[Defendant-Appellee] Plaintiff (Law Firm Shin & Lee, Attorneys O Jong-sung, Counsel for defendant-appellee

Mio Co., Ltd. (Attorney Masung-nam, Counsel for the defendant-appellant)

October 28, 2016

1. The defendant shall pay to the plaintiff 28,869,038 won and 27,803,000 won among them, 5% per annum from February 6, 2016 to January 13, 2017; 15% per annum from the next day to the date of full payment; 6% per annum from September 13, 2016 to January 13, 2017 to the date of full payment; and 15% per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff the amount of KRW 42,93,00 with an annual interest of KRW 5% from January 14, 2016 to the delivery date of a copy of the complaint of this case; KRW 15% interest per annum from the next day to the day of complete payment; ② KRW 23,309,352 interest per annum from September 13, 2016 to the day of complete payment; and ③ from February 25, 2016 to the day of full payment of the amount stated in the above paragraph ② the amount with an annual interest of KRW 91,67 per annum.

1. Basic facts

The following facts are not disputed between the parties, or are recognized by Gap's evidence Nos. 1 through 15, 17 through 20, 22, 23, Eul's evidence Nos. 1 and 8 through 10, and the result of the fact inquiry into Paris Co., Ltd. in this court as a whole.

A. On June 13, 2014, the Plaintiff: (a) indicated in the annexed drawing among the first floor △△△△△△△ Group located in Guro-gu, Seoul; (b) (c), (4), (5), (6), (7), (8), (1), (1), (1), (1), and (2) indicated the lease deposit amount of KRW 57.69 square meters on board (hereinafter “the instant lease deposit”) and KRW 60 million per month (excluding value added tax; hereinafter “the instant lease contract”), and (c) leased the instant leased shop (hereinafter “the instant lease contract”) from the Defendant to the Plaintiff on July 1, 2014 to February 6, 2016; (d) determined that the instant lease contract was concluded on the ground that the Plaintiff’s lease contract was concluded with the Plaintiff’s stores established at the time of the instant lease contract to reinstate the leased shop to its original condition (hereinafter “the instant lease contract”).

B. Upon the expiration of the term of the instant lease agreement, the Plaintiff: (a) sought a new lessee of the instant store to transfer the instant business to the lessee; (b) around October 29, 2015, which was three months prior to the expiration of the term of the instant lease agreement, and around November 13, 2015, requested the Defendant to notify the Defendant of the deposit and monthly rent for the new lease agreement on the instant store; and (c) on November 17, 2015, the Defendant determined that the deposit for the new lease agreement of the instant store, which was determined by reflecting the surrounding market prices, was KRW 109,200,000 (i.e., KRW 13 million per square year x 84 square year); and (d) monthly rent 10,920,000 (i.e., KRW 130,000 per square year x 84 square year x (hereinafter “the actual amount of the instant lease agreement”).

C. On December 3, 2015, the Plaintiff became a new lessee of the instant store, and entered into a contract with Nonparty 1 on February 6, 2016 (hereinafter “instant transfer contract”) under which the instant business was transferred at the instant store to Nonparty 1, who intended to operate the instant store (hereinafter “the instant premium”) and the said premium was paid on a premium of KRW 170 million (hereinafter “the instant contract”). Article 3 of the said transfer contract provides for the invalidation of the instant transfer contract in cases where the Plaintiff and Nonparty 1 were unable to enter into a lease agreement on the instant store without any causes attributable to the Plaintiff and Nonparty 1, on a more unreasonable basis than the existing terms and conditions, such as refusing to enter into the lease agreement on the instant store with Nonparty 1 or changing the terms and conditions of the lease agreement.

D. After that, on December 4, 2015, the Plaintiff requested the Defendant to inform the Defendant of whether he/she wishes to enter into a new lease agreement with respect to the instant store, and the amount of the lease deposit and the monthly rent under the lease agreement. On December 9, 2015, the Defendant provided the Plaintiff with materials showing whether Nonparty 1 was capable of paying the lease deposit and the monthly rent as the lessee of the instant store, and confirmed Nonparty 1 to inform the Plaintiff of the amount of the lease deposit and the monthly rent desired by Nonparty 1.

E. On December 14, 2015, the Plaintiff provided a copy, etc. of the passbook to the Defendant by verifying the existence of Nonparty 1’s financial resources. The amount of the lease deposit and monthly rent desired by Nonparty 1, referring to the proviso to Article 11(1) of the Commercial Building Lease Protection Act (hereinafter “Commercial Building Lease Protection Act”) that restricts the lessor’s right to claim for increase in rent, etc., and Article 4 of the Enforcement Decree of the same Act, the Plaintiff notified the Plaintiff of the deposit and monthly rent of KRW 5.5 million increased by 9% (= KRW 50 million x 1.09 x 6 million) and KRW 6.44 million (= KRW 6 million x 1.09). However, the Defendant, on December 18, 2015, notified the Plaintiff of the existence of financial resources by itself, and did not reflect Nonparty 1’s response to Nonparty 1’s deposit and surrounding market price.

F. Accordingly, around December 23, 2015, Nonparty 1 requested that the Defendant be aware of the amount of his desired lease deposit and monthly rent of KRW 54.5 million and KRW 6.5 million as above. If the Defendant is unable to accept it, Nonparty 1 also requested that the Defendant be aware of the amount of the available lease deposit and monthly rent. On December 30, 2015, the Plaintiff again requested that the Defendant be informed of the amount of the available lease deposit and monthly rent available to the Defendant. The Defendant, around January 6, 2016, requested that the Plaintiff be aware of the amount of the leased deposit and monthly rent available to the Defendant, and on January 6, 2016, the amount of the new lease deposit that the Defendant proposed to the Defendant “(3,125,000 won per square year x 84 square year), monthly rent of KRW 10,500,000, 1000 per annum, or 280,000 per annum.”

G. Ultimately, on January 14, 2016, Nonparty 1 determined that the amount of rent, etc., such as the Defendant’s proposal Nos. 1 and 2, is excessively excessive, and concluded a new lease agreement with the Defendant with respect to the instant store. Nonparty 1 invalidated the instant transfer agreement as stipulated under Article 3 of the instant transfer agreement with the Plaintiff.

H. From February 1, 2016 to February 6, 2016, the term of the instant lease agreement expires, the Plaintiff did not pay only KRW 1,365,516 [including monthly rent of KRW 6,600,00 (including value-added tax) x 6/29 days; hereinafter “paid rent”) to the Defendant. On February 6, 2016, the Plaintiff did not collect only KRW 1,365,516 for the instant store business, and delivered the instant store to the Defendant without paying KRW 30,60 for the instant 50 (hereinafter “this case’s store”). The Defendant did not reimburse the Plaintiff for the remainder of KRW 60,000,000, KRW 60, KRW 10,000 for the instant store business (hereinafter “the instant 50,000, KRW 160,000, KRW 160,000 for the instant lease agreement to the Plaintiff.

I. Meanwhile, the Plaintiff received from the Defendant the refund of KRW 50 million from the Defendant and planned to pay KRW 44 million as the deposit for the Plaintiff’s residence’s lease deposit. However, on February 25, 2016, the Plaintiff received a loan of KRW 44 million from the Bank of Korea Co., Ltd. at 2.5% per annum (hereinafter “the instant loan”) from 91,667 won (i.e., KRW 44,00,000 x 2.5% per annum ± 12 months). At that time, the Plaintiff became liable for the instant loan interest due to the Defendant’s nonperformance of the obligation to return the instant deposit.

2. Relevant statutes;

The Commercial Building Lease Act and the Enforcement Decree of the same Act related to this case shall be as specified in the attached Form.

3. As to the claim for damages equivalent to the premium

A. The parties' assertion

1) The plaintiff's assertion

Upon the termination of the instant lease agreement, the Plaintiff entered into the instant transfer agreement that transfers the instant business to Nonparty 1 at KRW 170,000,000 for the instant premium, and arranged to enter into a new lease agreement on the instant store between Nonparty 1 and the Defendant. However, the Defendant demanded Nonparty 1 to pay the monthly rent and deposit of a new lease agreement which is remarkably high as the first and second proposals, and the Plaintiff was unable to receive the instant premium due to the invalidity of the instant transfer agreement. Accordingly, the Defendant ultimately committed an act of demanding a new lessee as stipulated in Article 10-4(1)3 of the Commercial Building Lease Act by demanding a rent and deposit of the amount significantly high to the new lessee, thereby hindering the Plaintiff from receiving the premium from the new lessee. Accordingly, the Defendant shall compensate the Plaintiff for damages caused by the obstruction of the act pursuant to the main sentence of Article 10-4(3) of the Commercial Building Lease Act.

In addition, according to the latter part of Article 10-4 (3) of the Commercial Building Lease Act, the amount of compensation shall not exceed the lower amount of the premium of this case 170 million won and the premium at the time of termination of the lease contract of this case, which was paid by Nonparty 1 to the Plaintiff. The premium at the time of termination of the lease contract of this case shall be KRW 27,803,00 (the premium at the time of termination of the lease contract of this case shall be the premium of this case) and KRW 15,130,00 (the premium at the time of the lease of this case shall be the premium at the time of termination of the lease contract of this case and KRW 15,130,00 (the premium at the time of the lease of this case shall be the premium at the time of termination of the lease contract of this case) plus KRW 15,130,000 (the premium at the time of the lease of this case shall be KRW 27,803,130,000).

2) The defendant's assertion

The rent, etc. of a new lease agreement proposed by the Defendant to Nonparty 1 as the first and second proposals cannot be deemed to be significantly high in light of the surrounding market prices, etc. Rather, Nonparty 1 did not faithfully comply with the agreement for concluding a new lease agreement of the instant store, and thus, the said lease agreement was not concluded. Therefore, the Defendant does not interfere with the Plaintiff’s receipt of the premium for the instant store.

Even if you do not do so, the value of the premium at the time of the termination of the instant lease agreement shall be calculated by reflecting the “market rent” on the instant store at the time of the termination of the instant lease agreement in the cost item. As such, the value of the intangible property at the time of the termination of the instant lease agreement does not reach the + the value of the intangible property. Therefore, the premium at the time of the termination of the instant lease agreement is merely KRW 27,803,00,000, which is the tangible property value of the instant store. In addition, the Plaintiff collected and reduced the 13,013,000 won out of the tangible property of the instant store at the time of delivery of the instant store. Accordingly, the damages should be calculated by deducting the Plaintiff’s profit from the said KRW 27,803,00,000, which is the Plaintiff’s profit 13,013,000,000 won (i.e., the amount of damages should be deducted from the said KRW 27,800,3000.

B. Determination

1) Occurrence of damages liability

앞서 든 증거, 감정인 소외 4(이하 ‘감정인’이라 한다)의 감정결과에 변론 전체의 취지를 종합하면, 이 사건 임대차계약이 정한 차임 등의 주1) 환산보증금은 704,545,454원[= 50,000,000원 + (6,000,000원 × 12개월 ÷ 11%), 이하 ‘기존 환산보증금’이라 한다]이고, 이 사건 점포의 이 사건 임대차계약 기간 만료일인 2016. 2. 6. 기준 적정 환산보증금은 1,055,222,000원에 불과함에도, 피고는 소외 1에게 ① 제1차 제안과 같이 그 환산보증금이 기존 환산보증금보다 무려 595,927,273원[= 제1차 제안의 환산보증금 1,300,472,727원{= 109,200,000원 + (10,920,000원 × 12개월 ÷ 11%)} - 기존 환산보증금 704,545,454원] 증액되고, 적정 환산보증금보다도 245,250,727원(= 1,300,472,727원 - 1,055,222,000원) 많거나, ② 제2차 제안과 같이 그 환산보증금이 기존 환산보증금보다 무려 703,409,091원[= 제2차 제안의 환산보증금 1,407,954,545원{= 262,500,000원 + (10,500,000원 × 12개월 ÷ 11%)} - 기존 환산보증금 704,545,454원] 증액되고, 적정 환산보증금보다도 352,732,545원(= 1,407,954,545원 - 1,055,222,000원) 많은 조건으로 신규 임대차계약의 체결을 제안했던 사실, 또 원고는 2015. 1. 1.부터 2015. 12. 31.까지 이 사건 영업으로 241,937,820원의 매출을 기록하고 이 사건 점포의 차임으로 7,200만 원(= 600만 원 × 12개월)과 그 외 인건비 등의 비용을 지출하여 위 기간 동안 49,150,690원의 영업이익을 얻었는데(감정인의 감정서 20면 참조), 만약 위 기간 동안 피고의 제1, 2차 제안과 같이 차임으로 월 600만 원을 초과한 월 10,920,000원 내지 10,500,000원의 비용을 지출했다면 이 사건 영업으로 9,889,310원[= (10,920,000원 - 6,000,000원) × 12개월 - 49,150,690원] 또는 4,849,310원[= (10,500,000원 - 6,000,000원) × 12개월 - 49,150,690원]의 영업손실이 발생하게 되는 사실을 인정할 수 있는바, 사정이 이러하다면, 앞서 본 대로 비록 피고가 자신이 제안한 임대차보증금과 월 차임에 관하여 협의가 가능하다는 입장을 밝혔다고 하더라도, 피고는 원고가 주선한 이 사건 점포의 신규 임차인이 되려는 소외 1에게 현저히 고액의 차임과 보증금을 요구하는 행위를 함으로써 원고가 이 사건 점포의 권리금을 지급받는 것을 방해하였다고 할 것이므로, 피고는 상가임대차법 제10조의4 제3항 전문에 의하여 원고에게 그 방해 행위로 인한 손해를 배상할 의무가 있다.

2) Scope of liability for damages

According to the latter part of Article 10-4 (3) of the Commercial Building Lease Act, the amount of damages caused by the lessor’s interference with the receipt of the premium shall not exceed the lower of the premium at the time of termination of the lease and the amount of the premium at the time of termination of the lease. The premium at the time of termination of the lease agreement at the time of termination of the lease agreement at the time of termination of the lease agreement at the time of the appraiser’s appraisal, and the fact inquiry about the appraiser at the court’s appraiser, the value of the tangible property at the instant store at the time of the termination of the lease agreement at the time of the contract at the time of the termination of the lease agreement at the time of the transaction at the time of the “market rent at the instant store at the time of the termination of the lease at the time of the contract at the time of the termination of the lease at the time of the agreement at the time of the termination of the lease at the end of the lease agreement at the time of the contract at the time of the termination of the lease at the time of the contract at the end of the contract at the time of the above 200 billion.

The defendant asserts that the plaintiff should deduct 13,013,00 won, which is the value of the interior household, etc. of this case recovered at the time of delivery of the store of this case at the time of delivery. However, even if the plaintiff recovered the interior household, etc. of this case at the time of delivery of the store of this case at the time of delivery of this case, it cannot be deemed that the plaintiff had profit equivalent to the above money unless there is proof that the plaintiff would have been inevitably done for delivery of the store of this case, and that the plaintiff would operate the coffee shop business again in the future (the plaintiff asserted that he was disposed of after receiving several Won). This part of the defendant's argument is without merit.

3) Sub-decisions

Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 27,803,00 as well as damages for delay at the rate of 5% per annum as stipulated in the Civil Act from February 6, 2016, which was the date of the instant transfer contract (the date when the Plaintiff suffered losses due to the Defendant’s interference with the receipt of the premium for the instant case, is February 6, 2016, which was the date of the payment of the premium for the instant case. Therefore, it is reasonable to deem that damages for delay incurred to the Plaintiff are also incurred from the date of the instant transfer contract). It is reasonable to dispute over the existence or scope of the Defendant’s obligation to pay to the Plaintiff at the time of the instant judgment by January 13, 2017, which is the date of the instant judgment, and by the rate of 1

4. As to the claim for refund of lease deposit

A. The parties' assertion

1) The plaintiff's assertion

The Plaintiff paid KRW 50 million to the Defendant under the instant lease agreement. On February 6, 2016, the expiration date of the instant lease agreement, the Plaintiff delivered the instant store to the Defendant. As such, the Defendant is obligated to pay the Plaintiff damages for delay from February 6, 2016, which is the expiration date of the instant lease agreement, to the day of full payment. The Defendant paid KRW 31,634,484, which is part of the relevant debt, and KRW 4,943,846, which is KRW 360,00,000, KRW 2690,6389, KRW 360, KRW 360, KRW 360, KRW 206, KRW 360, KRW 306, KRW 360, KRW 360, KRW 484, KRW 2965, KRW 3696, KRW 206, KRW 306360, KRW 2964, KRW 284, KRW 296363636, etc.

2) The defendant's assertion

The Plaintiff did not pay KRW 1,365,516 for rent from February 1, 2016 to February 6, 2016 under the instant lease agreement. Although the Plaintiff did not remove the instant interior facilities, etc. upon the termination of the instant lease agreement, the Defendant did not voluntarily recover KRW 17,00,000 for the Plaintiff’s reimbursement of KRW 50,000,000 for the instant lease deposit. As such, if the Plaintiff deducted KRW 1,365,516 for the unpaid rent from KRW 50,000 for the instant lease deposit and KRW 17,00,000 for the instant removal cost, the instant lease deposit remains at KRW 31,634,484, Sept. 12, 2016, the Defendant refunded KRW 31,634,484 for the instant lease deposit to the Plaintiff.

B. Determination

1) Deduction of unpaid rent and removal cost of the instant case, etc.

As seen earlier, the Plaintiff paid KRW 50 million to the Defendant under the instant lease agreement. On February 6, 2016, the expiration date of the instant lease agreement, the Plaintiff was recognized to have delivered the instant store to the Defendant, but the Plaintiff did not pay the unpaid rent to the Defendant. Meanwhile, even though the Plaintiff was liable for the duty of restitution upon the termination of the instant lease agreement pursuant to Article 17(1) and (2) of the instant lease agreement, the Plaintiff did not remove the instant interior fish facilities, etc. on or around August 22, 2016 and paid KRW 17,00,000 to the Defendant for the expenses of KRW 17,000,000,000,000,000,000,000,000,000,000,000 won and KRW 1,365,000,000,000,000,000,000 won and KRW 17,360,50,064.

In addition, in the case of this case where the plaintiff delivered the store of this case without performing the duty to restore the lease deposit in simultaneous performance relationship with the duty to restore the lease deposit of this case, the time when the defendant is liable for delay due to the defendant's failure to perform the duty to restore the remaining lease deposit after deducting the expenses to restore the lease deposit of this case from its own expenses shall not be from the day after the date when the defendant actually completed the duty to restore the lease deposit of this case (see Supreme Court Decision 90Meu12035, Oct. 30, 199) but from the reasonable period that the defendant could have been able to restore the leased deposit of this case at his own expense (see Supreme Court Decision 90Meu12035, Oct. 30, 199). Since the period required for the removal work of this case was 7 days according to the evidence No. 6, it is reasonable to deem that the defendant was 14 days in consideration of the selection of the removal company and the completion of the removal work. Accordingly, it is reasonable to deem the balance of the lease deposit of this case as 314.

2) On September 12, 2016, the refund shall be appropriated for repayment.

As seen earlier, the Defendant paid KRW 31,634,484 to the Plaintiff on September 12, 2016 with the repayment of the lease deposit, etc. of this case. Since the aforementioned KRW 31,634,484 with respect to KRW 31,634,484 with respect to the balance of the lease deposit of this case from February 21, 2016 to September 12, 2016, 1,066,038 won (=31,634,484 x 6% x 205 x 365 x 365 x 305 x 30,565 x 30,684 - 1,644 - 1,066,038) with respect to the remainder of the lease deposit of this case, the Defendant is obligated to repay the lease deposit of this case at the rate of 6% per annum prescribed by the Commercial Act from February 21, 2016,364684.

5. As to the claim for damages equivalent to loan interest

The Plaintiff sought payment of the amount from February 25, 2016, 2016 to the date of the instant loan from February 25, 2016 to the date of full payment of the instant lease deposit (interest at the rate of 2.5% per annum for the instant loan 44 million won), on the ground that the Plaintiff incurred damages to the Defendant due to the nonperformance of the instant lease deposit, at the rate of 31,634,484 won calculated by deducting the unpaid rent from the instant lease deposit and the removal cost from the 31,634,484 won upon the termination of the instant lease contract. Thus, the Plaintiff did not have any legal obligation to recover damages from the amount of the instant lease 46,65,516 won, i.e., KRW 46,484 won, 200,000 - 31,634,484 won from the date of the instant loan to the date of full payment of the instant lease deposit, and the Plaintiff did not have any legal obligation to recover damages from the amount of the instant lease deposit.

6. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Park Il-woo (Presiding Judge)

1) The appraiser used the formula of “the deposit for conversion” = The deposit for lease + (monthly rent 】 12 months ± conversion rate 11%). As such, the appraiser will determine whether the amount of rent for the first and second proposals is significantly high, based on the foregoing formula.

Note 2) On October 19, 2016, KRW 26,692,638 as stated in Section 7 of Section 5 of the Request for Modification of Claim and Grounds for Claim as of October 19, 2016 appears to be an error in calculation.