[1] In a case where a lessee who has both opposing power and preferential right to payment demand a distribution but fails to receive the total amount of deposit, whether the successful bidder can make a defense of simultaneous performance as to the balance (affirmative)

[2] Where a lessee who was unable to refund a lease deposit after the termination of the lease continues to possess the leased object based on the right of defense of simultaneous performance (negative), the existence of the obligation to compensate for damages and the existence of the obligation to return unjust enrichment (affirmative with qualification)

[3] In a case where a lessee, who has both opposing power and preferential right to payment, demands a distribution, but only a part of the security deposit, continues to use and benefit from all the leased objects after having received a distribution, whether the obligation to return unjust enrichment for the part corresponding to the security deposit received (affirmative)

[1] Even if a lessee who has both opposing power and preferential right to payment under the Housing Lease Protection Act concurrently claimed a distribution of the whole amount of the deposit in an auction procedure under progress for the leased house by selecting the preferential right to payment first, it is reasonable to view that in case where a dividend has been implemented, if the total amount of the deposit could not be distributed, the remaining amount which remains after deducting the amount which could have been distributed in the auction procedure from the deposit may be asserted by the successful bidder until the refund thereof is returned. In this case, the lease is terminated by the lessee's demand for distribution and the lease relationship remains until the lessee redeems the balance of the deposit under Article 4 (2) of the Housing Lease Protection Act, and the successful bidder shall succeed to the status of the lessor at the time of termination of the lease under Article 3 (2) of the same Act.

[2] Since the lessee’s duty to specify the object of lease after the termination of the lease and the duty to return the lease deposit remaining after deducting the lessor’s overdue rent and other damages, if the lessee occupies, uses or benefits from the leased object based on the right of defense of simultaneous performance, such possession cannot be deemed an illegal possession, and thus, shall not be held liable for damages. However, if the lessee gains a substantial profit from the use or profit, it shall be returned as unjust enrichment.

[3] If a lessee, who has both opposing power and preferential right to payment under the Housing Lease Protection Act, demands a distribution, but fails to receive the total amount of the deposit, the lessee may assert the existence of the lease relationship with respect to the relevant portion of the deposit for lease until the amount which was not distributed is returned, but it cannot be asserted as to the remainder of the deposit. Therefore, if the lessee uses and benefits from all the dispute over lease even after the lease contract was terminated due to his/her right to demand a distribution, and if the lessee gains substantial profits from the termination of the lease contract, then he/she has to obtain unjust enrichment for the portion corresponding to the remaining deposit, excluding the portion equivalent to the amount which is not deemed to continue to exist, out of the amount equivalent to the appropriate

[1] Articles 3(2), 3-2(1), and 4(2) of the Housing Lease Protection Act / [2] Articles 536, 618, 741, and 750 of the Civil Act / [3] Article 741 of the Civil Act, Articles 3(2), 3-2(1), and 4(2) of the Housing Lease Protection Act

[1] Supreme Court Decision 96Da53628 delivered on August 22, 1997 (Gong1997Ha, 2793), Supreme Court Decision 97Da11195 delivered on August 29, 197 (Gong1997Ha, 2856), Supreme Court Decision 98Da2754 delivered on June 28, 1998 (Gong1998Ha, 1984) / [2] Supreme Court Decision 91Da35823 delivered on May 12, 1992 (Gong192, 1840), Supreme Court Decision 95Da1464, 14671 delivered on July 25, 1995 (Gong195Ha, 295Ha, 195Ha, 1979).

Plaintiff

Defendant

Daegu District Court Decision 97Na4393 delivered on February 20, 1998

The part of the lower judgment regarding the claim for restitution of unjust enrichment is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. The Plaintiff’s remaining appeal is dismissed.

The grounds of appeal are examined.

1. On the first ground for appeal

Even if a lessee, who concurrently has two rights such as opposing power and preferential right to payment under the Housing Lease Protection Act, has demanded a distribution of the whole amount of the deposit in an auction procedure progress for the leased house by selecting the preferential right to payment first, it is reasonable to view that the successful bidder may claim the continuation of the lease relationship until the successful bidder files a claim against the successful bidder for the balance remaining after deducting the amount that could have been paid in the auction procedure from the deposit, if dividends are not paid in accordance with the order of priority. (See, e.g., Supreme Court Decisions 96Da53628, Aug. 22, 1997; 97Da1195, Aug. 29, 197; 97Da1195, Aug. 29, 197; Provided, That since the successful bidder is deemed to continue the lease relationship until the lessee redeems the balance of the deposit under Article 4 (2) of the same Act, the successful bidder shall succeed to the status of the lessor under Article 3 (2) of the same Act.

In the same purport, the court below is justified to have determined that the Plaintiff, the successful bidder of the lease relationship, can assert the existence of the lease relationship until the refund is made, inasmuch as the Defendant satisfied the requirements to oppose the existence of the lease relationship to third parties, such as lessors, with respect to the amount of KRW 20 million out of the lease deposit of this case. In so doing, the court below did not err by misapprehending the legal principles as to the transferee of the leased house under the Housing Lease Protection Act

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below rejected the Plaintiff’s claim for restitution of unjust enrichment equivalent to the Plaintiff’s rent of this case on the ground that there exists a right of lease against the Defendant, and even if the lease period has expired, since the Plaintiff’s obligation to return the lease deposit of this case and the obligation to clarify the object of lease of the Defendant are in simultaneous performance relationship, the former lease relationship exists until the Plaintiff refunds the lease deposit to the Defendant. Since the Defendant did not agree with Nonparty 1 on the payment of rent of this case separately every month in the previous lease contract with the lessor Nonparty 1, the court below rejected this claim on the ground that the Plaintiff

Since the lessee’s obligation to specify the leased object after the termination of the lease and the duty to return the lease deposit remaining after deducting the lessor’s overdue rent and other damages, if the lessee occupies, uses, or gains profit from, the leased object based on the right of defense of simultaneous performance, the possession cannot be deemed an illegal possession, and thus, shall not be held liable for damages incurred therefrom. However, if the lessee gains a substantial profit from the use or profit, it shall be returned as unjust enrichment (see, e.g., Supreme Court Decisions 80Da1201, Jan. 13, 1981; 87Meu214, 215, 2116, Feb. 28, 1989).

However, in the case of this case, the defendant, as the lessee, can assert the existence of the lease relationship with respect to the remaining part of the lease deposit until the refund of 20 million won is made. However, since the defendant cannot assert the existence of the lease relationship with respect to the remaining part of the lease deposit, if the defendant gains substantial profits from the use and profit-making of the whole part of the dispute lease even after the termination of the lease contract of this case, if the contract of this case was terminated and the defendant gains substantial profits from the use and profit-making of the whole part of the lease, the amount equivalent to the appropriate rental fee of the dispute of this case, excluding the amount equivalent to 20 million won, shall be deemed to continue to exist, and thus, it shall be returned.

Nevertheless, the court below erred in misunderstanding the legal principles as to unjust enrichment in the case of the plaintiff's rejection of the claim for restitution of unjust enrichment in this case on the ground that the defendant did not agree to pay rent every month in addition to the lease deposit, until the plaintiff refunds the lease deposit to the defendant, and it is clear that such illegality affected the conclusion of the judgment, therefore, the ground of appeal on this point is with merit.

3. Therefore, the part of the judgment of the court below regarding the claim for restitution of unjust enrichment is reversed, and that part of the case is remanded to the court below, and the remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by

Justices Jeong Jong-ho (Presiding Justice)