2018Da252441(main office) Building Name Map

2018Da252458 (Counterclaim) Return of a security deposit

Plaintiff (Counterclaim Defendant)

Attorney Lee Han-han, Counsel for the defendant-appellant

Defendant (Counterclaim Plaintiff)

Law Firm Hy-An, Attorney Choi Byung-hee, Counsel for the plaintiff-appellant

Suwon District Court Decision 2017Na74542, 2017Na74559 decided July 4, 2018

(Counterclaim) Judgment

September 3, 2020

Of the part against the Defendant (Counterclaim Plaintiff) regarding the counterclaim of the lower judgment, the part regarding the claim for damages is reversed, and that part of the case is remanded to the Suwon District Court.

The grounds of appeal are examined.

1. Examining the reasoning and record of the lower judgment, the following facts are revealed.

A. From January 10, 1990, the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) operated the restaurant in the instant commercial building from around January 10, 199, and acquired the ownership of the instant commercial building on January 12, 1995. On May 6, 2003, the Defendant sold the instant commercial building to Nonparty 1, and then leased the instant commercial building from Nonparty 1 for a period of one year from June 5, 2003, the deposit amount of KRW 20 million, monthly rent of KRW 1.5 million, and the contract term of this case was explicitly renewed.

B. On May 13, 2015, the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) purchased the instant commercial building from Nonparty 1 and completed the registration of ownership transfer on May 29, 2015, and notified the Defendant of the termination of the instant lease as of June 4 of the same year around January 2016. On March 9, 2016, the Defendant entered into a premium agreement with Nonparty 2 on KRW 50 million with respect to the instant commercial building, and requested the Plaintiff to enter into a lease agreement with Nonparty 2 as a new lessee on March 22, 2015. However, the Plaintiff refused the Defendant’s request on the ground that he/she plans to operate the instant commercial building directly in the instant commercial building.

2. On the grounds indicated in its reasoning, the lower court rejected the Defendant’s claim for damages among the instant counterclaim, premised on the premise that Article 10(2) of the former Commercial Building Lease Protection Act (amended by Act No. 15791, Oct. 16, 2018; hereinafter “former Commercial Building Lease Protection Act”) does not apply to tenants exceeding five years, which is the period for exercising the right to request the renewal of the contract under Article 10(2) of the same Act.

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. In light of the language, content, and legislative intent of Article 10-4 of the former Commercial Building Lease Act, even in cases where a lessee is unable to exercise the right to request renewal of a contract for more than five years pursuant to Article 10(2) of the same Act, a lessor is obligated to protect the opportunity to recover premiums under Article 10-4(1) of the same Act (see, e.g., Supreme Court Decision 225312, 225329, May 16, 2019). In addition, if a lessor refuses to conclude a lease contract with a new lessee arranged by the lessee solely on the ground that the lessor is a business plan by himself/herself, it cannot be deemed that there is justifiable reason prescribed in Article 10-4(1)4 of the former Commercial Building Lease Act (see, e.g., Supreme Court Decision 2018Da26124, 261131, May 30, 2019).

B. Examining the facts in light of the aforementioned legal principles, even if the Defendant is unable to exercise the right to demand renewal against the Plaintiff after five years of the lease period for the instant commercial building, the Plaintiff is obligated to protect the opportunity to recover the premium against the Defendant, as Article 10-4 of the Provisional Lease Act applies. The Plaintiff cannot be deemed to have justifiable grounds for refusing the conclusion of the lease agreement with Nonparty 2 arranged by the Defendant solely on the ground that the Plaintiff plans to operate the said commercial building directly in his/her sandd location. Therefore, there is room to view that the Plaintiff bears the Defendant’s liability to compensate for damages caused by interference with the collection of the premium.

C. Nevertheless, the lower court erred by misapprehending the legal doctrine on Article 10-4 of the former Commercial Building Lease Act and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment, on the grounds that Article 10-4 of the former Commercial Building Lease Act does not apply to a lessee who is unable to exercise the right to demand renewal after five years of lease period, on the grounds stated in its reasoning.

4. Therefore, the part of the judgment below against the defendant regarding the counterclaim is reversed, and that part of the case is remanded to the court below 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 Min Il-young

Justices Kim Jae-in

Justices Lee Jae-hwan

Chief Justice Noh Jeong-ok