[2] The case where even if an entrepreneur who has leased part of a commercial building did not attach a drawing indicating the leased part at the time of business registration, it can be viewed as a valid method of publication of lease in relation to a third party

[3] In a case where an entrepreneur who has leased part of a commercial building attached only a copy of the lease contract stating the leased part while filing an application for business registration, but did not attach a drawing of the relevant part, the case holding that the above business registration cannot be a valid method of public announcement in relation to a third party since it cannot be deemed that the leased part cannot be clearly distinguishable from any other part, even if there is no drawing, from the content of business registration, since the registered part alone

1. Methods for public announcement of the lease of commercial buildings;

In Article 3(1) of the Commercial Building Lease Protection Act, business registration, which stipulates as the requirements for opposing power along with the delivery of a building, has been prepared by the public announcement method that enables a third party to clearly recognize the existence of leasehold rights for the safety of transaction. Therefore, whether a business registration has the effect of public announcement of a lease should be determined according to whether the business registration can be recognized as the existence of the lessee of the relevant leased building due to the business registration in general social norms.

Meanwhile, according to Article 4 of the Commercial Building Lease Protection Act, Article 3 of the Enforcement Decree thereof, Article 5 of the Value-Added Tax Act, and Article 7 of the Enforcement Decree thereof (applicable mutatis mutandis to the business registration under the Income Tax Act and the Corporate Tax Act), where an entrepreneur rents a part of a commercial building, the application for business registration shall be accompanied by a drawing of the relevant part, and where the object of the lease is a part of the building, the interested party may request the perusal or provision of the drawing of the said part. Thus, where a part of the building is leased, the drawings indicating the relevant leased part shall be attached to the application for business registration in order to be the method of public announcement of the valid lease in relation to a third party (see Supreme Court Decision 2008Da4238, Sept. 25, 2008).

However, in light of the purport of the above business registration as a public announcement method in the lease of a commercial building, if an entrepreneur who has leased part of the commercial building did not attach a drawing indicating the leased part at the time of business registration, but for example, if a third party leases all of the specific apartment units, which are clearly divided into the specific floor of the commercial building, and has indicated the matters of business registration to the extent that the third party can clearly recognize it, or if it is clearly divided into the leased part to the extent that the drawings are attached due to the current status, location, use, etc., and if it is indicated to the extent that the third party can objectively recognize where the leased part is objectively, such business registration can be deemed a valid method of public announcement of the lease in relation to the third party.

2. Determination on Defendant 1 and 2’s grounds of appeal

A. According to the reasoning of the judgment below and the record, Defendant 1, as part of the building of this case which is a commercial building, leased only a part of the underground 1st floor registered as “1st floor 368.20 square meters” on the registry, and applied for the registration of the business, attached only a copy of the lease agreement stating “15th square meters” as “the space indicated in the design drawing in the underground 101,” and did not attach the relevant part. Unlike the above lease agreement, Defendant 2 also leased only a part of the building of this case which is “2nd floor 279.80 square meters” on the registry, and attached only a copy of the lease agreement stating “2nd floor 2nd floor 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2000 square meters” on the registry, and did not attach the pertinent part.

B. As such, the above Defendants did not attach the relevant drawings to each leased part in the application for business registration even after they leased only part of the first floor and part of the second floor above the ground among each of the instant buildings. Moreover, even if there was no drawings in light of the contents of the above business registration, it is difficult to view that each of the instant buildings was specified to the extent that each leased part of the instant buildings can be clearly distinguishable from that of other parts.

Therefore, in light of the legal principles as seen earlier, the above business registration made by the Defendants cannot be a valid method of disclosure of lease in relation to the Plaintiff who acquired the right to collateral security regarding the instant building.

C. Ultimately, the court below's determination that the above defendants' distribution of the sale price of the building of this case was unlawful on the ground that it takes priority over the plaintiff. Thus, its conclusion is just in its conclusion, and there is no error of law such as misunderstanding of legal principles as argued in the Grounds for Appeal.

In addition, the above defendants did not know that the drawings of the leased part should be attached at the time of application for business registration, and did not know that they were negligent, and thus, they did not know that they were negligent, so the above business registration alone should be deemed a method of disclosure of a valid lease is merely an independent argument and rejected.

3. Determination on Defendant 3’s grounds of appeal

가. 원심은, 그 채택 증거들에 의하여 인정되는 판시와 같은 사실관계에 의하면, 피고 3은 2005. 12. 1.경 소외 1에 대한 540,000,000원의 대여금 또는 투자금채권을 담보하기 위하여 이 사건 건물 내의 가운 대여 코너 및 스낵 코너에 관하여 각 임대차보증금 270,000,000원으로 된 임대차계약을 체결하면서 「상가건물 임대차보호법」의 적용을 받기 위하여 임대차보증금을 각 240,000,000원과 30,000,000원으로 하여 임대차계약서를 2개로 나누어 작성한 것이라고 봄이 상당하다고 전제한 다음, 따라서 피고 3과 소외 2 사이에 체결된 가운 대여 코너와 스낵 코너에 관한 각 임대차계약의 임대차보증금은 실질적으로 270,000,000원이므로, 피고 3은 「상가건물 임대차보호법」에 의하여 보호받는 임차인이라고 할 수 없다고 판단하였다.

나. 이에 대한 피고 3의 상고이유 주장은, 요컨대 피고 3과 소외 2 사이에 체결된 가운 대여 코너 및 스낵 코너에 관한 각 임대차계약의 실제 임대차보증금은 240,000,000원이고, 임대차보증금이 30,000,000인 각 임대차계약서는 실제와 다른 내용이므로 각 코너의 임대차보증금 270,000,000원을 2개의 임대차계약서로 나누어 작성한 것이 아님에도 원심이 사실을 잘못 인정하였다는 취지이다.

C. However, as long as the acknowledgement of facts and the selection and evaluation of evidence conducted on the premise thereof do not exceed the bounds of the principle of free evaluation of evidence, the court below's above fact-finding, etc. is just and acceptable, and it does not seem to have exceeded the bounds of the principle of free evaluation of evidence.

Therefore, Defendant 3’s above ground of appeal is merely criticisming the lower court’s legitimate fact-finding, and cannot be accepted. In addition, it does not seem that the lower court erred by failing to exhaust all necessary deliberations or omitting important facts, as otherwise alleged by Defendant 3.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)