[1] Whether Article 651(1) of the Civil Act is a mandatory provision (affirmative)

[2] The meaning of the principle of trust and good faith and the requirements to deny the exercise of rights on grounds of violation

[1] In light of the legislative intent of Article 651(1) of the Civil Act, if the lessee entrusts the lessee with the use of the leased object for a long period of time, the management of the leased object is neglected, the improvement of the leased object may not be performed well, and if the period agreed upon exceeds 20 years, it is reasonable to deem that the above provision is a mandatory provision that cannot be excluded from its application by an individual’s will. The above provision is a compulsory provision that is not included in Article 652 of the Civil Act, Article 651(1) of the Civil Act, or that the lessor manages the leased object while collecting management expenses from the lessee, or that the lessor manages the leased object by using the reinforced concrete building as a solid building, or that the building becomes more solid by developing the construction technology, compared with the time of the enactment of Article 651(1) of the Civil Act.

[2] The principle of trust and good faith under the Civil Act is an abstract norm that a party to a legal relationship shall not exercise his right or perform his duty in a way that violates the principle of trust and good faith by taking into account the other party's interest. In order to deny the exercise of such right on the ground that it violates the principle of trust and good faith, the other party has provided good faith to the other party, or the other party has good faith from an objective point of view, and the exercise of the right against the other party's trust should be in a state that is not acceptable in light of the concept of justice. In addition, barring any special circumstance, even if the person who performed the legal act knowing that it is null and void due to its violation of the law, it shall not be deemed to be contrary to the principle of trust and good faith or the principle of prohibition

[1] Articles 651(1) and 652 of the Civil Act / [2] Article 2 of the Civil Act

[2] Supreme Court Decision 99Da53490 delivered on May 15, 2001 (Gong2001Ha, 1370), Supreme Court Decision 2001Da67126 delivered on March 15, 2002 (Gong2002Sang, 886), Supreme Court Decision 2003Da2390, 2406 delivered on April 222, 2003 (Gong2003Sang, 1192)

Plaintiff 1 and 18 others (Law Firm Sejong, Attorneys O Sung-sung et al., Counsel for the plaintiff-appellant)

Busan Station Co., Ltd. (Attorney Lee Yong-hoon, Counsel for the defendant-appellant)

Seoul High Court Decision 2002Na17656 delivered on March 26, 2003

Of the part of the judgment of the court below concerning damages for delay, the part of the judgment against the defendant ordering payment exceeding 5% per annum from January 19, 2001 to May 31, 2003, and 20% per annum from June 1, 2003 to the full payment, shall be reversed, and the plaintiffs' appeal corresponding thereto shall be dismissed. The defendant's remaining appeal shall be dismissed. All costs of the lawsuit shall be borne by the defendant.

1. As to the grounds of appeal Nos. 1, 3, and 6

Since a lease contract under the Civil Act takes effect when one of the parties agrees to allow the other party to use or benefit from an object and the other party agrees to pay a rent for it, it shall be deemed that the term of lease is 30 years long, and it shall not be deemed that the lease contract under the Civil Act is not a lease contract on the ground that there is a difference between the ordinary lease in the lease term and the payment method of rent, such as taking the method of deducting the total rent from the down payment, intermediate payment and the balance in advance, and taking the method of deducting the rent as monthly rent. Meanwhile, Article 651(1) of the Civil Act provides that the purpose of legislation is to prevent socioeconomic losses which may occur due to the neglect of the management of the object and the improvement of the object if the period of the contract exceeds 20 years, it shall be deemed that the above provision is a mandatory provision that does not apply to the case where the period of the lease is reduced by the individual’s intention, and that the building is not a solid construction nor a building is more than a building that is established and managed by the lessor than a lessee.

In this regard, the court below's rejection of the defendant's assertion that the contract of this case between the plaintiffs and the defendant constitutes a sort of bearer contract that is similar to the exclusive occupation and use right, and thus, Article 651 (1) of the Civil Act cannot be applied, or even if the above provision is a mandatory law, it shall be deemed a mandatory law for the lessor. In addition, the court below did not err by misapprehending the legal nature of the contract of this case, by misapprehending the legal nature of the contract of this case, by misapprehending the legal nature of Article 651 of the Civil Act, by misapprehending the legal principles as to Article 652 of the Civil Act, by misapprehending the legal principles as to Article 652 of the Civil Act,

2. Regarding ground of appeal No. 2

According to the records, since it can be known that the rent under the lease contract of this case was set in accordance with the term of lease, the agreement on the term of lease and the rent cannot be deemed a separate agreement, and it cannot be deemed that the agreement on the term of the lease of this case is an expression of intent to renew the term of the lease of the remaining ten years other than the term of the lease of 20 years. Thus, the argument in the grounds of appeal pointing this out is without merit, and the agreement between the plaintiffs and the defendant about the term of the lease of this case does not constitute the remaining term of the lease, and the defendant shall not refund the rent corresponding to the remaining term of the lease, and the lessee shall not be required to pay the rent directly from the transferee or the buyer even if the term of the lease is reduced, so the plaintiffs cannot claim the return of the rent by the defendant even if the term of the lease is reduced, which is no new argument in the grounds of appeal that the plaintiffs cannot claim the return of the rent to the defendant until the closing date of argument, which does not constitute the term of the lease of the previous term of the lease.

3. As to the fourth ground for appeal

The argument on the repayment of non-debts under Article 742 of the Civil Code cannot be deemed to include the argument on the repayment of non-debts in accordance with the concept of the Do under Article 744 of the Civil Code. Thus, as the plaintiffs knew the fact that the maximum period of the lease was limited to 20 years, or were paid for 30 years without knowing it by gross negligence, and thus, they cannot claim the return of the rent because it constitutes the repayment of non-debts, the court below's assertion that the court below rejected the claim on the ground that the payment of the rent for the above 10-year period does not constitute the case where the plaintiffs committed an unlawful act of not exercising the right of explanation on the ground that the payment of the rent for the above 10-year period does not constitute the payment of non-debts, and in light of the records, it cannot be deemed that the payment of the rent for the plaintiffs by the above 10-year period constitutes the payment of non-debts that are appropriate

4. As to the fifth ground for appeal

The principle of trust and good faith under the Civil Act is an abstract norm that a party to a legal relationship shall not exercise his right or perform his duty in a way that violates the principle of trust and good faith by taking into account the other party’s interest, and thus, in order to deny the exercise of such right on the ground that it violates the principle of trust and good faith, the other party has provided good faith to the other party, or the other party has been objectively regarded as being sincere, and the exercise of the right against the other party’s good faith has to reach such an extent that it is not acceptable in light of the concept of justice, and barring special circumstances, barring special circumstances, even though the person who performed the legal act knowing that it is null and void due to its violation of the law, it cannot be deemed as contrary to the principle of trust and good faith or the principle of no advice or an abuse of rights (see, e.g., Supreme Court Decisions 9Da53490, May 15, 201; 2001Da67126, Mar. 15, 2002).

In this regard, the defendant's assertion that the plaintiffs' payment of rent for 30 years was made in advance to secure the right of lease for 30 years, the plaintiffs' filing the lawsuit in this case, the circumstance and timing of filing the lawsuit in this case, and the ratio of the plaintiffs among the lessees to the above 20 years, and thus, it should not be permitted as it goes against the principle of good faith or the principle of no-competiation. As long as Article 651 (1) of the Civil Act is regarded as a mandatory law, the court below's rejection of the lawsuit in this case is justified in its determination that the plaintiffs who engaged in a juristic act in this violation cannot be deemed as violating the principle of no-competiation or the principle of no-competiation, as alleged in the ground of appeal.

5. As to ground of appeal No. 7

The portion of "interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings before the amendment (amended by Act No. 6868 of May 10, 2003) was ruled unconstitutional on April 24, 2003 by the Constitutional Court. The amended provisions of the above Act and the main sentence of Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) provide that the statutory interest rate applicable after June 1, 2003 shall be 20 per annum. Thus, the judgment of the court below ordering the payment of damages for delay at a rate of 25% per annum by applying the above provisions of the Act before the amendment is erroneous, and the ground of appeal pointing this out is with merit.

6. Conclusion

Therefore, the part of the judgment of the court below against the defendant ordering payment in excess of the amount cited below against the defendant is reversed, but this part is sufficient to be judged directly by this court. The defendant is obligated to pay to the plaintiffs the damages for delay at the rate of 5% per annum as stipulated in the Civil Act from January 19, 2001 to May 31, 2003, the day following the delivery date of the complaint of this case as to each amount stated in the table of claim No. 1 of the attached Table No. 1 of the judgment of the court below, and the damages for delay at the rate of 20% per annum as stipulated in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the full payment date. Thus, the plaintiffs' appeal as to the damages for delay in the judgment of the court of first instance as to the above part exceeding the above cited scope is dismissed, and the remaining part of the defendant's appeal is dismissed, and the total

Justices Shin Shin-chul (Presiding Justice)