Plaintiff (Attorney Jeong-hee et al., Counsel for plaintiff-appellant)

Defendant 1 and one other (Law Firm Yun, Attorneys Lee Yong-hoon, Counsel for the defendant-appellant)

April 27, 2018

Suwon District Court Decision 2016Ra214710 Decided June 14, 2017

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

Purport of claim

The Defendants deliver real estate listed in the attached list to the Plaintiff, and jointly and severally pay the amount calculated by applying the ratio of KRW 9,000,000 per month from June 15, 2016 to the completion date of delivery of the said real estate.

Purport of appeal

The part of the judgment of the court of first instance against the Defendants shall be revoked, and all of the plaintiff's claims against the Defendants corresponding to the revocation part shall be dismissed

1. Quotation of judgment of the first instance;

The reasoning for this Court’s reasoning is as follows, except for the addition of the part concerning the determination of the Defendants’ assertion emphasized or added in the trial, and thus, the reasoning for this Court’s reasoning is acceptable pursuant to the main sentence of Article 420 of the Civil Procedure Act.

2. The addition;

A. During the term of the instant lease agreement, the Defendants entered into a special agreement stating that the name of the lessee may be changed only once according to the lessee’s will during the term of the lease agreement, which states that the lessor may be seen as an explicit or implied agreement that the lessee would not interfere with the receipt of the premium from the lessee who intends to become the new lessee, and thus, the Plaintiff entered into an agreement to guarantee the opportunity to recover the premium with the Defendants. However, even according to the language itself, the said special agreement merely states that the name of the lessee may be changed only once during the term of the lease agreement to another person. It cannot be interpreted that the Defendants granted the Plaintiff the right to change the lessee to another person after the termination of the lease agreement. In addition, the Defendants are one of the elements for damages stipulated in Article 10-4 of the Commercial Building Lease Protection Act, which is one of the elements for damages that the lessor has arranged to the Plaintiff as the lessor from three months before the expiration of the lease agreement to the date of the termination of the lease agreement, or the Plaintiff as the lessor did not have any reason to acknowledge the Plaintiff’s obligation to collect the premium from the lessee.

B. In addition, the Defendants asserts that Article 10-4 of the Commercial Building Lease Protection Act should apply to cases where a lessee’s right to demand renewal is not recognized.

The proviso of Article 10-4(1) of the Commercial Building Lease Protection Act provides that the lessor shall not be obliged to recover the premium in cases where there are grounds for refusing the request for renewal of the contract under each subparagraph of Article 10(1) of the same Act, and does not explicitly provide for cases where the lessee is unable to exercise the right to request renewal under Article 10(2) of the Commercial Building Lease Protection Act. However, considering the following circumstances, the main sentence of Article 10-4(1) of the Commercial Building Lease Protection Act shall be interpreted as applicable to cases where the capital and operating income invested in the commercial building are to be recovered within the period under Article 10(2) of the same Act.

1) In light of the overall purport of Article 10(1) and (2) of the Commercial Building Lease Protection Act, the maximum period for protecting the lessee’s operating income, which is expected to be under the Commercial Building Lease Protection Act, shall be five years. Article 10-4 of the same Act is a provision for protecting the lessee’s operating income, and there is no ground to view the same differently from Article 10(1) and (2) of the same Act, where the initial period was stipulated.

2) The proviso of Article 10(1) of the Commercial Building Lease Protection Act provides that “Where a lessor may refuse a request for renewal for a reason under any of the subparagraphs of Article 10(1) of the Commercial Building Lease Protection Act even though a lessee has the right to request renewal of a contract,” it is difficult to find a reasonable ground to further protect the latter more strongly than the former when compared with “where a lessee does not have the right to request renewal of a contract any longer with a five-year lease term.”

3) In a case where a lessee is guaranteed a five-year period through the renewal of a lease agreement, the lessor is no longer obligated to renew the lease agreement. However, even in such a case, if the main sentence of Article 10-4(1) of the Commercial Building Lease Protection Act is deemed to apply to the lessee and the lessee cannot refuse the conclusion of the contract with the new lessee arranged by the lessee without justifiable grounds, the lessor is virtually unable to exercise the freedom to avoid the obligation to renew the contract under Article 10(2) of the same Act, and as a result, the purpose of Article 10(2) of the same Act is to prevent excessive restriction on the lessor’s right to use and benefit from the lease.

Therefore, this part of the defendants' assertion is without merit.

3. Conclusion

Therefore, each claim against the defendants against the plaintiff is justified within the above scope of recognition, and each remaining claim is dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the appeal by the defendants is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Lee Dong-won (Presiding Judge)