부동산 임대차계약상 원상회복의무, 상환이행판결 －대법원 2012. 3. 29. 선고, 2011다107566 판결－

Abstract

At the end of the lease period, specific performance, including the remedying of a defective performance and for damages is the right of the lessor. In general, the ultimate goal of damage may put the lessor in as good as a condition he would have been in had the contract been performed. The right to special performance is irrelevant to the right to damages. But the lessor may ordinarily follow the claim for damages because of the inefficiency and inconvenience of specific performance. The cost of cure is usually less than or equal to the diminution in the market price before restoration work. If the work to be required by the contract may become useless after its return for use, it may be vexatious to compel to stick to it. And if the cost of cure would be clearly disproportionate to the lessor’s benefits attained, such an award will not be made. Damages are limited to the difference in the market value with and without the promised restoration work. In addition, court should consider the misuse of right for lessor in case restoration of the leased real estate would do no good to lessor. Court should focus on the protection of the lesse, who is inferior to lessor in the point of economical view, to realize what lesse will benefit from the lawsuit filed regarding the lease at the end of the lease period.