Incheon District Court-2014-Ba57161 (Law No. 15, 30 June 30, 2015)

Even if the lease contract is terminated, if the object is not delivered, the lessee cannot refuse to pay the rent in arrears on the ground that the deposit exists.

Since the lease deposit is delivered to secure the lessee’s obligation, the rent arising from the lease after the lease contract is terminated until the time when the lessee delivers the object, and barring special circumstances, the lessee may not refuse to pay the rent in arrears on the ground that the deposit exists, unless the lease contract is terminated even if the object is not delivered.

Article 24 of the National Tax Collection Act

2015Na5885 Action for requesting the payment of seized Claim

Korea

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Incheon District Court Decision 2014 Ghana571161 Decided June 30, 2015

December 9, 2015

December 23, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 8,910,000 won with 20% interest per annum from the next day of the delivery of the complaint of this case to the day of full payment.

2. Purport of appeal

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

1. Basic facts

A. On February 18, 2013, the Defendant entered into a lease agreement with BB loan Co., Ltd. (hereinafter “BB loan”) and with respect to O6 OO-O-O-O-O-O-O-O-O-O-O-O (hereinafter “instant store”), setting the lease deposit amount of KRW 30 million, KRW 270,000 per month of rent (the additional tax, the last day of each month), and five years of lease term (hereinafter “the instant lease agreement”), and until now, the Defendant is in possession and business of the instant store.

B. On August 8, 2014, the Plaintiff notified the Defendant and BB of the seizure of the rent claim that BB loan had to the Defendant under the instant lease agreement, and the Defendant received the notification of the seizure on August 12, 2014.

[Reasons for Recognition - Unsatisfy, entry in Gap evidence 2 and 3 (including each number), the purport of the whole pleadings]

2. Determination as to the cause of action

According to the above facts of recognition, the Defendant is obligated to pay the Plaintiff the rent of KRW 8.91 million (2.97 million x 3 months) from August 2014 to October 2014, as claimed by the Plaintiff, and the damages for delay calculated at the rate of 20% per annum as stipulated by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from December 20, 2014 to the date of full payment following the service of the complaint of this case sought by the Plaintiff.

3. Judgment on the defendant's assertion

A. The defendant's assertion

① The above rent of KRW 8.910,000 shall be naturally deducted from the lease deposit, and ② even if not naturally deducted, the Defendant agreed to deduct from the lease deposit, as the lessor’s BB loan around June 2014, it should be deducted from the lease deposit. ③ In addition, since the auction on the instant store was commenced and the Defendant terminated the instant lease contract, the said rent of KRW 8.910,000 as the termination of the instant lease contract ought to be deducted from the lease deposit.

B. Determination

(1) Since the lease deposit is delivered to secure the rent arising from the time when the lease contract is terminated until the time when the lessee delivers the object and the obligation of other lessees, barring any special circumstance, the lessee cannot refuse to pay the rent in arrears on the ground that the deposit exists, unless the lease contract is terminated. Therefore, the rent in excess of 8.91 million won is naturally deducted from the lease deposit.

② Also, only the descriptions in subparagraphs 1 and 2-1 and 1-2 of subparagraph (1) are insufficient to recognize that BB made the Defendant an expression of intent to deduct BB loans from the lease deposit under the instant lease agreement, and there is no other evidence to acknowledge it.

③ Finally, the above evidence alone is insufficient to recognize that the Defendant expressed his intent to terminate the instant lease agreement to BB loan, and there is no other evidence to acknowledge this otherwise. Even if the instant lease agreement is terminated, if the object is not delivered, the lessee may not refuse to pay the rent in arrears prior to termination on the ground that the deposit exists.

Therefore, all of the defendant's arguments are without merit.

4. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.