[1] In a case where a lease is terminated, whether the lessee is obligated to order the lessor to rent the leased object and pay the lessor the overdue rent to the end of the lease even if the leased object owned by another person, other than the lessor (affirmative in principle), and whether the lessee is obligated to return unjust enrichment equivalent to the rent due to the possession and use of the real estate from the end of the lease to the completion date of the lease agreement (affirmative in principle) / Whether such legal principle applies to the lessee where the lessee sub-leases the leased object but the lease and sub-lease are terminated (affirmative in principle)

[2] In a case where the lease contract is terminated after the lessee sub-leases the object and the lessee becomes unable to allow the sub-lessee to use or make profits from the object due to the cause such as a claim for refund of the object or a request for the payment of the rent or the corresponding amount thereof from the lessor, whether the sub-lessee is exempted from the duty to pay rent and return unjust enrichment thereafter on the ground of the termination of the contract due to impossibility of performance (affirmative)

[3] In a case where Eul, who concluded a lease contract with regard to Eul's store owned by Gap, sub-leaseed the store to Eul, but Gap filed a lawsuit against Byung, who notified Eul of the termination of the lease contract on the ground of the lease contract without permission, and Byung continued to engage in the business in the above store under the agreement with Eul; Byung terminated the sub-lease contract against Byung and sought a return of unjust enrichment equivalent to the rent from the day following the termination of the sublease contract and the termination of the sub-lease contract, the case holding that Eul cannot allow Byung to use the store and make profits from the store after Eul demanded the return of the object as above, and therefore Byung is not obligated to pay rent or unjust enrichment to Eul, although Byung did not have any obligation to pay rent or unjust enrichment to Byung

[1] Articles 618, 630, and 741 of the Civil Act / [2] Articles 618, 623, 630, and 741 of the Civil Act / [3] Articles 618, 623, 629, 630, and 741 of the Civil Act

[1] Supreme Court Decision 200Da68290 Decided June 29, 2001 (Gong2001Ha, 1731) Supreme Court Decision 2007Da21856, 21863 Decided August 23, 2007 (Gong2007Ha, 1453)/ [2] Supreme Court Decision 2008Da38325 Decided September 24, 2009 (Gong2009Ha, 1733)

Plaintiff (Law Firm Sejong, Attorneys Kim Min-soo et al., Counsel for the plaintiff-appellant)

Defendant

Seoul Central District Court Decision 2018Na39159 Decided November 21, 2018

The part of the lower judgment against the Defendant regarding the claim for payment of the money is reversed, and that part of the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. Where one of the parties agrees to allow the other party to use or take profit from an object and the other party agrees to pay the rent for it. Furthermore, the requirements for the establishment of the lessor to have ownership or other right to lease the object. Thus, even if the object of lease is owned by the other party, barring special circumstances, such as requesting the lessor to return the object or to pay the rent therefor, the lessee is obligated to order the lessor to return the object and pay the rent in arrears until the end of the lease. Further, the lessee is also obligated to return unjust enrichment equivalent to the rent in possession or use of the real estate from the end of the lease until the completion of the name of the real estate even after the lease. This legal principle applies to the lessee where the lessee sub-leases the leased object but the lease or sub-lease is terminated (see, e.g., Supreme Court Decisions 200Da68290, Jun. 29, 2001; 207Da218636, Aug. 23, 2007).

In addition, if the lease contract is terminated after the lessee sub-leases the object and the lessee cannot allow the sub-lessee to use or make profits from the object on the grounds that the lessee is demanded by the lessor to request the return of the object or payment of the rent or the corresponding amount thereof, the lessee’s obligation under the sub-lease contract is impossible, and the sub-lease does not assume the obligation to pay the rent and return unjust enrichment thereafter on the grounds that the contract is terminated due to the impossibility of performance (see Supreme Court Decision 2008Da38325, Sept. 24, 2009).

2. According to the reasoning of the lower judgment and the record, the Plaintiff, among the buildings owned by Samak-gu Co., Ltd. (hereinafter “Yak-gu Co., Ltd.”), concluded a lease contract with respect to the instant store, was sub-leaseed to the Defendant; (2) The Plaintiff, on October 13, 2015, notified the Plaintiff of the termination of the lease contract on the ground of the Plaintiff’s unauthorized transfer; and (3) on December 28, 2015, filed a lawsuit against the lessee, including the Plaintiff, etc. seeking delivery of each of the relevant stores; and (4) the Defendant, etc. filed a lawsuit against the lessee, including the Defendant, to prohibit possession transfer of the store on or around February 24, 2016 after filing an application for the provisional disposition order against the lessee on the provisional disposition on or around December 24, 2016; and (3) the Defendant agreed to use the instant store on August 22, 2017 to deliver the store at the time of the agreement and agreed to deliver it to the store on October 220.

Based on such factual basis, the lower court determined that the Plaintiff was liable to return unjust enrichment equivalent to the rent from the day following the termination of the lease contract concluded with the Plaintiff to the day the delivery of the instant store was completed, even if the Plaintiff and the Defendant were to request the Plaintiff to deliver each of the stores to the Defendant, solely on such circumstances alone, since it is difficult to view that the Plaintiff was unable to perform the obligation under the sub-lease contract for allowing the Defendant to use and make profits from the instant store.

3. However, examining the above facts in light of the legal principles as seen earlier, it can be seen that Samakak was first notified the Plaintiff of the termination of the lease contract, and that the Defendant filed an application for the temporary injunction against the transfer of possession against the Defendant, and the Defendant continued possession and use of the instant store even thereafter is deemed to be in accordance with the lessor’s intent of tri-Ba-Ba, and thus, the Plaintiff could not allow the Defendant to use and profit from the instant store, and the Defendant did not have the obligation to pay the Plaintiff rent or unjust enrichment.

Nevertheless, the court below held that the Defendant is obligated to pay rent and unjust enrichment to the Plaintiff even after the Defendant filed a claim for return of the object against the Defendant, on the ground that the Defendant continued to conduct business at the store until the date of closing argument. The court below erred by misapprehending the legal principles on the scope of the obligation to pay rent and the establishment of unjust enrichment by the lessee, which affected the conclusion of the judgment. The Defendant’s ground of appeal pointing this out is with merit.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the Defendant regarding the claim for the payment of the amount by the lower judgment is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent

Justices Lee Ki-taik (Presiding Justice)