In a case where a lessor claims only one of the termination of a contract on the grounds of the delay of the two terms, and the termination of a contract on the grounds of the absence of a time-period, whether the principle of right to disposal is applied (affirmative)

A lessor’s assertion that a lessee terminates a lease agreement and claims the return of the leased object on the grounds that the lessee’s delayed amount reaches the amount of rent for two years, and that there is no agreement to claim the return of the leased object, thereby notifying the termination of the contract immediately and claiming the return of the leased object is a separate and independent attack and defense method compatible. As such, if the lessor claims only one of the two, the court shall not urge or determine only the assertion in accordance with the principle of the right to dispose of the leased object.

Articles 635 and 640 of the Civil Act, Article 188 of the Civil Procedure Act

Plaintiff 1 and four others, Counsel for the defendant-appellant-appellee

[Defendant-Appellant] Defendant 1

Busan District Court Decision 91Na10746 delivered on November 20, 1992

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

1. Judgment on the ground of appeal No. 2 by the plaintiffs' attorney

The court below acknowledged that the lease contract relationship between the deceased non-party who is the inheritee and the defendant was established as to the land of this case. After determining the plaintiffs' assertion that the above lease contract was terminated by the defendant's declaration of termination on the grounds of the defendant's two or more years of delay in rent, the defendant paid rent from the part of 1988 every year to the end of 1988. The rent from the part of 1989 was not paid by the above non-party as the transaction negotiation for the land of this case was in progress, and the defendant did not pay the above non-party 1 to the above non-party on February 7, 1991 (as of 190, the end of 190) and the 310,000 won higher than the previous rent from the second half of 190 to the above non-party on the grounds that the above non-party's claim for late 198 and the above non-party's claim for late 20,000 won could not be accepted.

Examining the contents of the preparatory brief stated by the court below on March 19, 192 from 1989 to 1990, it is clear that a sub-agent of the defendant litigation did not receive any difference between the defendant and the non-party as to the land of this case since 1989 to 1990, and it does not have been in arrears due to the defendant's causes attributable to two-year period. Furthermore, the court below did not pay the above two-year period until the end of February 7, 1991, and the defendant provided the above non-party with its implementation only after the end of February 7, 1991 (the end of February 1990). Thus, the court below did not err by misapprehending the legal principles as to the delay and termination of rent as stipulated in Articles 640 and 641 of the Civil Act.

All arguments cannot be accepted unless the judgment of the court below is removed on the premise that the determination of evidence and the recognition of facts belonging to the exclusive jurisdiction of the court below is criticized or that the facts recognized by the court below are inconsistent with the facts recognized by the court below.

2. Determination on the ground of appeal No. 1

A lessor’s assertion that a lessee terminates a lease agreement and claims the return of the leased object on the grounds that the lessee’s delayed delayed amount reaches the amount of rent for two years, and that there is no agreement to claim the return of the leased object, thereby notifying the termination of the contract immediately, and claiming the return of the leased object is a compatible independent attack and defense method. As such, if the lessor claims only one of the two, the court cannot urge or decide only the assertion in accordance with the principle of the right to dispose of the leased object.

Examining the record, it is clear that the plaintiffs asserted only the termination of the lease agreement on the ground of the non-payment of the rent at the time of the closure in the lawsuit in this case, and they did not assert all the validity of the termination by the notification of termination of the lease without the agreement. Therefore, the judgment of the court below is reasonable to determine only the matters alleged by the plaintiffs, and there is no error of law by misapprehending the legal principles on the validity of the termination of the lease agreement, such as the theory of litigation, without neglecting the exercise of the right of tin and failing to properly examine it.

The Supreme Court Decision 83Meu856 delivered on September 13, 1983 or Decision 83Meu841 delivered on March 27, 1984 ruled that in a case where a lawsuit is brought to claim the return of the leased object on the grounds of a delinquency in rent, the right to terminate the lawsuit itself shall be deemed to have been exercised, and therefore, it is not appropriate to invoke the instant case. Ultimately, the Supreme Court Decision 83Meu856 delivered on March 27, 1984 cannot be accepted.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon-young (Presiding Justice)