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(영문) 대법원 1994. 9. 9. 선고 94다28598 판결
[월세보증금등][공1994.10.15.(978),2626]
Main Issues

The case holding that the lessor cannot be deemed to have agreed to pay the premium to the lessee as a matter of course upon the expiration of the lease term where the lessor recognizes the premium as the lessor, but the lessor stipulates that the lessor shall pay the premium to the lessee when the lessor requests the store.

Summary of Judgment

The case rejecting a lessee’s claim for the premium on the ground that, with regard to the phrase “the premium is recognized by a lessor, but the lessor requires the store to pay the premium to the lessee when the lessor interferes with the lessee’s collection of the premium on the store by demanding the lessee to order the tenant to use the premium, refusing to renew the lease contract on the store without any special reason, and allowing the lessee to not receive the premium, etc., the lessor merely appears to have paid the premium directly to the lessee, and it cannot be deemed that the lessor agreed to pay the premium to the lessee on the ground that the lease term of the store expires.

[Reference Provisions]

Articles 105 and 618 of the Civil Act

Plaintiff-Appellant

[Defendant-Appellee] Plaintiff 1 et al.

Defendant-Appellee

Defendant-Appellee et al.

Judgment of the lower court

Seoul Civil District Court Decision 93Na39101 delivered on May 6, 1994

Text

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

Reasons

We examine the grounds of appeal.

1. On the first ground for appeal

The argument that the defendant borne the installation of the store of this case and its operation was conducted by the defendant is merely a dispute over the formation process of the premium of this case, and it does not affect the conclusion of the judgment. Therefore, there is no reason to further determine it.

2. On the second ground for appeal

The court below determined that the plaintiff's claim for the above premium on the lease contract between the plaintiff and the defendant on the store of this case is proper, and it does not contain any errors of misunderstanding of facts or misunderstanding of legal principles due to violation of the rules of evidence such as theory of lawsuit, since the defendant's request for the cancellation of the lease contract on the above store of this case is justified in rejecting the plaintiff's collection of the premium on the above store of this case, if the defendant interferes with the plaintiff's collection of the premium by refusing to renew the lease contract on the above store of this case or selling it to others without any special reason, the defendant would directly pay the above premium to the plaintiff, and it cannot be deemed that the plaintiff agreed to pay the above premium to the plaintiff as a matter of course on the ground that the lease term of the above store of this case expires.

3. On the third ground for appeal

The court below is justified in rejecting the plaintiff's argument on the premise that the defendant's demand that the plaintiff raise 50% of the rent for the store of this case before the expiration of the above lease contract, but the plaintiff refused the renewal of the above lease contract and demanded the above order for the explanation of the above store, and there is no error of law in misunderstanding of facts against the rules of evidence. There is no reason to discuss.

4. Accordingly, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)

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