Plaintiff (Law Firm Ho and two others, Counsel for the plaintiff-appellant)

Defendant (Attorney Yellow-han, Counsel for the defendant-appellant)

March 16, 2017

1. The defendant shall be the plaintiff.

(a) deliver the buildings listed in the separate sheet;

(b) pay 5,209,677 Won;

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall deliver to the plaintiff the building listed in the attached list (hereinafter referred to as "the building of this case"), and shall pay 500,000 won per month from May 4, 2016 to the completion of delivery of the building.

1. Facts of recognition;

A. Lease agreement between the plaintiff and the defendant

On December 10, 2015, the Defendant leased the instant building from the Plaintiff KRW 15,00,000, monthly rent of KRW 500,000, and from January 1, 2016 to January 1, 2018, and paid the Plaintiff the down payment of KRW 10,000,000 to the Plaintiff. On December 31, 2015, the Defendant paid the remainder of KRW 5,00,000 to the Plaintiff.

B. Registration of transfer of ownership in the Plaintiff’s name;

On January 15, 2016, Nonparty 1 completed the registration of ownership transfer based on the gift made on December 9, 2015 to the Plaintiff on the instant building on January 15, 2016.

C. Formation of mediation of a previous lawsuit

The defendant filed a lawsuit against the plaintiff et al. in Gwangju District Court (2016Gadan3800) claiming 25,348,000 and damages for delay. The relevant part of the grounds for the lawsuit is as follows, and mediation was established on May 3, 2016 as follows:

1) Grounds for claim

The Defendant leased the instant building from the Plaintiff as above. Since the said building was owned by Nonparty 1, not by the Plaintiff, the said building was owned by him, the Defendant was unable to register the restaurant business. Accordingly, the Defendant demanded the Plaintiff to prepare a written contract again or to prepare the power of attorney of Nonparty 1, but the Plaintiff refused to do so. Therefore, the Plaintiff must return the deposit money to the Defendant and pay consolation money for mental damage.

(ii) the conciliation provisions;

“The Plaintiff shall pay KRW 13,500,000 to the Defendant after two days from the date on which the Defendant reinstated approximately KRW 330 square meters of the instant building and its site to its original state.

The defendant waives the remainder of the claim against the plaintiff.

Litigation costs and conciliation costs shall be borne by each person.

D. Defendant’s delivery of keys to Nonparty 2

On the other hand, the defendant, after leaving the building of this case before and after the completion of the conciliation, delivered the key to the building of this case to the non-party 2 who had continuously resided in the building of this case as the former lessee, and thereafter he occupied the building of this case.

【Ground of recognition】 The fact that there is no dispute, Gap 1-3, Eul 6, the purport of the whole pleading

2. As to the claim for extradition

A. Determination on the cause of the claim

According to the above facts, the above lease agreement was concluded upon the formation of the above conciliation and the agreement between the plaintiff and the defendant. Accordingly, the defendant is obligated to deliver the above building to the plaintiff by restitution.

B. Judgment on the defendant's assertion

1) As to this, the Defendant asserts that the Plaintiff cannot respond to the Plaintiff’s request for extradition, since he/she did not directly or indirectly occupy the instant building.

However, since the evidence presented by the defendant alone is insufficient to recognize that the defendant is not indirectly occupying the above building, the above argument by the defendant is without merit (see Supreme Court Decision 90Da19695 delivered on April 23, 191).

2) In addition, the Defendant asserts that, in January 2016, Nonparty 2, the lessee, who had been continuously residing in the instant building, delivered the keys to the said building to Nonparty 2, and removed the said building from the office, etc. by taking out all the clothes of the house.

However, even if the plaintiff avoided contact with the defendant as alleged by the defendant, it cannot be deemed that the duty to deliver the plaintiff to the non-party 2, other than the lessor, was fulfilled merely because the plaintiff delivered the key to the building of this case to the non-party 2. Thus, the defendant's assertion is without merit.

3) The defendant has a duty to deliver the above building only on the condition that the plaintiff redeems the security deposit or the security deposit.

However, if we look at the purport of the entire argument in the above facts, it is recognized that at the time of the above mediation, the plaintiff and the defendant agreed to pay KRW 13,500,000 to the defendant the balance of the lease deposit after two days from the date when the plaintiff restored to the original state about 330 square meters of the building and its site of this case and the defendant delivered it to the plaintiff. Thus, the plaintiff's obligation to return the lease deposit cannot be deemed to have a simultaneous performance relationship with the defendant'

3. As to the claim for money

(a) Claim for unjust enrichment

The plaintiff asserts that the defendant or the non-party 2 should return to the plaintiff, since he or she obtained unjust enrichment equivalent to the rent of KRW 500,000 per month from May 4, 2016 to the completion of delivery of the building in this case.

However, the evidence submitted by the Plaintiff alone is difficult to recognize that the Defendant gains a substantial profit equivalent to the rent of the instant building from May 4, 2016, and there is no ground to claim the return of unjust enrichment equivalent to the rent of the instant building acquired by Nonparty 2 against the Defendant. Therefore, the Plaintiff’s above assertion is without merit.

(b) Claim for damages due to unlawful acts;

1) Determination on the cause of the claim

The plaintiff asserts that even if the defendant did not obtain unjust profits, the defendant should pay damages for tort to the plaintiff, since the plaintiff was unable to use the real estate of this case.

According to the above facts, the defendant did not deliver the key to the building of this case owned by the plaintiff to the non-party 2 even though the above lease contract was terminated, and the defendant did not have the right of defense of simultaneous performance. Thus, the defendant is liable to compensate the plaintiff for the damages equivalent to the rent-5,209,677 won [=50,000 + 10 + 13/31), and less than KRW 50,000] from May 4, 2016 to March 16, 2017, which is the day following the date on which the conciliation was completed, by negligence, the plaintiff was unable to use the key to the building of this case owned by the plaintiff from May 4, 2016 to March 16, 2017, which is the date on which the conciliation was completed.

However, in order to render a decision ordering future performance, the obligation shall continue to exist not only when the deadline for the performance of the obligation arrives in the future, but also until the time the cause for the failure to perform is determined at the time of the closing of argument, and in a case where the period of liability is uncertain and it is not determined at the time of the closing of argument, a decision ordering future performance cannot be rendered (see Supreme Court Decision 2000Da37517, Jun. 14, 2002). As to the instant case, health class and the instant building are directly occupied by Nonparty 2 at the time of the closing of argument in this case, and the occurrence of damages that the Plaintiff could not use, regardless of the intention of the Defendant, may be suspended. Thus, it is difficult to view that the Defendant could finally estimate that the damages that the Plaintiff could not use until the time of the delivery of the said building to the

2) Judgment on the defendant's assertion

The defendant, in January 2016, contacted the plaintiff in order to leave the building of this case, but the plaintiff had no choice but to build the key to the non-party 2 who was forced to avoid this and continued to reside in the building of this case.

However, just because the plaintiff avoided contact with the defendant, the defendant cannot be exempted from liability for delivering the key to the building of this case to the non-party 2. Thus, the defendant's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable within the above scope of recognition, and the remaining claims are without merit.

[Attachment]

Judges Park Jong-young