2016 Ghana 51339 Damage (as defined)

A person shall be appointed.

A person shall be appointed.

March 21, 2017

April 18, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The defendant shall pay to the plaintiff 40 million won and to the plaintiff 6% per annum from October 31, 2015 to the delivery of the complaint of this case, and 15% per annum from the next day to the day of complete payment.

1. Basic facts

A. On January 10, 2003, the Plaintiff leased the building No. 101 (hereinafter referred to as the “instant building”) located in Ulsan-gu, Seoul-gu, Seoul-gu, with the lease term of two years, the lease deposit of two million won, and the rent of one million won per month (hereinafter referred to as the “instant lease agreement”).

B. On January 30, 2012, the Plaintiff: (a) increased the deposit for lease under the instant lease agreement with AC to KRW 25 million; and (b) drafted a lease agreement with the term of lease until October 30, 2014.

C. The Defendant purchased the instant commercial building from AC on October 11, 2014, and completed the registration of ownership transfer on October 31, 2014.

D. The instant lease agreement was renewed on October 31, 2014 and terminated on October 30, 2015.

[Grounds for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1, the purport of the whole pleadings

2. Determination

A. The parties’ assertion

1) The plaintiff's assertion

The Plaintiff requested the Defendant to enter into a lease agreement with the new lessee before the termination of the instant lease agreement, but the Defendant rejected such request. Therefore, the Defendant is obligated to pay the Plaintiff the amount equivalent to the premium that the new lessee intended to pay pursuant to Article 10-4 of the Commercial Building Lease Protection Act, KRW 45 million, and damages for delay.

2) Defendant’s assertion

- In the first lease agreement entered into between the plaintiff and AC, "the lessor does not recognize the rights and facility costs of the real estate." Thus, the claim of this case filed by the plaintiff for the purpose of collecting the premium should not be accepted.

- The plaintiff only notified the defendant of AD's cell phone numbers to be introduced as a new lessee, but did not provide information on the financial resources to pay deposit and rent.

- After the Defendant purchased the instant commercial building and then notified the Plaintiff of the fact that the Defendant was scheduled to operate the fixed point in the said building for one year, taking into account the above circumstances, the Plaintiff should be deemed to have waived the intermediation of the new lessee at the time of termination of the said lease agreement.

- The defendant has expressed to the plaintiff the intention to operate the refined point in the commercial building of this case, and the plaintiff has arranged only the new lessee operating a restaurant of the same type as ** stories. Thus, there was a justifiable reason that the defendant refused to conclude a lease contract with the new lessee arranged by the plaintiff.

If it is acknowledged that the Defendant is liable to compensate for damages, there is an error that the Defendant did not provide the Plaintiff with information about the new lessee, and did not act as an agent for the lessee of the type of business desired by the Defendant. Such negligence of the Plaintiff should be considered.

B. Determination

1) First, we examine whether the Defendant is obligated not to interfere with the collection of the Plaintiff’s premium due to the termination of a lease agreement with a person arranged by the Plaintiff as a new lessee, etc.

According to Article 10-4 (1) of the Commercial Building Lease Protection Act, a lessor may demand premium from a person arranged by a lessee to become a new lessee, or collect premium from a person arranged by a lessee to become a new lessee, ② prevent a person arranged by a lessee from paying a right to a lessee; ③ demand a rent and security deposit from a person arranged by a lessee to become a new lessee; ④ demand a rent and security deposit from a person arranged by a lessee to become a new lessee; ④ other acts conducted by a lessee to become a new lessee without just cause; ④ Any damages arising from a lessee’s failure to receive the premium from a person arranged by a lessee under a contract; and ④ any damages arising from a lessee’s breach of Article 10-4 (1).

Meanwhile, ① The Commercial Building Lease Protection Act, amended by Act No. 13284, May 13, 2015, provides for protecting a lessee’s right to recover premiums, etc. is to protect a lessee’s business value by inducing a lessee to renew a lease agreement at the same time to protect the lessee’s business value and at the same time to protect the lessee’s opportunity to recover capital and manage assets. ② Under the proviso to Article 10-4(1) of the same Act, where a lessor may refuse a lessee’s request for renewal of a lease agreement due to a cause falling under any subparagraph of Article 10(1) of the same Act, it cannot be said that the lessor has a duty not to prevent interference with collection of rights against the lessee under the main sentence of Article 10-4(1) of the same Act; ③ The main sentence of Article 10(1) of the same Act provides that the lessee may not refuse a request for renewal of the lease agreement between six months and one month before the expiration of the lease term without justifiable cause, while Article 10(2) of the same Act provides that the lessee’s right to renew the lease agreement is not exceeding 14 years.

As seen earlier, in light of the fact that the instant lease agreement was first concluded on January 10, 2003 and the entire term of lease exceeds 12 years until October 30, 2015, the Plaintiff appears to have not been able to exercise the Defendant’s right to demand renewal of the lease until the termination of the instant lease agreement.

Therefore, it cannot be said that the Defendant had a duty not to obstruct the collection of the Plaintiff’s premium by refusing to conclude a lease agreement with a person arranged by the Plaintiff as a new lessee.

2) Furthermore, the Defendant’s act of refusing to enter into a lease agreement with a person acting as a new lessee arranged by the lessee is examined without justifiable grounds, regardless of Article 10-4(1)4 of the Commercial Building Lease Protection Act.

According to Gap evidence Nos. 3 and 4 (including numbers), the plaintiff entered into a premium contract equivalent to KRW 4 and 5 million with AD, and notified the defendant on August 20, 2015 that he/she would designate the time and place to enter into a new lease contract by informing the defendant of AD's Handphone number, and eventually, the defendant did not enter into a new lease contract with AD.

However, there is no evidence to prove that the Plaintiff provided information about the credit rating, asset status, etc. of AD to the Defendant from the time the Plaintiff notified the new lessee to the present date; ii) the Defendant appears to have purchased the commercial building of this case directly at the time of the expiration of the term of the instant lease agreement, and as such, it is difficult to deem that the lessee is liable to enter into a lease agreement with the new lessee arranged by the lessee even when the lessor purchased the building for the direct use of the building on the premise of the termination of the existing lease agreement, in full view of the following: (a) it is difficult to deem that the Defendant was justifiable for the Plaintiff to refuse the conclusion of the lease agreement with the new lessee arranged by the Plaintiff; and (b) thus, it is difficult to deem that the Defendant committed an act stipulated in Article 10-4(1)4 of the Commercial Building Lease Protection Act.

Ultimately, we cannot accept any mother's assertion or the plaintiff's assertion.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jeong Young-soo