2018Gaz. 227251 (Delivery) Building Name Map

2019 Ghana 120289 (Counterclaim) Return of deposit

A

Attorney Kim Jin-han, Counsel for the plaintiff-appellant

B

Attorney Yu Sung-hee, Kim Min-hee, Lee Jin-hwan, Kim Jong-ju, Counsel for the defendant-appellant

November 12, 2020

December 31, 2020

1. The Defendant (Counterclaim Defendant) received KRW 26,861,856 from the Plaintiff (Counterclaim Defendant) and simultaneously delivers the Plaintiff (Counterclaim Defendant) with the real estate 91.72m listed in the attached Table.

2. The Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff) 29,012,603 won with interest of 5% per annum from August 29, 2019 to December 31, 2020, and 12% per annum from the next day to the day of full payment.

3. The plaintiff (Counterclaim defendant)'s remaining main claim and the remaining counterclaim claims of the defendant (Counterclaim plaintiff) are dismissed, respectively.

4. The costs of litigation shall be borne by the Defendant (Counterclaim Defendant) and the 10% by the Plaintiff (Counterclaim Defendant) in the aggregate of the principal lawsuit and counterclaims.

5. The above paragraphs 1 and 2 can be provisionally executed.

The principal lawsuit: The Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”) received KRW 26,861,856 from the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) and at the same time delivered KRW 26,861,856 to the Plaintiff on the first floor of the real estate indicated in the separate sheet, and paid the Plaintiff money at the rate of KRW 1,20,000 per month from October 28, 2019 to the delivery date of the said real estate. A counterclaim is to pay to the Defendant the amount calculated at the rate of KRW 62,126,470 per annum from the day following the delivery of the written application for modification of the purport and cause of the counterclaim to the day of full payment.

1. Facts recognized;

A. The Plaintiff (former: C) is a right holder of 60/100 of the buildings listed in the separate sheet (hereinafter referred to as the “instant building”) and the land on the ground (hereinafter referred to as the “instant real estate”), and D (Defendant’s Schedule) is a right holder of 40/100 of the instant real estate.

B. The Plaintiff and D purchased the instant real estate, including the instant building newly constructed by the Defendant (the husband of the Defendant) from the Defendant, and completed the construction of the instant building on April 25, 2017 and registered the ownership of the Plaintiff and D on April 25, 2017, and the purchase price was not fully paid. On April 28, 2017, the Defendant leased the instant three-story housing (hereinafter referred to as the “instant housing”) to KRW 120 million before the lease deposit, and the Defendant resided in the instant housing at KRW 91.72,00,000 (hereinafter referred to as the “instant commercial building”) for KRW 70,000,000,000,000,0000,000 won prior to the instant lease deposit and KRW 1.75,700,000,000,0000,000,0000,000 won prior to the date of the instant lease contract.

D. On October 27, 2017, the Defendant and D entered into a lease agreement with E as to KRW 55 million from November 1, 2017 to October 31, 2019 during the lease period without the Plaintiff’s consent, and the Defendant received KRW 55 million from E on November 1, 2017. After which E leaves the fourth floor of the instant building, the Defendant returned KRW 55 million to E on May 20, 2020.

F. The Defendant paid to the Plaintiff only monthly rent from July 2017 to February 2, 2018 under the instant lease agreement, and the monthly rent is not paid thereafter. On July 10, 2019, the lease term expires, the Defendant removed from the instant building on July 10, 2019, and not paid KRW 8 million (50,000 x 16 months) for total 16 months.

G. Since the completion of the instant building, the instant commercial building has been abandoned until now, but the Defendant was locked through others.

H. At the time when the Defendant resided in the instant building, the Defendant paid KRW 111,150,00 in total, among the common electricity charges of the instant building from April 2017 to September 2018 (the Plaintiff paid KRW 15,320 in total, among the common electricity charges of the instant building).

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 22 (including each number), Eul evidence 1 through 8, witness D's partial testimony, the purport of the whole pleadings]

2. Determination on the main claim

A. Whether a lease agreement on the commercial building of this case is established

In full view of the contents of the agreement of this case, as shown in the above facts, the agreement between the plaintiff, D and the defendant on April 28, 2017 was concluded orally with a deposit of KRW 20 million, monthly rent of KRW 1.2 million, and monthly rent of KRW 1.2 million.

B. However, from April 28, 2017, the Defendant did not pay the monthly rent for the instant commercial building from April 28, 2017, and the monthly rent for the instant commercial building was not paid from March 2018. Accordingly, the Plaintiff expressed his/her intention to terminate each of the instant commercial building and the instant building on the grounds that the Defendant’s monthly rent for the instant commercial building and the instant housing was unpaid. As the instant warden served the Defendant on January 23, 2019, the lease contract for the instant commercial building and the instant building was terminated lawfully.

C. The duty of the commercial name map of this case and the duty of paying rent and unfair interest payment

1) Therefore, the Defendant is obligated to order the instant commercial building to the Plaintiff, barring any special circumstances, and to pay KRW 25,006,451 [120,00 won + 26/31 (20 months + from December 28, 2018 to January 23, 2019)] and the amount of less than KRW 16 months for the instant commercial building and the amount of KRW 8 million equivalent to the unpaid rent and the amount of unjust enrichment for 16 months for the instant housing.

2) Furthermore, from January 24, 2019 to the delivery date of the instant commercial building, the Plaintiff sought unjust enrichment of KRW 1,200,000 per month. As seen earlier, the lease contract on the instant commercial building was lawfully terminated on the grounds of unpaid rent of the Defendant. Since it is not recognized that the Defendant used the instant commercial building after January 24, 2019, the Defendant was terminated, the Plaintiff’s claim for this part is without merit.

3) In addition, according to the above facts, the Defendant leased the instant 4th floor building without the Plaintiff’s consent in KRW 55 million, and owned it for at least two years during the contract period from November 1, 2017 to May 20, 2020, and the average interest rate for the two-year term deposit is 1.46% (Evidence 18). As to the 60/100, which is the Plaintiff’s share rate for the instant 4th floor building, the Defendant was unjust enrichment equivalent to the interest rate for the two-year average interest rate for the said 55 million won during the said 932-year period for the said KRW 932 period. Accordingly, the Defendant should return to the Plaintiff KRW 1,230,240 ( KRW 5,500,000, KRW 1.46% X2 X932/10).

4) However, if the Plaintiff offsets the lease deposit amount of KRW 90 million ( KRW 20 million in the instant commercial building + KRW 70 million in the building of this case) that the Plaintiff should return to the Defendant, the amount of KRW 1,230,240 in the amount of unjust enrichment equivalent to the above interest, and KRW 44 million in the month enclosed until October 27, 2019 ( KRW 36 million in the instant commercial building + KRW 16 million in the monthly rent of 18 months in the instant commercial building + KRW 16 million in the instant commercial building + KRW 8 million in the instant commercial building of this case), the Plaintiff should return the lease deposit amount of KRW 44,769,760 in the Defendant, but if the Plaintiff and D were to have received the aforementioned KRW 26,861,476,769,760 in each of their respective shares, the Plaintiff’s claim for the lease deposit amount of KRW 286,600 in the instant commercial building of this case and the Plaintiff’s claim for the foregoing KRW 86860.

D. Sub-committee

Therefore, the plaintiff's main claim is justified within the scope of the above recognition.

3. Determination on a counterclaim

A. As seen earlier, the instant housing lease agreement was terminated on January 23, 2019, and the Defendant occupied and used the instant housing even after the termination of the instant lease agreement, and ordered the instant housing on July 10, 2019, and the Defendant paid 111,150 won for public electricity of the instant building as seen earlier.

B. Therefore, barring any special circumstance, the Plaintiff is obligated to pay 62,11,150 won, including the monthly rent of KRW 62 million calculated by deducting KRW 8 million from the monthly rent of KRW 70,000,000 under the instant lease agreement, which the Defendant is liable to pay to the Defendant 62,11,150,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,000,00

C. The Plaintiff asserts to the effect that it is a co-owner of 60/100 shares of the instant real estate, and thus, is obligated to pay only the amount corresponding to such shares. However, where a co-owner jointly leases a building and receives a security deposit, the obligation to return the security deposit shall be deemed an indivisible obligation due to its nature (see Supreme Court Decision 98Da43137, Dec. 8, 1998). Therefore, the Plaintiff’s above assertion cannot be accepted.

D. Next, the part of set-off and monetary claim asserted by the Plaintiff in the principal lawsuit should also be considered in the Defendant’s counterclaim.

The amount of money to be returned by the Plaintiff exceeding KRW 20 million is KRW 6,861,856 (26,861,856 - 20 million). As seen earlier, the claim of KRW 25,006,451 and the claim of KRW 25,230,240,000, which are recognized to be recognized to be the Plaintiff as being found in paragraph 1 of the above 2-C of the claim of KRW 36 million of the commercial building of this case for which the Plaintiff claims a offset, as seen in paragraph 1 of the above 2-C of the above 2-C of the claim of KRW 25,006,451 and the claim of KRW 1,230,240, which is equivalent to the interest on the fourth floor of the building of this case, are recognized to be recognized to be the Plaintiff. Thus

Therefore, the sum of KRW 33,098,547 ( KRW 6,861,856 + KRW 25,006,451 + KRW 1,230,240) should be deducted from or offset against the above KRW 62,11,150 that the Plaintiff pays to the Defendant.

E. Sub-committee

Therefore, the Plaintiff is obligated to pay to the Defendant damages for delay calculated at the rate of 29,012,603 won (62,11,150 won - 33,098,547 won) and the rate of 5% per annum prescribed by the Civil Act from August 29, 2019 to December 31, 2020, the date following the delivery date of the written application for modification of the cause of the counterclaim and the written application for modification of the cause of the counterclaim, as sought by the Defendant after the date of surrender of the instant house. The Defendant’s counterclaim claim is with merit within the scope of recognition.

4. Conclusion

The plaintiff's main claim and the defendant's counterclaim are partly accepted.

Judges Cho Jae-sung

A person shall be appointed.