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Reasons
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(영문) 수원지방법원안양지원 2017.11.23 2017가합235
임대차보증금반환
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1. At the same time, the Defendant received the delivery of No. 1016, 204 from the Plaintiff of Overcheon-si C Apartment No. 1016, the second floor from the Plaintiff.

Reasons

1. Facts of recognition;

A. On March 23, 2016, the Plaintiff entered into a lease agreement with the Defendant, setting the lease deposit amount of KRW 780,000,000 and KRW 204 of the second floor (hereinafter “instant apartment”) from the Defendant on the lease deposit for two years from May 10, 2016 (hereinafter “instant lease agreement”).

B. Under the instant lease agreement, the Plaintiff paid the Defendant KRW 78,00,000 for the down payment on March 23, 2016, and KRW 472,00,000 for the intermediate payment on May 9, 2016, and KRW 230,000 for the remainder on May 10, 2016, respectively, and on May 10, 2016, the Plaintiff occupied the instant apartment after receiving the delivery from the Defendant.

C. At the time of the instant lease agreement, the Defendant agreed to cancel the registration of creation of a mortgage (hereinafter “mortgage”) that is the mortgagee, EsBA Savings Bank, the maximum debt amount of KRW 198,900,000 on the instant apartment at the time of the instant lease agreement, and the registration of creation of a mortgage (hereinafter “mortgage”) up to December 31, 2016.

However, the defendant did not cancel the right to collateral security of this case until now.

Article 6 of the lease contract of this case provides that "If a lessor or lessee has failed to fulfill the terms of this contract, the other party may notify in writing the person who has failed to perform the contract and cancel the contract."

E. On January 9, 2017, the Plaintiff sent to the Defendant a certificate of content that the instant lease agreement may be terminated when the Plaintiff failed to perform its duty to cancel the instant right to collateral security by January 15, 2017.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, 5, and 6, the purport of the whole pleadings

2. Determination

A. According to the above facts of recognition as to the claim for the refund of deposit, the Defendant failed to perform its duty to cancel the instant right to collateral security by December 31, 2016, and thereafter, did not demand the Plaintiff to perform the duty.

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