Whether Articles 476 through 479 of the Civil Act concerning the application for satisfaction of obligation constitutes a voluntary provision (affirmative), and the method of application for satisfaction of obligation / In this case, the standard time to determine the order of application for satisfaction of obligation under Article 477 of the Civil Act (=the time of offer of performance)

Since Articles 476 through 479 of the Civil Act concerning the satisfaction of an obligation are a voluntary provision, if there is any agreement different from the above provision, the effect of the satisfaction of obligation arises pursuant to the agreement between the person who performed the obligation and the person who received the repayment. In the absence of such agreement, if the provision on the satisfaction of an obligation does not extinguish in whole, the effect of the satisfaction of an obligation arises according to the designation of the person who performed the obligation under Article 476 of the Civil Act, and the effect of the satisfaction of an obligation arises as a supplementary measure according to the order of the satisfaction of an obligation under Article 477 of the Civil Act. In this case

Articles 105, 476, 477, 478, and 479 of the Civil Act

Supreme Court Order 2009Ma1942 Decided March 10, 2010

Plaintiff

Defendant

Incheon District Court Decision 2013Na9987 Decided September 18, 2014

The judgment below is reversed, and the case is remanded to Incheon District Court Panel Division.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 4

A. Unless there exist special circumstances, if a copy of a complaint, an authentic copy of a judgment, etc. were served by service by public notice, the defendant was unaware of the service of the judgment without negligence. In such a case, the defendant was unable to comply with the peremptory period due to a cause not attributable to him/her, and thus, he/she may file an appeal within two weeks (30 days if the cause ceases to exist in a foreign country) after the cause ceases to exist (30 days if the cause ceases to exist). Here, the term “after the cause ceases to exist” refers to the time when the party or his/her legal representative becomes aware of the fact that the judgment was served by public notice, rather than when the party or his/her legal representative becomes aware of the fact that the judgment was served by public notice, barring any other special circumstances. Thus, it shall be deemed that the party or his/her legal representative becomes aware of the fact that the judgment was served by public notice only when the original copy of the judgment was inspected or received by

B. According to the records, the judgment of the court of first instance was rendered on April 23, 2013 after the original of the instant payment order and the notice of the date for pleading were served to the Defendant by public notice, and the original of the judgment was served by public notice. As the instant lawsuit was brought by public notice, the Defendant may be aware of the fact that the lawsuit was brought by public notice. On June 11, 2013, the judgment of the court of first instance became known that the original of the instant payment order and the notice of the date for pleading were served to the Defendant by public notice, and that the instant appeal was filed on June 13, 2013, which is not more than two weeks thereafter.

C. Therefore, the defendant's appeal of this case is lawful because it falls under the case where it was impossible to observe the peremptory appeal period due to a cause not attributable to the defendant. In the same purport, the court below's decision is just on the premise that the subsequent appeal of this case is lawful, and it did not err by misapprehending the legal principles as to the subsequent appeal, as otherwise alleged in the ground of appeal.

The Supreme Court precedents pointed out in the grounds of appeal are inappropriate to be invoked in the instant case with different matters from the instant case.

2. Regarding ground of appeal No. 1

A. With respect to the Plaintiff’s claim for rent for the instant real estate, the lower court determined that (i) ① the part of the claim for rent arising from the date 2004 to October 1, 2009 was brought in the instant lawsuit on October 10, 2012, which was three years after the date on which the claim was created; and (ii) the claim for rent from November 2009 to June 2012, 2009, excluding the rent from December 3, 2009, excluding the remainder of the debt from March 3, 2010 and December 2010, the Defendant paid the Plaintiff the remainder of the claim excluding the remainder of the claim from the Defendant, and (ii) determined that the remainder of the claim excluding the remainder of the claim excluding the remainder of the claim excluding the remainder of the claim from the Defendant 1, 2009, which was paid by the Defendant 200,0000,000,0000).

B. However, we cannot accept the above judgment of the court below as it is.

1) The provisions of Articles 476 through 479 of the Civil Act concerning the satisfaction of an obligation are voluntary provisions, and if an agreement is different from the above provisions, the effect of the satisfaction of obligation arises pursuant to such agreement, and in the absence of such agreement, if the offer of an obligation does not extinguish in whole, the effect of the satisfaction of obligation becomes effective upon the designation of an appropriation of obligation under Article 476 of the Civil Act, and the effect of the satisfaction of obligation arises as a supplementary measure according to the order of the satisfaction of obligation under Article 477 of the Civil Act (see Supreme Court Order 2009Ma1942, Mar. 10, 2010). The order of the legal appropriation of an obligation under Article 477 of the Civil Act is determined at the time of the offer of the obligation by the obligor.

2) Examining the reasoning of the judgment below in light of the above legal principles and the records, it shall be deemed that there were rent claims for which the three-year extinctive prescription has not been completed as of the time when the Defendant provided the repayment of rent. Thus, the court below should have determined the order of statutory appropriation for payment under Article 477 of the Civil Act as of the time when the Defendant provided the repayment.

In addition, the lower court acknowledged that all the rent claims arising after November 2009, except for the three months specified in the agreement, were extinguished by the satisfaction of the obligation. However, in determining the order of satisfaction of obligation, it is inconsistent with the lower court’s determination that the statutory appropriation of obligation is applied on the premise that the above agreement was not made, and there is no evidence to support the existence of such agreement.

Therefore, in this case where the Defendant provided repayment to the rent continuously, without examining whether each individual rent claim that first comes due and due has not been appropriated and the three-year statute of limitations has expired, it cannot be readily concluded that all the rent claim prior to October 2009 has expired.

C. Nevertheless, the lower court determined otherwise, that all the claim for rent prior to the subdivision on October 2009 expired, and the Defendant’s payment after November 2009 was not appropriated for the rent prior to the said subdivision on October 2009. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by failing to exhaust all necessary deliberations by misapprehending the legal doctrine on the appropriation of performance.

3. Regarding ground of appeal No. 2

A. As to the Plaintiff’s claim for management expenses, the lower court determined that the evidence submitted by the Plaintiff was merely a detailed statement of the Plaintiff’s own reorganization, and that the Plaintiff did not accept the Plaintiff’s claim for management expenses, insofar as the Plaintiff did not submit any objective data, such as a notice issued by the Defendant regarding the details and basis for calculating the management expenses incurred

B. However, among the notice issued by the Plaintiff as objective data, the part of the year 201 among the notice issued by the Plaintiff to the Defendant was submitted by the Defendant as Eul No. 18, and according to the record of Eul No. 18, the management fee for the instant real estate is composed of "management fee for a certain amount of each month, water supply fee, electrical safety management fee, and fire safety control fee," and "electric fee with a change in the number of months". Further, according to the record of Gap evidence No. 5-2, which is a mail proving the contents of the notice sent by the Defendant to the Plaintiff, the management fee for the instant real estate is composed of water supply fee, electrical safety

Therefore, the court below should not dismiss all the plaintiff's management expenses claims without examining the items of management expenses to be imposed at least a certain amount monthly (to point out that there is a need for the plaintiff to urge the plaintiff to prove the payment details of electricity fees concerning the real estate in this case).

C. Nevertheless, the lower court did not examine the items of management expenses, etc. and dismissed all the Plaintiff’s claim for management expenses. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal on this point is

4. Regarding ground of appeal No. 3

A. With respect to the Plaintiff’s claim of value-added tax on the Plaintiff’s rent, the lower court rejected the Plaintiff’s claim on November 5, 2003, on the ground that it was insufficient to recognize that the Defendant agreed to separately pay value-added tax on rent monthly to the Plaintiff on the following grounds: (a) on January 5, 2003, the Plaintiff and the Defendant changed the Plaintiff’s rent into KRW 1.1 million around January 2009; and (b) on June 30, 2012, the fact that the instant lease was terminated on June 30, 2012.

B. However, it is difficult to accept the above determination by the court below as it is, in case where there is an agreement between the parties to the transaction to bear value-added tax, an entrepreneur may directly claim for the payment of the amount equivalent to the value-added tax to the person who receives the supply pursuant to the agreement. The above agreement on the burden of value-added tax is not necessarily required at the time of the supply of the goods or services, but is valid even after the supply of the goods or services, and it may be done in an implied and implied manner (see Supreme Court Decision 99Da33984 delivered on November 12, 199

2) According to the records, the Defendant’s content-certified mail sent to the Plaintiff on August 27, 2012, which was after the termination of the lease agreement, stated that “The value-added tax of 2007 was deposited in November 12 and October 12, 201 (not including any year)” and that “the remaining lease deposit amount of KRW 6,940,000 (= KRW 12,000,000 - KRW 5,060,000 - KRW 5,060,000) excluding value-added tax, etc. from September 30, 2008 to June 30, 2012, the Defendant stated that “the above tax amount of KRW 21,201,000,000,000,0000,0000,000,000 won was added to KRW 31,201,000,000,000.

③ It appears that the Defendant did not object to the Plaintiff that there was no separate agreement on value-added tax, and that there was no objection to the amount of supply of the tax invoice. ④ The Plaintiff, a lessor, is obligated to issue the tax invoice as a matter of course in accordance with the Value-Added Tax Act and subordinate statutes, and the Plaintiff’s signature or seal is not required on the tax invoice for his own custody. ⑤ It is easy to understand that the Defendant’s content-certified mail is not required to acknowledge that there was an agreement on separate burden of value-added tax. In addition, considering the fact that the Defendant paid the value-added tax in full, the Defendant submitted the said tax invoice as evidence and treated it as being deducted from the lease deposit, and even if the content is not consistent, it is reasonable to deem the Plaintiff and the Defendant to have concluded the said special agreement in an implied manner, even if there was no stipulation on the special agreement to pay the value-added tax separately by the Defendant.

If so, the court below did not examine ① the continuous issuance of the above amount of tax invoices, ② the details of the Defendant’s receipt, ② the Plaintiff’s return and payment of value-added tax on the instant real estate, and whether the Defendant (the business operator registered as a business operator) was entitled to input value-added tax on the instant real estate, and the amount thereof, etc., it is difficult to conclude that the Defendant did not agree to pay the Plaintiff the value-added tax on monthly rent separately

C. Nevertheless, the lower court determined that it was insufficient to recognize that the Defendant agreed to separately pay the value-added tax on monthly rent to the Plaintiff solely based on the circumstances in its reasoning. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal on this point

5. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)