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

Defendant (Law Firm Taeyang et al., Counsel for the defendant-appellant)

January 13, 2016

Seoul Eastern District Court Decision 2014Da117787 Decided May 22, 2015

1. Of the judgment of the court of first instance, the part against the defendant, which exceeds the amount ordered to be paid under the following, shall be revoked, and the plaintiff's claim corresponding to that part shall

The defendant shall pay to the plaintiff money calculated by the ratio of KRW 1,70,000 per month from October 24, 2014 to the completion date of delivery of real estate listed in the attached real estate list.

2. The defendant's remaining appeal is dismissed.

3. 1/4 of the total costs of litigation shall be borne by the Plaintiff, and 3/4 by the Defendant, respectively.

1. Purport of claim

The defendant delivers to the plaintiff the real estate listed in the attached list of real estate, and pays the money calculated by applying the rate of KRW 1,700,000 per month from May 15, 2014 to the completion date of delivery of the above real estate.

2. Purport of appeal

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

1. Quotation of judgment of the first instance;

The court's reasoning for this case is that "No. 26, 2013" was changed to "No. 15, 2013.11.8," and "No. 17" was changed to "No. 26, 2013," and "No. 3 shall continue to exist and the third party shall continue to exist by the exercise of the right to request renewal of the contract pursuant to Article 13 (2) of the Commercial Building Lease Protection Act," and "No. 15, the court's reasoning for this case is that "No. 15, 2013.15," and "No. 6, the court's reasoning is that the waiver of the lease deposit is invalid because the agreement is unreasonably infringing on the rights of the former lessee, such as the defendant, and the defendant's argument that the waiver of the lease deposit between the plaintiff and Pakistan is invalid," and "No. 21, 221, 222, and 97," and "No. 7," as "the plaintiff and the second party defendant's 7," are changed to "the plaintiff" and the following.

F. Determination as to a claim for offset

1) The defendant's assertion

The Plaintiff was aware of the insolvent status of the strike, which partially leased the instant building, or the utilization of the deposit for the sub-lease of Nonparty 1, the representative director thereof, and, even though Nonparty 1 did not intend to renew the lease contract with the strike, caused damages to the Defendant by intentionally or negligently approving the sub-lease contract with the Defendant and by aiding and abetting Nonparty 1 to acquire the sub-lease deposit, thereby aiding and abetting the Defendant. Therefore, the Plaintiff is liable for tort liability by aiding and abetting the Defendant’s claim for damages, thereby offsetting KRW 30 million on the basis of the amount equal to the Plaintiff’s claim for return of unjust enrichment.

(ii) the facts of recognition

A) On May 13, 2009, the Plaintiff and the Korea Land Trust entered into a lease agreement with Pakistan, setting the rental period of 52 apartment units and 13 households of officetels among the instant buildings from May 13, 2009 to May 12, 2012, with a deposit amount of 50 million won, 48 million won for monthly rent apartment units (not value-added tax) and 13 households for officetels 13 households (excluding value-added tax).

B) On May 11, 2012, the Plaintiff concluded a lease contract again with the 51 household of an apartment among the instant buildings, and the 11st household of an officetel from May 13, 2012 to May 12, 2014, setting the lease agreement as the lease term of KRW 1.5 billion, the deposit amount of KRW 1.5 billion, monthly rent of KRW 51 household, KRW 35 million, and KRW 5 million per 1 household of an officetel ( separate value-added tax), and concluded a sub-lease agreement as follows.

(3) The parties agree to establish the conditions of special agreement as set forth in the following subparagraphs, with the agreement that it is necessary to take measures to prevent losses arising from legal disputes between the plaintiff and the sub-contractor and losses arising from the exercise of the plaintiff's ownership in connection with the sub-lease contract entered into with the plaintiff and the sub-lease (Article 4). (1) The period of the sub-lease contract shall be 1.1 billion won to guarantee the return of the sub-lease deposit which the sub-lease has been paid to the plaintiff. (3) The period of the sub-lease contract shall be 40 million won to which the new sub-lease contract has been made and the new sub-lease contract shall be 3.0 billion won to which the new sub-lease contract has been made and the new sub-lease contract shall be 3.0 billion won to which the new sub-lease contract has been made under the conditions that the sub-lease contract will be made under the conditions that the new sub-lease contract will be made under the conditions that the sub-lease contract will be made under the conditions that the sub-lease will be made.

C) On July 2013, the Plaintiff entered into the instant lease agreement under which the instant contract was re-amended with Pakistan, and stipulated the following special terms regarding the rental income management:

The management of ○○ Rental Proceeds included in the main text of Article 3 (Article 3) ① For the repayment of debts owed to the Plaintiff and the smooth management of the sub-lease agreement on the leased object, such as the difference in the deposit, unpaid rent, etc., the Defendant and the Pacific Investment shall make all incomes, such as the deposit for sub-lease, rent, etc. for the leased object under this lease agreement, to be deposited in the joint management account (Account Number omitted) in the name of the Plaintiff after the date of this lease agreement. ② The amount paid to the Plaintiff under this lease agreement shall be deemed to be the payment of the money corresponding to the due date, and the payment of the money paid on the other date shall be deemed to be made in the order of the unpaid rent interest, unpaid rent, deposit difference, and all debts owed to the Plaintiff by the Pacific Investment. ④ The Pacific Investment shall be made in writing to request the Plaintiff to withdraw necessary expenses from the account under paragraph (1) (1). The Plaintiff shall be limited to necessary expenses deemed to be necessary expenses for the re-lease, and the Plaintiff shall not be paid for any necessary expenses incurred for the re-merger.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1-1-3, purport of whole pleadings

3) Determination

A) Occurrence of liability for damages

Article 760(3) of the Civil Act provides that "Instigator or assistant shall be deemed a joint tortfeasor," thereby imposing liability on an aided person or assistant as a joint tortfeasor. Aiding and abetting refers to all direct and indirect acts that facilitate a tort, and includes not only a case of commission but also a case of facilitating the commission of a tortfeasor due to omission by a person liable for an act, who does not take various measures to prevent it. Aiding and abetting such illegal act may be provided by negligence as a matter of the Civil Act, which provides the same as the negligence in principle for the purpose of compensating for damages, unlike the Criminal Act. Aiding and abetting such illegal act can also be provided by negligence. In such a case, the content of negligence refers to a violation of this duty on the premise that the aided person has a duty of care not to assist the illegal act, and in order to impose liability on the aided person as a joint tortfeasor, there is a proximate causal relation between the aiding and abetting act and the tort committed by the aided person (see Supreme Court Decision 2005Da32999,

Considering the following circumstances, which can be acknowledged in light of the aforementioned facts, as recognized earlier, or the evidence Nos. 7 and 7-7-1, 2, and 8 of the evidence Nos. 7-2, and the purport of the entire pleadings, it is reasonable to deem that the Plaintiff was aware of not only the renewal of the lease contract with the Plaintiff due to Nonparty 1’s embezzlement, etc., the representative director of Pakistan, etc. around July 2013, which entered into the instant lease agreement with Pakistan, but also the fact that it is practically impossible to refund the sublease deposit to the lessee, but also the act of consenting to the sublease contract or receiving the sublease deposit to the lessee, which is practically impossible to return the sublease deposit to the lessee.

① On May 11, 2012, upon entering into a lease agreement, the Defendant: (a) took measures to secure the return of the deposit and the deposit for sub-lease received from the sub-lessees according to the recognition that there is a need to take measures to prevent losses, etc. due to legal disputes between the Plaintiff and the sub-lessees that may arise when the refund of the deposit for sub-leases is not possible due to the economic lack of financing capacity of the strike; (b) took measures to ensure the return of the deposit and the deposit for sub-leases received from the sub-lessees; and (c) took measures to ensure the repayment of the deposit.

② Around February 2013, Pakistan did not pay a lease deposit in arrears amounting to KRW 800 million and a rent demanded by the Plaintiff. On May 11, 2012, the additional deposit stipulated in the lease change agreement of the Plaintiff was not paid by March 2013. In such a situation, the Plaintiff entered into the instant lease agreement on July 201, 2013, and (i) received directly from the industrial bank account in the name of the Plaintiff to pay the rent in arrears, etc., and (ii) managed the disbursement of the necessary expenses for the rent in arrears.

③ Meanwhile, from the beginning of May 2013 to June 15, 2011, Nonparty 1 arbitrarily used approximately KRW 1,260,000,00 of the funds, such as the deposit for sub-lease from the Seoul Central District Prosecutors’ Office, from May 2009 to June 15, 201, and started investigation into the use of approximately KRW 1,114,00,000 of the funds of the E-O-development Co., Ltd. (the Plaintiff was the representative director, and Nonparty 1 was sub-leases the commercial building among the instant building). The Plaintiff’s employee was investigated as the witness of the instant case. The Plaintiff’s employee became aware of Nonparty 1’s embezzlement, and thereby, recognized that the deposit for sub-lease could not be returned normally.

④ On September 27, 2013, Nonparty 1 was indicted to the Seoul Central District Court (2013Gohap1026) by committing a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), etc. on April 11, 2014, and was sentenced to a suspended sentence of three years from the above court on April 11, 2014, and the said judgment was finalized at the Seoul High Court (Seoul High Court 2014No1081) on October 24, 2014.

⑤ The Plaintiff approved the Defendant’s sub-lease contract, and appropriated the amount of KRW 30 million for the repayment of debts, such as overdue loan, with the industrial bank account in the name of the Plaintiff. At the time of approval of the sub-lease contract, Nonparty 1 was indicted. Since the Plaintiff’s employee was investigated as witness at the investigation stage of the embezzlement case, it can be deemed that the Plaintiff was considerably and specifically aware of the internal situation of malin.

④ On March 2014, the Plaintiff agreed to give up the claim for the refund of the lease deposit by Pakistan, instead of taking a preferential account of the rent and other debt owed by Pakistan to the Plaintiff to the Plaintiff and paying the remainder directly to the lessee. While the Plaintiff has been under the protection of the lessee, the Plaintiff’s intent to secure the rent is strong until the delivery lawsuit is instituted against the lessee. Therefore, it is deemed that the Plaintiff performed an act at the level of securing its claim.

Meanwhile, in principle, the Plaintiff is not liable for the act of sub-lease, which is a lessee, since the Plaintiff entered into a sub-lease contract with the PP. However, as the Plaintiff knew or could have known of the circumstances that the sub-lessee could not receive the refund of the sub-lease deposit, the Plaintiff inevitably approved the sub-lease contract with the Defendant, including the Defendant to recover the overdue lease deposit and the rent, the Plaintiff paid only the remainder to the PPP by appropriating the overdue lease deposit and the rent deposited with the industrial bank account in its name from the sub-lessee. The Defendant deposits into the industrial bank account in the name of the Plaintiff as a large enterprise and reliance on the situation that the disbursement is controlled by the Plaintiff, the Defendant was more trusted than the deposit and the management by the PP, and thus, the Plaintiff is not liable for the damages incurred to the Plaintiff due to the non-party 1’s embezzlement or the reliance relationship between the Plaintiff and the sub-lease and the Defendant by taking into account the other party’s duty to manage the sub-lease deposit and the interest of the sub-lease.

B) Plaintiff’s assertion of immunity and determination thereof

The Plaintiff concluded a sub-lease contract with the PPP and agreed not to impose all legal responsibilities on the Plaintiff in connection with the sub-lease contract, which constitutes an exemption agreement for the Plaintiff, a third party. Since the Plaintiff expressed his/her intent to make profits as a preparatory document on August 28, 2015, the Plaintiff asserts that the Defendant cannot be liable for damages on the Plaintiff.

According to the evidence No. 3 of the sub-lease contract entered into with the defendant, it can be recognized that Article 9 of the sub-lease contract entered into with the defendant that "All civil or criminal issues related to the pre-lease contract and real estate shall belong to the defendant and the person who has not been responsible for the sub-lease contract, and the plaintiff shall not bear any responsibility related to the sub-lease contract." However, such agreement cannot be viewed as an agreement that grants a sub-lease contract and aids and abets the illegal act of the person who has not been paid the sub-lease deposit in itself during the process of concluding the sub-lease contract and receiving the sub-lease deposit. Therefore, the plaintiff's assertion is

C) Limitation on liability for damages

In the case of joint tort, even if the ratio of negligence to each joint tortfeasor of the victim's negligence is different, it shall not be individually assessed as to each joint tortfeasor's negligence, but shall be assessed as a whole as to all the joint tortfeasor's negligence. In this case, it is not permissible for a person who intentionally committed a tort by using the victim's negligence to claim to reduce his/her liability on the ground of the victim's negligence, but it is contrary to the principle of good faith to allow a person who has such reason to make a claim to offset negligence. Thus, it is because it is contrary to the principle of good faith to allow a claim to offset negligence against some of the joint tortfeasor's negligence, and the other joint tortfeasor who has no such reason does not interpret that other joint tortfeasor cannot make a claim to offset negligence (see Supreme Court Decision 2005Da32999, Jun. 14, 2007).

In light of all circumstances such as the fact that when concluding a sub-lease contract with PPP, the Defendant, without doubting the reason or the financial status of PPP, deposited the sub-lease deposit into the Plaintiff’s industrial bank account in the name of PPP in a very exceptional situation, and the fact that the sub-lease deposit can be deposited into the Plaintiff’s industrial bank account at the request of PPPP, and that the sub-lease contract states that “the expiration date of PPP shall not exceed the lease term of PPPP,” but it appears that the real estate intermediary or PPP employee believeds the horses of PPPP and neglected the confirmation measures, it is reasonable to limit the Plaintiff’s responsibility to 30%.

4) Sub-committee

Therefore, the Plaintiff is obligated to pay 9 million won (30 million won x 30%) to the Defendant due to joint tort caused by aiding and abetting. The Plaintiff’s claim amounting to KRW 9 million was set off to the extent equal to the Plaintiff’s claim for return of unjust enrichment from May 15, 2014 to October 23, 2014 [5 months from May 15, 2014 to October 14, 2014 + nine days (50 million won x 30/17 million)] out of the Plaintiff’s claim for return of unjust enrichment against the Defendant.

3. Conclusion

Therefore, the defendant is obligated to deliver the store of this case to the plaintiff and pay unjust enrichment calculated by the ratio of KRW 1.7 million per month from October 24, 2014 to the completion date of delivery of the store of this case. The plaintiff's claim is justified within the above recognition scope, and the remaining claim is dismissed as there is no ground. Therefore, the part against the defendant in the judgment of the court of first instance which exceeds the above monetary payment order as to the part of the monetary payment claim is unfair, and the plaintiff's claim corresponding to that part is revoked, and the defendant's remaining appeal is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Showon(Presiding Judge)