Plaintiff (Attorney Han-jin, Counsel for the plaintiff-appellant)

Defendant

September 20, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 39,00,000 won with 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On October 10, 2008, AWS Development Co., Ltd. (hereinafter “SP development”), a real estate sales company, completed the registration of initial ownership as to the real estate listed in the separate sheet (hereinafter “instant commercial building”), and on September 10, 2008, the sales of the instant commercial building to the Nonparty and completed the registration of ownership transfer as to the said commercial building on November 14, 2008. The Defendant purchased the instant commercial building from the Nonparty on October 31, 2012, and completed the registration of ownership transfer as to the said commercial building on November 19, 2012.

B. On January 10, 2008, the Plaintiff entered into a lease agreement with the Plaintiff on the instant commercial building, and operated a coffee specialty store with the trade name “○○○○○”. The Nonparty succeeded to the lessor’s status from EP development while purchasing the instant commercial building, and entered into an extension contract with the Plaintiff on January 10, 2010.

C. On November 30, 2012, the Plaintiff entered into a lease agreement with the Defendant who purchased the instant commercial building and the said commercial building, setting the lease term of KRW 70,000,000 for lease deposit, KRW 2,200,00 for the rent month (including value-added tax) until November 30, 2015.

D. On July 13, 2016, the Defendant filed a lawsuit against the Plaintiff to seek the delivery of the instant commercial building as Seoul Southern District Court Decision 2015Da246166, and the said court rendered a judgment of partial acceptance of the instant commercial building to the Defendant on the ground that the Plaintiff’s lease agreement between the Plaintiff and the Defendant was implicitly renewed and the lease period has been extended until November 30, 2016, based on the fact that the lease term was extended by November 30, 2016.

E. On November 30, 2016, the Plaintiff handed over the instant commercial building to the Defendant according to the purport of the said judgment.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1, Eul evidence 1, 2 and 4 (including provisional number), the purport of the whole pleadings

2. Judgment on the plaintiff's claim

A. The plaintiff's assertion

Around October 2016, the Defendant received the instant store from the Plaintiff and told the Defendant or his child to operate a coffee store directly, and refused the Plaintiff’s demand for the premium. Accordingly, the Plaintiff was unable to receive the premium from a person who intends to become a new lessee, thereby incurring considerable loss on the premium. Therefore, the Defendant is obliged to pay the Plaintiff damages equivalent to the premium, 37,000,000 won, and damages for delay.

B. Determination

1) Article 10-4 of the Commercial Building Lease Protection Act (hereinafter “Commercial Building Lease Protection Act”) provides for the right to claim damages for the protection of lessee’s opportunity to recover the premium.

(4) No lessor shall interfere with the receipt of premiums from a person who intends to become a new lessee arranged by the lessee according to the contract for premiums, by doing any act falling under any of the following subparagraphs from three months before the term of lease expires to the date of termination of the lease: Provided, That this shall not apply where any ground falling under any of the subparagraphs of Article 10 (1) exists; 1. 2. In cases where the lessee requests a person arranged by the lessee to become a new lessee, or the receipt of premiums from a person arranged by the lessee to become a new lessee, to prevent the payment of premiums to the lessee; 3. In cases where the lessee is deemed to have become a new lessee, the right to request the new lessee to pay rent and deposits to the new lessee for the rent of the commercial building, public charges, rent and deposits of the neighboring commercial building, and other tenant to whom the lessee has become the new lessee from the date on which he/she has become aware of the fact that the new lessee has become the new lessee and the new lessee has no reasonable ground to claim damages to the lessee within the period of rent and the new lessee:

2) The above legal provision does not protect a lessee’s opportunity to recover premiums, but rather protect a lessee’s opportunity to recover premiums by specifying the type of an act of interference with the lessor. Accordingly, in order to recognize a “violation of the obligation to protect the opportunity to recover premiums,” it should first be premised on the lessee’s right to arrange for a new lessee from three months before the expiration of the lease term to the expiration of the term. Here, “ship” should not be made at a simple stage of negotiations on a simple physical color or premium, and a person who intends to become a new lessee should be specifically specified when the contract for premiums was concluded between the Plaintiff and the new lessee or when the new lessee was in a similar state.

The only written evidence No. 2-1 and No. 2 submitted by the Plaintiff is insufficient to recognize that the Plaintiff arranged a new lessee to the Defendant, or arranged to be a new lessee, and that the premium contract was concluded with the person who intends to be a new lessee, or entered into a premium contract with the person who is equivalent thereto, and there is no other evidence to recognize it. Therefore, the Plaintiff’s above assertion is without merit.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Shin Dong-han