A. Whether a lessee who was unable to receive a refund of the deposit after the termination of the lease continues to possess the object by exercising his/her right of defense of simultaneous performance (negative)

B. Whether the lessee has continuously occupied the leased building after the termination of the lease, but fails to use it or take profits therefrom, the lessee’s obligation to return unjust enrichment (negative)

A. Since the duty to return the leased object and the duty to return the remainder of the deposit, which deducted the lessor from the lessor’s default due to the termination of the lease agreement, are in a simultaneous performance relationship, if the lessee has continuously occupied the leased building by exercising his/her right of defense of simultaneous performance even after the termination of the lease agreement, then the lessor has breached the duty to return the deposit to the lessee, or the lessee has lost his/her right to simultaneous performance defense due to the lessee’s failure to perform his/her duty to perform as well as his/her duty to perform as well as his/her name due to the lessee’s failure to perform as a result of the lessor

B. The gain in return of unjust enrichment on the ground that the gain without any legal ground refers to a substantial benefit, so it cannot be deemed that the gain has been obtained if the building was occupied without any legal ground even if it was not used or profit-making. Therefore, if the lessee continued to possess the leased building portion even after the termination of the lease contract, but the lessee did not actually gain the profit due to the failure to use or profit-making, there is no room to establish the lessee's obligation to return unjust enrichment even if the lessor suffered loss.

a.B.Article 618(a) of the Civil Code; Articles 536 and 750(b) of the Civil Code; Article 741 of the Civil Code

A. Supreme Court Decision 86Meu2476 Decided April 12, 1988 (Gong1988,825), Supreme Court Decision 87Meu2114, 2115, and 2116 (Gong1989,521) decided Oct. 27, 1989 (Gong1989,1784), Supreme Court Decision 63Da235 decided Jul. 11, 1963 (No. 11 ②,45), 78Da250,2501 decided Mar. 13, 197 (Gong1979,11892), and 81Da28788,42985 decided Nov. 10, 1985 (Gong1968, Apr. 16, 1985)

Profit Cows

Maz.

Seoul Civil District Court Decision 90Na7028 delivered on June 29, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

As to the Plaintiff’s ground of appeal

Examining the facts established by the court below, the part of the second floor of the building of this case was 2.5 million won, monthly rent of 14,50,000 won, and one year after May 31, 1979. The contract was renewed every year, and the lease contract was renewed by 4.5 million won and 180,000 won, monthly rent of 1.8 billion won, and one year. The contract was terminated at May 30 of 1989, and the contract was terminated by 1989.5 billion won and the defendant was ordered to order the part of the building of this case to be ordered by the defendant on May 30 of the same year. 198. The plaintiff was not obliged to return the above part of the building of this case to the defendant on April 2 and 3 of the same year, and the defendant was not obliged to return the remaining part of the lease contract to the defendant on April 1, 198.

A theory of lawsuit argues that the plaintiff lawfully provided for the repayment of the lease deposit, but the defendant refused to receive the deposit on the ground of detention, and thus the defendant's right to resist simultaneous performance has ceased to exist, or it cannot be a legitimate ground for appeal. In addition, since the benefit accrued from the return of unjust enrichment on the ground of the benefit without any legal ground refers to the substantial benefit, even if the building was occupied without any legal ground, it cannot be deemed that the actual benefit was acquired if it was not used or profit was not made (see Supreme Court Decision 63Da235, Jul. 11, 1963; Supreme Court Decision 78Da2500, Mar. 13, 1979; Supreme Court Decision 81Da378, Nov. 10, 1981; Supreme Court Decision 84Da108, May 15, 1984; Supreme Court Decision 85Da2754, Mar. 27, 1986).

In this case, the defendant continued to possess the building portion of this case even after the termination of the lease contract, but there is no practical benefit due to the failure to use and profit-making. Accordingly, even if the plaintiff suffered loss, there is no room for establishing the obligation to return unjust enrichment. The judgment below as to this part is just and there is no error of law such as the theory of lawsuit. There is no merit

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 Yoon Young-young (Presiding Justice)