Plaintiff (Attorney Jeong-hee et al., Counsel for plaintiff-appellant)

Defendant 1 and one other (Attorney Noh Yong-chul, Counsel for the defendant-appellant)

May 17, 2017

1. The Defendants are to the Plaintiff:

A. At the same time, the Plaintiff’s delivery of the said real estate at the same time, after deducting the amount calculated by the rate of KRW 9,000,000 per month from June 15, 2017 to the completion date of delivery of the real estate listed in the separate sheet, from the amount of KRW 70,000,000;

B. Joint and several payment shall be made from June 15, 2017 to the date of completion of delivery of the real estate stated in the above paragraph (a) minus KRW 70,000,000 from the amount calculated by deducting KRW 9,00,000 from the amount calculated in proportion to KRW 9,000 per month.

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

3. Of the litigation costs, appraisal costs are borne by the Defendants, and 1/2 of the remainder of the litigation costs excluding appraisal costs is borne by the Plaintiff, and the remainder is borne by the Defendants

4. Paragraph 1 can be provisionally executed.

The Defendants deliver to the Plaintiff the real estate indicated in the attached list, and jointly and severally pay the amount of KRW 9,00,000 per month from June 15, 2016 to the completion date of delivery of the said real estate.

1. Facts of recognition;

A. On April 7, 2008, the Defendants leased KRW 70,000,000 from the Plaintiff as lease deposit, KRW 6,50,000 per month of rent, KRW 15,00 per month of rent payment, and KRW 70,00,00 from May 15, 2008 to May 14, 2013 of rent. Around that time, the Defendants paid KRW 70,00,000 to the Plaintiff as lease deposit.

B. Afterwards, while running a lodging business with the trade name “○○○○ Telecom” in the instant real estate, the Defendants concluded a lease contract with the following terms: (a) the expiration date of the lease term was multilateral, the Plaintiff on September 9, 2013; (b) the rent was increased to KRW 9,00,000 per month while maintaining other terms and conditions; and (c) the expiration date of the lease term was extended to May 14, 2016 (hereinafter “the lease of this case”).

C. On January 27, 2016 and February 22, 2016, the Plaintiff sent each of the following certificates to the Defendants: “The instant lease agreement will be terminated upon the expiration of the lease term on May 14, 2016; there is no intention to extend the lease term or renew the lease contract; thus, the Plaintiff’s return of the instant real estate to its original state by May 15, 2016; each of the above contents certification was served on the Defendants.

D. Meanwhile, as of the date of the closing of argument in the instant case, the Defendants, as of June 14, 2017, paid to the Plaintiff the amount of unjust enrichment equivalent to the rent or rent in advance.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 3 through 6, Eul evidence 8 (including each number), the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

According to the above facts, the instant lease agreement was terminated on May 14, 2016, and barring any special circumstance, barring any special circumstance, the Defendants are obligated to deliver the instant real estate to the Plaintiff, and to pay in advance unjust enrichment equivalent to the rent of KRW 9,00,00 from June 15, 2017 to the date following the end of the period during which the payment of unjust enrichment equivalent to the rent or rent has been completed, from June 15, 2017 to the date on which the delivery of the instant real estate was completed (as long as the Defendant refused to return the instant real estate, it is necessary to claim in advance unjust enrichment equivalent to the rent that will incur after the end of the period following the end of the period during which the payment of unjust enrichment equivalent to the rent has been completed)

B. Determination as to the defendants' defense

1) The Defendants asserted to the effect that the Plaintiff cannot deliver the instant real estate to the Plaintiff before receiving KRW 70,000,000 from the Plaintiff.

Where a lease is terminated, the lessor’s obligation to return the deposit is in the relationship of simultaneous performance with the lessee’s obligation to return the leased object. The deposit received from the real estate lease guarantees all the lessee’s obligations arising from the lease, such as the lease obligation, the obligation to compensate for damages arising from the loss, damage, etc. of the leased object. The amount equivalent to the secured obligation is naturally deducted from the deposit without a separate declaration of intention, unless special circumstances exist when the object is returned after the termination of the lease relationship (see, e.g., Supreme Court Decision 2013Da7725, Mar. 26, 2015). The amount of unjust enrichment arising from the use or profit-making of the real estate shall

According to the above legal principles, the defendants are obligated to receive from the plaintiff the remaining amount after deducting unjust enrichment equivalent to the rent of KRW 9,00,000 per month from June 15, 2017 to the completion date of delivery of the real estate of this case, and at the same time deliver the real estate of this case to the plaintiff. Thus, the defendants' simultaneous performance defense is justified within the scope of the above recognition.

2) The Defendants asserted simultaneous performance with the purport that the Plaintiff cannot deliver the instant real estate to the Plaintiff before receiving the total amount of KRW 13,200,000,000, which was unfairly collected from the Defendants, due to the defect in the instant real estate. However, the evidence submitted by the Defendants alone is not sufficient to acknowledge it, and there is no other evidence to acknowledge it. Thus, the Defendants’ simultaneous performance defense is without merit.

3) Although the new lessee has to enter into a premium contract with the Defendants, the Defendants refused such cooperation without justifiable grounds and thereby interfered with the Defendants’ recovery of the premium. Accordingly, the Defendants suffered damages equivalent to the premium. The Defendants are liable to compensate the Defendants for damages equivalent to the premium amounting to KRW 429,970,00 pursuant to Article 10-4(3) of the Commercial Building Lease Protection Act. The Plaintiff’s obligation to pay the Plaintiff’s damages and the Defendants’ obligation to deliver the instant real estate under the principle of fairness are in simultaneous performance relations. Thus, the Plaintiff’s defense of simultaneous performance is that the Plaintiff cannot deliver the instant real estate to the Plaintiff before receiving the said damages.

First of all, according to Article 10-4(1) of the Commercial Building Lease Protection Act, with regard to whether the Plaintiff may have a duty not to obstruct the collection of premiums by entering into a lease agreement with a person arranged by the Plaintiff as a new lessee, etc., the lessor is liable to prevent the Plaintiff from paying premiums to the lessee. According to the above Article 10-4(1) of the Commercial Building Lease Protection Act, the lessor is not liable to prevent the lessee from paying premiums to the new lessee,

① However, the Commercial Building Lease Protection Act, amended by Act No. 13284, May 13, 2015, provides for protecting the lessee’s premium collection, etc. to protect the lessee’s business value by inducing the renewal of the lease contract and at the same time protect the lessee’s opportunity to recover capital and dispose of his/her business. ② According to the proviso to Article 10-4(1) of the same Act, it is difficult to deem that the lessor is obligated not to interfere with the lessor’s collection of premium against the lessee under the main sentence of Article 10-4(1) of the same Act if the lessor is able to refuse the lessee’s request for renewal of the lease contract due to the cause falling under any of the subparagraphs of Article 10-4(1) of the same Act. ③ The main sentence of Article 10(1) of the same Act provides for the lessor’s right to request renewal of the lease contract without justifiable cause where the lessee requests renewal of the lease contract between six months and one month prior to the expiration of the lease term.

As seen earlier, in light of the fact that the instant lease agreement has been renewed once more and the entire lease term including the initial lease term is eight years, and the contents of and legal principles as seen earlier, the Defendants could not exercise the right to request renewal of the lease against the Plaintiff at the time when the instant lease agreement expires. Therefore, it cannot be said that the Plaintiff had a duty not to interfere with the Defendants’ collection of the premium by entering into a lease agreement with a new lessee arranged by the Defendants from three months before the term of the instant lease expires to May 14, 2016, when the instant lease agreement was terminated. Thus, even if the Plaintiff did not cooperate with the Defendants to enter into a premium contract with the Defendants, the Defendants cannot be held liable for damages due to the Defendants’ violation of the obligation not to collect the premium.

Even if the Plaintiff interferes with the Defendant’s collection of the premium without any justifiable reason and is liable to compensate the Defendants for damages due to the Defendants’ violation of the duty not to interfere with the collection of the premium, pursuant to the provisions of Article 10-3(1) and (2) of the Commercial Building Lease Protection Act, the premium refers to the cost for transfer or use of tangible and intangible property value, such as business facilities, fixtures, customers, credit, business know-how, and business interest in accordance with the location of a commercial building, and the transfer or use of the tangible and intangible property value (such as business interest) by the lessor, the lessee, and the lessee’s new lessee is a separate contract from the contract under which the lessee is obliged to pay the premium to the lessee. The lessee’s duty to return the leased object is the duty to return the leased object due to the performance of the lease agreement, while the lessor’s duty to recover the premium arising from interference with the collection of the premium was caused by the lessee’s interference with the lessee’s collection of the premium, and thus, it is difficult to view that the Defendants’ obligation to recover the above real property relationship is not arising.

In the end, the defendant's simultaneous performance defense seems to be any one, but there is no reason.

C. Sub-committee

Therefore, the Defendants are liable to pay to the Plaintiff the remaining amount calculated by deducting the amount calculated by the ratio of KRW 9,000,000 per month from June 15, 2017 to June 15, 2017 from the Plaintiff’s KRW 70,000 to the completion date of delivery of the instant real estate at the same time, and jointly and severally, to deliver the said real estate from the amount calculated by deducting KRW 70,000 from the amount calculated by deducting KRW 9,00,000 per month from the amount calculated from June 15, 2017 to the completion date of delivery of the instant real estate.

3. Conclusion

Therefore, each claim against the Defendants against the Plaintiff is justified within the scope of the above recognition, and each remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

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