Plaintiff (Law Firm Patry, Attorneys Cheong-sung et al., Counsel for the plaintiff-appellant)

Defendant

February 24, 2016

Seoul Eastern District Court Decision 2014Da133642 Decided May 22, 2015

1. The part concerning the claim (the main claim) in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

2. One half of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall deliver to the plaintiff part 36.3 square meters on the ship (A) connected with each point of Annex 1, 2, 3, 4, 5, and 18.61 square meters in sequence, among the first floor of the real estate listed in the attached list, to the plaintiff, the amount calculated at the rate of 20% per annum from the following day of the first instance judgment to the day of complete payment, and the amount calculated at the rate of 2,238,280 won per annum from April 1, 2015 to the day of complete delivery of the above real estate.

2. Purport of appeal

The same shall apply to the order.

1. Scope of the judgment of this court;

In the first instance court, the plaintiff sought the delivery of real estate and the payment of money, and the defendant filed an appeal only for the part of the monetary claim, so the subject of the judgment in this court is limited to the above part of the monetary claim.

2. Facts of recognition;

A. The defendant's conclusion of a lease agreement

On April 23, 2010, the Defendant entered into a lease contract with Nonparty 1, Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5 (hereinafter “Nonindicted 1, etc.”) on the attached list (hereinafter “instant building”) to the lease deposit amount of KRW 25 million, KRW 16.3 square meters on the ship (hereinafter “instant store”) connected each point in sequence of subparagraph (a) of attached Form 1, 2, 3, 4, 5, and 18.3 square meters on April 29, 201 with respect to the real estate listed in the attached list (hereinafter “instant building”). From April 23, 2010, the Defendant appears to have entered into a lease contract with Nonparty 1, Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5 (hereinafter “Nonindicted 1, etc.”) from April 29, 2010 to April 30, 2011.

Around that time, the Defendant paid the lease deposit to Nonparty 1, etc. and received the delivery of the instant store, and operated the real estate brokerage office at the instant store without distinguishing the aforementioned lease contract from before and after the renewal (hereinafter “instant lease”).

B. Acquisition of ownership of the Plaintiff’s building of this case

The Plaintiff received a successful bid of the instant building through the auction procedure for partition of co-owned property, and completed the registration of ownership transfer as to the said building on July 30, 2014.

C. The defendant's default of rent, etc. and the plaintiff's termination notice

Since the Plaintiff acquired the ownership of the instant building, the Defendant did not pay rent continuously, and on November 7, 2014, the Plaintiff notified the Defendant of the termination of the instant lease agreement on the ground that he/she did not pay rent for more than three years.

From August 1, 2014 to March 31, 2015, the Defendant’s delayed rent and management expenses, and the amount of unjust enrichment equivalent to the rent were KRW 17,906,240 in total [the amount of KRW 2,238,280 in each month + value-added tax + KRW 187,280 in value-added tax + KRW 187,800 in management expenses + value-added tax + KRW 164,800 in value-added tax + value-added tax + KRW 164,80 in value-added tax + KRW 16,480 in each year]; the Defendant did not pay the electricity fee and KRW 693,507 in the said period and KRW 39,64 in water supply fees.

D. The defendant's delivery of this case's store

On June 12, 2015, the Defendant delivered the instant store to the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 8, 10, 11, Eul evidence Nos. 1, 2, 6 and 7 (including each number), the purport of the whole pleadings

3. Determination on the Plaintiff’s demand for overdue rent, etc.

According to the above facts, the lease contract of this case was lawfully terminated around November 7, 2014 according to the plaintiff's notice of termination on the ground that the status of the lessor was succeeded to the plaintiff.

Therefore, barring any special circumstance, the Defendant is obligated to pay to the Plaintiff the amount of unjust enrichment equivalent to the rent, management expenses, or rents that accrue from August 1, 2014 to March 31, 2015 (17,906,240 won), the amount of electricity fees (693,507 won), and the water fees (39,664 won), 18,639,411 won, delay damages therefor, and the amount of unjust enrichment calculated at the rate of 2,238,280 won per month from April 1, 2015 to June 12, 2015, which is the date the delivery of the instant store is completed.

4. Judgment on the defendant's assertion

A. Determination on the assertion regarding value-added tax

1) The Defendant asserts that, unlike Nonparty 1, etc., the former lessor, the Plaintiff did not issue a tax invoice, and thus, the Plaintiff does not have any obligation to pay value-added tax.

2) According to the evidence No. 3, Article 15(2) of the lease agreement prepared at the time of the instant lease agreement provides that “The value-added tax shall be borne by the Defendant at the time of the issuance of the tax invoice.” However, the Plaintiff, a lessor, has no obligation to issue the tax invoice as a matter of course pursuant to the Value-Added Tax Act, and the obligation to pay the value-added tax and the obligation to issue the tax invoice to the Plaintiff cannot be deemed as a quid pro quo obligation in accordance with the agreement. In light of the above, it is reasonable to interpret that the above provision does not mean that the Defendant’s obligation to pay the value-added tax takes place as a condition of suspending the issuance of the tax invoice by a lessor, but rather, it is merely a re-verification of the lessor’

Therefore, we cannot accept this part of the defendant's argument.

B. Determination on the assertion that a store’s use or profit-making impairment is hindered

The defendant asserts that the defendant who operates the real estate brokerage office is not obliged to pay rent or management fee, because the plaintiff is prohibited from using the parking lot of the building of this case, or the plaintiff's management office conducts the business of leasing the parking lot of the building of this case along with the plaintiff's management office so that the defendant who operates the real estate brokerage office of this case

However, it is insufficient to recognize the fact that the Defendant was unable to use or make profits from the instant store due to the Plaintiff only with the descriptions or images of the evidence Nos. 4 and 5, and there is no other evidence to acknowledge it.

Therefore, the defendant's above assertion is without merit.

C. Determination as to the assertion of deduction from the lease deposit

1) The Defendant asserts to the effect that, as the Plaintiff, who succeeded to the status of the lessor, is obligated to refund the lease deposit amount of KRW 25 million, the said deposit should be deducted from the said deposit. Accordingly, the Plaintiff asserted that, from July 2014, the rent in arrears, etc., which the Defendant delayed to Nonparty 1, who was the former lessor, etc. until July 2014 acquired the ownership of the instant building, was KRW 34,951,320, and at the time the Plaintiff succeeded to the status of the lessor, there was no deposit to be returned

2) The deposit received in the lease of real estate provides a security for all obligations arising from the lease relationship, such as rent and damage liability arising from the loss of, damage to, etc. of an object, and 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 9Da50729, Dec. 7, 1999). Meanwhile, the lessor may freely choose whether the overdue loan is appropriated from the lease deposit while the lease relationship is in progress. Thus, it is not naturally deducted from the lease deposit without a separate declaration of intention, such as deduction, before the termination of the lease contract (see Supreme Court Decision 2011Da49608, 496115, Feb. 28, 2013). Where the status of the lessor succeeds to the assignee, the amount equivalent to the secured obligation is not succeeded to unless the requirements for a separate claim for overdue loan already occurred (see Supreme Court Decision 2002Da32028, Oct. 29, 2008, 208).

In relation to this issue, there is no evidence to prove that the Plaintiff, before the Plaintiff succeeded to the status of the lessor, but at that time, the relationship between the lessor and the Defendant was lawfully terminated, or there was no declaration of intent to deduct the overdue rent, etc. from the deposit before the termination of the instant lease agreement (the Plaintiff also sought payment of overdue rent, etc. on the premise that the lease relationship was maintained and the Plaintiff succeeded to the status of the lessor), and there is no evidence to prove that the Plaintiff received the overdue rent, etc. from Nonparty 1, etc. during the period of the lease agreement with the Defendant.

Therefore, the rent in arrears, etc. that occurred before the Plaintiff succeeds to a lessor’s status cannot be deducted from the deposit. However, as acknowledged earlier, the rent in arrears, etc. that occurred from August 1, 2014 after the Plaintiff acquired ownership of the building of this case to June 12, 2015 after the Defendant delivered the instant store to the Plaintiff is naturally deducted from the deposit. Thus, this part of the Defendant’s assertion is with merit.

3) In other words, the Plaintiff asserts to the effect that: (a) the Plaintiff’s failure to pay the deposit to the former lessor to the extent that the deposit remains; and (b) the Plaintiff’s exercise of the right to terminate the lease constitutes abuse of rights; (c) or (d) the Plaintiff’s exercise of the right to terminate the lease by exercising the right to claim reimbursement against the former lessor, which was incurred due to the Plaintiff’s failure to exercise the right to claim reimbursement of the deposit, offset the Plaintiff

However, in a case where a commercial lessee succeeds to the status of a lessor after having the opposing power under the Commercial Building Lease Protection Act, the obligation to return the lease deposit also is transferred in combination with the ownership of a lessor, and accordingly, the obligation to return the lease deposit becomes extinct (see Supreme Court Decision 96Da38216, Nov. 22, 1996, etc.). Therefore, it cannot be deemed that the Plaintiff performed the obligation to return the deposit by the former lessor instead of the obligation to return the deposit (see Supreme Court Decision 96Da38216, Nov. 22, 1996, etc.). In addition, it cannot be deemed that the Plaintiff performed the obligation to return the deposit instead of the former lessor (the Plaintiff does not acquire the right to indemnity against the former lessor). Since the Defendant still is unable to exercise the obligation to pay the deposit to the former lessor for the overdue rent that occurred during the term of the lease with the former lessor, it cannot be deemed

Therefore, the plaintiff's above assertion is without merit.

D. Sub-committee

① The Defendant has no obligation to pay the Plaintiff the rent and management expenses or the amount of undue gains equivalent to the rent, electricity and water supply fees, etc. ② ② From August 1, 2014 to March 31, 2015 to KRW 18,639,411; ② From May 23, 2015 to June 12, 2015, the Defendant had a reasonable ground for contesting the existence or scope of the obligation to pay the Plaintiff’s money. From August 1, 2014 to March 31, 2015: KRW 53,620 [18,639,411 x 5/100 x 200 x 21/365 x 200 x 240 x 294 x 20 m365 m 20 m 24, 296 m m 2. The Defendant has no obligation to pay the Plaintiff’s deposit for delay.

5. Conclusion

Therefore, the plaintiff's claim for monetary payment against the defendant shall be dismissed as it is without merit. Since the part corresponding to the judgment of the court of first instance is unfair with different conclusions, the plaintiff's claim for monetary payment shall be revoked and it is so decided as per Disposition.

[Attachment]

Judges Spanwon (Presiding Judge)