[1] The purport of Article 3 (1) of the former Commercial Building Lease Protection Act stipulating the "business registration" as the requirement for opposing power, and the standard for determining whether the business registration has the effect of disclosing the lease

[2] In a case where the lease deposit stated in the lease contract attached to the application for business registration, the deposit placed in the registration statement, and the deposit amount converted according to the lease exceeds the limit of the deposit amount to be subject to the application of the former Commercial Building Lease Protection Act, whether the lessee may not assert opposing power even if the deposit amount converted according to the actual lease contract satisfies the standards (affirmative)

[1] Article 3(1) of the former Commercial Building Lease Protection Act (amended by Act No. 11873, Jun. 7, 2013) provides for the requirements for opposing power along with the delivery of a building. Since the registration of business has been prepared as a public announcement method allowing a third party to clearly recognize the existence and contents of the lease for the safety of transaction, whether the registration of business has the effect of disclosing the lease should be determined depending on whether the existence and contents of the lease of the building can be recognized through the registration of business under the generally accepted social norms.

[2] In cases where the amount of security deposit converted according to the lease deposit and the amount of security deposit converted according to the rent stated in the lease contract attached to the application for the registration of business (hereinafter “the current status of registered matters, etc.”) exceeds the maximum amount of security deposit to be subject to the application of the former Commercial Building Lease Protection Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter “former Commercial Building Lease Protection Act”), even if the amount of security deposit converted according to the terms and conditions of the actual lease is satisfied, the lessee may not assert opposing power under the former Commercial Lease Protection Act.

This legal doctrine applies likewise to cases where the lease contract is modified or renewed, and the details disclosed in the report on the current status of the lease are inconsistent with those stated in the registration statement, etc.

[1] Article 3(1) of the former Commercial Building Lease Protection Act (amended by Act No. 11873, Jun. 7, 2013) / [2] Articles 2, 3(1), and 4(1)4 of the former Commercial Building Lease Protection Act (amended by Act No. 11873, Jun. 7, 2013; see Article 4(3) of the current Enforcement Decree of the Commercial Building Lease Protection Act; Article 3-3(2)3 of the current Enforcement Decree of the Commercial Building Lease Protection Act); Article 4(1)6 (see Article 4(3) of the current Enforcement Decree of the Commercial Building Lease Protection Act; Article 3-3(2) (see Article 4(5) of the current Enforcement Decree of the Commercial Building Lease Protection Act; Article 3-3(3) of the current Enforcement Decree of the current Enforcement Decree of the Commercial Building Lease Protection Act; Article 8(2) of the former Enforcement Decree of the Commercial Building Lease Lease Protection Act (see Article 8(1) and (3) of the current Enforcement Decree of the Building Lease Act)

[1] Supreme Court Decision 2008Da44238 decided September 25, 2008 (Gong2008Ha, 1449)

Plaintiff (Law Firm LLC, Attorneys Kang Democratic et al., Counsel for the plaintiff-appellant)

Defendant

Seoul Western District Court Decision 2013Na30558 decided October 24, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The lower court, based on its stated reasoning, determined that, although the Defendant and the Nonparty drafted two lease contracts, the lower court was in fact recognized as having entered into a single lease contract on the whole of the instant stores.

Examining the record, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. Regarding ground of appeal No. 2

(1) Article 3(1) of the former Commercial Building Lease Protection Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter “former Commercial Building Lease Protection Act”) provides as the requirements for opposing power along with the delivery of a building. Since a business registration has been prepared as an announcement method that enables a third party to clearly recognize the existence and content of a lease for the safety of transaction, whether a business registration has the effect of disclosing a lease shall be determined based on whether it can be recognized the existence and content of the lease of the building through such business registration (see Supreme Court Decision 2008Da44238, Sept. 25, 2008).

Meanwhile, according to Article 5(1), (2), (5), and (8) of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013); Article 7(1), (2)3, and Article 11(1)8 of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013); where an entrepreneur who rents his/her place of business intends to register his/her business, he/she shall file an application with the head of a tax office along with a copy of the lease agreement; where the deposit, rent, or lease term is changed, he/she shall file a report on the revision of the registration of his/her business; and pursuant to Article 4(1)4, 6, and (2) of the former Enforcement Decree of the Commercial Building Lease Act; Article 7(1) of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24637, Mar. 26, 2013). 20, 2015).

Therefore, in cases where the amount of security deposit converted according to the lease deposit and the amount of security deposit converted according to the rent stated in the lease contract attached to the application for business registration and the registration statement (hereinafter “registration statement, etc.”) exceeds the maximum amount of security deposit to be subject to the former Commercial Building Lease Act, even if the amount of security deposit converted according to the contents of the actual lease meets the above criteria, the lessee cannot claim opposing power under the former Commercial Building Lease Act.

This legal doctrine applies likewise to cases where the lease contract is modified or renewed, and the details disclosed in the report on the current status of the lease are inconsistent with those stated in the registration statement, etc.

(2) According to the reasoning of the judgment of the court of first instance as cited by the court below and the records, ① on October 31, 2005, the defendant and the non-party applied for registration of business regarding the instant store with the lease deposit amount of KRW 150 million, monthly rent of KRW 2 million, and agreed to be reserved until the commercial building is formed, and ② on October 2, 2007, the defendant applied for registration of business regarding the instant store with the lease deposit amount of KRW 50 million on November 10, 2005 and KRW 200,000,000,000,000 won on October 10, 2007, and each of the above lease deposit of KRW 100,000,000,000,000,000 won on October 10, 2007, which was 105,000,000 won on July 10, 2005.

(3) Examining the above facts in light of the legal principles as seen earlier, even if the Defendant, on October 31, 2005, reserved the payment of the rent of KRW 150 million when entering into the instant lease agreement with the Nonparty on October 31, 2005, and KRW 2 million monthly rent of KRW 150,000,000,000,000,000,000,000,000,000 was changed into the lease deposit without rent, the report on the registered status, etc. was still published in addition to the monthly rent of KRW 50,00,000 and KRW 10,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00.

Although the reasoning of the court below is partly inappropriate, the court below's rejection of the defendant's assertion that the lease of this case has an opposing power against the plaintiff who is not the party to the contract is justifiable. In so doing, there is no error of law by misunderstanding the legal principles on the method of publication and opposing power of the lease of commercial

3. As to the third ground for appeal

The lower court rejected the Defendant’s assertion that the Plaintiff’s request for extradition goes against the principle of good faith.

Examining the record in accordance with the relevant legal principles, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the principle of good faith.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Sang-hoon (Presiding Justice)