15, 2012, the fact that the low temperature storage house in this case and the low temperature storage house in this case were generated when the temperature in this case continues to be above 3°3,00,00, and that the Defendant violated the Plaintiff’s duty to keep the temperature in this case as required by the Plaintiff.

In addition, the following circumstances acknowledged by each of the above evidence, i.e., ① there is no anything wrong even if the capital reduction of this case was entered into the low temperature storage house of this case, and there is a discovery of corruption or black heart disease on November 201, 2012, which was after the occurrence of ice ice scambling, ③ in the case of the capital reduction of the same sea, the ice scambling of the ice and the scambling of the scam and the scambling of the scam, and the scambling of the scambling in the reduction organization due to low temperature or lack of ventilation during the storage of the capital, and ④ in the event that the scambling of this case did not occur even after one year from the harvest of the capital of this case, it appears that the Defendant directly violated the duty to maintain the scambling and scambling of this case.

Therefore, the defendant is liable to compensate the plaintiff for the damages caused thereby.

(2) On this ground, the Defendant asserts that, inasmuch as Article 10(1) of the instant contract states that “the Defendant shall not be liable for the deterioration of goods, etc. while in custody,” the Defendant does not bear liability for damages, even if the instant capital reduction occurred, even if the said damage was incurred.

However, in full view of all the circumstances as seen earlier, such as the fact that the Defendant explicitly agreed to maintain low temperature and temperature at the Plaintiff’s request, it is reasonable to interpret that the Defendant’s argument to the effect that the Defendant is not liable for damages to the capital reduction or deterioration due to “other circumstances than the Defendant’s violation of the duty to maintain temperature and temperature.” As such, the Defendant’s assertion is without merit.

C. Scope of liability for damages

According to the result of the commission of appraisal by Nonparty 2 of the first instance court, it is recognized that the whole capital reduction of this case has lost the value of the goods. Damage suffered by the Plaintiff is the amount calculated by deducting the expenses incurred in selling capital from the amount equivalent to the market value of the capital reduction of this case on December 6, 2012, where the value of the goods of this case was lost, barring special circumstances.

As the total weight of the capital reduction of this case is 113,485 kilograms earlier, and comprehensively taking account of the purport of Gap evidence 6 and 9 evidence, and the purport of the entire pleadings as a result of the first instance court’s appraisal commission to non-party 2, the capital reduction of this case constitutes a whole special product; ② the average selling price per 20 kilograms of the capital reduction of specific products sold from November 21, 201 to December 21, 201 ± 28,674 won [26,641 + 27,846 won + 26,531 won + 30,510 + 31,518 won + 27,788 won + 29,788 won + 204 won per 36,570 kilograms of the capital reduction of this case’s damages amount to the plaintiff.

D. Limitation on liability for damages

In light of the following circumstances acknowledged by the evidence of each of the above facts, i.e., (i) the outbreak of the above underlying facts by reverse pots, annual installments, and black fluorial disease, other than low temperature storage, affect the habition, ventilation, loading condition, etc. of storage place, and the Plaintiff is responsible for inspecting and maintaining the remainder of storage environment other than temperature maintenance as above; (ii) inappropriate ventilation management can be deemed as one of the causes for the occurrence and expansion of the reduction of capital (the result of the appraisal commission to Nonparty 2 of the first instance court). (iii) Even if the Plaintiff was notified of the lower temperature storage and the lower floor fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluoral fluorial fluoral fluoral fluor fluor fluor fluor fluor fluor fluor fluor f.

E. Sub-committee

Therefore, the damages to be paid by the Defendant to the Plaintiff are KRW 85,902,558 (=143,170,930 won x 60%) and damages for delay.

3. Judgment on the defendant's defense

(a) Claim for offsetting rents, etc.;

(1) The defendant's assertion

Since March 31, 2013, the expiration date of the lease term under the instant contract, the Plaintiff kept the capital reduction in this case at low temperature storage. As such, the Plaintiff is obligated to pay the Plaintiff’s claim for the damages in this case against an equal amount as a rent under the instant contract until March 31, 2013, which is the expiration date of the lease term under the instant contract, from the following day to February 13, 2014, as a sum of 20,546,084 won (amounting to 598 days from June 25, 2012 to February 13, 2014).

(2) Determination on the claim for rent

Although the Defendant had a duty to maintain the temperature of the low temperature storage shop of this case during the term of the instant lease, in violation of this duty, thereby losing the value of the goods. Thus, the Defendant provided the Plaintiff with the low temperature storage shop up to March 31, 2013 as the place for the capital reduction of this case and maintained the temperature as required by the Plaintiff, thereby undermining the value of the goods at the capital reduction of this case. The Defendant’s contractual obligation under the contract of this case, which ought not to damage the value of the capital reduction of this case, led to the Defendant’s fault.

Furthermore, the fact that the Plaintiff’s preparatory brief dated April 3, 2014, delivered to the Defendant on April 8, 2014, to the effect that it is impossible to pay the rent under the instant contract due to the foregoing reasons, is obvious to this court. In full view of the circumstances such as the circumstance and result leading up to the impossibility of the Defendant’s performance of the said obligation, the Plaintiff claimed damages due to the instant lawsuit, it may be interpreted as the intent to cancel the instant contract.

Therefore, since the contract of this case was rescinded on April 8, 2014 by the Plaintiff’s declaration of intent to rescind, the Defendant’s assertion that the contract of this case is valid is without merit.

(3) Determination on the claim for restitution of unjust enrichment and the claim for damages based on illegal act

The "profit in return of unjust enrichment on the ground of benefit without any legal ground" refers to the substantial profit. Thus, in a case where the plaintiff continued to possess the low temperature storage house of this case, even if it cannot be deemed to have been used or profit in accordance with the original contractual purpose, and there is no substantial profit, it shall be deemed that the plaintiff's obligation to return unjust enrichment even if the damage was incurred to the defendant. As seen above, as long as the value of the capital reduction of this case as the goods of this case was entirely lost due to the reasons attributable to the defendant, it shall not be deemed that the plaintiff has a substantial profit in keeping it in custody.

In addition, considering the fact that the value of the capital reduction of this case has been completely lost due to the Defendant’s fault, and that considerable expenses are presumed to have been incurred in collecting and disposing of the capital reduction of this case, it cannot be deemed that the Plaintiff continued to possess the low temperature storage house of this case intentionally or by negligence. In addition, if the contract is terminated, the contractual party bears the duty to restore and compensate the other party. In this case, the contractual party bears not only the duty to restore the contractual party, but also the obligation to compensate is concurrently performed (see Supreme Court Decision 95Da25138, 25145, Jul. 26, 1996). Thus, insofar as the Defendant did not provide for the performance of its obligation to compensate, even if the Plaintiff occupies the Defendant without delivering the low temperature storage of this case, such possession cannot be deemed an illegal possession.

Therefore, all of the defendant's arguments about return of unjust enrichment and tort damages are without merit.

B. Claim for deduction of sales proceeds from capital reduction

Although the Defendant asserts that KRW 1,718,500 of the price for capital reduction sold by the Plaintiff should be deducted from the above damages, there is no evidence to acknowledge that the Plaintiff sold capital reduction and received the said price, and rather, as seen earlier, it is recognized that the Plaintiff attempted to sell part of the capital reduction of this case on or around December 6, 2012, but failed to sell it even after having attempted to sell it, the Defendant’s allegation is without merit.

4. Conclusion

Therefore, with respect to KRW 85,902,558 and KRW 57,268,372, which are the cited amount of the judgment of the court of first instance, the Defendant, upon the Plaintiff’s request, has an obligation to dispute as to the existence and scope of the obligation to perform as to the Plaintiff from January 26, 2013 following the delivery of a copy of the complaint of this case to November 21, 2013, which is the date when the judgment of the court of first instance is rendered; ② with respect to KRW 28,634,186, which orders additional payment at the court of first instance (= KRW 85,902,558-57,268,372), as to the Plaintiff, from January 26, 2013 to August 21, 2014, which is the date when the judgment of the court of first instance is rendered, to pay damages for delay calculated annually by the rate of 5% per annum from the next day to the day when the obligation is fully paid.

Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since part of the part against the plaintiff in the judgment of the court of first instance differs from this, the plaintiff's appeal is partially accepted and the defendant shall be ordered to pay the above amount recognized in the judgment of the court of first instance. The plaintiff's remaining appeal and the defendant's appeal are dismissed as they are without merit. It is so decided as per Disposition.

Judges Kim Jong-sung (Presiding Judge)