Plaintiff (Counterclaim Defendant) (Law Firm Lee & Lee, Attorneys Kim Byung-in, Counsel for the plaintiff-appellant)

Defendant-Counterclaim (LLC, LLC, Attorneys Credit stone-Making et al., Counsel for defendant-Counterclaim)

March 8, 2017

Seoul Southern District Court Decision 2016Gahap104853 (Main Court) and 2016Gahap104860 (Counterclaim) Decided October 13, 2016

1. The part of the judgment of the court of first instance against the defendant (Counterclaim plaintiff) that ordered payment in excess of the money ordered to be paid below among the part against the principal lawsuit, and the plaintiff (Counterclaim defendant)'s claim against the revocation part is dismissed.

The Defendant-Counterclaim Plaintiff (Counterclaim Defendant) shall pay to the Plaintiff (Counterclaim Defendant) 67,788,205 won with 5% interest per annum from July 30, 2016 to April 12, 2017 and 15% interest per annum from the next day to the day of full payment.

2. The part against the plaintiff (Counterclaim defendant) among the part against the counterclaim in the judgment of the court of first instance is revoked, and the defendant (Counterclaim plaintiff)'s counterclaim claim corresponding to the above revoked part is dismissed.

3. The plaintiff (Counterclaim defendant)'s appeal against the principal lawsuit is dismissed.

4. Of the total costs of the lawsuit, 30% of the portion incurred by the principal lawsuit shall be borne by the Defendant (Counterclaim Plaintiff) and the remainder 70% by the Plaintiff (Counterclaim Defendant) and the part incurred by the counterclaim shall be borne by the Defendant (Counterclaim Plaintiff).

1. Purport of claim

(a) Main claim;

The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) paid to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 135,265,500 won with 205,265,000 won and 135,265,500 won with 15% interest per annum from the day following the day of service of a copy of the instant complaint to the day of full payment. As to KRW 70,000,000 with 15% interest per annum from the day of service of a copy of the instant complaint to the day of full payment.

(b) Counterclaim;

The Plaintiff pays to the Defendant the amount calculated by applying the ratio of KRW 2,805,000 per month from July 1, 2016 to the delivery date of the building, among the buildings listed in the attached list, to KRW 73.38 square meters and KRW 60.42 square meters per floor among the buildings listed in the attached list.

2. Purport of appeal

The part against the plaintiff among the principal lawsuit and counterclaim in the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiff 135,265,500 won with 15% interest per annum from the day after the copy of the complaint in this case is served to the day of complete payment. The defendant's counterclaim is dismissed.

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff filed a principal lawsuit by combining the claims for refund of deposit and the claims for damages due to interference with the collection of premium, and the Defendant filed a counterclaim by combining the claims for unjust enrichment equivalent to the rent and the claims for return of deposit in the principal lawsuit, and the court of first instance partially accepted the claims for unjust enrichment equivalent to rent in the counterclaim, and dismissed the claims for damages due to interference with the collection of premium in the principal lawsuit and the counterclaim.

Therefore, since only the plaintiff appealed against each plaintiff among the main lawsuit and counterclaim, only the claim for unjust enrichment equivalent to the rent among the main lawsuit and counterclaim shall be subject to the judgment of this court.

2. Basic facts

(a) Conclusion of a lease agreement;

On October 1, 2010, the Plaintiff entered into a lease agreement with the Defendant, setting the lease deposit amount of KRW 70,000,000, monthly rent of KRW 2,350,000 (in addition to value-added tax, monthly rent of KRW 2,350,00, monthly rent of KRW 2,350,000 (in the case of this case, monthly rent of KRW 2,350), and from October 8, 2010 to October 7, 2012 (hereinafter “instant lease agreement”), and around that time, the Plaintiff entered into a lease agreement with the Defendant on the lease deposit amount of KRW 70,00,000,00 from among the buildings listed in the attached list owned by the Defendant, and operated the instant commercial building as “○○○” in the instant case.

(b) Renewal of a lease;

On October 7, 2012, the Plaintiff and the Defendant were KRW 2,550,00 per month, and the term of the instant lease was changed to October 7, 2014, and the lease was renewed under the same conditions except for the alteration of the term of the contract to October 7, 2014, and the lease was renewed for one year on the same terms and conditions verbally around October 2014.

C. Plaintiff’s premium contract and Defendant’s refusal to enter into a lease agreement

(1) On July 16, 2015, before the expiration of the instant lease agreement, the Plaintiff entered into a premium agreement with the Nonparty to transfer all business facilities and equipment in the instant commercial building to the Nonparty at KRW 145,000,000 for premium, and requested the Defendant to enter into a new lease agreement with the Nonparty.

She, however, the defendant did not conclude a new lease contract with the non-party on the ground that he had a plan to reconstruct or repair the aged building.

D. Details of the Plaintiff’s rent payment

On June 30, 2016, the Plaintiff removed all the Plaintiff’s goods located in the instant commercial building from the instant commercial building, and paid the Defendant the rent by July 7, 2016.

【Ground of recognition】 Evidence Nos. 1 through 7, Evidence No. 14, Evidence No. 15, Evidence No. 15, Evidence No. 2, Evidence No. 25, and the purport of the whole pleadings

3. Judgment on the principal lawsuit

A. Determination on the claim for refund of deposit for lease

(1) argument

㈎ 원고

Since the instant lease contract was terminated, and the Plaintiff delivered the instant commercial building to the Defendant on June 30, 2016, the Defendant is obligated to pay to the Plaintiff the amount of KRW 70,000,000 as lease deposit and the damages for delay calculated at the rate of 15% per annum from the day after the date of delivery of the Plaintiff’s application for the purport of the claim and the change of the cause of the claim as of July 4, 2016 to the day of full payment.

㈏ 피고

① On July 31, 2014, the instant lease agreement: (a) the Plaintiff sublets the instant commercial building to the Nonparty without the Plaintiff’s consent; and (b) from October 8 to August 2015, 2015, the Plaintiff paid the instant commercial building in arrears for a period of 49 months from October 8, 2010 to August 2015, and thus constitutes “the lessee was in arrears with the amount equivalent to the amount of the rent for two or three terms; and (c) the Defendant terminated the instant lease agreement upon the delivery of a duplicate of the instant counterclaim.”

② 피고가 원고에게 반환하여야 할 임대차보증금에서, ㉮ 원고는 현재까지도 피고에게 이 사건 상가를 원상회복하여 인도하지 않았으므로, 2016. 7. 8.부터 2016. 10. 7.까지의 차임 상당의 부당이득금, ㉯ 환기구구멍 2개, 1층 방화문 등 이 사건 상가의 원상복구비용 7,930,000원, ㉰ 전기요금 291,500원, ㉱ 수도요금 4,200원, ㉲ 가스마감출장비 10,000원, ㉳ 정화조청소요금 50,000원이 공제되어야 한다.

③ The Defendant’s obligation to return the deposit is concurrently performed with the Plaintiff’s obligation to deliver the commercial building of this case.

Shed Judgment

㈎ 임대차보증금반환의무의 발생

In light of the testimony of the non-party witness of the first instance trial, the statement No. 2-2 of the evidence No. 2 is insufficient to recognize that the plaintiff sub-leaseed the commercial building of this case to the non-party on July 31, 2014 without permission. There is no evidence to acknowledge otherwise. Even according to the defendant's argument, even if the plaintiff's assertion, the plaintiff delayed the payment of rent, and the plaintiff did not pay the rent for more than two years. Thus, it cannot be deemed that the right to terminate the contract of this case was established to the defendant on the ground of the plaintiff's unauthorized lease and rent delay. Thus, it cannot be deemed that the contract of this case was terminated by the service

However, the Plaintiff also filed the instant lawsuit on August 3, 2015, prior to the expiration of the term of the instant lease agreement that was finally renewed on October 2014, which was premised on the termination of the instant lease agreement. The Defendant also responded to the instant lawsuit on the premise of the termination of the lease agreement, but filed the instant counterclaim on December 8, 2015. As such, the intention of the parties was the same that the instant lease agreement would no longer be renewed, and it is reasonable to deem that the instant lease agreement was terminated on October 7, 2015.

Therefore, the Defendant is obligated to refund KRW 70,000,000 to the Plaintiff, barring special circumstances, according to the termination of the instant lease agreement.

㈏ 임대차보증금에서 공제할 돈의 존부

(1) Undue gains equivalent to the rent from July 8, 2016 to October 7, 2016

원고가 피고에게 2016. 7. 7.까지의 차임을 지급한 사실은 앞서 본 바와 같고, 원고가 피고에게 늦어도 2016. 7. 29.경에는 이 사건 상가를 인도하였음은 아래 ㈐항에서 보는 바와 같은바, 위 인정사실에 의하면, 원고는 이 사건 임대차계약의 종료 이후인 2016. 7. 8.부터 2016. 7. 29.까지 피고에게 차임을 지급함 없이 이 사건 상가를 점유, 사용함으로써 이익을 얻고 이로 인하여 피고에게 손해를 입게 하였다고 할 것이고, 원고가 얻은 이익과 피고가 입은 손해는 이 사건 임대차계약상의 차임 상당액과 같은 액수일 것으로 추인함이 상당하므로, 원고는 피고에게 2016. 7. 8.부터 2016. 7. 29.까지의 차임 상당액인 1,990,645원(= 2,805,000원 × 22일/31일)을 부당이득으로 반환할 의무가 있다.

Therefore, the above KRW 1,90,645 should be deducted from the lease deposit to be returned by the defendant.

(2) Restoration expenses.

In light of the images of Gap evidence 11-1 to 10, it is not sufficient to acknowledge that the images of Eul evidence No. 21, Eul evidence No. 14-1 to 8, Eul evidence No. 26-1 to 19, and Eul evidence No. 32-1 to 32-3 are sufficient to recognize that the plaintiff's failure to restore to the defendant, and the plaintiff's failure to perform the duty to restore to the commercial building of this case, and the plaintiff's failure to perform the duty to restore to the original state of 7,930,000 won, and there is no other evidence to prove otherwise.

Therefore, the defendant's argument that the cost of restoration should be deducted from the lease deposit is without merit.

(3) Electric charges, etc.

Since the Plaintiff’s failure to pay KRW 221,150 out of the electricity charges incurred while using the instant commercial building is the fact, the said money must be deducted from the lease deposit.

However, it is not sufficient to recognize that the Plaintiff failed to pay electricity charges, water rates, gas exhausting equipment, and septic tank cleaning charges exceeding the above money only with the descriptions of Eul evidence 22 and Eul evidence 23, and there is no other evidence to prove otherwise, the Defendant’s allegation in this part of the deduction is without merit.

㈐ 지연손해금의 발생 여부

Comprehensively taking account of the overall purport of evidence Nos. 30 and 31 of the evidence Nos. 30 and 31, ① there is a correction device installed in the main entrance of the instant commercial building; the Plaintiff did not deliver the key to the said main entrance and exit to the Defendant; ② the Plaintiff may recognize the fact that the Plaintiff had been implementing construction works in the instant commercial building from August 10, 2016 to August 12, 2016.

However, on June 30, 2016, the Plaintiff left the commercial building of this case by taking out all the Plaintiff’s goods kept in the commercial building of this case, and taking account of the overall purport of the pleadings, the Plaintiff’s withdrawal from the commercial building of this case, and the Plaintiff’s withdrawal from the commercial building of this case from the commercial building of this case, and the Plaintiff’s withdrawal from the commercial building of this case from the commercial building of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this, the Plaintiff’s withdrawal from the commercial building of this case of this case after the removal from the commercial building of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this document of contents certification can be recognized that the content certification attached to the Defendant’s assertion of this case of this

In full view of the facts acknowledged at the point of chain or cause, the Plaintiff occupied the instant commercial building even after leaving the instant commercial building on June 30, 2016, and occupied, used, while executing the restoration work in the instant commercial building, but at least after notifying the Defendant that the restoration to the original state was completed on July 14, 2016, it appears that the instant commercial building was not actually occupied and used. In light of the fact that the Defendant sent to the Plaintiff a certificate of content attached with a photograph marked inside the instant commercial building on July 29, 2016, the Defendant was able to enter the instant commercial building on or around July 29, 2016. In light of the above circumstances, it is reasonable to deem that the Defendant was subject to the de facto control over the instant commercial building on or around July 29, 2016, and that the Defendant did not directly recover to the Defendant, as stated in the foregoing paragraph, even if the Plaintiff did not directly implement the instant commercial building on or around July 29, 2016.

Therefore, the defendant's simultaneous performance defense, which is premised on the plaintiff's non-performance of the duty of delivery of the commercial building of this case, is without merit, and the defendant is obligated to pay the deposit for lease deposit to be returned to the plaintiff from July 30, 2016, the next day after the delivery of the commercial building of this case.

㈑ 소결론

Therefore, the Defendant is obligated to pay to the Plaintiff KRW 67,788,205 (i.e., KRW 70,00,000 - 1,990,645 (electric utility rate of KRW 221,150) and to pay damages for delay calculated at each rate of 15% per annum as prescribed by the Civil Act from July 30, 2016 to April 12, 2017, which is the day following the delivery date of the instant commercial building, to dispute on the existence and scope of the Defendant’s obligation to perform, from July 30, 2016, which is the day when the judgment of the first instance is rendered to the effect that the Defendant’s obligation to perform is reasonable, and from the following day to the day when the payment is made.

B. Determination on the claim for damages

(1) argument

㈎ 원고

Since the Defendant refused to enter into a lease agreement with the Nonparty who is a new lessee arranged by the Plaintiff, thereby interfering with the Plaintiff’s receiving premium pursuant to the premium agreement with the Nonparty, the Defendant is obligated to compensate the Plaintiff for KRW 135,265,00, which is the amount equivalent to the premium for the instant commercial building, which is the damage incurred by the Plaintiff pursuant to Article 10-4(1) and (3) of the Commercial Building Lease Protection Act (hereinafter “Commercial Building Lease Protection Act”).

㈏ 피고

① On October 1, 2010, the Plaintiff concluded the instant lease agreement and terminated the value of the premium by using and making profits from it for five years. The Defendant’s written reply dated August 31, 2015 is two pages.

② On July 31, 2014, the Plaintiff subleted the instant commercial building to the Nonparty without the Defendant’s consent, and the Plaintiff paid from October 1, 2010 to August 2015 that the amount of the rent for 49 months, excluding nine months, was delayed than the due date. The instant building constitutes a case where it is necessary to recover possession of the Defendant for reconstruction after the lapse of 25 years since it was constructed, and the Plaintiff did not provide any information on whether the new lessee has the ability to pay deposit and rent to the Defendant. As such, there exist grounds for the Defendant to refuse to conclude a contract with the new lessee arranged by the Plaintiff, and thus no liability for damages arises to the Defendant.

Shed Judgment

㈎ 상가임대차법 제10조의4 제1항 의 적용 범위

The main text of Article 10-4(1) of the Commercial Building Lease Act provides that a lessor shall not interfere with the payment of premiums from a person who intends to become a new lessee arranged by a lessee according to a premium contract by doing an act prescribed in the subparagraphs of paragraph (1) from three months to the expiration of the lease term.

Article 10-4 of the Commercial Building Lease Act (amended by Act No. 13284 on May 13, 2015) has been newly established with the aim of protecting the tenant's business value and protecting the opportunity to recover the expenses invested by the tenant and the business value by preventing the economic interests, such as geographical names and credit created as a result of the tenant's investment or business activities, from being infringed upon by the tenant's termination of the contract and the rejection of renewal of the contract, while the tenant has been protected from the business interests formed centering on the leased object due to the new establishment of the aforementioned provision, while the landlord cannot be subject to certain restrictions on the freedom to utilize the leased object by entering into a contract with the tenant he/she wishes or by his/her wishes.

However, as stated in Article 1 of the Commercial Building Lease Act, the purpose of the Commercial Building Lease Act is to prescribe special cases concerning the Civil Act concerning the lease of a commercial building to ensure the stability of the national economic life. Since the establishment of the said provision imposes a certain limitation on the lessor's rights, it would provide conditions for the lessor to receive compensation for such restrictions when entering into a commercial building lease agreement, and the risk that the lessee's status may become unstable can not be ruled out. Thus, the establishment of the said provision would rather be contrary to the original legislative intent of the Commercial Building Lease Act.

However, the proviso of Article 10-4(1) of the Commercial Building Lease Act, and the proviso of Article 10-4(1) of the Commercial Building Lease Act provides that a lessor shall not be obligated to protect the opportunity to recover the premium in cases where there are grounds for refusing the lessee to renew the contract. In light of the legislative intent of the Commercial Building Lease Act and the new purport of the provision of the protection of the opportunity to recover the premium, it is reasonable to interpret that the main text of Article 10-4(1) of the Commercial Building Lease Protection Act is not applicable in cases where the lessor may refuse the lessee’s request for renewal of the contract or the lessee is unable to exercise the right to request renewal of the contract.

In other words, the main text of Article 10(1) of the Commercial Building Lease Act provides that a lessor shall not refuse a request for renewal of a contract between six months and one month before the expiration of the lease term without justifiable grounds as provided by each subparagraph of the above provision. On the other hand, Article 10(2) of the Commercial Building Lease Act provides that a lessee's right to request renewal of a contract may be exercised only to the extent that the whole lease term including the initial lease term does not exceed five years. This provision guarantees the lessee's status by guaranteeing the minimum lease term necessary to recover the capital invested in the leased object for business operation and the market value formed by the lessee, and at the same time protecting the lessee's status by guaranteeing the lessee's minimum lease term necessary to recover the market value formed by the lessee.

Therefore, where the proviso of Article 10-4(1) of the Commercial Building Lease Act provides that the lessor is not obliged to recover the premium if there is a reason to refuse the request for renewal of the contract under each subparagraph of Article 10(1) of the Commercial Building Lease Act, and does not explicitly provide for the case where the lessee is unable to exercise the right to request renewal of the contract under Article 10(2) of the Commercial Building Lease Act. However, the maximum period for protecting the profit of the lessee stipulated in the Commercial Building Lease Lease Act in light of the overall purport of Article 10(1) and Article 10(2) of the Commercial Building Lease Act should be five years. Article 10-4 of the Commercial Building Lease Act also provides for protecting the profit of the lessee, and Article 10-1 and (2) of the Commercial Building Lease Act provides for the first period for protecting the profit of the lessee, and Article 10-4 of the Commercial Building Lease Lease Act provides for the second period for the renewal of the contract without any justifiable reason to permit renewal of the contract between the lessor and the lessee.

㈏ 이 사건의 검토

As seen earlier, the Defendant’s refusal to enter into a lease agreement with the Nonparty who is a new lessee arranged by the Plaintiff as the lessee, but on the other hand, according to the facts acknowledged in the foregoing paragraph 1, the Plaintiff’s refusal to enter into the instant lease agreement on October 8, 2010, which was prior to the expiration of the lease term on October 7, 2015 after the second renewal of the lease agreement, can be seen as a situation in which it was no longer possible for the Defendant to demand the renewal of the lease agreement pursuant to Article 10(2) of the Commercial Building Lease Act at the time of July 16, 2015 when entering into the lease agreement with the Nonparty. Accordingly, the Defendant does not fall under the case where the Plaintiff bears the duty of protecting the opportunity for the Plaintiff to recover the premium pursuant to Article 10-4(1) of the Commercial Building Lease Act.

In the instant case, even if the main text of Article 10-4(1) of the Commercial Building Lease Act applies to the case where the Defendant’s refusal to enter into a lease contract with the Nonparty violates the above provision, it can be acknowledged that the Plaintiff suffered damages due to the Defendant’s violation if the Plaintiff wishes to compensate for damages against the Defendant. In light of the overall purport of the film and pleading in the evidence No. 15 and No. 17 of the evidence No. 15 and No. 17 of the Commercial Building Lease Act, the fact that the Plaintiff moved the business facilities and equipment used in the instant commercial building to the same trade name and continues funeral service by moving the business facilities and equipment used in the instant commercial building to the nearby stores of the instant commercial building, and according to the above acknowledged facts, even though the Plaintiff did not acquire the premium due to the Defendant’s act, it is difficult to view that the Plaintiff did not lose the profit corresponding to the Plaintiff’s business facilities, business districts, geographical conditions, etc., and the Plaintiff did not lose the profit corresponding to the Plaintiff’s profit corresponding to the acquisition of the premium.

㈐ 소결론

Therefore, this part of the Plaintiff’s assertion on the ground that the Defendant violated the duty to protect the opportunity to recover premiums and caused damages to the Plaintiff is without merit.

4. Judgment on the counterclaim

A. The assertion

(1) The defendant

The Plaintiff is obligated to pay to the Defendant the amount calculated at the rate of KRW 2,805,00 per month from July 1, 2016 to the completion date of the delivery of the instant commercial building as unjust enrichment due to the possession and use of the instant commercial building.

【Plaintiffs】

A defendant's counterclaim is unlawful, which is made for the purpose of not meeting the requirements for a counterclaim or substantially delaying the principal procedure.

B. Determination on this safety defense

In light of the fact that both the principal lawsuit and the counterclaim are based on the facts related to the termination of the lease agreement of this case and the basis of the claim is common, the counterclaim of this case is deemed to meet the requirements for the counterclaim, and the procedures for the appraisal of the premium in the principal lawsuit have been initiated even though the counterclaim of this case was raised, the counterclaim of this case cannot be deemed to have been conducted for the purpose of significantly delaying the principal lawsuit procedure. Thus, the plaintiff's principal safety defense is without merit.

C. Judgment on the merits

(i) Between July 1, 2016 and July 7, 2016.

Since the fact that the Plaintiff paid the rent to the Defendant by July 7, 2016 is as seen earlier, this part of the Defendant’s assertion is without merit.

B. from July 8, 2016 to July 29, 2016

As seen earlier, the Plaintiff’s transfer of the instant commercial building to the Defendant on July 29, 2016, and the Plaintiff’s unjust enrichment equivalent to the rent from July 8, 2016 to July 29, 2016 should be deducted from the lease deposit. As such, the rent during the above period should be deemed as having been deducted from the lease deposit, and thus, the Defendant’s assertion on this part is without merit.

Abstract from July 30, 2016 to the completion date of delivery of the commercial building of this case

As seen earlier, the Plaintiff transferred the instant commercial building to the Defendant on July 29, 2016. Therefore, this part of the Defendant’s assertion that the Plaintiff did not perform its duty of delivery during the said period is without merit.

5. Conclusion

Therefore, among the plaintiff's principal lawsuit, the claim for return of deposit against the plaintiff's principal lawsuit is justified within the scope of the above recognition, and the remainder is dismissed without merit. The part concerning the claim for return of deposit against the plaintiff's principal lawsuit and the defendant's counterclaim is unfair. Since the part concerning the claim for return of deposit against the defendant which ordered payment in excess of the above recognition scope is partly different from this conclusion, the part concerning the claim for return of deposit against the defendant in the principal lawsuit in the judgment of the first instance is revoked and the part concerning the claim against the defendant in the judgment of the first instance is dismissed (in the case where only the plaintiff appealed, the part concerning the principal lawsuit in the judgment of the first instance is altered against the plaintiff, but it is reasonable to view that the defendant's objection against the principal lawsuit in the judgment of the court of first instance was changed to the disadvantage against the plaintiff. This is similar to the counterclaim and it does not violate the principle of prohibition of disadvantageous alteration pursuant to the proviso of Article 415 of the Civil Procedure Act. The plaintiff's appeal against this part concerning the principal lawsuit in the judgment of the first instance is justifiable, and thus dismissed the plaintiff's counterclaim.

[Attachment]

Judge Park Jong-hee (Presiding Judge)

(1) On September 27, 2016, the Defendant withdrawn the part of “the claim for return of unjust enrichment equivalent to the rent from November 8, 2015 to June 30, 2016” from the preparatory document as of September 27, 2016.