The case holding that a lessor cannot refuse a lessee's request for renewal on the ground that a lessee cannot be deemed to have violated the obligations under the standard lease contract, in case the lessor of a rental house subject to the Rental Housing Act requested the renewal of the lease contract to the lessee while the lessee wishes to renew the contract but the lessee fails to comply with the changed terms and conditions of lease.

Where a lessor of a rental house subject to the Rental Housing Act requests the renewal of a rental contract to a lessee while changing the terms and conditions of lease, but a lessee wishes to renew the contract but fails to comply with the changed terms and conditions of lease, the lessor cannot be deemed to have violated the obligations under the standard terms and conditions of lease, and thus the lessor cannot refuse the request for renewal.

Articles 16, 18 (1) and (3) of the Rental Housing Act, Article 14 (1) and (2) of the Enforcement Decree of the Rental Housing Act, Article 8 of the Enforcement Rule of the Rental Housing Act [attached Form 10], Article 6 of the Housing Lease Protection Act

Plaintiff (Attorney Kim Young-soo, Counsel for the plaintiff-appellant)

Defendant (Attorney early First LLC et al., Counsel for the defendant-appellant)

Gwangju District Court Decision 2004Da61124 Decided August 12, 2005

February 22, 2006

1. The plaintiff's appeal is dismissed.

2. Upon the plaintiff's preliminary claim added at the trial, the defendant will deliver the building as stated in the separate sheet to the plaintiff with payment and reimbursement of KRW 54,179,000 from the plaintiff.

3. The plaintiff's remaining conjunctive claims are dismissed.

4. Two-minutes of the costs of the trial are assessed against the plaintiff, and the remainder is assessed against the defendant.

5. Paragraph 2 can be provisionally executed.

1. Purport of claim

Main and Preliminary, the Defendant: (a) handed over the building listed in the attached list to the Plaintiff (the Plaintiff added the conjunctive claim at the trial).

2. Purport of appeal

The judgment of the first instance is revoked. The defendant shall deliver the building listed in the attached list to the plaintiff.

1. Facts of recognition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the argument as a result of the fact inquiry into the head of the Seo-gu Gwangju Metropolitan City, Gwangju Metropolitan City, and the purport of the argument as to the fact inquiry as to the head of Seo-gu, Gwangju Metropolitan City, without dispute between the parties, Gap evidence 1 through 5, Gap evidence 6-1 through 5, Eul evidence 7-1, 2, Eul evidence 1, 4, 6

A. On May 26, 200, the Defendant entered into a lease agreement with Korea-U.S. Investment Development Co., Ltd. (hereinafter “Korea-U.S. Investment Development”) on setting lease deposit amount of KRW 49,700,00 (hereinafter “instant apartment”) to lease the buildings listed in the attached list subject to the Rental Housing Act (hereinafter “instant apartment”) (hereinafter “instant lease agreement”), and the Plaintiff succeeded to the status of lessor under the instant lease agreement of Korea-U.S. Investment Development.

B. After paying KRW 2,185,00 to the Plaintiff as the increase in the lease deposit, the Defendant paid KRW 2,294,000 to May 29, 2002, and paid KRW 54,179,00 for the total lease deposit of the instant lease agreement, and the lease term was renewed from May 25, 2002 to May 24, 2004.

C. On April 21, 2004, when the Plaintiff wishes to renew the lease contract of this case (the lease term from May 25, 2004 to May 24, 2005) due to the increase of lease deposit by 5% for the occupants of Hobioviol apartment including the Defendant (including various apartment buildings, and the apartment of this case is a partitioned building; hereinafter referred to as “ Hobioviol apartment”), the Plaintiff shall additionally pay the lease deposit amount from May 27, 2004 to the next day, and it shall be possible to renew the contract by the head of the Gu of Gwangju Metropolitan City, which was issued by the Defendant to the effect that the Defendant installed a boiler pipeline on the floor of the apartment of this case, and that the Defendant shall be exempted from the rent of this case, and the Defendant’s corrective order shall be restored to the original state.

D. Accordingly, the Defendant unilaterally raised the rent deposit to the Plaintiff by 5% and did not comply with the Plaintiff’s request while disputing the Plaintiff’s responsibility to restore the balcony expansion area to its original state.

E. Around May 13, 2004, the Plaintiff notified the Defendant that the instant lease contract was terminated on May 24, 2004 under the title “Notice of Termination of the Lease Contract.” In a case where the Plaintiff did not wish to renew the instant lease contract on the condition of additional payment of KRW 2,470,000 for the increase of lease deposit and additional payment of KRW 2,470,000 for the said corrective order, the Plaintiff demanded to receive the documents following the termination of the lease contract until May 23, 2004, and notified the Defendant that he would return the amount necessary for restoring the balcony part to its original state at the time of delivery of the instant apartment, after deducting the amount necessary for restoring the balcony part to its original state from the lease deposit

F. Meanwhile, around July 2004, the Defendant filed a lawsuit against the Plaintiff on the ground that the extended part of the balcony is subject to the right to purchase the appurtenances or the right to claim reimbursement of beneficial expenses, with 300 other occupants of the Hoblue Loan (case number omitted).

G. Following the expiration of the mandatory rental period under the Rental Housing Act of the apartment of this case and the Plaintiff’s purchase in lots, some of the occupants of Hoblyglyglyglyglyglyglygy, including the Defendant, delegated all rights related to the sale of Hoblyglyglyglyglyglyglyglyglygly to the Housing Purchase Countermeasure Committee (the non-party chairperson) around July 2005, and the said Housing Purchase Countermeasure Committee and the Plaintiff agreed on October 8, 2005 (hereinafter “the agreement of this case”).

(1) The plaintiff, until October 31, 2005, shall sell apartment units subject to conversion for sale to sale to the resident who applied for the sale by the time of the sale to the price of the apartment units in KRW 14 million to KRW 16 million (Article 1 and the sale price of the apartment units in this case is KRW 1.6 million).

(2) The period of a contract for sale in lots is until October 31, 2005, and a lessee who does not conclude a contract for sale in lots within that period is deemed to have no intention of sale in lots, and a household which did not conclude a contract for sale in lots within that period and a household which waived a right of sale in lots must deliver an apartment by November 30, 2005 (Articles 5 and 6(1)).

H. The defendant did not apply for the purchase of apartments by October 31, 2005 to the plaintiff by the agreement of this case.

2. The assertion and judgment

A. Judgment on the main claim

(1) Claim for extradition on the ground of expiration of the contract period

(A) The plaintiff's assertion

On April 21, 2004, before the expiration of the lease agreement of this case pursuant to Article 6(1) of the Housing Lease Protection Act, the Plaintiff notified the Defendant that the Plaintiff would refuse to renew the lease agreement of this case by deeming that the Plaintiff did not have an intent to renew the lease agreement, and that the lease agreement of this case was terminated on May 24, 2004, provided that the Defendant did not comply with the Plaintiff’s request to renew the lease agreement of this case.

(b) the sales board;

1) According to Article 18 (1) and (3) of the Rental Housing Act, a person who intends to enter into a lease contract for a rental house shall use a standard lease contract prescribed by the Ordinance of the Ministry of Construction and Transportation, and a rental business operator and a lessee shall comply with a lease contract entered into by using the standard lease contract. Article 10 (1) of the Standard Rental Housing Act (Enforcement Rule of the Rental Housing Act, Article 8 and Form 10) provides that where a lessee commits an act falling under any of the subparagraphs of Article 10 (1) of the Rental Housing Act, the lessor may terminate the relevant lease contract or refuse to renew the lease contract, and with respect to a rental house subject to the Rental Housing Act, the lessor may terminate the relevant lease contract or refuse to renew the lease contract unless there is any special reason to the contrary (see, e.g., Supreme Court Decision 2005Da45479, Jul. 22, 2005). 2085).

2) Meanwhile, Article 9(1) of the instant lease agreement entered into between the Plaintiff and the Defendant provides that “When a lessee has violated or committed an act falling under any of the following subparagraphs in accordance with the said standard lease agreement, the lessor may cancel or terminate this agreement without taking other procedures, such as a peremptory notice on performance, etc.; 1. Where a lessee has leased a rental house in a false or other unlawful manner; 2. Where a lessee has transferred or sub-leased a rental house in violation of Article 13 of the Rental Housing Act; 3. Where a lessee has failed to move into a rental house within 3 months from the date on which the date of the occupancy agreement; 4. consecutive arrears of a rental house and its incidental facilities; 5. Where the lessee has reconstructed, expanded or modified the rental house and its appurtenant facilities without obtaining the consent of the lessor; 6. Where the lessee intentionally damaged or destroyed the rental house and its appurtenant facilities for any purpose other than its original purpose; 7. Where the lessee has violated any other duty under the rental agreement or any other duty under the rental contract.”

3) Therefore, we examine whether the Defendant’s failure to comply with the Plaintiff’s demand for restitution of the balcony expansion part and for the payment of the rent deposit increase, and, among others, can be assessed as a violation of subparagraph 8, in particular.

A) First of all, in light of the overall purport of the arguments in the statement in the Evidence Nos. 1 and 2 as to the failure to comply with the restoration of balcony parts, the defendant can be acknowledged as having occupied the apartment of this case by expanding the balcony under the consent of Han-U.S. investment development, which is a lessor, and the fact that the plaintiff succeeded to the status of the lessor of Han-U.S. investment development as the lessor as the lessor of Han-U.S. is as seen earlier. Therefore, as to the plaintiff's request for renewal of the balcony part which is the premise of the renewal of the lease of this case, the defendant cannot be viewed as having violated the duty stipulated in the above standard lease contract, on the ground that the defendant is responsible for restoring the balcony part to the plaintiff as the premise of the renewal of the lease contract of this case. Therefore, in this case where

B) Next, according to the evidence No. 1 of this case, it is acknowledged that Article 4 of the lease contract of this case provides that when there is a change in price or other economic conditions, ② when there is a need to adjust the terms and conditions of lease between the housing leased by a lessor and the rental housing in a neighboring similar area, ③ when there is a significant change in the value of a rental house, incidental facilities and a site, a lessor and a lessee can adjust the rental deposit, rent, management fee or rent and payment within the scope not contrary to the Rental Housing Act and the Housing Lease Protection Act. Article 2 of the special terms and conditions of the lease contract of this case also provides that the change in the terms and conditions of lease under Article 4 of the special terms and conditions of the lease contract of this case is made according to the following subparagraphs:

However, the Rental Housing Act requires the head of the competent Si/Gun/Gu to report matters concerning the terms and conditions of lease (Article 16(1) and (3) of the Rental Housing Act, and Article 14(1) of the Enforcement Decree of the Rental Housing Act), and where the details of the report are deemed significantly unfair compared to similar rental housing in the vicinity, or where deemed inappropriate under relevant Acts and subordinate statutes, the head of the competent Si/Gun/Gu may recommend adjustment of the details thereof (Article 16(2) of the Rental Housing Act and Article 14(2) of the Enforcement Decree of the Rental Housing Act). Article 7 of the Housing Lease Protection Act and Article 2 of the Enforcement Decree of the Housing Lease Protection Act limit the request for increase in the rent or deposit of the leased house to a specified extent. As seen earlier, Article 5 of the Standard Lease Agreement (Article 4 of the Housing Act) provides that a lessor and a lessee may unilaterally adjust the rental deposit and rent within the scope of a specific period of time, and does not provide that the lessor or the lessee may be the other party to the lease contract, even if the Plaintiff did not consent to change the terms and conditions of the lease.

Therefore, the plaintiff cannot refuse the renewal of the lease contract of this case on the ground that it violated the defendant's obligation. Thus, the plaintiff's assertion on a different premise cannot be accepted (the plaintiff can refuse the renewal of the lease of this case since it submitted a plan for sale in lots to the competent authority after the expiration of the period of obligation to sell in lots and promoted conversion for sale in lots. However, as seen above, unless the plaintiff's refusal to renew the lease of this case on the ground of the defendant's breach of obligation, the lease of this case was already impliedly renewed two years (from May 25, 2004 to May 24, 2006) prior to the expiration of the period of obligation to sell in lots around May 24, 2004. Thus, the plaintiff's above assertion has no reason).

(2) Claim for delivery on the basis of termination of the lease agreement

(A) The plaintiff's assertion

The Plaintiff asserts that the Plaintiff’s filing of a lawsuit against the Plaintiff without disclosing the intent to renew the contract for more than one year without refusing a request to renew the contract under the changed terms and conditions of lease is seeking settlement on the premise that the instant lease contract is terminated. Therefore, the Plaintiff’s claim that the instant lease agreement should be deemed to have been agreed upon between the Plaintiff and the Defendant, or that it constitutes a special circumstance that the Plaintiff may refuse the renewal.

(b) the sales board;

On April 21, 2004, through the plaintiff's notification of April 21, 2004, which was the opportunity to resolve the dispute in the same manner as the behavior in the present case, the contract will be renewed on the condition that the plaintiff and the lessee including the defendant shall be liable for the increased portion of the rent deposit unilaterally raised by the plaintiff and the extended portion of the balcony, which can be responsible to the plaintiff, on the condition that the plaintiff shall restore to its original state, and the defendant shall not accept the conditions of the plaintiff's renewal request with other lessees to solve reasonable problems (refer to the evidence Nos. 2 through 4, No. 5 No. 1 through No. 3). The defendant's genuine will not comply with the plaintiff's renewal of the lease contract for the apartment in the present case, but the plaintiff's renewal of the lease contract and the extension of the balcony part shall be linked to the restoration of the original state, and the plaintiff's renewal of the lease contract cannot be accepted due to the lack of any special circumstance between the plaintiff and the plaintiff.

B. Determination on the conjunctive claim

(1) Determination as to the cause of claim

According to the above facts, the sale contract of this case was terminated according to the agreement of this case, and the defendant did not conclude the sale contract under the agreement of this case, even though the above purchase contract was agreed on November 30, 2005, the sale contract of this case was concluded after the expiration of the mandatory period of sale under the Rental Housing Act, which is the representative of the residents including the defendant and the tenant including the defendant, and the tenant who did not conclude the sale contract pursuant to the terms and conditions of the sale contract of Ho-ri-ri-si lending including the apartment of this case. Thus, the defendant is obligated to deliver the apartment of this case to the plaintiff, unless

(2) Judgment on the defendant's assertion

(A) Claim for restriction on granting of power of representation

1) The defendant's assertion

The defendant, at the time of delegation of the authority to sell the apartment of this case, delegated only the authority to negotiate the apartment of this case at the time of delegation of the authority to sell the apartment of this case, and did not delegate the authority to determine the sale price, and even though the sale price was subject to resolution by the general meeting composed of occupants, the above sale price was unilaterally agreed with the plaintiff by deviating from the scope of delegation without considering all the intent of the occupants including the defendant, and the plaintiff also knew of the above circumstances, and therefore, the agreement of this case between the plaintiff and the sale price countermeasure committee is null and void.

(ii) the board;

The above facts are as follows. The power delegated by the sale countermeasure committee to the sale countermeasure committee shall be deemed to have been delegated not only to the negotiation authority, but also to the authority to reach an agreement in this case. Further, according to the Eul evidence Nos. 7 and 8, the representative meeting composed of the general meeting of occupants and the representative of the occupants (4 to 6 persons per collective building) with all occupants as members under the rules on the management and resolution of the house No. 7000, and the chairman shall represent the above representative meeting of the occupants, and it is difficult to recognize the fact that 18 members including the above executives of the sale countermeasure committee shall hold the representative meeting of the occupants, and it is difficult to recognize the fact that the above resolution of the sale countermeasure committee was made on June 3, 2005 as a resolution of the general meeting, and it is difficult to recognize that the above resolution of the sale countermeasure committee was made on behalf of the occupants as a resolution of the general meeting, even if there is no other evidence to recognize that the above resolution of the sale countermeasure committee was made on the part of the occupants.

(B) Claim on violation of mandatory law

1) The defendant's assertion

A) In accordance with the instant agreement, the Plaintiff submitted a conversion plan for sale in lots to the Seo-gu Seoul Metropolitan Government Office, which is the competent authority. However, the Seo-gu Seoul Metropolitan City Office returned the conversion plan under the instant agreement on the grounds of the appraisal report selected by the lessee among the documents on the basis of the calculation basis of the sale price, the accumulation of appropriation reserve for the total floor area, lack of supporting documents, etc., the agreement in this case

B) At the time of the instant lease agreement, the Plaintiff and the Defendant agreed to comply with the standard for calculating the pre-sale conversion price of the instant apartment at the time of the instant lease agreement. According to the above recruitment announcement proposal and the Rental Housing Act and subordinate statutes, the pre-sale conversion price is the arithmetic mean of the construction cost and the appraised value per one appraisal business entity selected by both the lessor and the lessee. Accordingly, even if the Plaintiff and the lessee selected an appraisal business entity and issued the appraisal report to the said pre-sale Support Committee, they did not fully consider the appraisal value of the appraisal business entity selected by the lessee in violation of the above recruitment announcement and the statutes. The instant agreement is invalid as it is invalid because the Plaintiff actively recommended or participated in the act of breach of trust, which was set forth by the Housing Act, beyond the scope delegated by the lessee, including the Defendant, and is in violation of the Rental Housing Act, which is a mandatory law.

2) Relevant provisions

Where a rental business operator purchases funds from the National Housing Fund under Article 60 of the Housing Act from among the housing constructed by obtaining approval for a business plan under Article 16 of the Housing Act after the expiry of the obligatory lease period, he/she shall make a conversion for sale in preference to lessees, etc. who have no house residing in the relevant rental house from the date of occupancy to the date of sale in lots, and [Article 15 of the Rental Housing Act and Article 13 (2) of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 19051 of September 16, 2005; hereinafter “former Enforcement Decree of the Rental Housing Act”)] In such cases, he/she shall supplement the sale in lots within the scope of 2/3 or more of the total number of lessees or 4 of the former Enforcement Rules of the Rental Housing Act (amended by Presidential Decree No. 1905 of the Rental Housing Act, and the head of the Gu shall supplement the appraisal and assessment or pre-sale conversion price within the scope of the pre-sale in lots by 30/40 of the former Enforcement Rules.

(iii) the board;

According to the evidence No. 7-1, No. 7-2, and No. 12, the plaintiff's submission of the conversion plan for sale in lots as of July 13, 2005 by the head of Seo-gu, Gwangju Metropolitan City on the ground that the appraiser's appraisal report selected by the lessee among the documents on the basis of the sale price calculation, the accumulation and grounds for the accumulation of the reserve fund for special repair and maintenance of the total floor area, corrective order related to damage to the old party and the failure to implement the restoration to its original state related thereto are not supplemented. However, in light of the above provisions of the Rental Housing Act, etc., it is difficult to deny the effect of the plaintiff's conversion plan for sale in lots or the agreement of this case, which is the basis thereof, merely because the plaintiff's submission of the plan for sale in lots or the documents for sale in lots and the submission of them

In addition, even if the pre-sale conversion price was set in violation of the criteria for the calculation of the above Enforcement Rule, its judicial effect shall be recognized as long as the price does not reach the level of de facto deprivation of the tenant's preferential right due to the high price (see Supreme Court Decision 2004Da33605, Dec. 10, 2004). Thus, the agreement in this case cannot be deemed null and void solely on the ground that the appraisal value of the appraiser selected by the lessee did not consider the appraisal value of the apartment, [the construction cost of the apartment in this case shall be KRW 86,62,685, the appraisal value of the apartment in this case shall be KRW 131,00,000, the appraisal value of the appraiser selected by the Plaintiff shall be 103,156,300,000, and the appraisal value of the apartment in this case shall be 100,300,0000 won or more than the above appraisal value of the apartment in this case ± the above appraisal value shall not be set out.

Furthermore, there is no evidence to deem that the Defendant delegated all rights related to the sale conversion price to the said purchase-sale countermeasure committee, on condition that it should consider the appraisal report of the appraisal business entity selected by the lessee, and thus, the Defendant’s assertion that was premised on the violation of the mandatory law or the deviation from the scope of delegation cannot be accepted.

(C) Defenses of simultaneous performance

1) The defendant's assertion

The Defendant’s defense of simultaneous performance to the effect that the above lease deposit amount of KRW 54,179,00 and the Defendant cannot deliver the instant apartment to the Plaintiff before receiving the purchase price or beneficial cost equivalent to the cost of the balcony expansion, etc. installed in the instant apartment.

2) Part of the lease deposit

According to the above facts, the plaintiff is obligated to return 54,179,000 won of the above lease deposit to the defendant upon the termination of the above lease contract of this case, and since the plaintiff's obligation to return the above lease deposit and the defendant's obligation to deliver the above lease deposit are in simultaneous performance relationship, the defendant is obligated to deliver the building of this case to the plaintiff by receiving the above lease deposit from the plaintiff and repayment.

3) The purchase price of accessories and the cost of beneficial use

According to the statement Eul evidence No. 1, the defendant can find that the apartment of this case was additionally constructed with a key point, floor, home-to-door, extended balcony, etc. as the main part of the development of Korea-U.S. at the time of the lease contract of this case. However, as to whether the above additional construction part becomes the object of the right to purchase the appurtenances or the right to claim reimbursement for beneficial costs, health appurtenances refer to the object belonging to the lessee and is not the constituent part of the building, which may give objective convenience to the use of the building. The above additional construction part which the defendant bears is difficult to be considered as the object attached to the apartment of this case, or is only attached to the defendant's living convenience. Thus, it is difficult to say that the above additional construction part is the object of the right to claim purchase because the lessee has invested in order to increase the objective value of the leased object at the time of the termination of the lease contract of this case, it is difficult to view that the above additional construction part is an increase in the value of the leased object to increase the objective value of the leased object in this case, and its increase in its original form.

3. Conclusion

Therefore, the plaintiff's primary claim of this case is dismissed as it is without merit, and the supplementary claim added at the court of appeal is accepted within the above scope of recognition and the remaining claim is dismissed as it is without merit. The judgment of the court of first instance that dismissed the plaintiff's primary claim of this case is just, and the plaintiff's appeal of this case shall be dismissed. However, the plaintiff's conjunctive claim added at the court of first instance shall be accepted within the above scope of recognition, and the remaining claim shall be dismissed as it is without merit.

[Attachment] List of Real Estate: omitted

Judges Jin-hun (Presiding Judge)