[Defendant-Appellee] Plaintiff 1 and 3 others (Attorney Kang Jong-soo, Counsel for defendant-appellee)

○○○○ and two others (Attorney Lee Dong-young et al., Counsel for the defendant-appellant)

July 19, 2017

Daejeon District Court Decision 2015Gahap105456 Decided September 30, 2016

1. The judgment of the first instance, including a claim extended by the Plaintiff in this court and a claim that has been changed in exchange, shall be modified as follows.

A. The Plaintiff:

1) Defendant ○○○○○, Inc.

A) Of the real estate listed in paragraph (1) of the attached Table 1, the H beam columns at the bottom of 510.6 square meters, 44, H beam columns at the bottom of 510.6 square meters, H beam columns at the upper part connected with each of the above H beam columns and steel plates, among the real estate listed in paragraph (1) of the attached Table 1, remove the 510.6 square meters of the above land and the real estate listed in paragraph (2) of the attached Table 1;

B) The amount of KRW 180,500,000 and the interest thereon shall be paid at the rate of 15% per annum from July 19, 2017 to the date of complete payment.

2) Defendant 2 (Counter-board: Defendant 2 (Defendant) jointly with Defendant ○○○○○○○○○ and jointly pay to the Plaintiff 180,500,000 won with an annual interest rate of 15% per annum from July 19, 2017 to the day of full payment.

B. The Plaintiff’s remaining claims against Defendant 2, Defendant 2, and Defendant 3 are dismissed, respectively.

2. The total costs of the lawsuit shall be borne as follows:

A. The part arising between the Plaintiff and Defendant ○○○○, Inc., bears 30% of that part, and the remainder shall be borne by the said Defendant.

B. The Plaintiff bears 45% of the portion arising between the Plaintiff and Defendant 2, and the remainder shall be borne by the said Defendant.

C. The part arising between the Plaintiff and Defendant 3 is assessed against the Plaintiff.

3. The above paragraph 1(a) may be provisionally executed.

[Claim]

The judgment of the court and the defendant 3, as stated in the Disposition No. 1-A, jointly and severally with the defendant 2 and the defendant 2, and jointly with the defendant 1-○○○○○○○, shall pay the amount of KRW 180,500,00 and that amount at the rate of 15% per annum from the day following the delivery of the copy of the claim and the application for modification of the cause of the claim as of July 18, 2017 to the day of complete payment (the plaintiff paid KRW 500,000 to the defendant and paid KRW 50,000,000 to the defendant in repayment and extended the purport of the claim by this court as a simple performance claim while seeking a future performance claim as to the claim for the return of unjust enrichment equivalent to the rent to the defendants, and changed the claim against the defendant 2 and the defendant 3 in exchange for the lawsuit from the trial to the simple performance claim, thereby reducing the purport

【Purpose of Appeal】

○ Plaintiff

The judgment of the court of first instance is amended as stated in the purport of the claim (as above, the plaintiff has partially reduced the purport of appeal by reducing the purport of the claim in part).

○ Defendants

The part against the Defendants in the judgment of the first instance is revoked, and the Plaintiff’s claim against the Defendants corresponding to the revocation part is dismissed.

1. Quotation of the first instance judgment

The reasoning of this Court concerning this case is as follows: (a) deleted 6 to 18 pages 12, 12, 6, and 13 of the judgment of the court of first instance; and (b) it is identical to the corresponding part of the judgment of the court of first instance except for the dismissal or addition as follows; and (c) thus, it is acceptable to accept this as

2. Parts to be removed or added;

○○ 6th 14th 14th 14th am “Grail was overdue from July 2015, 2015,” “from August 2015, value-added tax was paid KRW 45 million, and not paid KRW 4.5 million, from September 2015, in whole, the rent (including value-added tax) was overdue; “from August 10, 2015,” “from August 10, 2015 (from September 9, 2015)” means “from August 111, 2015,” and “from August 2015, 2015, from August 111, 2015” means “from August 2015, 200 and from September 111, 2015,” respectively.

○ 6 by inserting the following on the 19th 19th 19 pages, and adding “Evidences A 12, A 15 to 21, A 23, and 24(including the number number, if any)” on the same side.

D. The current status of possession of the building of this case

1) On October 19, 2016, the Plaintiff filed an application for compulsory execution with the judgment of the first instance (hereinafter “the judgment of the first instance”) that was attached to the Daejeon District Court as a provisional execution title to seek delivery of the instant building. The Defendants filed an application for the suspension of compulsory execution with the judgment of the first instance to suspend compulsory execution until November 27, 2016, on the ground that the instant building was scheduled to be carried out by November 27, 2016 with the Daejeon District Court until November 27, 2016. The Daejeon District Court rendered a decision that the compulsory execution under the judgment of the first instance shall be suspended until November 27, 2016 on the condition that the said provisional execution is to be carried out on the instant building. The Plaintiff filed an immediate appeal against this.

2) On November 27, 2016, Defendant 2 and Defendant 3 terminated the business of the instant building and delivered the instant building to Defendant ○○○○○○ on the same day.

3) On November 29, 2016, the Plaintiff made the judgment of the first instance court of this case as an executive title, and executed corporeal movables against the Defendants. An execution officer entrusted by the Plaintiff had the instant building opened by force, seized corporeal movables owned by Defendant ○○○○○, which were located within the instant building, and kept them in custody with the Plaintiff’s consent. Such seized corporeal movables are books, decorations, and kitchens necessary for the progress of wedding.

4) As above, the Plaintiff occupied the instant building from the time when the instant building was mandatorily opened.

5) In the instant building, corporeal movables owned by Defendant ○○○○○○○○○, which were seized by the Plaintiff, remain.”

○ 7 up to 11 vehicles from 8 pages to 11 vehicles of the same side are as follows:

“On the other hand, as seen earlier, the Plaintiff occupied and used the instant building from November 29, 2016, but corporeal movables owned by Defendant ○○○○○○○○ still remain in the instant building. Therefore, Defendant ○○○○○○ is obligated to remove the instant parking lot and deliver the relevant parking lot and the instant building to the Plaintiff, as restitution upon termination of the instant lease agreement. (Inasmuch as Defendant ○○○○○○ has ownership of corporeal movables remaining in the instant building, it cannot be deemed that Defendant ○○○○○○ completely performed the duty to deliver corporeal movables, which are owed upon termination of the instant lease agreement, until discharging corporeal movables out of the instant building, and no other evidence exists to deem that Defendant ○○○○○○○○○○ was completely performing the duty to deliver the instant building upon the termination of the instant lease agreement.” (In the event of Defendant ○○○○○’s loss of possession right on the instant building, Defendant 2 can completely perform the duty to transfer seized objects by altering the place of storage or returning the seized objects to an execution officer.).”

○ 9 13 Mada 13 Madada

“(In addition, Defendant ○○○○ withdrawn the claim for the right to purchase the accessory to the instant parking lot in this Court)”

○ From 10 up to 13 parallels as follows:

1) The plaintiff's assertion

Defendant ○○○○○○○ is a person who has not paid the Plaintiff the rent of KRW 60 million after deducting the value-added tax from September 10, 2015 to November 29, 2016. Therefore, Defendant ○○○○○○ is liable to pay the Plaintiff KRW 70,500,000 (the sum of value-added tax of KRW 10% for unpaid rent + KRW 66 million + value-added tax of KRW 4.5 million) plus KRW 730,50,000 (the sum of value-added tax of KRW 10 million for unpaid rent + value-added tax of KRW 4.5 million) that was paid by Defendant 2 after the judgment of the first instance of this case.

○ From 12 up to 4 parallels as follows:

○○○○○○○○○○○○○ has a duty to return the rent equivalent to KRW 4,950,000 per month from October 1, 2015 to November 29, 2016, which terminated the occupation and use of the instant building (where ○○○○○○○○○○○○○○ has an agreement to pay an amount equivalent to the value-added tax on rent for the previous lease to the lessee who is supplied with the amount equivalent to the value-added tax on rent for the said lease, barring any special circumstance, it is reasonable to view that the amount equivalent to the value-added tax on rent for the said lease should also be borne by the lessee who continuously occupies it (see, e.g., Supreme Court Decision 2002Da3828, Nov. 22, 2002). Article 2(1) of the Value-Added Tax Act is an independent supplier of goods and services (i.e., the value-added tax and the value-added tax should not be imposed on the Plaintiff.

3) Accordingly, when calculating the unpaid rent, etc. by Defendant ○○○○○○○○, Defendant 180,500,000 won, subtracting the sum of KRW 550,000,000,000, which was deducted by the Plaintiff himself/herself from KRW 730,500,000 from September 10, 2015 to November 29, 2016. Accordingly, Defendant ○○○○○ is obligated to pay damages for delay calculated at the annual rate of 15% as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from July 19, 2017 to the date of delivery of a copy of the claim and the application for change of the cause of the claim as of July 18, 2017, as sought by the Plaintiff.

○ 12 6 to 13 21 e.g., 14 6 to 18 e.g., 15 e., 5 to 16 e.g., 21 e., “Defendant 2 and Defendant 3”. The following is added to “Defendant 2”. 12 e.g., 14 e.

The fact that only Defendant 2 entered in the contract prepared by Defendant 2 while driving the instant building on September 25, 2014 does not conflict between the parties. The Plaintiff was transferred monthly rent in the name of the depositer between October 10, 2014 and November 30, 2015, and the fact that Defendant 2 operated a crowdfunding in the instant building with Defendant 3, the husband of the instant case, and Defendant 2, as follows. According to the evidence No. 12, it is difficult to view that Defendant 2 registered his business with the trade name “○○○○○○○○○○○○○○○○,” as to the instant building. In light of these circumstances, it is reasonable to view that the Plaintiff and Defendant 2, who used the instant building from Defendant 2, as the contracting party, participated in the instant lease agreement between Defendant 2 and Defendant 3, the Plaintiff, or Defendant 2, who was the Defendant ○○○○○, etc., as the contracting party.

○ 14 up to 15 pages 14 up to 15 pages as follows:

“A claim for rent and return of unjust enrichment”

1) The plaintiff's assertion

Defendant 2 and Defendant 3 have a duty to pay the Plaintiff the rent of KRW 60 million after deducting the value-added tax from September 10, 2015 to November 29, 2016. Accordingly, Defendant 2 and Defendant 3, jointly with Defendant ○○○○○○, shall be jointly and severally liable to pay the Plaintiff KRW 70,500,000 (the total value-added tax of KRW 66,500,000 for unpaid rent + value-added tax of KRW 4.5 million for unpaid rent) plus KRW 730,50,000,000 for the total amount of value-added tax of KRW 66,50,000 and KRW 50,000 for lease deposit and KRW 50,500,000,000 for rental rent, which the Plaintiff deemed to have received from Defendant 2 after the judgment of this case.

○ 16 up to 17 pages “Defendant 2” through “Defendant 17” are as follows:

“Defendant 2 is jointly with Defendant 2’s ○○○○ and is obligated to return unjust enrichment calculated by Defendant 2 from October 1, 2015 to Defendant 2’s ○○○○○○ at the rate of KRW 49.5 million (including value-added tax), the monthly rent for each month, from the time when the delivery of the instant building is completed (as seen in the foregoing, Defendant 3 cannot be seen as the lessee of the instant building, and thus, Defendant 3’s possession of the instant building ought to be deemed as an occupation assistant).

3) Accordingly, if Defendant 2’s unpaid rent is calculated, Defendant 2’s total sum of 660,000,000,000 and the amount of the unpaid value-added tax plus 70,500,000,000 won (10% value-added tax for unpaid rent + KRW 66 million + value-added tax of KRW 4.5 million for unpaid rent on August 18, 2015) plus the Plaintiff’s own deduction of KRW 180,50,500,000,000. Accordingly, Defendant 2 jointly with Defendant ○○○○○○○○○, and the Plaintiff’s obligation to pay 180,50,000,0000,000 per annum from July 18, 2017 to the day after the day after the day after the day after the day when the claim was filed, is clear that the Plaintiff’s obligation to pay a copy of the claim and delay damages on July 17, 2017.

○ With respect to a set-off defense made by Defendant 2 in this Court, the following judgments are added thereto:

『〔피고 2의 상계항변에 대한 판단〕

The Plaintiff did not issue a tax invoice to Defendant 2 on the rent of KRW 49.5 million (including value-added tax) paid by Defendant 2, and for that reason, Defendant 2 did not receive an input tax deduction as much as the amount equivalent to the rent when the Plaintiff reported value-added tax. There is no dispute between the parties.

Defendant 2 asserts that the amount equivalent to the value-added tax additionally paid by Defendant 2 due to Defendant 2’s failure to obtain the input tax deduction as above shall be the damage claim, and that the amount set off against the Plaintiff’s claim on the rent, etc. in this case against Defendant 2 is set off against

However, even if the Plaintiff did not issue a tax invoice to Defendant 2, Defendant 2 cannot be deemed to have a proximate causal relation between the Plaintiff’s non-issuance of the tax invoice and the damages claimed by Defendant 2, unless there is any special circumstance that Defendant 2 could not receive the value-added tax through the aforementioned procedure, by using documents proving objectively the transaction fact with the Plaintiff pursuant to Article 126-4 of the Restriction of Special Taxation Act (amended by Presidential Decree No. 14390, Dec. 20, 2016) and Article 121-4 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 27848, Feb. 7, 2017).

Defendant 2’s defense of set-off is rejected.

3. Conclusion

Therefore, the Plaintiff’s claim against Defendant 2, ○○○○○○, and Defendant 2, within the scope recognized above, shall be accepted within the scope of the above-mentioned scope, and the Plaintiff’s remaining claim against Defendant 2, and the claim against Defendant 3 shall be dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the first instance judgment.

[Attachment Omission]

Judges Yoon Jin-hun (Presiding Judge) (Presiding Judge)