(영문) 서울고등법원 2014.10.24.선고 2014나2012155 판결

The defendant shall pay to the plaintiff, 416,56,00 won and its related amount of KRW 401,679,679,000 from April 23, 2009 to April 23, 2010; KRW 428,953,500 from April 23, 2011; KRW 428,953,50 from April 23, 201; KRW 448,789,50 from April 23, 2012; KRW 466,146,00 from April 23, 2013 to November 25, 2013; KRW 20% from the date following the date of delivery of a copy of the application for alteration of claim to the plaintiff; and KRW 466,146,00 from the date of completion of payment; and KRW 45% from the date of completion of payment to the date of completion of payment; and KRW 20% from April 13, 20193.

2. Purport of appeal

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

Reasons

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning the instant case is as follows: (a) to change the "land of this case" of No. 5 of the judgment of the court of first instance into the "each land of this case"; (b) to the "each land of this case" of this case; (c) to add the following Paragraph 2 after the fifth 13; and (d) to the reasoning for the judgment of the court of first instance except for addition of the judgment as to the matters alleged in the trial of this case of this case as

2. Additional parts

① Since the Plaintiff is in a position to obtain various authorizations from the Defendant regarding terminal business, it is reasonable to view that the Defendant was not a position to exercise the right to each of the instant land without any restriction, and therefore, it is reasonable to view that the Plaintiff was entitled to exercise the right to each of the instant land under a sort of management judgment.

(8) Even if an underground shopping mall installed on each of the instant lands contributed to the activation of the Plaintiff’s underground shopping malls, it is difficult to deem that there was an implied agreement between the Plaintiff and the Defendant on the ground that the said underground shopping mall continues to exist for a long time, and that the amount equivalent to the rent for each of the instant lands is not a large amount of money.

① Although the Plaintiff’s underground shopping mall constructed a passage connecting the entrance and the Plaintiff’s terminal building to the underground floor, in light of the fact that the entrance was basically installed for the instant underground shopping district newly built by the Defendant, and that the Plaintiff used it to construct a passage connected to the underground floor of the terminal building, it is difficult to deem that the Plaintiff renounced the exclusive right to use and benefit from each of the instant land, or that the Defendant believed that it would not exercise the right to use and benefit from each of the instant land.

11) The Defendant asserts that the Plaintiff’s filing of the instant lawsuit was a retaliation and response lawsuit against the Plaintiff as to the Plaintiff’s filing of the lawsuit seeking the name of the said commercial building and return of unjust enrichment upon the lapse of the Plaintiff’s free use period for the first floor of the high speed terminal station of subway No. 3, the subway No. 3, but there is insufficient evidence to acknowledge the Defendant’s assertion solely on the basis of the respective descriptions of the evidence No. 6, No. 10, 11, and 12.

3. Additional matters to be determined;

A. The defendant's assertion

Despite the fact that the Plaintiff, installed on each of the instant lands, actively enjoyed the benefits of activation of terminal underground shops by taking advantage of the entrance’s own business, was imposed on the Plaintiff due to the termination of the free use of the shopping mall of the high speed terminal station of the subway line 3, the Plaintiff filed the instant lawsuit to the effect that the amount equivalent to the rent for each of the instant lands ought to be exceeded 34 years after the entrance was installed on each of the instant lands at a retaliation and response level, in light of the developments, nature, and overall circumstances of the instant lawsuit, such as the fact that the Plaintiff filed the instant lawsuit to the effect that the Plaintiff’s claim of this case goes against the principle of good faith or the principle of invalidation.

B. Determination

Generally, the exercise of rights shall be in accordance with the principle of trust and good faith and shall not be abused. Thus, even if a right holder fails to exercise his/her right after a considerable period of time, despite the opportunity for the actual exercise of rights, and as a result, the rightful expectation that the right holder would not exercise his/her right is recognized as violating the principle of trust and good faith governing the entire legal order, the exercise of his/her right shall not be permitted pursuant to the so-called principle of invalidation. In addition, the issue of whether there is a justifiable reason to believe that the other party as the obligor would not exercise his/her right (see, e.g., Supreme Court Decision 200Da4827, Oct. 28, 2005) as necessary for the application of the principle of invalidation, and whether there is a justifiable reason to believe that the right holder would not exercise his/her right (see, e.g., Supreme Court Decision 2000Da4827, Oct. 28, 2005). 205).

In light of the above various circumstances, etc., it is insufficient to acknowledge that there exists a justifiable reason to believe that the Defendant did not exercise the right to each of the land of this case, and there is no other evidence to prove otherwise, the Defendant’s above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case 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. It is so decided as per Disposition.