2015Da251867 Requests for the return, etc. of deposit

A Stock Company

B A.

Seoul Eastern District Court Decision 2015Na21006 Decided November 6, 2015

April 28, 2016

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Seoul Eastern District Court Panel Division.

The plaintiff's incidental appeal is dismissed.

1. We examine the grounds of appeal.

A. Regarding termination of the contract

The lower court determined as follows: (a) the Defendant received the instant store from the Plaintiff on September 30, 2013; (b) concluded a sub-lease contract with a new lessee on or around February 5, 2014; (c) provided, however, that the said sub-lease contract was concluded on or before March 19, 2014 due to the lessor’s consent, and that the new lessee began business from July 1, 2014; and (d) accordingly, the lower court concluded that the instant sub-lease contract was terminated on or before February 5, 2014, on the ground that the Defendant had no intent to perform the duty to provide an object under the instant sub-lease contract, which was concluded by the new lessee, on or around February 4, 2014.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the termination of a contract.

B. As to the deduction amount of deposit

1) On February 4, 2014, the lower court determined that the Defendant is obligated to refund KRW 50 million to the Plaintiff on the ground that the instant sub-lease contract was terminated by agreement, and that the Defendant’s repayment of KRW 50 million from October 1, 2013 to June 30, 2014 should deduct the sub-lease fee of KRW 6,325,00 from the Defendant’s payment of overdue rent, etc., the lower court determined that Article 13(5) of the instant sub-lease contract provides that even if the Plaintiff temporarily shuts down or shuts down the business within the object of the sub-lease, the monthly sub-lease fee calculated by the average sales amount for the immediately preceding three months shall be paid within the period of sub-lease, and that the Plaintiff paid KRW 3,162,500 from October 14, 2013 to the date of sub-lease, based on the fact that the Plaintiff paid KRW 3,162,500,000 as the sub-lease.

2) As seen earlier, it is reasonable that the instant sub-lease contract was terminated on February 4, 2014, and thus, the lower court was justifiable to have deducted the sub-lease charges from the sublease deposit from October 1, 2013 to February 4, 2014, but it is not acceptable for the lower court to have calculated the sublease charges to be deducted based on KRW 3,162,50 per month for the following reasons.

According to the reasoning of the judgment below and the records, ① the Plaintiff entered into the instant sub-lease contract with the Defendant on October 25, 2010, determined the monthly rent as 18% of the monthly sales, and determined the minimum rent as 5 million won (excluding value-added tax) (Article 4 of the pre-lease contract sign), ② The Plaintiff shall deposit the monthly sub-lease fee as stipulated in Article 4 of the sub-lease contract at the designated account on the seventh day of the month following the corresponding month (Article 13(1)), and even if the Plaintiff temporarily shuts down or shuts down the business within the object of sub-lease, the monthly sublease fee calculated by the average monthly sales during the immediately preceding three months is generated, and the Plaintiff shall pay the relevant monthly sublease fee (Article 13(5)) within the period of sub-lease under Article 13(1) (Article 13(1)). ③ The minimum rent is raised as 5750,000 won from July 7, 2012 to the Defendant.

In full view of such facts and the fact that there is no record of the circumstances in which the Plaintiff has to calculate the sublease fee that is to be paid after October 1, 2013 based on the monthly rent of 3,162,500 won, the Plaintiff is obligated to calculate and pay the sublease fee as prescribed by the sub-lease contract of this case, barring any special circumstances to be otherwise calculated before the expiration of the sublease period even after the delivery to the Defendant of the instant shop, so such deduction shall be made from the deposit to be returned by the Defendant.

Nevertheless, the lower court determined that the sublease fee should be deducted from the deposit without further deliberation on the special circumstances that need to calculate the sublease fee without following the instant sublease contract, as well as the sublease fee calculated under the instant sublease contract, and the sublease fee calculated based on the monthly 3,162,50 won from October 1, 2013 to October 1, 2013, solely based on its stated reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the deduction of the sublease fee, thereby failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal on this point is with merit.

2. We examine the grounds of incidental appeal.

As to the Plaintiff’s assertion that the instant sub-lease contract was terminated by the Plaintiff’s notice of termination on August 29, 2013, the lower court rejected the Plaintiff’s assertion on the ground that it is difficult to deem that the instant sub-lease contract was terminated under the said provision, since Article 13(3) and (4) of the instant sub-lease contract was not directly applied to the instant case, and it is reasonable to deem that the Plaintiff consented or ratified to new salesrooms of the same type of business as the remodeling project, and therefore, it is difficult to deem that the instant sub-lease contract was non-performance of the obligation to pay the instant sub-lease contract.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on interpretation of juristic acts, etc., as alleged in

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s supplementary appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Note Justice Lee In-bok

Justices Kim Yong-deok

Justices Lee Dong-won