Use of profits and unjust enrichment based on the simultaneous performance defense right

Even in case where a lessee has enjoyed from the right of defense of simultaneous performance, if he has inflicted a loss on the lessor due to the right of defense, it shall be unjust enrichment.

Article 741 of the Civil Act

Plaintiff

Defendant

Seoul Civil District Court Decision 80Na7 delivered on May 9, 1980

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

Where the lease contract expires due to the expiration of the term, even though there is an obligation of the lessee to order the object of lease and the lessor to simultaneously perform all obligations arising from the repayment of all debts, such as overdue rent, etc., out of the deposit, if the lessee gains profit from the use of the object of lease based on the right of simultaneous performance, the lessee is obligated to return such profit as unjust enrichment if the lessee causes loss to the lessor (see this case, e.g., Supreme Court Decision 63Da235, Jul. 11, 1963). Thus, although there is insufficient sense in the expression of the amount equivalent to the rent, the court below's judgment disposition which appears to have been made with the same purport is just, and there is no error of law in the misapprehension of legal principles as to concurrent performance right, unjust enrichment, etc., and in light of records, the court below's finding that the Defendant bears one million won per month as the electric fee for the use of the store in this case, and there is no error in the misapprehension of social order as well as in the misapprehension of legal principles.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Il-su (Presiding Justice)