In a case where Gap corporation leased the apartment and officetel number of apartments to Eul corporation which operated the business of sub-leaseing apartment, etc. in a lump sum, and Eul corporation continuously delayed due to the lack of sufficient financial resources due to the embezzlement of representative director Byung, Eul corporation agreed to pay the sub-lease deposit and the rent of Eul corporation directly paid the sub-lease deposit and the rent of Eul corporation, etc., and Eul corporation concluded a sub-lease contract with the term of the lease to the effect that "the sub-lease is terminated at the expiration of the lease term, and the sub-lease shall pay the lease deposit after entering into a new lease contract with the lessor for the remaining period of the sub-lease, the case holding that Byung acquired the sub-lease deposit to Jung and aided the tort, and Eul corporation bears joint tort liability due to aiding and abetting the payment of the damages claim due to the tort, and it can offset the damages claim corresponding to the rent of Gap corporation with the automatic claim for return of unjust enrichment by the automatic claim.

In a case where Gap corporation leased apartment units and officetels units to Eul corporation which operated the business of sub-lease of apartment units, etc., and Eul corporation continuously delayed due to insufficient financial resources due to embezzlement of representative director Byung, Eul corporation agreed to pay the sub-lease deposit and rent directly to Eul corporation, etc., and Eul corporation entered into a sub-lease contract with the term of lease one year after the remainder of the lease period of the sub-lease contract is fixed at the time of the expiration of the lease period, and the sub-lease shall pay the lease deposit after the expiration of the lease period after the lessor entered into a new lease contract with the lessor for the remaining period of sub-lease, the case holding that Gap corporation did not have an intention to renew the lease contract at the time of the consent to the sub-lease contract, and as such, the sub-lease contract is the same as the sub-lease contract concluded by Eul corporation, which concluded the sub-lease contract, and Gap corporation could have known Gap's intent to return the deposit to Byung due to the expiration of the lease period by taking full account of the circumstances that the above sub-lease contract did not have sufficient financial capacity to repay.

Articles 492(1), 750, and 760(1) and (3) of the Civil Act

Suwon Construction Co., Ltd. (Attorney Kim Jong-chul, Counsel for defendant-appellant)

Defendant

Seoul Eastern District Court Decision 2015Na23668 decided January 27, 2016

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 2

A. According to the reasoning of the lower judgment and the reasoning of the first instance judgment partially admitted by the lower court, the following facts are revealed.

(1) On May 13, 2009, the Plaintiff: (a) leased 52 units of apartment buildings, officetels 13 units of apartment buildings among the instant condominium buildings with a deposit of KRW 500 million; (b) monthly rent of KRW 58 million; and (c) from May 13, 2009 to May 12, 2012; (d) on May 11, 2012, the Plaintiff renewed the said lease agreement with respect to apartment 51 units, officetels 11 units of apartment buildings among the leased objects, with a deposit of KRW 1.5 billion, monthly rent of KRW 40 million; and (e) from May 13, 2012 to May 12, 2014.

(2) At the time of concluding a lease agreement on May 11, 2012, the Plaintiff: (a) acknowledged that it is necessary to take measures to prevent losses incurred by legal disputes between the Plaintiff and the sub-lessee and losses incurred by the Plaintiff’s exercise of ownership due to the shortage of economic power in the strike industry; and (b) taken measures to secure the return of the deposit and the sub-lease deposit received from the sub-lessee (Article 4). (c) The Plaintiff took measures to ensure the return of the deposit and the sub-lease deposit received by the strike-related industry (Article 1.1 billion won shall be deposited in the deposit management account, and the deposit management account and the deposit deposit contract shall be entered into). (d) The Plaintiff introduced a lease contract under which the obligation to return the deposit arises, and led the monthly lease contract.

(3) From the beginning of May 2013 to June 15, 2011, the Nonparty arbitrarily used approximately KRW 1.26 billion of the funds, such as a sublease deposit, etc. for the business of sub-lease from the Seoul Central District Prosecutors' Office from May 2009 to June 15, 201; from July 2010 to July 10, 2012, the Nonparty started an investigation into the Defendant’s arbitrary use of approximately KRW 1.14 billion of the funds of the E-O-development Co., Ltd. (the Nonparty was the representative director, who was engaged in the business of sub-lease an officetel after leasing it in a lump sum from the Plaintiff) from July 2010 to July 10, 2012; thereafter, the Nonparty was punished by imprisonment with prison labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (No. 2013Da1026) and was found guilty for two years.

(4) On July 2, 2013, following the non-party’s embezzlement of the non-party’s financial embezzlement, the Plaintiff and the Pakistan industry agreed to make a deposit of KRW 900 million, monthly rent of KRW 40 million, and from May 13, 2012 to May 14, 2014 by amending the lease agreement on May 11, 2012. To ensure the smooth management of the sub-lease contract, the Plaintiff agreed to pay the sub-lease deposit and the rent to the Plaintiff’s account in the name of the Plaintiff’s industrial bank account and pay the remainder to the non-party’s expenses for the sub-subsidiary industry (hereinafter “instant lease agreement”).

(5) On November 8, 2013, wave industry sub-leases the Defendant (hereinafter “instant sub-lease contract”) with the period from November 26, 2013 to November 25, 2014 (hereinafter “instant sub-lease contract”) as follows: (a) KRW 30,000,000, monthly rent of KRW 1504,00,000, monthly rent of the instant aggregate building; and (b) the period from November 26, 2013 to November 25, 2014.

(6) The instant lease agreement provides that the Plaintiff’s written consent is necessary for the sublease of the sub-lease industry. The instant sub-lease agreement provides that the period of sub-lease shall be within the period of lease stipulated in the instant lease agreement.

(7) On November 29, 2013, the Plaintiff sent a letter of approval for sub-lease to the effect that “the sub-lease is terminated upon the termination of the lease term, and the sub-lessee is obliged to pay the lease deposit after concluding a new lease contract with the lessor for the remaining period of the sub-lease.”

B. The facts and the following revealed: (i) the Plaintiff appears to have never intended to renew the instant sub-lease at the time of the consent to the instant sub-lease contract; (ii) the instant sub-lease contract is bound to be terminated upon the expiration of the term of the instant sub-lease contract on May 14, 2014; and (iii) the same applies to other sub-lease contracts entered into by the strike; and (iv) if the sub-lease contract entered into by the strike industry is terminated at once, the Nonparty’s embezzlement lacks financial capacity to refund the sub-lease deposit to the Defendant; and (iv) the Plaintiff was aware or could have known of such circumstances, taking full account of the relevant legal principles and records, the Nonparty, even if having entered into the sub-lease contract with the Defendant including the Defendant, would have been able to fully recover the instant sub-lease deposit from the Defendant’s tort even if the sub-lease contract was concluded on a temporary basis, the Plaintiff could have been able to fully assist the Defendant to recover the foregoing damages due to the said non-party’s unlawful act.

The judgment below to the same purport is just and acceptable, and it did not err by misapprehending the legal principles on joint tort liability due to aiding and abetting, contrary to what is alleged in the grounds of appeal.

2. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below determined that the exemption clause does not apply to the plaintiff's tort liability that aids and abets the illegal conduct of the strike industry in addition to the contractual liability arising from the conclusion of the sublease contract of this case, on the following grounds: "All civil and criminal issues related to the lease contract of this case and display real estate shall belong to the defendant and the strike industry and the plaintiff shall not bear any responsibility related to the sublease contract of this case."

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is just and acceptable, and there was no error by misapprehending the legal doctrine on the interpretation of intent of the special agreement for exemption.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)