Plaintiff

Defendant

August 28, 2014

Incheon District Court Decision 2013Na22897 Decided April 23, 2013

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 25,682,977 won with 20% interest per annum from the next day of the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

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

1. Basic facts

A. On November 5, 2003, the Plaintiff leased approximately 50,000,000, monthly rent, KRW 1,200,000, and the duration from December 1, 2003 to November 30, 205 (hereinafter the instant lease agreement) the real estate of this case to the Defendant on December 1, 2003, while delivering the instant real estate to the Defendant on December 1, 2003.

B. The Defendant changed the rent to KRW 1,100,000 per month between the Plaintiff and the Plaintiff around January 2009, and agreed to pay the rent in advance at the beginning of the month, and continued the instant lease agreement by implied renewal. On June 30, 2012, the instant lease agreement was terminated and the instant real estate was handed over to the Plaintiff on the same day.

[Ground of recognition] Unsatisfy, Gap evidence No. 1 and the purport of whole pleadings

2. The parties' assertion

A. The plaintiff

The Defendant paid KRW 16,166,592 to the Plaintiff the sum of the rent and management expenses in 2004, but KRW 9,449,40 to the Plaintiff. The sum of the rent and management expenses in 2005 was KRW 16,48,036, but the Plaintiff paid KRW 8,261,00 in aggregate, KRW 16,824,020, but the sum of the rent and management expenses in 2006 was KRW 15,621,932 to the Plaintiff. The sum of the rent and management expenses in 207 KRW 18,139,083, but the sum of KRW 17,032,438 was 17,000, KRW 206, KRW 2086, KRW 167, KRW 208, KRW 168, KRW 206, KRW 209, KRW 206, KRW 168,209, KRW 1696,20606.

Meanwhile, even though the Plaintiff, at the Defendant’s request from October 2008, issued a tax invoice for monthly rent to the Defendant and agreed to separately receive value-added tax, the Defendant did not pay the amount of value-added tax for 360,000 won (10% of the rent before the alteration x 3 months x 12 months), 1,440,000 won in 208 (120,000 x 12 months), 1,320,000 won in 209 (10% of the rent after alteration x 12 months x 10,000 x 12 months), 1,320,00 won in 200 (10,000 won in x 12 months), 1,320,00 won in 201, 1,320, 1,000 won in x 10,1000 won in x 26 months in 2016.

Therefore, the Defendant is obligated to pay the Plaintiff the remainder of KRW 25,682,977, which remains after deducting KRW 12,00,000 from the lease deposit in total of KRW 37,682,977, which was unpaid to the Plaintiff.

B. Defendant

Since the right to rent of this case is three years of the extinctive prescription, the part on the claim for rent of this case has expired by prescription until October 2009, and the full amount of rent and management expenses was paid after November 2009, and there was no agreement between the Plaintiff and the Plaintiff on the burden of value-added tax on rent, and thus, the Plaintiff cannot respond to the Plaintiff’s claim.

3. Determination

A. As to the rent claim portion

1) The portion of the claim for rent by October 2009

Since the defendant asserts that the above claim of the plaintiff was extinguished by the prescription, it constitutes a claim for the payment of money within the period of one year as stipulated in Article 163 subparagraph 1 of the Civil Code, and it constitutes a claim for the payment of the rent of this case, and it shall be three years. As seen earlier, the maturity period of the rent of this case has arrived before October 1, 2009 as the first day of each month, and it is apparent in the record that the plaintiff's lawsuit of this case was filed on October 10, 2012, which is after three years have passed since the lawsuit of this case was filed on October 10, 201. Thus, the rent claim of this case until October 209 had already expired before the lawsuit of this case was filed.

Therefore, the plaintiff's above claim is rejected as it is without merit.

2) The portion of the claim for rent after November 2009

Of the rent claim portion from November 2009 to June 2012, 2012, the Defendant paid the remainder other than the tea in December 2009, March 201, and December 2010 to the Plaintiff is either under dispute between the parties or under dispute between the parties that the Defendant paid the Plaintiff the tea, or under the statement in the evidence Nos. 5-1 through 25, B, 9, 10, and 11.

As to this, the plaintiff argued that some of the rent from the defendant after November 2009, which was paid by the defendant, has been appropriated preferentially for the unpaid rent prior to October 2009, the prescription period of which has expired. However, inasmuch as there is no evidence to acknowledge that the plaintiff and the defendant agreed to preferentially cover the unpaid rent prior to October 2009, the plaintiff shall be appropriated first for the repayment of the rent after November 2009, in other words, that the defendant who is the debtor, has a large interest in the repayment under Article 477 subparagraph 2 of the Civil Act, and that the statute of limitations has not yet expired, the plaintiff's above assertion is without merit.

Although the defendant asserts that he paid the rent to the plaintiff on December 2, 2009, March 3, 2010, and December 2010, the defendant asserted that he paid the rent to the plaintiff, the above argument by the defendant is not sufficient to acknowledge the fact of the payment of the rent, and there is no other evidence to support this.

Therefore, barring special circumstances, the defendant is obligated to pay the plaintiff the rent of 3.3 million won for three months and damages for delay.

B. Regarding the part concerning the claim of management expenses

Although the Plaintiff asserted that part of the management expenses was not paid by the Defendant, the Plaintiff’s evidence Nos. 2, 5, 6, 8 through 11 submitted by the Plaintiff (including a serial number) is merely limited to the specifications of the Plaintiff’s own reorganization, and as long 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 in relation to the instant real estate, the Plaintiff’s claim for this part is rejected.

C. Regarding the claim for value-added tax

In light of the fact that even if based on the instant lease agreement (Evidence A No. 1), the Defendant did not stipulate a special agreement that the Plaintiff would pay value-added tax, separate from the rent, and that the Defendant submitted a tax invoice (Evidence B No. 2-1 through 48) to the Plaintiff to the effect that the Plaintiff was fully paid the rent, and that there is no Defendant’s signature or seal on the recipient column of the tax invoice, the evidence submitted by the Plaintiff alone is insufficient to deem that the Defendant agreed to pay the value-added tax on the monthly rent to the Plaintiff separately, and there is no other evidence to acknowledge this otherwise.

Therefore, the plaintiff's above part of claim cannot be accepted as it is without merit.

D. Sub-committee

Ultimately, the Defendant is obligated to pay 3.3 million won to the Plaintiff for a three-month rent, but as seen earlier, the Plaintiff expressed his/her intent to deduct the said rent from 12 million won with the statement of the instant complaint, so the Defendant’s obligation to pay the said rent to the Plaintiff does not exist any longer.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim of this case is dismissed as per Disposition

Judges Lee Jin-tae (Presiding Judge)