[1] Where premium was received pursuant to the legal nature of the premium paid in connection with the lease of a commercial building, and the lease guarantee agreement to continue the lease for a certain period of time, but it became impossible to use the premium during the guarantee period because the lease contract was terminated even due to the circumstances of the lessor, the scope of the premium to be returned by the lessor (=the portion corresponding to the remaining existence period)

[2] In a case where Party A, who entered into a specific purchase contract with respect to stores in a department store, sells business rights to the relevant store to Party B, and enters into a consignment business franchise agreement, etc. to settle profits for five years after being entrusted with business management, and paid business goodwill to Party B under an agreement that guarantees business operations for more than two years, but did not allow Party B to use the property value during the period initially guaranteed, the case affirming the judgment of the court below holding that Party A is liable to refund part of business goodwill to Party B

[1] Articles 105 and 618 of the Civil Act / [2] Articles 105 and 618 of the Civil Act

[1] Supreme Court Decision 200Da59050 Decided April 10, 2001 (Gong2001Sang, 1109) Supreme Court Decision 2002Da25013 Decided July 26, 2002 (Gong2002Ha, 2058), Supreme Court Decision 2007Da76986, 7693 Decided April 10, 2008

Plaintiff

2. The term “the term” means “the term” means “the term “the term” means “the term” means “the term

Seoul High Court Decision 2010Na36416 decided September 16, 2010

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

The grounds of appeal are examined.

1. The payment of premiums, which are incidental to the lease of a commercial building, does not constitute the content of the lease contract, and the premiums is the transfer of intangible property value, such as tangible business facilities, fixtures, etc., such as business facilities, customers, credit, business know-how or the location of a store, or the cost for use for a given period. Therefore, in a case where premiums are paid to the lessor by the lessee under the agreement on the guarantee of the right of lease, which makes the lessee continue to exist for a given period after the payment of the premiums, the lessor shall not be obliged to return the premiums, unless the use for the given period is effective.

However, unless there is an agreement contrary to the initial lease, a lessee may recover the amount of the premium by transferring the right to use for a given period to another person or allowing another person to use the right to use for a given period by incidental to the transfer of the right of lease or the opportunity for sub-lease. However, on the other hand, in special circumstances, such as where it is impossible for the lessor to use the premium during the initial period guaranteed due to the termination of the lease contract due to the lessor’s circumstances, the lessor shall be liable to return the premium to the lessee. In such a case, the scope of the premium to be returned is divided into those corresponding to the expiration period and the remaining period, and the lessor shall be liable to return only the portion corresponding to the remaining period after deducting the corresponding portions of the premium that the lease contract was terminated (see, e.g., Supreme Court Decisions 2002Da25013, Jul. 26, 2002; 207Da76986, Apr. 10, 2008).

2. According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning by comprehensively taking account of the adopted evidence. Since the term of the instant consignment business franchise agreement was set from December 16, 2008 to December 15, 2013, the Plaintiff agreed to entrust the Defendant with business rights and receive settlement of profits for five years after the purchase of the instant franchise agreement, and intended to learn the same type of business or management methods as the instant store. According to the contract with the Defendant and Hyundai department store Co., Ltd. (hereinafter “former department store”), if the Defendant transfers or entrusts rights under the specific consignment contract to a third party, the contract may be terminated immediately on the part of the Hyundai department store, and accordingly, both the Plaintiff and the Defendant agreed to keep the contents of the contract confidential to the Plaintiff on the side of the Hyundai department store for two years, considering the fact that the term of the instant consignment business franchise agreement was set up for two years from December 16, 2008 to December 15, 2013, the Defendant, without specifying the Plaintiff’s license to renew the instant consignment business license to the Plaintiff.

Furthermore, the lower court determined that the Defendant is obligated to refund the Plaintiff pure operating premium of KRW 80 million out of the total operating premium of KRW 180 million, in light of the following: (a) the period for collecting the premium agreed upon by the Plaintiff and the Defendant at the time of entering into a performance contract and a franchise agreement on consignment business; (b) the period for collecting the premium in the Plaintiff’s store; (c) the reasons and circumstances leading up to the Defendant’s failure to allow the Plaintiff to use and profit from the store; and (d) the Plaintiff’s right to choose to operate

In light of the above legal principles and records, such fact-finding and determination by the court below are justifiable. In so doing, contrary to the grounds of appeal, the court below did not exhaust all necessary deliberations by misapprehending the legal principles on the premium, or did not err by exceeding the bounds of the principle of free evaluation of evidence.

3. 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 on the bench.

Justices Min Il-young (Presiding Justice)