This is a case commentary on the procedural steps a landlord must take after obtaining a simultaneous performance judgment in South Korea when the tenant refuses to accept the deposit refund and vacate — covering valid conditional deposit tender requirements, compulsory eviction procedure, and the risk of tenant-initiated forced auction.
Background
In South Korean lease disputes, courts frequently resolve eviction claims by issuing a simultaneous performance judgment — ordering the landlord to return the deposit at the same time as the tenant surrenders the property (Article 536, Civil Act of South Korea). However, winning this judgment is only half the battle. Before compulsory eviction can commence, the landlord must prove that they have performed or offered to perform their own obligation — the deposit refund (Article 41(1), Civil Execution Act). A landlord who waits without taking this step risks a counterattack from the tenant.
Valid vs. Invalid Conditional Deposit Tender
Under South Korean case law, a deposit tender conditioned on the tenant’s simultaneous counter-performance — such as surrender of the property or cancellation of a registered lease right — is valid (Supreme Court Decision 92Da8712, December 22, 1992, and related cases). By contrast, a tender that requires the tenant to first attach a certificate confirming that the property has already been vacated is treated as demanding prior performance and carries no discharge effect (Supreme Court Decision 91Da27594, December 10, 1991). The distinction turns on whether the condition operates simultaneously or requires the tenant to go first.
Discharge of Obligation and Enforcement
Once a valid deposit tender is made, the landlord’s refund obligation is extinguished at the moment of tender — regardless of whether the tenant actually withdraws the deposited funds (Supreme Court Decision 2001Da2846, December 6, 2002). The Incheon District Court confirmed this in its December 17, 2020 decision (Case No. 2019Gadan272304), holding that the landlord’s obligation was discharged on the date of tender even though the tenant had not withdrawn the deposit. With the deposit tender certificate in hand, the landlord may then proceed to apply for compulsory eviction under Article 41(1) of the Civil Execution Act.
Risk of Delay — Tenant-Initiated Forced Auction
If the landlord delays making a deposit tender, Article 3-2(1) of the Housing Lease Protection Act of South Korea creates a significant risk. Under this provision, a tenant holding a final judgment for deposit refund may apply for forced auction of the residential property without first vacating — the standard counter-performance requirement of Article 41(1) of the Civil Execution Act does not apply. This means the landlord’s property can be subject to compulsory auction proceedings while the tenant remains in possession, forcing the landlord to file an objection to execution and seek a stay — a time-consuming and costly process.
Legal Expertise
Atlas Legal advises landlords, property investors, and foreign-invested companies on the full spectrum of South Korean lease disputes, including post-judgment enforcement. Our team based in Incheon Songdo has handled multiple simultaneous performance cases at the enforcement stage and consistently finds that prompt, properly structured legal action — particularly in structuring the conditional deposit tender — is the decisive factor in preventing protracted collateral litigation.