Plaintiff (Attorney Hong-chul et al., Counsel for plaintiff-appellant)

Defendant (Attorney Lee Jae-won, Counsel for defendant-appellant)

October 14, 2011

Seoul Western District Court Decision 2010Da78497 Decided May 17, 2011

1. Revocation of a judgment of the first instance;

2. The defendant shall deliver to the plaintiff a written notice of the ground floor of 88.96 meters among the buildings listed in the attached list.

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

4. Paragraph 2 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each entry of Gap evidence 1 through Gap evidence 7, Eul evidence 1 through Eul evidence 5-3, and there is no other counter-proof.

A. On December 1, 2008, the Plaintiff leased, among the buildings listed in the attached list (hereinafter “instant building”), a deposit of KRW 10,00,000,000, monthly rent of KRW 800,000, and the period from December 8, 2008 to December 7, 2010, each of the instant lease agreements was leased to the Defendant (hereinafter “instant lease agreement”).

B. The Defendant, who is a practical music artist, entered into the instant lease agreement for the purpose of using it as a music work room. According to the said lease agreement, the Defendant may not change the use of the leased part without the Plaintiff’s consent, and may not use it for any purpose other than the leased purpose. In a case where the Defendant violated this agreement or fails to pay rent more than twice, the Plaintiff may terminate the contract.

C. On November 2010 and January 201, 201, the Defendant delayed the payment of the relevant rent. On the ground of this, the Defendant, on February 17, 2011, declared that the said lease was terminated with a preparatory document dated February 17, 201 during the instant lawsuit.

2. Determination on the cause of the claim

According to the above facts, the lease contract of this case was lawfully terminated due to the plaintiff's notice of termination as of February 17, 201, due to the two or more rent delay. Thus, barring any special circumstance, the defendant is obligated to deliver the leased part of this case to the plaintiff.

3. Judgment on the defendant's assertion

A. The defendant asserts that Article 10 of the Commercial Building Lease Protection Act guarantees the lessee's right to demand renewal of the lease until the maximum of five years as long as the lease does not reach the three-year arrears. Thus, Article 640 of the Civil Act stating that the lease contract may be terminated due to the delinquency in rent of the two-year period should be excluded in the case of commercial lease, and that the above lease contract which is unfavorable to the lessee has no effect in accordance with Article 15 of the Commercial Building Lease Protection Act.

The purpose of the Commercial Building Lease Protection Act is to protect lessees who are economically and socially weak due to increase of rent generated in the lease of a commercial building, abuse of lessor's right to terminate the lease, instability of the lease period, etc. The purpose of the Act is to protect lessees who are economically and socially weak, and to ensure renewal of the lease right by up to five years (Article 10(2)), and the Act provides that "if the rent in arrears is overdue, with the amount equivalent to the three-term rent, it shall be deducted" (Article 10(1)1 of the Commercial Building Lease Protection Act). However, even if the lessor's right to terminate the lease is exercised and the renewal of the lease is difficult, it is more strongly protected than the Civil Act, such as that the lessee's right to terminate the lease is not in breach of the legislative purpose of the Commercial Building Lease Protection Act, and that the lessee's right to terminate the lease is not in breach of the first th th th th th th th th son's right to demand renewal of the lease right."

B. As to this, the Defendant asserted that the instant lease agreement was renewed on December 2, 2010, and that the Defendant’s delayed rent after the renewal cannot be viewed as a two-term delayed rent. However, the renewed lease is deemed to have been a new contract under the same conditions as that of the former lease (Article 10(3) of the Commercial Building Lease Protection Act) and the lessee’s act of default, such as delayed rent before renewal, still exists after renewal. Therefore, the first Defendant’s assertion on a different premise is without merit (the instant lease agreement was terminated due to the Defendant’s second-term delayed payment, and thus the Plaintiff’s other selective claims and its determination is not separately made).

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by cancelling the judgment of the court of first instance and ordering the defendant to deliver the leased portion.

[Attachment Form 5]

Judges Park Jong-hee (Presiding Judge)