The case recognizing liability for damages equivalent to the premium to the owner of a building who has leased the building without notifying that the building will be immediately removed, knowing the fact that the premium was paid to the lessee before the lessee.

The case holding that the lessee is liable for damages equivalent to the premium to the owner of the building prior to the expiration of the lease term on the ground that the lessee is expected to continue to operate the building by renewal of the lease term at the time of the conclusion of the building lease contract, and that the owner of the building knowing the payment of the premium to the lessee was to move out of the building prior to the expiration of the lease term without notifying the lessee of the fact that the building is to be immediately removed.

Articles 618 and 750 of the Civil Act

Plaintiff (Attorney Lee Im-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other

1. The Plaintiff:

A. The defendant 1 corporation shall pay 40,000,000 won with five percent per annum from April 25, 1995 to November 19, 196 and twenty-five percent per annum from the next day to the date of full payment;

B. Defendant 2 shall pay each of the above amounts of KRW 10,00,000 among the above amounts to Defendant 1 corporation and each of them, and the 5% annual interest rate from November 20, 1996 to June 10, 1997, and the 25% annual interest rate from the next day to the date of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. Of the costs of lawsuit, the part arising between the plaintiff and the defendant 1 corporation shall be five minutes, and the remaining part shall be borne by the plaintiff and the defendant 1, respectively, and the part arising between the plaintiff and the defendant 2 shall be four minutes, and the plaintiff and the remaining part shall be borne by the above defendant.

4. Paragraph 1 can be provisionally executed.

The judgment of the court below that the defendants shall pay 40,00,000 won per annum from April 25, 1995 to the delivery date of the copy of the complaint of this case, 25% per annum from the next day to the full payment date, and 9,090,410 won per annum to the plaintiff.

1. Facts of recognition;

A. The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleadings as stated in Gap evidence 1 (the same as Eul evidence 2), Gap evidence 2, 3, and Gap evidence 4-1 to 6:

(1) Around August 1988, Defendant 1 Co., Ltd. (hereinafter “Defendant Company”) leased the above site from Nonparty 1 to Nonparty 1, the ownership of which was 565.2m2m2 located in Seocho-dong, Seocho-gu, Seoul, Seocho-gu, 1595, to build and lease a concrete slve building (use as a 2-dong maintenance house and a slve office) around the above ground, and continued to renew the above site lease contract. On September 30, 1994, the above site cannot be leased from Nonparty 1 until September 30, 1995, and the agreement was reached to remove the above site and deliver the above site to Nonparty 1 without fail.

(2) Meanwhile, the Defendant Company leased part of the above ground building (hereinafter referred to as the “part of the building”). On April 11, 1994, Defendant 2 acquired the right of lease from Nonparty 2, a lessee of the above building, and paid KRW 100,000,000 to the above Nonparty 2 under the name of security deposit and premium, and entered into a lease agreement with the Defendant Company by setting the lease period to two years.

(3) On April 18, 1995, Defendant 2 had been operating the Sejong Deputy Director of the Building, and transferred all facilities related to the above lease and the rent business to KRW 40,00,000 on premium, but concluded a contract with the Defendant Company, the owner of the building, to guarantee the lease term of the Plaintiff for one year and to renew the lease with the Defendant Company, the owner of the building, entirely responsible (hereinafter “the lease transfer contract of this case”). On the 24th of the same month, the Plaintiff concluded a lease contract with the Defendant Company to lease the above building portion as KRW 70,00,000, the lease deposit for the building portion as well as the lease period for one year from May 24, 1995 (hereinafter “the lease contract of this case”).

At the time, the Plaintiff, while entering into the instant lease agreement with the Defendant Company for the purpose of engaging in the tea business, expected that the instant lease agreement will be renewed and continued to be operated in the above part of the building. The Defendant Company, despite being aware of the said circumstances at the time of entering into the instant lease agreement, did not notify the Plaintiff of the circumstances that the period of the lease agreement on the site of the Defendant Company should be terminated on September 30, 1995, and thus,

(4) Under the instant lease transfer agreement and lease agreement, the Plaintiff paid KRW 40,000,000 for the premium to Defendant 2 at the same time, and KRW 70,000 for the lease deposit to the Defendant Company, respectively, and the Defendant Company was aware of the fact that the said premium was paid.

(5) The above non-party 1 filed a lawsuit against the defendant company and the plaintiff et al. who did not deliver the above site despite the expiration of the above site lease period, seeking the removal of the above ground building and delivery of the above site, and the removal from the above ground building, and the plaintiff went out of the above ground building on February 24, 1996.

B. Meanwhile, the fact that the defendant company deposited 70,000,000 won as deposit on February 3, 1997 is the plaintiff.

2. Determination:

A. Whether joint tort liability arises

The plaintiff asserts that the defendant company should remove the above ground building and deliver the above site until September 30, 1995 when the defendants transferred the right of lease to the plaintiff and concluded the lease contract. Thus, although the plaintiff knew that it cannot use the above site until April 24, 1996, which is the lease period under the lease contract of this case, the plaintiff conspired with the plaintiff, but did a joint tort by hiding the deposit and the premium from the plaintiff by acquiring the deposit and the premium from the plaintiff, so the defendants are liable to compensate the plaintiff for the damages suffered by the plaintiff.

Therefore, the plaintiff's assertion is without merit, since there is no evidence to acknowledge that the defendants conspired in collusion with the plaintiff to conceal the above circumstances and concluded a transfer contract and a lease contract of the right of lease of this case with the plaintiff, and the defendant 2 was not aware of the above circumstances, according to the evidence Nos. 4-3 and 4-4 of the above facts.

B. Liability for damages caused by Defendant Company’s tort

(1) According to the facts found above, at the time of entering into the instant lease agreement with the Plaintiff as to the above part of the building, the Defendant Company knew that the Plaintiff entered into the instant lease agreement with the Defendant Company for the purpose of carrying on the following business, and was expected to continue to carry on the business of the Sejong Deputy Director on the said part of the building after renewal of the lease period. Thus, upon the lapse of September 30, 1995, the Plaintiff notified the Plaintiff of the removal of the above part of the building upon the lapse of the lease period, and the Plaintiff took over all facilities for the lease and the Sejong Deputy Director on the said part of the building from Defendant 2, and the contents of the lease agreement should be determined by the Defendant Company’s acquisition of the right to lease and the right to lease from Defendant 2, and if the Plaintiff entered into the said lease agreement with the Plaintiff, the Defendant Company is liable for damages incurred by the Plaintiff to the Plaintiff on February 24, 1996.

(2) Regarding the scope of damages for which the Defendant Company is liable for tort as above, the Plaintiff was expected to engage in business by leasing the above building part for several years or transfer the right of lease to a third party, and paid the Defendant 2 the premium amounting to KRW 40,000,000 for the premium. The fact that the Defendant Company was aware of the payment of the premium was made, as seen earlier, is that the Plaintiff was deprived of the opportunity to recover the premium due to the Plaintiff’s moving out of the above ground building before the lease term expires and the Defendant Company’s removal of the above building part, thereby incurring loss equivalent to the above premium. Therefore, the Defendant Company is obligated to compensate for the amount equivalent to the above money.

Furthermore, the plaintiff asserts that the defendant company has a duty to pay to the plaintiff 5% per annum from April 25, 1995 to the delivery date of a copy of the complaint of this case, and to pay 9,090,410 won per annum to the plaintiff as damages for delay from the next day to February 3, 1997, although the plaintiff suffered damages by deceiving 70,000,000 won of the above above ground building due to the above tort committed by the defendant company, but the defendant company did not notify the plaintiff of the situation that the above ground building should be removed after September 30, 1995 at the time of entering into the lease contract with the plaintiff, but the above lease contract of this case was concluded by deceiving the plaintiff, but the above lease contract of this case cannot be viewed as valid until it was revoked due to deception. Therefore, the plaintiff's assertion that the above lease contract of this case was valid based on the above lease contract cannot be viewed as valid.

C. Liability for damages caused by Defendant 2’s nonperformance of obligation

According to the facts found above, Defendant 2 caused damage to the Plaintiff by failing to perform his duty to allow the Plaintiff to use and make profits from the above building during the lease period under the lease transfer contract of this case. Furthermore, when examining the scope of damage that the above Defendant is liable for compensation, the Plaintiff paid the above Defendant the premium of KRW 40,00,000, and the Plaintiff removed the above building on May 24, 1995 by leasing the above building part to the above Defendant on February 24, 1996. Accordingly, according to the above facts, the premium that the Plaintiff paid to the above Defendant was paid as compensation for the profit of the business place with the above above ground building. Thus, the above Defendant is obligated to compensate the Plaintiff for the damages corresponding to the premium amount for the period of time during which the Plaintiff could no longer conduct the above business during the lease period of one year prior to the expiration of the lease period guaranteed under the lease transfer contract of this case.

Therefore, the above defendant is obligated to compensate the plaintiff for damages for the amount of 10,000,000 won (40,000,000 x 3/12) and damages for delay. In light of the above facts, the above tort liability of the defendant company and the above default liability of the defendant 2 are jointly and severally liable.

3. Conclusion

Therefore, the defendant company's 40,000 won and its amount after the date of the tort in this case, as the plaintiff sought, shall be 5% per annum from April 25, 1995 to November 19, 196, which is clear from the date of delivery of a copy of the complaint in this case, and damages with 25% per annum from the next day to the date of full payment, and the damages with 10,000,000 won from each of the above amounts belonging to the defendant company and the 19,000,000 won from the next day of delivery of a copy of the complaint in this case, and there is no reason to dismiss the plaintiff's claim from the above defendant for damages with 19,000,000 won from November 20, 1996 to June 10, 1997, and there is no reason to recognize the plaintiff's damages with 19,500% per annum from the next day of the judgment of this case to 15.25% per annum.

Judges Kim Jong-ho (Presiding Judge)