In a case where a lessor is not obliged to use or benefit from an object and thus the use or benefit of the object is partly hindered, whether the lessee may refuse to pay the rent within the extent of such obstacle (affirmative), and whether the same applies to a case where the lessor has caused an obstacle to the use or benefit of the object by performing the repair obligation (affirmative)

Articles 618, 623, and 627 of the Civil Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

Plaintiff (Attorney Kim Sung-sung, Counsel for the plaintiff-appellant)

Moo Bank Co., Ltd.

Seoul High Court Decision 2014Na1074 decided August 21, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

Examining the reasoning of the judgment below in light of the records, the court below is justified in holding that the rent of this case at the time of the original adjudication is not an object attached to the charging station at the time of the original adjudication, and thus it is not an object of the right to purchase an accessory under Article 646 of the Civil Act. In so doing, the court below did not err by misapprehending the legal principles as to the right to purchase

2. As to the grounds of appeal Nos. 2 and 3

Examining the reasoning of the judgment below in light of the records, it is justified that the court below determined that the defendant's decision that it was difficult to see the plaintiff's disadvantage by unfairly taking advantage of his superior position when the plaintiff agreed to waive the right to claim reimbursement of expenses for the rent of this case or when the plaintiff's lease term expires merely because the defendant performed the structural modification work of this case at the time of original adjudication. It did not err by misapprehending the legal principles on abuse of trade position as prescribed by the Monopoly Regulation and Fair Trade Act.

3. As to the grounds of appeal Nos. 4 and 5

A. According to the reasoning of the judgment below, in full view of the circumstances in its reasoning, the court below determined that, in the process of performing repair duties to maintain the conditions necessary for the use and profit-making of the leased object, such as removing a part of the building at the Plaintiff’s request by the lessor, the Plaintiff failed to use a part of the instant charging station and the instant washing machine, but this is inevitable due to the performance of the repair duties, which is within the scope that the Plaintiff can cope with, and otherwise, that the structural change was not likely to interfere with the Plaintiff’s use

B. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) Since the duty of a lessor to use or benefit from an object under a lease agreement and the duty of a lessee to pay rent for a leased object are in response to each other, in a case where the lessor breached his/her duty to use or benefit from the object and thus the use or benefit of the object is partly hindered, the lessee may refuse to pay the rent to the extent of such obstacle (see Supreme Court Decision 96Da44778 delivered on April 25, 1997). This also applies in a case where the lessor’s performance of the duty of repair causes an obstacle to the use or benefit of the object.

(2) According to the records, Article 9(9) of the instant charging lease agreement provides that the lessor is obligated to repair and repair the following circumstances: (i) the lessor’s packaging of the site of the Do governor; (ii) underground concrete boxes, septic tanks, drainage tanks, fire walls; (iii) replacement, substantial repair, and construction of retaining walls; (iv) roof flood control; (iii) improvement and substantial repair of buildings equal to or outside of the zone; and (iv) remodeling and modernization of facilities for business improvement; and (v) the Defendant’s removal of part of the building entrance and exit of the instant charging station; and (iv) construction of the remaining office and interior finishing, etc. in a container installed for about four months; and (iii) the Plaintiff’s employees were removed and removed from the instant building tank for rent-making; and (iv) the Plaintiff’s rejection of the instant charging station’s construction or alteration of the leased premises was difficult to claim compensation for damages due to the Plaintiff’s refusal to use the building or alteration of the leased premises.

Therefore, the lower court’s rejection of the Plaintiff’s assertion solely on the grounds stated in its reasoning is erroneous by misapprehending the legal doctrine on the lessor’s duty of repair.

4. Therefore, the lower judgment is reversed, and 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 of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)