[1] Whether a lessee should have arranged a person who intends to become a new lessee in order to claim damages due to interference with the collection of premiums against a lessor (affirmative in principle) / Whether a lessor may claim damages due to interference with the collection of premiums against a lessor even if the lessee actually did not act as a new lessee without justifiable grounds (affirmative), and the standard for determining whether the lessor expressed such intent (affirmative)

[2] In a case where Gap, a commercial tenant, requested Eul to enter into a lease contract with a new tenant Eul arranged by Eul before the expiration of the lease term, but Eul responded to a plan to directly use the commercial building after receiving the delivery of Eul, and where Gap discontinued the color of a new tenant and delivered a commercial building to Eul on the expiration date, and sought compensation for damages caused by obstruction in collecting the premium against Eul, the case holding that the judgment below erred by misapprehending legal principles, although Gap should be deemed to be entitled to claim damages against Eul on the ground of a lessor's violation of the duty to protect the lessor's right to collect the premium, even if Eul did not actually act as the new tenant, since Eul expressed his intention to refuse the new tenant's request by Eul

[1] In light of the contents and legislative intent of Articles 10-3 through 10-7 of the former Commercial Building Lease Protection Act (amended by Act No. 15791, Oct. 16, 2018; hereinafter “Commercial Building Lease Protection Act”), a lessee should have arranged a person who intends to become a new lessee in principle in order for the lessee to seek damages for interference with the collection of the premium to the lessor. However, if the lessor clearly expresses his/her intent not to conclude the lease contract even if he/she acts as a new lessee without justifiable cause, demanding the lessee to act as a new lessee to act as a new lessee would result in compelling the lessee to do such an unnecessary act. Under special circumstances, even if the lessee does not act as a new lessee, the lessor’s refusal should be deemed to constitute the refusal of Article 10-4(1)4 of the Commercial Building Lease Protection Act. Therefore, the lessee may claim damages for interference with the collection of the premium due to the premium to the lessor pursuant to Article 10-4(3) of the same Act.

Whether a lessor clearly expressed, without justifiable grounds, the intention of a lessee to act as a new lessee ought to be determined by comprehensively examining the following: (a) the lessor and the lessee’s words, attitudes, and specific circumstances surrounding the act and attitude of the lessor and the lessee, at the time of the termination of the lease agreement with the new lessee.

[2] Where Party A, a commercial lessee, requested Party B to enter into a lease agreement with the new lessee arranged by Party B before the expiration of the lease term, but Party B responded to the plan to directly use the commercial building after being handed over, and Party A suspended the color of a new lessee and delivered the commercial building to Party B at the expiration date, and sought damages for interference with collecting the premium against Party B, the case holding that the judgment below erred by misapprehending the legal principles, even though Party B did not request Party A to arrange for the new lessee in such a case, on the ground that Party A did not actually act as a new lessee, it appears that it would be unreasonable to request Party A to act as a new lessee, and barring any special circumstances, Party A could claim damages against Party B on the ground of violating the duty to protect the opportunity to collect the premium of the lessor, even if the new lessee did not act as the new lessee.

[1] Article 10-4(1)4 and (3) of the former Commercial Building Lease Protection Act (Amended by Act No. 15791, Oct. 16, 2018) / [2] Article 10-4(1)4 and (3) of the former Commercial Building Lease Protection Act (Amended by Act No. 15791, Oct. 16, 2018)

Plaintiff

Defendant

Suwon District Court Decision 2017Na83713 decided October 17, 2018

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

The grounds of appeal are examined.

1. Article 10-4(1) of the former Commercial Building Lease Protection Act (amended by Act No. 15791, Oct. 16, 2018; hereinafter “former Commercial Building Lease Protection Act”) provides, “The lessor shall not interfere with receiving premium from a person who wishes to become a new lessee arranged by the lessee according to the premium contract by doing any of the following acts from three months to the expiration of the lease term to the expiration of the lease term, thereby hindering him/her from receiving the premium from a person who intends to become a new lessee arranged by the lessee pursuant to the premium contract.” In addition, the lessor is liable to compensate for damages if the lessor violated the duty to protect the opportunity to recover the premium (Article 10-4(3) of the same Act).”

Articles 10-3 through 10-7 of the Commercial Building Lease Act, newly established by the amendment of Act No. 13284 on May 13, 2015, is to prevent a lessee from unfairly infringing on the economic benefits of the lessor, such as the designation or credit formed by the expenses invested in the commercial building or by business activities. Therefore, the lessee is obliged to recover such economic benefits from the prospective new lessee who he/she arranged to do so in the form of premium, and the lessor is liable to compensate for damages if the lessor interferes with such economic benefits without good cause.

In light of the contents and legislative intent of the provisions related to the Commercial Building Lease Act, in principle, the lessee should have arranged a person who intends to become a new lessee in order to seek damages due to interference with the collection of the premium to the lessor. However, in a case where the lessor clearly expresses his/her intent not to conclude the lease contract even if he/she acted as a new lessee without any justifiable reason, demanding the lessee to arrange for a new lessee to do so would result in unnecessary acts. In such a case, even if the lessee did not actually act as the new lessee, such refusal by the lessor should be deemed to constitute an act of refusal stipulated in Article 10-4(1)4 of the Commercial Building Lease Act even if the lessee did not act as the new lessee. Accordingly, the lessee may claim damages due to interference with the collection of the premium pursuant to Article 10-4(3) of the Commercial Building Lease Act.

Whether a lessor clearly expressed, without justifiable grounds, the intention of a lessee to act as a new lessee ought to be determined by comprehensively examining the following: (a) the lessor and the lessee’s words, attitudes, and specific circumstances surrounding the act and attitude of the lessor and the lessee, at the time of the termination of the lease agreement with the new lessee.

2. A. The reasoning of the lower judgment and the record reveal the following facts.

1) On November 30, 2012, the Plaintiff: (a) leased the instant commercial building from AWS Development Co., Ltd. and operated a coffee specialty store with the trade name “○○○○○○”; (b) concluded a lease agreement with the Defendant, who purchased the instant commercial building on November 30, 2012, on November 30, 2015, with regard to the lease deposit amount of KRW 72 million, lease deposit amount of KRW 2,200,000 (including value-added tax) and the said commercial building.

2) On July 13, 2016, the Defendant filed a lawsuit against the Plaintiff claiming the delivery of the instant commercial building upon the expiration of the lease term (Seoul Southern District Court 2015Da246166), and the court rendered a judgment on July 13, 2016 that “the Plaintiff shall deliver the instant commercial building to the Defendant upon the arrival of November 30, 2016,” on the ground that the lease term between the Plaintiff and the Defendant was implicitly renewed and the lease term was extended by November 30, 2016.” The said judgment became final and conclusive around that time.

3) On October 2016, the Defendant told the Plaintiff to the effect that “the Plaintiff would not rent the instant commercial building any longer and allow us to use it as a coffee specialty.” On October 17, 2016, the Plaintiff sent to the Defendant a written reply to the effect that “The Defendant, on October 21, 2016, requested the Plaintiff to enter into a lease agreement with a new lessee arranged by the Plaintiff, if the Plaintiff did not enter into a lease agreement with the new lessee arranged by the Plaintiff, and if the Defendant plans to operate a coffee specialty directly, she would clarify the intent.” If the Plaintiff did not give any reply by October 20, 2016, the Plaintiff sent a letter of reply to the effect that “the Defendant would direct use the commercial building after receiving the instant commercial building from the Plaintiff.”

4) The Plaintiff received premium of KRW 60 million through a start-up consulting company and consulted to be introduced as a new lessee, but the Defendant suspended the color of a new lessee by clearly disclosing his intention to directly use the instant commercial building as above. On October 27, 2016, the Plaintiff sent a mail verifying the content that “the Plaintiff would deliver the instant commercial building on November 30, 2016, without arranging a new lessee, because the Defendant clearly expressed that he would be directly operating the commercial building after the delivery of the instant commercial building.”

5) On November 30, 2016, the Plaintiff delivered the instant commercial building to the Defendant. On December 10, 2016, the Defendant opened a coffee store to the said commercial building.

B. Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Defendant explicitly expressed to the Plaintiff the intent of refusing to arrange for a new lessee by stating that it was a plan to directly use the commercial building of this case without concluding a lease contract with the new lessee after the termination of the lease of this case. In such a case, it is unreasonable to require the Plaintiff to arrange for a new lessee. Therefore, barring any special circumstance, the Plaintiff may claim damages against the Defendant on the ground of a lessor’s breach of the duty to protect the lessor’s right to recover the premium, even if the Plaintiff did not

C. Nevertheless, the lower court determined otherwise, that the Defendant is not liable for damages if the Plaintiff did not actually act as a new lessee, even if the Defendant expressed his intent to refuse to conclude a contract with the new lessee, in order to claim damages against the Defendant, the new lessee would have been arranged or arranged for the new lessee. In so doing, the lower court erred by misapprehending the legal doctrine on the protection of the opportunity to recover the premium as stipulated in Article 10-4(1) of the Commercial Building Lease Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

3. Therefore, the lower judgment is reversed, and 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 Park Sang-ok (Presiding Justice)