[2] In a case where the issue was whether the waiver agreement for right to purchase ground, which a local government and a lessee and a lessee concluded under a loan agreement, was unfavorable to B, the case holding that it cannot be readily concluded that the overall overall view of the agreement was disadvantageous to B unilaterally

[2] In a case where the issue is whether the agreement for waiver of the right to claim a ground object, which was concluded by the local government Gap and the lessee Eul (the actual quality of the land lease) was unfavorable to Eul when entering into the loan agreement, the case holding that the agreement for waiver of the right to claim a ground object can not be concluded to be unilaterally unfavorable to Eul, considering the overall agreement for waiver of the right to claim a ground object as a whole, in full view of the following: (a) in the case of the loan agreement, the loan agreement is strictly required to collect not only the loan fee, but also the loan fee is low; and (b) the public property can be used for any other purpose as the change of administrative purpose at any time; and (c) the agreement for cancellation of the loan agreement and the restoration of the right to claim a ground object and the exclusion of the application of Article 203 or 626 of the Civil Act are ordinarily included in such purport; and (d) in the case of trees, the value decline caused by transplantation, unlike the building on the ground, can be used as its original business, but it is difficult

1. Regarding ground of appeal No. 1

The act of lending state and public miscellaneous property by an agency entrusted with the authority to manage and dispose of state and public miscellaneous property is a contract under the private law conducted by the State or a local government at an equal location with the other party as a private economic subject, and therefore, the provisions of the private law apply to the relationship of rights, such as the lending of state and public miscellaneous property. However, one of the parties to the contract is the State or a local government, and is subject to the regulation of special Acts, such as the State Property Act, the Public Property and Commodity Management Act, and the Forestry Act, due to the public nature of the object of the lease contract. However, since there is no provision on special laws, such as the Public Property and Commodity Management Act, with respect to the termination due to the expiration of the term of the lease contract, the provisions of the civil law as a general

In light of the following circumstances acknowledged by the court below based on evidence, i.e., the real substance of the instant loan agreement is land lease for the purpose of planting, and ii) the Defendant’s refusal to renew the instant loan agreement and the period of the instant loan agreement expires, barring any special circumstance, the court below is just in holding that the Plaintiff may exercise the right to demand purchase of ground property under Article 643 of the Civil Act, unless otherwise alleged in the ground of appeal. There is no error of misapprehending the legal principles as to the above provision or failing to exhaust all necessary deliberations

2. We examine the second ground for appeal.

Since the provision of Article 643 of the Civil Act concerning the right to demand purchase of a lessee is a mandatory provision, it is invalid as an agreement in violation of this provision that is unfavorable to the lessee or sub-lessee. Thus, whether it is an unfavorable agreement to the lessee, etc. should first be determined by the terms and conditions of the relevant contract itself, but if special circumstances can be acknowledged that it is not disadvantageous to the lessee, etc. in substance taking into account the process of concluding the contract, overall circumstances, etc., it shall be deemed that the above mandatory provision does not conflict (see Supreme Court Decision 91Da36130, Apr. 14, 19

However, the loan contract of this case is a contract under private law, but there are special characteristics subject to the application of public property and Commodity Management Act. Therefore, in the case of the loan contract, the loan charges shall be collected as provided by law strictly, and the loan charges may be used for other purposes at any time as public property changes its administrative purpose. Therefore, it would normally be possible to terminate the loan contract at any time when it is necessary for public use, public use, or public works. It seems to be included in the purport of the cancellation of the loan contract of this case and the obligation to restore the loan contract of this case and the agreement on the exclusion of the application of Article 203 or 626 of the Civil Act. One of the reasons for recognizing the right to purchase ground object is social and economic benefits. In the case of trees, the agreement which the lessor continued to use the object of purchase is below the value decline caused by transplantation, but it is difficult to use the above items as its original business, and the court below should have concluded that the agreement was invalid as a whole after the conclusion of the loan contract of this case more unfavorable to the plaintiff.

Therefore, the ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)