Plaintiff (Law Firm Rops, Attorneys Kim U-young, Counsel for the plaintiff-appellant)

Defendant (Attorney Yu Hong-han et al., Counsel for the defendant-appellant)

June 24, 2005

1. The defendant shall pay to the plaintiff 48,258,064 won with 20% interest per annum from July 28, 2003 to the day of full payment.

2. The costs of lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The following facts do not conflict between the parties, or can be acknowledged by comprehensively considering the following facts: Gap evidence 1-1-4, Gap evidence 1-2-1-3, Gap evidence 3, Gap evidence 4-1 through 7, Gap evidence 5-7, Gap evidence 8-1 through 5, Gap evidence 9-1, 2, Eul evidence 1-4, and non-party 1's testimony.

A. On April 10, 1992, the Plaintiff leased, to Nonparty 1, the Plaintiff’s wife Nonparty 2, the amount of 397-1 to 4303.4 square meters (in March 25, 1995, the administrative district was changed to 391-8 to 4303.4 square meters in Bupyeong-gu, Incheon, Bupyeong-gu, Incheon), which was registered in the Plaintiff’s name under the Plaintiff’s wife Nonparty 2 (hereinafter the lease contract between the Plaintiff and Nonparty 1) and the amount of 55 million won per month, the amount of the deposit for the second floor, factory, warehouse, and warehouse around the ground metal owned by the Plaintiff (hereinafter the lease contract between the Plaintiff and Nonparty 1).

B. As of May 10, 1995, the Plaintiff again leased the above ground building to Nonparty 1 as of May 10, 1995, under a special contract that Non-party 1 bears 150 million won as to the above ground building, and that the expenses or rights related thereto cannot be asserted to the Plaintiff at the expiration of the lease term, Non-party 1 purchased the above ground building by setting the deposit amount of KRW 30 million and the period of December 30, 1996 under the premise that Non-party 1 could not claim such expenses or rights related thereto. The non-party 1 received the permission from the Plaintiff until September 19, 195, to repair and remodel the above ground building and extend the three floors [the non-party 1 obtained the permission from the Plaintiff until September 19, 195, by adding up the three-story concrete structure and light metal structure, 735 square meters (factory), 725 square meters (factory), 735 square meters (hereinafter referred to as "the above site of this case").

C. Nonparty 1: (a) divided the two floors of the instant purchase and sale complex into nine similar sizes; (b) divided the remaining eight units into KRW 40,000,000 per month to the Defendant, Nonparty 3, and Nonparty 9, and sub-leaseed each deposit of KRW 1,700,000 per month to the high-ranking motor vehicle dealer; (c) around June, 1997, the first floor increased to KRW 50,000 per month; (d) while using the first floor as a parking lot, Nonparty 10 who operates the car center; and (e) the third floor sub-lease to Nonparty 11 and Nonparty 12; and (e) the Defendant concluded a sub-lease contract with Nonparty 1 on June 7, 195 and operated the large-scale motor vehicle dealer (hereinafter referred to as the “sub-lease contract between the Defendant and Nonparty 1”).

D. From July 1997, the Plaintiff increased the deposit amount to KRW 400 million for the instant trading complex, and the rent to KRW 13,500,000 per month.

E. Since the acquisition of the instant trading complex, the Plaintiff repeated the registration of seizure on real estate several occasions since the acquisition thereof, and the registration of seizure by Bupyeong-gu Incheon Metropolitan City was commenced on November 22, 1997 and several recommendations for seizure and provisional seizure have been made on November 22, 1997, and the Plaintiff was at the risk of being at the auction of the instant trading complex due to the increase in interest rate due to the increase in interest rate due to the financial crisis around October 198.

F. Sub-lessees of the instant trading complex found the method of recovering the security deposit, and found the method of collecting the security deposit even the Plaintiff who was not properly paid the security deposit. Nonparty 1 found the method of exempting the lessee from the obligation to return the security deposit. First, Nonparty 1 commenced land excavation work, etc. around January and February 199, in order to pay the loan interest by providing funds by extending the parking zone and leasing it additionally, but the Plaintiff suspended the land excavation work.

G. Meanwhile, on March 23, 1999, the former lessee of Nonparty 3 through 9, except the Defendant, excluded Nonparty 1, and entered into a lease agreement with the Plaintiff on March 23, 199 that the part occupied and used by them shall be KRW 50 million per deposit, KRW 17 million per month, and KRW 1.7 million per month, and KRW 2 years per month, and the former lessee of Nonparty 3 through 9 agreed to pay directly to the Plaintiff.

H. As of March 26, 199, the Plaintiff and Nonparty 1 made a written agreement with Nonparty 1 on the instant trade complex (hereinafter “instant agreement”) to arrange for approximately KRW 50 million of the rent unpaid until February 199, and to pay KRW 20 million among them on March 26, 191. The Plaintiff and Nonparty 1, including the 3rd floor and the Ka Center, shall accept the leased portion by the Plaintiff, but the part on the deposit money shall be paid to the Plaintiff.

I. However, unless the promise is observed, the lessee including the Defendant did not pay all the rent to Nonparty 1 or the Plaintiff from March 1999, and Nonparty 1 did not pay the rent to the Plaintiff. Since then, regarding the instant sales complex, the period was auction after the Incheon District Court issued the commencement order of auction on June 2, 1999 with the application for auction by the mutual savings and finance company at the Incheon District Court 9tae82100, and on July 13, 2001, Nonparty 3, 5, 6, 84 out of the subcontractors were awarded a successful bid and completed the registration of ownership transfer on the same day.

(j) The Defendant did not pay rent to Nonparty 1 for the period from March 1999 to Nonparty 3, etc. by the auction procedure, from March 1, 1999.

2. Determination

According to the above facts, with the plaintiff's consent based on the contract of this case between the plaintiff and the non-party 1, the contract for sub-lease was concluded by setting the deposit amount of KRW 50 million and KRW 1.7 million per month with respect to the corresponding part of the trade complex of this case. After that, unlike other sub-lessees of the second floor of the sale complex of this case, there is no direct lease contract between the plaintiff and the defendant. The agreement of this case cannot be viewed as a conclusive acceptance of sub-leases from the plaintiff non-party 1 to the non-party 1. Thus, the plaintiff cannot claim a overdue payment based on the direct lease relationship with the defendant, and it is reasonable to view that the plaintiff and the non-party 1 agreed to terminate the lease contract of this case. However, even if the lease contract of this case was terminated by the agreement between the plaintiff and the non-party 1, the lessor of this case, the non-party 1, the lessor of this case, the plaintiff and the non-party 1, the sub-lessee of this case.

Therefore, barring any special circumstance, the Defendant is obligated to pay to the Plaintiff damages for delay at the rate of 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from March 1, 1999 to July 12, 2001, which is the date on which the Plaintiff loses the Plaintiff’s ownership, to KRW 48,270,684 [1.7 million per month] within the scope of overdue rent of KRW 1.7 million [1.7 million + [28 + (12 + 365/12], and less than KRW 48,258,064, which the Plaintiff seeks, and the damages for delay at the rate of KRW 20% per annum from July 28, 2003 to the date on which the copy of the complaint in this case is served.

In regard to this, at the time of the termination of the sub-lease contract between Nonparty 1 and the Defendant on July 13, 2001, the Defendant: (a) there was an implied agreement between Nonparty 1 and the Defendant to set off the repayment obligation of the sub-lease deposit to Nonparty 1 and the Defendant’s payment obligation of the non-party 1 on an equal amount; (b) held the above repayment obligation of the lease deposit against the Defendant; and (c) on the basis of the extinguishment of the obligation incurred after the rent payment period, the Defendant asserted that the Defendant cannot respond to the Plaintiff’s claim because it is possible for the Plaintiff to set up a defense against the Plaintiff; and (d) there is no evidence to acknowledge that there was an implied set-off agreement between Nonparty 1 and the Defendant on the premise that there was an implied set-off agreement between the Defendant and the non-party 1. Therefore, the Defendant’s above assertion based on this premise is without

3. Conclusion

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

Judges Eather