[1] The validity of an agreement excluding a land lessee's right to purchase ground property

[2] The requirements for a third party to exercise the right to purchase a ground object directly against a landowner after the expiration of the lease term in cases where the lessee transferred the right to purchase the ground object to a third party before the lease term expires

[1] Even if a lessee of land agreed to waive all of the buildings and other ground facilities at the time of concluding a lease agreement with a lessor, barring special circumstances where it cannot be deemed to be disadvantageous to a lessee by comprehensively taking into account the terms and conditions of a lease agreement, the circumstances leading up to the conclusion of a contract, etc., the above agreement is an agreement to exclude the right to demand a ground object from the land lessee’s right under Article 643 of the Civil Act, which is disadvantageous to the lessee, and thus, is null and void.

[2] In light of the fact that where the lessee transfers the right to purchase the ground property to a third party before the expiration of the lease term and the third party exercises the right to purchase the ground property directly against the landowner after the lease term expires, the right to purchase the ground property does not occur before the lease term expires, the protection of the landowner is also necessary, the legal relationship based on the right to purchase the ground property is a land lease contract, and where the lessee transfers the leased property to a third party without the landowner’s consent, the third party cannot exercise the right to purchase the ground property before the lease term expires, it is insufficient to transfer the ground property (it is unnecessary to give the landowner’s consent) and it is necessary to transfer the right to lease the land (it is necessary to give the landowner’s consent

[1] Articles 643 and 652 of the Civil Act / [2] Articles 629, 639, 643, and 652 of the Civil Act

[1] Supreme Court Decision 93Da16130 delivered on June 22, 1993 (Gong1993Ha, 2096) / [2] Supreme Court Decision 93Da6386 delivered on July 27, 1993 (Gong1993Ha, 2400)

A (Law Firm Jeong & Yang, Attorneys Ansan-hwan et al., Counsel for the defendant-appellant)

Korea Agricultural and Rural Infrastructure Corporation (Attorney Jeong Jong-soo, Counsel for defendant-appellant)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 29,430,240 won with 25% interest per annum from August 19, 200 to the day of complete payment.

1. Basic facts

The following facts are either in dispute between the parties or in full view of the whole purport of the pleadings in Gap evidence 1, 2, 3, 4, 5, and Eul evidence 1, and witness B and C.

A.(1) In order to construct a building on the ground among the 1,03.1 square meters in Ulsan-gu, Ulsan-gu, Ulsan-do, which is located on the land of 363 square meters (after that, E. E. 362.5 square meters; hereinafter referred to as “instant land”), the non-resident leased the instant land from the Ulsan Farmland Improvement Association (hereinafter referred to as the “Defendant”) on August 19, 1996, for three years from August 19, 1996 to August 18, 1999, with a period of 2,693,460 square meters per annum.

(2) According to the lease contract (No. 2-1) concluded between C and the defendant, Article 15 (Installation of Ground Articles) provides that "a lessee is unable to install a ground object which is not specified in a lease contract, and to install a ground object, he/she shall install it with the approval of the lessor, but shall not install illegal and unauthorized things," Article 16 (In default of Donation of Ground Articles) provides that "a lessee shall register his/her default of donation to the defendant at the request of the lessor at the time of the installation of ground object pursuant to Article 15 of the preceding Article at the time of the installation of the ground object." Article 18 (Removal of Ground Articles) provides that "the lessee shall voluntarily remove the ground object after the expiration of the lease period and the termination of the contract without any condition, and shall not claim all the cost of removal resulting therefrom (Provided, That if, after the lessor's judgment, the use value and the value of the ground object can be removed at the request of the lessor, and the lessee can not claim compensation due to this."

B.(1)(1) C newly constructed the instant land the instant building, which is a reinforced concrete sloping roof, three residential facilities and housing (hereinafter “instant building”). On July 1, 1997, upon obtaining permission from the Defendant for the extension of the third floor from the Defendant, C agreed to contribute the instant building in arrears within one month from the date of completion pursuant to Articles 15 and 16 of the said lease agreement.

(2)C completed on April 9, 1998 the registration of ownership transfer under its name as of April 9, 1998 by the court No. 30361, and at the same time the registration of ownership transfer was made under its name as of April 8, 1998 as of April 9, 1998.

C.C tried to renew the instant land lease agreement with the Defendant at the time of expiration of the lease term, but the Defendant demanded the payment of contributions to the instant building and failed to conclude the renewal contract. On August 6, 1999, the Defendant paid KRW 2,755,170 to the Defendant for a year rent after expiration of the lease term, and continued to use the instant land as the site for the instant building.

D. On April 29, 200, when the Defendant intended to purchase the instant land to C, he applied for a purchase until May 28, 2000, and notified that he would bear a rent equivalent to the loan interest rate in a commercial bank if it is difficult to purchase the instant land. C was difficult to purchase the instant land and refused to increase the rent.

2. The parties' assertion and judgment

A. The parties' assertion

(1) On April 9, 198, the Plaintiff acquired the right to purchase the instant building under the condition that the instant land lease contract between C and the Defendant is terminated as compensation and property division after the title trust was held by C on June 1, 1998. Since C leased the instant land from the Defendant for the purpose of owning the instant building, the instant land lease contract between C and the Defendant was extended by one year, and the lease contract between C and the Defendant was terminated on August 18, 2000, the lease contract between C and the Defendant was terminated on August 18, 200, the Defendant asserts that the Plaintiff, the transferee of the right to purchase the instant building, was obligated to purchase the instant building at a reasonable market price at the time of the expiration of the lease term.

(2) The Defendant asserts that: (a) the Defendant: (b) the ownership of the instant building was donated to the Defendant in arrears; (c) even if the Family Contribution Default Agreement is not recognized, there are no requirements for the Defendant’s refusal to renew the lease term; and (c) the lessee’s right to claim the ground property may not be transferred separately from the right of lease, which is subordinate to the right of lease; and (c) C does not have any opposing power without the consent of the Defendant in transferring the instant land lease to the Plaintiff, the Plaintiff did not have the right to claim

(b) Markets:

(1) Relationship between the right to demand the purchase of ground and the delinquency in payment

Even if the lessee of land agreed to waive all of the buildings and other ground facilities at the time of the conclusion of the lease agreement with the lessor, unless there are special circumstances not deemed to be disadvantageous to the lessee, considering the terms and conditions of the lease agreement, the circumstances leading up to the conclusion of the contract, etc., as stipulated in Article 643 of the Civil Act, the above agreement is an agreement to exclude the lessee from claiming the right to purchase the ground property of the land lessee under Article 643 of the Civil Act, and thus, is disadvantageous to the lessee, and thus, is null and void. Since the agreement that C agreed to refuse to contribute the building of this case to the Defendant is an agreement to exclude the right to purchase the ground property of the land owner, it is unfavorable to C, and therefore, the ownership of the building of this case by the Defendant, which was premised on the failure to pay the

(ii)At the expiration of the lease period, whether C has refused to renew the contract;

(a)The right to demand the purchase on the ground may be exercised when the term of lease expires when the term of lease expires when the term of lease expires when the term of the lease expires, and if the term of the lease is not fixed, at the expiration of the prescribed statutory period (one month in the case of notification of the termination of the lease by the lessee) after the expiration of the term of lease. As seen above, C continued to use and profit from the land in this case and paid a rent on a yearly basis after the expiration of the term of lease. Since the Defendant failed to raise an objection within a reasonable period of time and again concluded the lease under the same conditions as the land lease contract in this case before the expiration of the term of lease without setting the term of the lease (i.e., implied renewal), the land in this case between C and the Defendant was terminated at around September 19, 200 after the expiration of the term of lease.

(b)In addition, as seen above, there is no renewal contract between C and the defendant at the expiration of the first lease term; if the defendant wishes to purchase the land of this case to C, a request for purchase shall be made; if it is difficult to purchase the land, a defect in the notification that C will bear a rent equivalent to the loan interest rate in a commercial bank; and in light of the fact that C is difficult to purchase the land of this case and refuses to increase rent, it is reasonable to deem that the parties have no intention to renew the land of this case,

(3) Person claiming the purchase of ground water;

(A)First, as to whether C is entitled to exercise the right to purchase the instant building, the right to purchase the ground object can be exercised only by the owner of the instant ground object (see Supreme Court Decision 93Da6386, Jul. 27, 1993). If C acquired the instant building from C on April 9, 1998 or June 1, 198 as the Plaintiff’s argument, if C acquired the instant building from C on June 1, 1998, it is impossible to exercise the right to purchase the instant building because C is not the owner of the instant building at the expiration of the lease term, and therefore, if the Plaintiff’s assertion is based on C’s right to purchase the ground object at the expiration of the lease term, it is without merit to further examine it.

(B) Next, in light of the following: (a) whether the Plaintiff is entitled to exercise the instant right of purchase on the ground before the lease period expires; (b) if the lessee transfers the right of purchase on the ground to a third party before the lease period expires; and (c) a third party directly exercises the right of purchase on the land owner after the lease period expires, the right of purchase on the ground does not occur before the lease period expires; (b) the protection of the landowner is also necessary; (c) legal relationship on the basis of the right of purchase on the ground is a land lease; and (d) if the lessee transfers and transfers the leased object to a third party without the landowner’s consent, the third party is unable to exercise the right of purchase on the ground (see Supreme Court Decision 93Da6386, supra); and (c) the transfer of the leased object on the ground before the lease period expires; and (d) the Plaintiff’s assertion cannot be deemed as the owner of the instant building, even if the lease period expires on the condition of the expiration of the lease period.

3. Conclusion

Therefore, the plaintiff's claim of this case based on the premise that C or the plaintiff has the right to purchase the building of this case is without merit.

Judges Park Sung-ho (Presiding Judge)