In the case of a single lease relationship with each of the divided stores, the standard for determining the scope of lessees eligible for preferential repayment under Article 14 of the Commercial Building Lease Protection Act

In cases where a lessee engages in a single business when he/she rents several divided stores to the same lessor and uses them as one place of business, etc., if it can be deemed that a single lease relationship is established in a lump sum rather than a separate lease relationship between a lessee and a lessor, even if a separate lease contract has been made for each divided store, the scope of lessees to be preferentially reimbursed pursuant to Article 14 of the Commercial Building Lease Protection Act shall be determined based on the aggregate amount of security deposits converted to the whole amount of security deposits converted to each separate store pursuant to Article 2(2) of the Commercial Building Lease Protection Act.

Articles 2(2) and 14 of the Commercial Building Lease Protection Act

In Korea, the 9th Asset-Backed Company (Law Firm Chungcheong, Attorneys Park Chang-ho et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Jeon Chang-soo, Counsel for defendant-appellee)

Seoul Central District Court Decision 2012Na58363 Decided February 20, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

In a case where a lessee engages in a single business when he/she rents several divided stores from the same lessor to use them as a single place of business, etc., if the lessee and the lessor do not establish a separate lease relationship with each other, but can be deemed to establish a single lease relationship in a lump sum, the scope of lessees to be preferentially reimbursed pursuant to Article 14 of the Commercial Building Lease Protection Act shall be determined on the basis of the aggregate amount of security deposits converted into the whole amount of security deposits converted pursuant to Article 2(2) of the Commercial Building Lease Protection Act, even if a separate lease agreement has been made for each of the divided stores

According to the reasoning of the first instance judgment as cited by the lower court and the records of this case, ① the Defendant used 32 separate stores located in Jung-gu, Seoul as one place of business without dividing them by walls, etc. ② The five separate stores, including the instant real estate, from among the 32 separate stores leased by the Defendant, were owned by the Nonparty. The Defendant prepared a separate lease contract for each of the five separate stores leased by the Nonparty. ③ The five separate lease contracts made between the Defendant and the Nonparty were used on December 209, 200, excluding the deposit and monthly rent, and the remaining contract forms were all the same; ④ the deposit and monthly rent were different according to the provisions of Article 201 of the Commercial Building Protection Act (amended by Presidential Decree No. 20350, Dec. 20, 2009; 5 contracts made between the Defendant and the Nonparty). However, this difference between the deposit and monthly rent 100,000 won in proportion to the size of the separated stores in the contract, and the amount of deposit and monthly rent 201.

Examining these facts in light of the legal principles as seen earlier, even if the Defendant prepared a separate lease agreement on five divided stores owned by the non-party, including the issues of this case, it is reasonable to deem that the single lease relationship was established in a lump sum instead of a separate lease relationship on each five divided stores. Therefore, insofar as the aggregate amount of security deposits converted pursuant to Article 2(2) of the Commercial Building Lease Protection Act as to the whole five divided stores exceeds the amount stipulated in Article 6 subparag. 1 of the Enforcement Decree of the Commercial Building Lease Protection Act, the Defendant does not constitute a lessee eligible for preferential repayment pursuant to Article 14 of the former Commercial Building Lease Protection Act regarding the issues of this case.

Nevertheless, the lower court, on the grounds the grounds indicated in its reasoning, determined that the Defendant constituted a lessee eligible for preferential reimbursement under Article 14 of the former Commercial Building Lease Protection Act in the auction procedure for the instant real estate. In so doing, the lower court erred by misapprehending the legal doctrine on Article 14 of the former Commercial Building Lease Protection Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

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 Poe-young (Presiding Justice)