2019Na50498 Action to Return Undue Benefits

A

B A.

Law Firm Han-han, Counsel for the plaintiff-appellant

Attorney Noh Jeong-chul, Counsel for the defendant-appellant

Seoul Central District Court Decision 2018Da56566 Decided July 31, 2019

April 24, 2020

may 22, 2020

1. The plaintiff's claim that the court changed in exchange is dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

The judgment of the first instance court is modified as follows. The defendant paid to the plaintiff 34,109.964 won and 15% interest per annum with respect thereto from the day following the delivery of a copy of the complaint of this case to the day of complete payment (the plaintiff asserted that the deposit additionally deposited in the first instance court was obtained by deceit, and claimed damages of KRW 77,00,000,000, the plaintiff claimed that the amount of the purchase tax was not deducted due to the issuance of the tax invoice of this case, and the defendant claimed that the damage was incurred due to the failure to obtain the amount of the purchase tax amount due to the failure to issue the tax invoice of this case, and changed the lawsuit in exchange for the plaintiff to claim damages of KRW 34,109.964, which

1. Basic facts

A. On April 12, 2016, the Plaintiff was previously set from the Defendant on April 12, 2016, the deposit amount of KRW 77,000,00 for the first basement E, F, and monthly rent of KRW 15% of the monthly net sales, the higher amount of the monthly minimum security rent of KRW 6,003,00 (excluding value-added tax) and the sublease period of KRW 3 years (hereinafter “the sublease contract”).

B. However, the Plaintiff failed to pay monthly rents from January 2017 to May 2017 and management expenses from February 2017 to May 2017, 2017 to the Defendant. Accordingly, the Defendant notified the Plaintiff of the termination of the contract on June 7, 2017 pursuant to Article 16(3) of the Sub-lease Agreement (where the sub-lessee has failed to pay rent more than twice, the sub-lessee may terminate the contract by providing a written notice of termination to the sub-lessee by specifying the grounds therefor).

C. Meanwhile, pursuant to Article 36(1) of the instant sub-lease contract that if the instant sub-lease contract is terminated due to a cause attributable to the sub-lessee, the sub-lessee shall pay the lessee the full rent of the remaining period of the sub-lease as a penalty for breach of contract, the Defendant filed a lawsuit seeking penalty for breach of contract amounting to KRW 145,932,930 [=6,603,300x (22 months +33/30)] from June 8, 2017 to April 11, 2019, which is the day following the date of notification of the termination of the said sub-lease contract with the Plaintiff as a penalty for breach of contract, the Defendant filed a lawsuit with the Seoul East Eastern District Court 2017da128511. The agreement on the penalty of this case is presumed to have been estimated as a liquidated damages, and the amount of the damages for delay has been reduced unfairly, and thus the judgment became final and conclusive around that time.

D. According to the above judgment, the Defendant received 112,310,010 won from the Plaintiff by offsetting the deposit of the instant sub-lease (77,000,000 won paid at the time of the contract + deposit paid in addition in accordance with the special agreement of the instant sub-lease contract) after deducting the amount of 35,086,690 won from the sum of the monthly rent and management expenses in arrears and the interest in arrears, and then offsetting the amount of 112,310,010 won, and did not issue a separate tax invoice.

[Ground for Recognition: Facts without dispute, Gap evidence 1 to 3, entry of Eul evidence 4 to 8, purport of whole pleadings]

2. The assertion and judgment

A. Determination on the identity of the basis of the claim

The Plaintiff initially filed a claim for damages to the effect that the deposit additionally deposited by the Defendant was acquired by deception against the Defendant, and thereafter filed an application for change of the purport of claim and the cause of claim to the effect that the Defendant incurred losses for which the amount of input tax would not be deducted due to the Defendant’s failure to issue the value-added tax invoice. As to this, the Defendant’s application for change of claim is unlawful

Therefore, the modification of claims can be made until the conclusion of pleadings by the fact-finding court to the extent that it does not change the foundation of the claim, unless it is obvious to delay litigation procedures. The modification of claims and the cause of the claim merely differs in the same living facts or the same economic interest dispute resolution method, and the modification of the purport of claims and the cause of the claim cannot be deemed to be a change in the foundation of the claim. In addition, in the case where most of the previous litigation data can be used for deliberation of the new claim, it cannot be deemed to be a substantial delay in litigation procedures (see Supreme Court Decision 97Da4416, Apr. 24, 1998). The claim for damages equivalent to the amount of the existing deposit and the damages equivalent to the amount of the value-added tax refunded, both of which are based on facts and legal relations arising from the sub-lease contract of the same case between the plaintiff and the defendant, and most of the existing litigation data submitted can be used to deliberate the changed claims, and therefore

Therefore, we cannot accept this part of the defendant's argument.

B. The plaintiff's assertion and judgment

The Plaintiff asserts that the Defendant was unable to obtain input tax deduction due to the failure to issue a tax invoice during the period from the termination of the instant sub-lease contract to the expiration date of the sub-lease contract, and sought damages equivalent to the above money against the Defendant.

Therefore, if a person who received a tax invoice from a person who received the supply of goods or services fails to obtain the input tax deduction from the person who received the supply of the goods or services without justifiable grounds, the supplier, in principle, is liable to compensate for damages equivalent to the input tax amount not deducted from the person who received the supply of the goods or services (see Supreme Court Decision 2017Da265266, Dec. 28, 2017). Even if the lease contract is terminated by the lessor’s notification of termination and the lessee’s possession is illegal, if the lessee continues to use the building without ordering it, and the lessor also owns the lease deposit and deducts the amount equivalent to the monthly rent from the deposit in the future, it constitutes the supply of value-added services subject to the imposition of value-added tax (see Supreme Court Decision 2002Da38828, Nov. 22, 2002).

However, in light of the purport of the Plaintiff’s statement of rent Nos. 7 and 8 as well as the purport of the entire argument in this case, the lessee is sentenced to the Plaintiff’s payment of KRW 120,00,00 for penalty under the provisions of Article 36(1) of the sub-lease contract that if the sub-lease contract of this case is terminated due to the cause attributable to the lessee, the lessee shall pay the remainder of the sub-lease contract to the sub-contractor as penalty. (2) Meanwhile, the above penalty is partially reduced from the sum of rent from June 8, 2017 to April 11, 2019, which is the date following the termination of the sub-lease contract of this case. (3) In light of the fact that the above sub-lease contract of this case, the Plaintiff cannot be seen as including the amount equivalent to the above rent of this case from the date of termination of the sub-lease contract of this case to June 2018. (3) The Defendant also did not have any justifiable reason to acknowledge the Plaintiff’s payment of the penalty, etc.

3. Conclusion

Therefore, since the plaintiff's claim of this case changed in exchange at the trial of the party is dismissed due to the lack of reason, it is so decided as per Disposition (the court of first instance decision was invalidated due to the withdrawal of the claim of damages due to the deceptiveation of deposit money at the trial of the party).

Judge Yang Sung-hee

Judges Jeon Soo-tae

Judges Lee Dong-hwan