Tenant Won’t Leave After Court Judgment in South Korea?

1. What Is a Simultaneous Performance Judgment in South Korea, and What Does It Mean for Landlords?

In South Korean lease disputes, when a tenancy ends and the parties cannot agree on the handover, the landlord typically files a suit for surrender of the property (건물명도). Courts regularly resolve such cases by issuing a simultaneous performance judgment — a ruling that orders the landlord to refund the deposit at the same time as the tenant surrenders the property.

The Legal Basis and Its Practical Constraints

The legal foundation for this type of judgment is Article 536 of the Civil Act of South Korea, which codifies the defense of simultaneous performance: a party to a bilateral contract may refuse to perform their own obligation until the counterparty performs theirs. The landlord’s obligation to refund the deposit and the tenant’s obligation to surrender the property are a classic pair of simultaneous obligations in the South Korean lease context.

However, the landlord faces a critical procedural constraint at the enforcement stage. Article 41(1) of the Civil Execution Act provides: “Execution based on a title for execution requiring performance simultaneously with the counter-obligation of the creditor may only be commenced when the creditor proves that their counter-obligation has been performed or offered.” In plain terms, before the enforcement officer proceeds with compulsory eviction, the landlord must demonstrate that they have refunded or offered to refund the deposit.

It is also worth noting that, under South Korean case law, if the tenant fails to raise a simultaneous performance defense before the close of argument at trial, the court cannot issue a simultaneous performance judgment of its own motion — and its failure to do so will not constitute a reversible error (Supreme Court Decision 91Da27594, December 10, 1991).

2. What Types of Deposit Tender Are Valid — and Which Are Not?

Under South Korean law, not all deposit tenders are created equal. Whether a conditional deposit tender is valid depends critically on the nature of the condition attached — specifically, whether it imposes a simultaneous obligation or improperly demands the tenant perform first.

Valid Tender: Conditioning on Simultaneous Counter-Performance

The Supreme Court of South Korea has consistently held that a deposit tender conditioned on the tenant’s simultaneous counter-performance obligation is valid. This principle has been affirmed across a long line of decisions (Supreme Court Decision 92Da8712, December 22, 1992; Decision 70Da1061, September 22, 1970; Decision 71Da2569, February 22, 1972; Decision 73Da1607, February 12, 1974; Decision 84Da77, April 10, 1984, among others).

The same principle applies beyond real estate: where a promissory note has been issued to secure performance of an obligation, that obligation and the return of the note stand in a simultaneous performance relationship — and a deposit tender conditioned on return of the note is therefore valid (Supreme Court Decision 92Da8712, December 22, 1992; Decision 64Da1030, December 15, 1964, among others).

Invalid Tender: Demanding Prior Performance Through a Certificate

A deposit tender becomes invalid when it in effect requires the tenant to perform first. The Supreme Court has specifically addressed this scenario: if a landlord making a deposit tender requires the tenant to attach a certificate confirming that the property has already been vacated as a condition for releasing the deposited funds, this is treated as conditioning the tender on the tenant’s prior performance — not simultaneous performance. Such a tender carries no discharge effect (Supreme Court Decision 91Da27594, December 10, 1991).

The distinction is subtle but decisive. Conditioning the tender on the tenant’s future surrender of the property (simultaneous) is valid. Requiring proof of a surrender that has already occurred (prior performance) is not.

3. How Should a Conditional Deposit Tender Be Structured to Be Valid in South Korea?

A valid conditional deposit tender under South Korean law requires that the condition attached reflect an obligation that genuinely stands in a simultaneous performance relationship with the deposit refund, and that the condition not operate as a demand for prior performance by the tenant.

A Judicial Example: Incheon District Court Decision

The Incheon District Court decision of December 17, 2020 (Case No. 2019Gadan272304) provides a concrete example of how these principles operate. In that case, landlord X and tenant Y had reached a court-mediated settlement providing that X’s obligation to refund the deposit and Y’s obligations to surrender the property and cancel the registered lease right (임차권등기) were to be performed simultaneously. X subsequently made a deposit tender conditioned on Y’s surrender of the property and cancellation of the registered lease right.

Y challenged the validity of the tender, arguing that X had conditioned it on the surrender and cancellation — obligations Y had not yet performed — and that X had refused to accept return of the keys. The court rejected this argument. Because X’s conditions precisely mirrored the simultaneous obligations established by the settlement, the tender was valid. The court explicitly distinguished this from an invalid tender, citing the principle that conditioning a tender on simultaneous counter-performance is valid, while conditioning it on prior performance (such as requiring a certificate of completed surrender) is not (citing Supreme Court Decision 91Da27594, December 10, 1991; Decision 92Da8712, December 22, 1992).

When Does the Discharge Take Effect?

Under South Korean case law, the discharge of the landlord’s deposit refund obligation takes effect at the moment of tender — not when the tenant withdraws the deposited amount. The Supreme Court has held that once a deposit tender is validly made, the discharge arises regardless of whether the creditor has submitted a withdrawal claim (Supreme Court Decision 2001Da2846, December 6, 2002, among others). In the Incheon District Court case, this meant that even though Y had not actually withdrawn the deposit, X’s refund obligation was extinguished as of the date of tender, and Y’s attempt to enforce the settlement through forced auction was held impermissible.

4. How Does a Landlord Proceed with Compulsory Eviction in South Korea After Tendering the Deposit?

Once a valid deposit tender has been made and the landlord’s refund obligation has been extinguished, the landlord may proceed with compulsory eviction based on the simultaneous performance judgment. The following steps outline the standard enforcement procedure under South Korean law.

Step-by-Step Enforcement Procedure

1. Obtain an enforcement clause (집행문 부여): The landlord must obtain an enforcement clause (집행문) from the court that issued the judgment or approved the settlement. This endorses the title for execution purposes.
2. Prove offer of performance: Under Article 41(1) of the Civil Execution Act, the landlord must submit documentary proof that they have performed or offered to perform the deposit refund obligation. The deposit tender certificate (공탁증서) serves this purpose.
3. File for compulsory eviction: The landlord applies to the court enforcement officer’s office (집행관 사무소) for compulsory eviction (건물 인도 집행).
4. Enforcement is carried out: The enforcement officer proceeds to the property, removes the tenant, and delivers vacant possession to the landlord.

Additional Steps Where a Registered Lease Right Exists

Where the tenant has obtained a registered lease right (임차권등기) on the property, the landlord will need to pursue separate cancellation proceedings after the eviction is carried out. If the settlement or judgment has already established that cancellation of the registered lease right is a simultaneous obligation, the deposit tender should be structured to include cancellation as a counter-performance condition, so that the tenant must complete the cancellation formalities in order to withdraw the deposited funds.

5. What Happens If the Landlord Fails to Tender the Deposit After a Simultaneous Performance Judgment?

For foreign-invested companies, expatriate landlords, and individual property owners in South Korea alike, the risk of inaction after a simultaneous performance judgment is substantial. South Korean housing law gives tenants an enforcement tool that operates independently of the landlord — and independently of whether the tenant has vacated.

The Tenant’s Right to Initiate Forced Auction Without Vacating

Article 3-2(1) of the Housing Lease Protection Act of South Korea creates a significant carve-out from the general rule in Article 41(1) of the Civil Execution Act. It provides:

“Where a tenant applies for auction of a leased residential property based on a final and binding judgment or equivalent title for a claim for deposit refund, the requirement of proving performance or offer of performance of a counter-obligation under Article 41 of the Civil Execution Act shall not apply.”

In plain terms: a tenant holding a final judgment for deposit refund may apply for forced auction of the landlord’s residential property without first vacating it. The procedural safeguard that would ordinarily protect the landlord — requiring the tenant to prove their own counter-performance before enforcing — is removed entirely for residential leases.

The Cascade of Risks

If the landlord delays making a deposit tender after a simultaneous performance judgment, the following sequence of events may unfold:

1. The tenant applies for forced auction of the residential property under Article 3-2(1) of the Housing Lease Protection Act, without first vacating.
2. The tenant applies for a lease right preservation order (임차권등기명령) and registers a lease right on the property, which attaches to the property’s title and affects its marketability.
3. Once the forced auction is commenced, the landlord must file an objection to execution (청구이의의 소) and simultaneously seek a stay of execution (강제집행정지) — a time-consuming and costly process requiring immediate legal action.
4. During this period, the property is encumbered by both the auction proceeding and the registered lease right, significantly restricting the landlord’s ability to sell or refinance.

The Incheon District Court’s 2020 decision illustrates this exact scenario. Although the landlord ultimately prevailed — the court held the tender valid and granted the objection to execution — the landlord had to bear the procedural burden and cost of that litigation. Prompt action at the enforcement stage, supported by properly structured legal advice, is the only reliable way to avoid this outcome. Practitioners at our firm who have handled multiple disputes of this kind consistently find that early intervention at the post-judgment stage makes a decisive difference.

6. FAQ

Atlas Legal, based in Incheon Songdo, South Korea, advises landlords, property investors, and foreign-invested companies on the full spectrum of lease disputes — from the initial claim through post-judgment enforcement. The post-judgment enforcement stage is often where disputes are truly resolved, and acting without delay is critical. Our team has handled multiple cases at this stage and consistently finds that early, structured legal intervention prevents the kind of procedural entanglement described in this article.

※ The information in this article is provided for general informational purposes only and does not constitute legal advice. The applicable law and outcome may vary depending on the specific facts of each case. Please consult a qualified attorney for advice on your particular situation.