The meaning of "the first lease" under Article 10 (2) of the Commercial Building Lease Protection Act

The purpose of the Commercial Building Lease Protection Act, which grants the lessee the right to demand renewal of the contract within the five-year lease period, is to secure the commercial building as a place of business through the lease contract and to compensate for the initial cost if the commercial building should be moved to another place of business due to the expiration of the lease period even though the initial cost of investment or the cost of facilities is excessive. Therefore, in light of the fact that the lessee of the commercial building seeks to guarantee the minimum lease period from the commencement date of business to facilitate recovery of the above costs by guaranteeing the above cost of lease. In the case of the commercial building lease which was already concluded or renewed before November 1, 2002 and renewed after the enforcement date, the term "the first lease" under Article 10 (2) of the Commercial Building Lease Protection Act can be interpreted as the first lease contract for the purpose of business, and it cannot be interpreted as the first renewed lease after the enforcement date of the said Act.

Article 10(2) of the Commercial Building Lease Protection Act

White (Attorney Jeong-jin, Counsel for the defendant-appellant)

Kim Tae-tae

o October 10, 2005

1. The plaintiff's main claim is dismissed.

2. On April 1, 2006, the Defendant shall order the Plaintiff to write down all the first floor of the real estate indicated in the attached Form.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

The primary claim: The defendant shall order the plaintiff to write down all the first floor of the real estate stated in the attached Form.

Preliminary Claim: as set forth in the Disposition.

1. Basic facts

A. On March 1, 2001, the Defendant leased the whole of the first floor (hereinafter “instant store”) among the real estate listed in the attached Form from the Plaintiff, from the Plaintiff, KRW 15 million, monthly rent of KRW 850,000 (payment on January 30, separate from value-added tax), and the lease period of KRW 2 years, and sold the flooring material and interior decorations with the trade name “dlimte” at that place.

B. On February 25, 2003, the Defendant prepared a new lease agreement with the Plaintiff, and the lease deposit as they are. The monthly rent is increased by 9.5 million won, and the lease period is extended by March 31, 2005.

C. The defendant was notified by the plaintiff that he refused the renewal of the above lease contract, but rejected it, and rather sent notice to the plaintiff around February 26, 2005 that he demanded the renewal of the above lease contract, and continues to operate the business at the store of this case.

[Reasons for Recognition] Facts without dispute, Gap 1, 3, 4 evidence, Eul 1 and 5 evidence, the purport of the whole pleadings

2. Judgment as to the main claim

On the ground that the lease contract for the store of this case was terminated by the expiration date, the plaintiff sought an explanation against the defendant, the defendant asserts that the above lease contract was renewed at his request for renewal of the contract and its lease period was extended by two years.

According to the above facts, the expiration date of the lease term between the plaintiff and the defendant was March 31, 2005, but the lease term was extended according to the defendant's request for renewal of the contract made one month thereafter (Article 10 of the Commercial Building Lease Protection Act). Thus, the plaintiff's assertion on the premise that the lease term has already expired is without merit.

As to this, the Plaintiff asserts that the Plaintiff cannot demand renewal of the above lease agreement in accordance with Article 10 (1) 5 of the Commercial Building Lease Protection Act, since the Plaintiff removed the ceiling of the store in this case, attached a glass string, and then destroyed part of the leased building by changing the entrance door that had been originally up to 8 even 4 even.

The statements and images of the evidence No. 5 and No. 2 are insufficient to deem that the defendant damaged the utility of the store of this case to the extent that it would impair the use of the store of this case. Since there is no other evidence to acknowledge this, the above assertion is without merit.

In addition, the plaintiff asserts that the defendant used the store of this case only until March 31, 2005 and agreed to order the use of the store of this case thereafter, and if such a promise was false, it would have leased the store of this case by fraud or other improper means, and therefore, it cannot be required to renew the above lease contract pursuant to Article 10 (1) 2 of the Commercial Building Lease Protection Act.

No evidence exists to prove that the defendant agreed as above, and even if the defendant agreed as above, it shall be null and void as an agreement unfavorable to the lessee against the Commercial Building Lease Protection Act, and there is no evidence to prove that the defendant belonged to the original plaintiff, and there is no evidence to prove that the defendant leased the store of this case. Thus, the above assertion is without merit.

3. Judgment on the conjunctive claim

According to the above facts, the lease contract between the plaintiff and the defendant with respect to the store of this case was extended according to the defendant's request for renewal of the contract as seen earlier, but the extended lease period will expire after March 1, 2006, which was after March 1, 2006, when the first lease contract was concluded (Article 10 (2) of the Commercial Building Lease Protection Act).

The defendant asserts that since the Commercial Building Lease Protection Act applies only to a lease concluded or renewed after November 1, 2002, "the first lease" under Article 10 (2) of the same Act shall also be deemed to mean a lease contract concluded or renewed after the enforcement date of the same Act. Thus, the "the first lease term" that the defendant may demand the renewal of the contract to the plaintiff should be counted from March 2003 when the new lease contract was prepared, and from March 2008 until March 2008, the extension of the lease term may be demanded through the renewal of the contract.

The purport of the system that the Commercial Building Lease Protection Act grants the lessee the right to demand renewal of the contract within the five-year rental period to the lessee through the lease agreement is to ensure the commercial building as the place of business and to facilitate the recovery of the above costs by guaranteeing the minimum rental period from the commencement date of the business by guaranteeing the lessee of the commercial building, on the ground that, in the case of merchants commencing their business, the transfer of the place of business due to the expiration of the lease period, the investment cost of the first business period or the cost of the facilities would be an excessive loss if the business should be moved to another place

In light of the purport of the above establishment of the Commercial Building Lease Protection Act, in the case of the lease of a commercial building which was already concluded or renewed before the enforcement date of the Act, the term "the first lease" stipulated in Article 10 (2) of the same Act can only be interpreted as the first lease of the commercial building for business purposes, and it cannot be interpreted as the first renewed lease after the enforcement date of the same Act. Thus, the above argument by the defendant that the right to demand renewal of the contract period of five years from the date of the first renewal of the lease contract after November 1, 2002 is guaranteed, regardless of the date of the first commencement of business in the commercial building.

Therefore, if the defendant claimed on April 1, 2006, he is obligated to order the plaintiff to suspend the store of this case, and the defendant asserted that he can demand the renewal of the above lease by March 2008, the plaintiff needs to request it in advance.

4. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit, and the plaintiff's primary claim is justified, and it is so decided as per Disposition with the assent of all participating Justices.

[Separate] : omitted indication of real estate

Judges fixed number of judges