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

Defendant (Law Firm Boo-In International, Attorney Jeong Jae-sik, Counsel for the defendant-appellant)

September 6, 2013

Seoul Central District Court Decision 2012Da31497 Decided October 10, 2012

1. Of the judgment of the court of first instance, the part against the defendant exceeding the scope of the next order for implementation is revoked, and the corresponding plaintiff's claim is dismissed.

The Defendant, as the Plaintiff

(a) at the same time receiving KRW 20,000,000 from the Plaintiff, deliver the real estate listed in the separate sheet;

(b) Payment of 27,032,258 won and 16,000,000 won among them shall be made at the rate of 20% per annum from September 6, 2012 to the date of full payment, and the amount calculated at the rate of 3,00,000 won per month from August 12, 2013 to the date of complete delivery of the said real estate.

2. The defendant's remaining appeal is dismissed.

3. Of the total litigation costs, 20% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. Of the disposition of the court of first instance, “ September 13, 2012.” in Article 1.b. of the order shall be corrected to “ September 6, 2012.”

1. Purport of claim

The Defendant shall deliver to the Plaintiff the real estate listed in the separate sheet (hereinafter “instant commercial building”) and pay to the Plaintiff the amount of KRW 16,00,000,000, calculated by the rate of 20% per annum from the day following the delivery of the “application for modifying the purport and cause of the claim” as of September 5, 2012 to the day of complete payment, and the amount of KRW 3,00,000 per annum from September 11, 2012 to the day of complete delivery of the instant commercial building.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged by Gap evidence 2-1, Eul evidence 3-1, 2-2, Eul evidence 4-1, 4-1, 12, and the whole purport of the pleadings.

A. On April 1, 2009, the Defendant entered into a contract with the Plaintiff to lease the instant commercial building by setting the lease deposit of KRW 15,000,000, monthly rent of KRW 1,300,000 (after April 11, 200), from April 12, 2009 to April 11, 201.

B. On April 11, 2010, the Defendant entered into a contract with the Plaintiff to increase the lease deposit amount to KRW 20,000,000, monthly rent to KRW 1,800,000 and to extend the lease period to April 11, 201.

C. Around March 201, the Defendant entered into a contract with the Plaintiff to extend the term of lease by April 11, 2012, but to increase the monthly rent by KRW 3,000,000, and to pay KRW 12,000,00 ( KRW 12,00,000 per month x 12 months) calculated at the ratio of KRW 1,000 per month among them (hereinafter “the instant lease”). Accordingly, on April 21, 201, the Defendant remitted the Plaintiff KRW 12,00,000 to the Plaintiff.

D. The Defendant, on May 11, 201, on June 11, 201, on July 12, 2011, on August 12, 2011, on August 12, 2011, on September 17, 2011, on September 17, 2011, on November 15, 2011, on December 12, 2011; on January 12, 201, on January 12, 201, on KRW 1,00,000, on April 11, 201 to April 11, 200 】 (on October 30, 200, on October 200 】 10, on October 201, 100, 100, 100, 100, 100, 100, 100, 10, 200, 10, 2010

E. The Defendant: (a) remitted the amount of KRW 2,00,000 to the Plaintiff on September 12, 2012; (b) October 11, 2012; (c) November 12, 2012; and (d) December 12, 2012; (c) January 11, 2013; (d) February 14, 2013; (e) March 11, 2013; (e) April 11, 2013; and (e) June 11, 2013; and (e) disbursed the amount of KRW 0,000,000,000 or more of the amount of unjust enrichment from August 19, 2013 to August 12, 2012; and (e) paid the amount of KRW 0,000,300,000 or more of the amount of unjust enrichment.

2. Determination as to the cause of action

The following facts are acknowledged: (a) the Defendant’s delay in rent exceeds the two-term rents; and (b) the fact that the instant lease contract was served on the Defendant on March 21, 2012 by the instant complaint containing the purport that the Plaintiff would terminate the instant lease contract on the ground of such fact is apparent; (c) thereby, the instant lease contract was lawfully terminated (the instant lease contract was lawfully terminated on March 21, 2012 prior to the expiration of the instant lease term on April 11, 2012, and thus, it cannot be renewed upon the Defendant’s request for renewal on February 23, 2012).

Therefore, barring special circumstances, the Defendant is obligated to deliver the instant commercial building to the Plaintiff, barring any special circumstance, and pay to the Plaintiff unjust enrichment equivalent to the rent of KRW 16,00,000 calculated at the rate of KRW 12,000 + 12,000 + 12,000,000 + 12,000 + 12,000 + 12,000,000 + 8,000,000 + 8,000,000) and the amount of rent corresponding to the rent after the following day after the period for which the Plaintiff’s claim was calculated, from September 11, 2012 to August 11, 2012.

3. The defendant's assertion and defense

A. Article 11(1) proviso and (2) of the Commercial Building Lease Protection Act, Article 4 of the Enforcement Decree of the same Act provides that a request for the increase of the deposit or rent may only be made after one year has elapsed from the date when the lease contract was concluded or the agreed rent, etc. was increased within the amount equivalent to 9/100. Thus, if the Plaintiff and the Defendant agreed to increase the deposit amount of KRW 15,000,000 as KRW 20,000 on April 11, 2010, KRW 1,300,000 for monthly rent of KRW 1,80,000, and the agreement that the increase of the deposit or rent of KRW 3,000 on March 201 to KRW 1,80,000, KRW 3,0000 for monthly rent of KRW 3,00,0000 for the reason that the agreement was in violation of Article 15 of the same Act, and thus, the Defendant did not pay it in arrears of KRW 10,000,000.

The proviso of Article 11(1) and Article 11(2) of the same Act apply only to cases where one of the parties exercises the so-called “right to claim an increase or decrease in rent, etc.” under the main sentence of Article 11(1) of the same Act on the grounds that the increase or decrease in the burden of taxes, public charges, etc. or the change in economic circumstances has become unreasonable, and it does not apply to cases where rent, etc. has been increased by agreement between the parties or where a contract has been concluded after the termination of the lease contract. Accordingly, the above assertion by the prior defendant on a different premise is without merit.

B. Around March 2011, the Defendant concluded the instant lease contract with the Plaintiff verbally, and around April 201, the Plaintiff rejected the Plaintiff’s request from the Plaintiff that the lessor use the instant lease contract at the maturity of April 11, 2012, and the lessee’s seal on the lease contract stipulated under the special terms and conditions that “if the lease is due, it would be impossible for the lessor to use the contract at the maturity of April 11, 201, and the lessee would be at no time at the expiration of the lease contract.” Accordingly

On the other hand, the statement No. 2-2 of the evidence No. 2 is insufficient to recognize that the Plaintiff had rescinded the instant lease agreement with the Defendant, and there is no other evidence to acknowledge it. Thus, the Defendant’s defense is without merit (the Defendant’s assertion that the Plaintiff did not enter into the instant lease agreement with the Plaintiff, but the statement of No. 3 alone is insufficient to reverse the recognition that the Defendant entered into the instant lease agreement with the Plaintiff around March 201, and there is no other counter-proof, and rather, even according to the Defendant’s assertion, the Defendant refused to seal the instant lease agreement with the Plaintiff on April 201, since the Defendant refused to enter into the said lease agreement with the Plaintiff on a verbal basis on or around March 2011.

C. The Defendant asserted that he paid the amount calculated by applying the ratio of KRW 2,00,000 to the amount of unjust enrichment equivalent to the rent from September 2012 to August 2013.

B. From September 12, 2012 to August 19, 2013, the Defendant paid the Plaintiff KRW 24,00,000 out of the rent of KRW 36,00,000 to August 11, 2013 is recognized as follows. As such, the Defendant is obligated to pay the Plaintiff the remainder of KRW 2,204,000,000 out of the rent of KRW 36,000 to the Plaintiff from August 12, 2012 to August 11, 2013: Provided, That the Defendant is obligated to pay the Plaintiff the remainder of KRW 33,096,74 [=3,00,00 + KRW 11/31 + less than KRW 11/31 + KRW 36,50,00; KRW 16,301; KRW 16,3016; KRW 16,530,516].

D. The defendant shall not deliver the commercial building of this case to the plaintiff until the deposit for lease of this case is returned. The defendant shall raise a defense of simultaneous performance.

According to the above facts, the defendant's duty to deliver the commercial building of this case to the plaintiff is in the simultaneous performance relationship with the plaintiff's duty to return the lease deposit of this case to the defendant. Thus, the defendant's defense is well-grounded.

4. Conclusion

Therefore, the Defendant is obligated to deliver the instant commercial building to the Plaintiff at the same time with the Plaintiff’s deposit of KRW 20,00,000. ① The remainder of the rent from April 12, 201 to August 11, 2012, or unjust enrichment of KRW 16,00,000, and ② The remainder of the rent from September 11, 2012 to August 11, 2013, and KRW 27,032,258 (=16,00,000,000 + the amount of KRW 11,032,258,000) and the amount of delay damages calculated at the rate of KRW 16,00 from September 11, 2012 to August 11, 2013, and KRW 16,000,000, calculated at the rate of KRW 30,000,000,000 for unjust enrichment and delay damages.

Therefore, the plaintiff's claim of this case is reasonable within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the defendant's appeal is accepted, and the part against the defendant in the judgment of the court of first instance which exceeds the above scope of order for performance among the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding thereto is dismissed. The defendant's remaining appeal of this case is dismissed as without merit, and it is obvious that " September 13, 2012" in Article 211 (1) of the Civil Procedure Act is erroneous. Thus, it is so decided as per Disposition.

[Attachment]

Judges Kim Il-il (Presiding Judge)