손해배상(기)
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
Purport of claim and appeal
The judgment of the court of first instance.
1. The reasoning of the judgment of the court of first instance is the same as that of paragraphs (1) and (2) of the same Article, except that the court’s explanation on the basic facts and the part concerning the Plaintiff’s assertion is based on the following facts: “A around December 12, 2014” as “A around December 18, 2014,” and thus, citing the reasoning of the judgment of the court of first instance pursuant to the main sentence of Article 420 of the Civil Procedure Act.
2. Determination
A. Payment of premiums, which is accompanied by the lease of a commercial building for a claim for damages, does not constitute a content of a lease agreement, and premiums for a given period is deemed to be a transfer of intangible property value, such as tangible things such as business facilities and fixtures, or tangible things such as customers, credit, business know-how or location of a store, or a cost for use for a given period.
Where premium has been paid to a lessor from a lessee under an agreement to guarantee the right of lease that the lessee continues to maintain the lease for a certain period after receipt of the premium, the lessor shall not be obliged to return the premium unless the use during the guarantee period is effective.
However, unless there is an agreement contrary to the original lease, the lessee can recover the amount of the premium by transferring the right to use the right to use the lease for a given period to another person or allowing another person to use it for a given period, in addition to the opportunity of transfer or sub-lease.
On the other hand, the lessor is obligated to return the premium to the lessee if there are special circumstances, such as the lessor is unable to use the premium during the original guarantee period due to the termination of the lease contract even under the circumstances of the lessor.
(see, e.g., Supreme Court Decision 2010Da85164, Jan. 27, 2011). Moreover, the lessor stated that “the recognition of any premium” in the proviso of the lease contract is “the premium to be returned to the lessee upon termination of the lease.”