[1] Whether the right to claim the amount of rent increase due to the change in the circumstances in the lease under a special contract for the increase in the amount of rent (affirmative)

[2] The case holding that a lessor's claim for rent increase due to a change in the economic situation was recognized

[1] In a case where there is a change of circumstances to the extent that maintaining the special agreement after the special agreement on the amount of rent increase is deemed contrary to the good faith principle, the claim for rent increase should be acknowledged to a lessor under the principle of equity.

[2] The case holding that the lessor filed a claim for the increase in the rent on the ground that the operating revenue of the store is less than a half of the rent of real estate, in case where the lessor agreed to receive the operating right of the store from the land lessee in lieu of the rent, and the rent of real estate 19 years from the date of the initial contract, and the rent of real estate 9 years from the date of acquisition of the right to operate the store and the price of real estate increases as a result of the increase in the real estate price, while the operating revenue of the store is reduced to a half or more due to the loss of the exclusive status of the store and the increase in the price of the real estate, and the operating revenue of the store is eventually reduced to a half or more

[1] Articles 2 and 628 of the Civil Act / [2] Articles 2 and 628 of the Civil Act

[1] Supreme Court Decision 96Da34061 delivered on November 12, 1996 (Gong1996Ha, 3573)

[Defendant-Appellant] An objection (Attorney Park Jae-in et al., Counsel for defendant-appellant)

[Defendant-Appellee] Ham Chang-type (Attorney Choi Yong-sung, Counsel for defendant-appellee)

Chuncheon District Court Decision 97Gahap128 delivered on February 22, 1999

1. At the request of a change in exchange at the trial, the Defendant shall:

(a)payment of 16,317,397 won and the interest thereon at the rate of 25 percent per annum from February 9, 2001 to the date of full payment;

(b)The last day of each month shall pay 1,203,536 won as from January 1, 2001 to the date of delivery to the Plaintiff of the real estate listed in the Schedule.

2. The plaintiff's remaining claims are dismissed.

3. The total costs of the lawsuit shall be divided into two parts, one of which shall be borne by the plaintiff, and the remainder by the defendant respectively.

4.The provisions of paragraph 1 of this Article may be provisionally executed.

The defendant paid 1,264,360 won per annum to the plaintiff at the rate of 17,225,970 won and 25% per annum from the next day of the judgment of the appellate court of this case to the day of full payment, and the day of delivery to the plaintiff of the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case") from January 1, 201 to the day of the last day of each month (the plaintiff seeks the payment of rent of 36,216,180 won from January 1, 1997 to October 1, 1998, while the rent of this case with respect to the real estate of this case is 1,724,580 won per annum from July 1, 1997 to the day of full payment, the court below changed from the first instance to October 1, 199 to the day of exchange of the real estate of this case from October 1, 201 to 30.10).

1. Basic facts

A. On April 10, 1980, the plaintiff and the defendant indicated the real estate in this case owned by the plaintiff (the original contract was indicated in the original contract in 118-1 to 17, 119-1 to 108 square meters in the Jinwon-gun, Jinwon-gun, the Jinwon-gun, and in the process of embodying the contents of the contract on May 6, 1989, 55 square meters in the above 118-1 to 366 square meters in the above 119-1 to 50 square meters in the above 119-1 to 500 square meters in the above 19-1 to 500 square meters, but thereafter, the real estate in this case was specified as the real estate in this case after the cadastral division and land category change existed, and the defendant agreed to lease the public automobile in this case to the plaintiff by the date on which the terminal in this case existed, and instead of the rent, the defendant agreed to install the right to operate the terminal in this case (hereinafter referred to "the title").

B. On March 16, 1990, the Defendant obtained the instant terminal business license from the head of Pyeongtaek-gun on March 16, 1990, and newly constructed a waiting room and a management room after undergoing a completion inspection on the transportation and neighborhood living facilities of the first underground floor and the second floor (the total building area of 643.86 square meters) above the instant real estate on March 20, 1990. On the other hand, the Defendant prepared a parking lot site, and then prepared the instant terminal site on April 10, 1990, and received a public start-up permit from the head of Pyeongtaek-gun-gun on April 24, 1990.

On the other hand, among the instant real estate, the Plaintiff used 13 square meters in 118-11 square meters in the Jinwon-gun, Jinwon-gun, Jinwon-gun, which is located in the real estate of this case by itself, and the Defendant is not using this part (the fact that there is no dispute).

C. The Defendant, on the first floor of the 1st floor of the instant terminal, set up approximately 6 square meters store (hereinafter “instant store”) and transferred its operating right to the Plaintiff, and the Plaintiff is operating the instant store up to the present day.

D.The monthly rent of 431 square meters ("the occupied part of this case") remaining 431 square meters ("the occupied part of this case") out of the real estate of this case was 1,026,935 won (1,057,910 won x 431/444, hereinafter the same shall apply) in May 1989, which was 1,998,587 won (2,058,870 won x 431/444) in October 1999, and 2,016,536 won (2,07,360 won x 431/444) in April 200. The increase in the share of the land price of this case was due to the increase in the share of land price of this case.

On the other hand, around April 1990, when the Plaintiff, who received the instant store from the Plaintiff, operated the instant store to Lee Ho-ho, the Plaintiff’s children, the bus stops at the instant terminal, which is the bus stops, and the urban bus passengers use the instant store. The instant store’s revenue was average of KRW 1,978,00 per month, but since around 192, a new store was installed in neighboring urban bus terminals from around 1997, and since around 197, the route of the instant store was set up in the instant terminal, and since around 1997, the number of users decreased while the bus route was set up far from the instant terminal, and since March 23, 1998, the instant store’s revenue was reduced to at least KRW 1,04,00,000 per month on October 1, 1999, and at least KRW 300,000 per month on March 30, 200, respectively.

E. On December 28, 1996, the Plaintiff sent to the Defendant a notice to the effect that the rent shall be increased to KRW 2.5 million each month, in addition to the right to operate a store and store, and thereafter, an application for change of the purport of the claim filed on December 12, 200, which contains the Plaintiff’s claim for the rent increase from October 1, 1999, as stated in the purport of the claim, was sent to the Defendant on December 19, 200.

(Recognition) Facts without any dispute, obvious facts in records, Eul evidence Nos. 4-1, 2, Eul evidence Nos. 4-2, Eul evidence Nos. 4-2, Eul evidence Nos. 5-2, Eul evidence Nos. 8 through 13, Eul evidence Nos. 14-1 through 3, Eul evidence Nos. 15, Eul’s witness Nos. 15, appraiser Nos. 15, appraiser Nos. 26, 200 of the court below's appraisal results, and the whole purport of the argument (the part concerning revenues of each of the stores of this case in the appraisal of Sep. 10, 1998 of the original witness No. 1998, because it is not clear that the revenue calculation basis is unclear, and the fact inquiry results of the court's fact inquiry with respect to leaps and the fact inquiry results with respect to leaps and the part concerning the possessor of each of the above appraisal of Sep. 10, 1998).

2. Determination:

According to the above facts, compared to the rent of the instant real estate (the rent of KRW 1,057,910 for each month, which is the rent of May 1989) that the Plaintiff acquired from the Defendant the right to operate the instant store on April 1990 (the rent of KRW 1,97,910 for each month, which is the rent of KRW 1,97,90), the Plaintiff did not receive any rent for ten years from April 10, 1980 after renting the instant real estate to the Defendant. However, in light of the fact that the Plaintiff received the right to operate the instant terminal on April 10, 1990 after renting it to the Defendant, the said rent of KRW 1,97,90 for each month, which is the rent of KRW 1,9,00 for each month, which is the rent of KRW 1,9,00 for each month).

However, since the 19-year period from the date of the initial contract and the 9-year period from the date of acquiring the right to operate a store, the 2-year period from the date of the acquisition of the right to operate the store and the 9-year period from October 1999, the increase in the price of the real estate in this case, while the 1/2 or more of the operating revenues of the store in this case have increased, the exclusive status of the store in this case has been lost and the 1/2 or more of the operating revenues of the store in this case have decreased, the 1/2 or more of the operating revenues of the store in this case have exceeded the 1/2 of the rent

In addition, even if the Defendant: (a) granted the Plaintiff the right to operate the instant store in lieu of the rent for the instant real estate; and (b) provided a special agreement on a kind of rent increase due to the Plaintiff’s failure to set a separate car in addition to the above operating right; (c) if there is any change in circumstances to the extent that maintaining the special agreement is deemed contrary to the good faith principle, it is necessary to recognize the lessor to claim the amount of rent increase in the rent (see Supreme Court Decision 96Da34061, Nov. 12, 1996). According to the above facts found, it is recognized that the Plaintiff’s act of operating the instant store in lieu of the rent for 10 years after the lease of the instant real estate was not received, and the operating revenue of the instant store in lieu of the rent for 10 years after receiving the right to operate the instant real estate was excessive to 1/2 of the rent for the instant real estate, it is deemed that the Plaintiff continues to lease the instant real estate to the Defendant, so long as there exists, to the extent it violates the principle of good faith.

Therefore, since at least from October 1, 199, the Plaintiff acquired the right to claim the amount of rent increase under Article 628 of the Civil Act, the claim for rent increase as of December 19, 200 upon the Plaintiff’s request. However, the scope of increase is not the difference between the entire rent of the real estate in this case sought by the Plaintiff and the operating revenue of the store in this case, but the difference between the rent and the operating revenue of the store in this case actually occupied by the Defendant.

When calculating that increased portion, 6,689,109 won (95,587 won x 7 months x 7 months) based on 95,587 won (1,98,587 won - 1,043,000 won) as of October 1, 1999 for seven months from October 1, 199 to April 30, 200, 1,203,536 won (2,016,536 won - 813,00 won) as of December 1, 200 x 1,200 to December 31, 200 x 1,203,536 won (2,016, 536 won - 813,000 won) as of December 1, 209 x 301,637,13637,196,37,200 won as of December 1, 2000.

In this regard, the defendant asserts that it is against the good faith principle to claim the rent increase on the ground that the operating revenue of the store of this case was reduced according to the match string. However, as seen above, insofar as the change of circumstances is recognized to the extent that the claim for rent increase is recognized as above, it cannot be deemed that the plaintiff's claim of this case violates the good faith principle on the basis of the difference of circumstances

3. Conclusion

Therefore, upon the claim changed in exchange at the trial, the defendant is obligated to pay the plaintiff 16,317,397 won and 25% interest per annum from February 9, 2001 to the day of full payment, which is the day following the ruling of this case sought by the plaintiff, and to pay 1,203,536 won per month from January 1, 2001 to the day of delivery of the real estate of this case. Thus, the plaintiff's claim is accepted within the extent of the above recognition, and the remaining claims are dismissed as they are without merit.

Judges Park Young-soo (Presiding Judge)