[1] The elements for establishing unfair legal act

[2] Whether the right to claim the amount of rent increase due to the change in the circumstances in the lease under a special contract for the increase in the amount of rent (affirmative)

[3] In a case where a lease contract which guarantees a de facto permanent free use with the content of 20 years of lease term, 10 years of lease term expiration, 10 years of lease term extension, and 20 won per annum, the case rejecting all the allegation of unfair legal acts and demand for the increase of rent amount

[1] The unfair legal act stipulated in Article 104 of the Civil Code is established when there exists an objective imbalance between payment and consideration, and a transaction which has lost balance as a subjectively, is conducted using gambling, rashness, or experience of the victimized party. The purpose is to regulate gambling, rash, or experience of the victimized party. The requirement for establishing an unfair legal act is not all required, but only a part of the requirement is sufficient. The term "fambling" can be based on an economic cause. It may be based on mental or psychological cause. Whether the injured party was in a state of gambling. Whether the injured party was in a state of gambling. It should be determined by comprehensively taking into account his status and property status, and all the circumstances such as the degree of gambling in the situation at which the injured party was in a state of gambling or experience. On the other hand, even if the injured party was aware of the intention of the injured party to use the act in bad faith, it is not established.

[2] Even if there is a special agreement on the amount of rent increase in a lease agreement, if it is deemed that maintaining the special agreement after the agreement would be contrary to the good faith principle to the extent that there is a change in circumstances to the extent that it is deemed contrary to the good faith principle, a lessor shall be granted a claim for

[3] In a case where a lease agreement was concluded between the parties to guarantee a substantial permanent free use of leased object, which provides that the lease period shall be 20 years, but the period shall be extended by ten years upon the expiration of the lease period, and the amount of rent increase shall be paid one won per year during the lease period, the case rejecting all the lessor's assertion of unfair legal acts and the claim for rent increase due to changes in circumstances.

[1] Article 104 of the Civil Act / [2] Articles 2(1) and 628 of the Civil Act / [3] Articles 104 and 628 of the Civil Act

[1] Supreme Court Decision 91Da5907 delivered on July 9, 1991 (Gong1991, 2121), Supreme Court Decision 92Da84 delivered on May 26, 1992 (Gong1992, 207), Supreme Court Decision 94Da46374 delivered on June 14, 1996 (Gong196Ha, 2141)

[Defendant-Appellee] Defendant 1 and 2 others

[Judgment of the court below]

Seoul High Court Decision 95Na44018 delivered on July 18, 1996

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

We examine the grounds of appeal.

(1) As to ground of appeal No. 1

The unfair legal act stipulated in Article 104 of the Civil Act is established when there exists an objective imbalance between payment and consideration, and a transaction which has lost balance as such is established when it was conducted using scambling, rashness, or experience of the victimized party. The purpose is to regulate scambling, rash, or experience of the injured party. The requirement for establishing an unfair legal act is not all required, but only a part of the requirement is sufficient. The term "pacambling" can be based on an economic cause. It may be based on mental or psychological cause. Whether the injured party was in the state of scambling. It should be determined by comprehensively taking into account his status and state of property and the degree of scambling in the situation. Meanwhile, even if the injured party was in the state of scambling, scambling, or experience of the injured party, the injured party's intent to use the act is not established under Article 104 of the Civil Act. 196. 4.

In this case, according to the facts stated in its holding, the court below's decision that the lease contract cannot be readily concluded by the defendant based on the plaintiff's economic situation at the time of concluding the lease contract between the plaintiff and the defendant is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to unfair legal acts such as theory of lawsuit, etc.

(2) As to the second ground for appeal

According to the reasoning of the judgment below, the court below acknowledged the fact that the court below concluded a lease agreement with the defendant to extend the lease period of 20 years and 10 years each year during the lease period in order to guarantee the permanent free use of the leased part of this case by the plaintiff, instead of removing the police box located in front of the plaintiff's building of this case by the evidence of show that the defendant removed the building in front of the plaintiff's building of this case, but the plaintiff and the defendant actually agreed to receive KRW 1 per annum during the lease period. In light of the records, such fact finding by the court below is just and there is no error of law of misunderstanding the facts

If there was a lease agreement between the parties to guarantee the free use as above, it would be deemed that there was a special agreement on the increase in the amount of rent. Even if there was a special agreement on the increase in the amount of rent, if it is deemed that maintaining the special agreement would be contrary to the good faith principle to the extent that it would be contrary to the alteration of circumstances to the extent that maintaining the special agreement would be contrary to the good faith principle, it would be erroneous in the court below's decision that it would be impossible to claim the increase in rent due to the agreement on the increase in rent. However, in light of the records, there is no circumstance to view that there was a change in the economic situation to the extent that the special agreement on the increase in rent would be deemed to be contrary to the good faith principle after the agreement, and therefore, the court below's rejection of the Plaintiff's claim for the increase in rent amount is justifiable, and therefore it is difficult to accept the argument in the judgment of the court below as to the misapprehension of legal principles as to the right to claim the increase in rent amount.

(3) Therefore, the plaintiff's appeal is dismissed and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)