2017Da231621(main office) Building Name Map

2017Da231638 (Counterclaim) damages

1. A;

2. C.

[Judgment of the court below]

Attorney Lee Dong-woo, Lee Jae-soo, Lee Jae-ju

person

D

Attorney Jeong-chul et al., Counsel for the defendant

Daegu District Court Decision 2016Na311016 (Main Office), 2016 Ghana, May 18, 2017

311023 Judgment (Counterclaim)

July 10, 2019

The part concerning the counterclaim among the judgment below is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. The remaining appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal on the claim in this case, the lower court, citing the reasoning of the first instance judgment, determined that it is difficult to readily conclude that the term “this contract” stipulated in the instant lease agreement has an obligation to renew the lease agreement with the Defendant (Counterclaim Defendant; hereinafter referred to as “the Defendant”) solely on July 20, 2015. Examining the reasoning of the lower judgment in light of the records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by exceeding the bounds of the principle of good faith or by misapprehending the legal doctrine on

2. As to the ground of appeal on the counterclaim

A. In light of the language and content of Article 10-4 of the former Commercial Building Lease Protection Act (amended by Act No. 15791, Oct. 16, 2018; hereinafter referred to as the “former Commercial Building Lease Protection Act”), and the legislative intent thereof, in cases where a lessee is unable to exercise the right to request renewal of a contract for more than five years pursuant to Article 10(2) of the former Commercial Building Lease Protection Act, the lessor shall be deemed to have the duty to protect the opportunity to recover the premium pursuant to Article 10-4(1) of the same Act (see Supreme Court Decision 2017Da225312, May 16, 2019; 2017Da225329 (Counterclaim)).

1) On July 21, 2005, the Defendant leased part of the instant building from the Plaintiffs with a deposit of KRW 60 million, KRW 2.1 million per month, and the term of lease from July 20, 2005 to July 20, 2010, and operated convenience stores upon delivery.

2) On July 20, 2010, the Defendant, around July 20, 2010, renewed the lease contract by setting the lease term by July 20, 2015.

3) On July 2, 2015, before the expiration of the lease term, the Defendant entered into a premium agreement with F to transfer the tangible and intangible property value of the instant part of the building in the premium amounting to KRW 80 million, and requested the Plaintiffs to enter into a new lease agreement with F.

4) However, the Plaintiffs did not conclude a lease agreement with F on the ground that they directly use the instant building.

C. Examining these facts in light of the legal principles as seen earlier, since the Defendant arranged a new lessee from three months to three months after the term of lease expires pursuant to Article 10-4(1) of the former Commercial Building Lease Act, the Plaintiffs should not refuse to enter into a lease contract with a new lessee without justifiable grounds. This also applies where the entire term of lease between the Plaintiffs and the Defendant has expired five years.

D. Nevertheless, the lower court determined that Article 10-4(1) of the former Commercial Building Lease Act does not impose an obligation on the Plaintiffs to protect the opportunity to recover premiums on the ground that the said provision does not apply where the lessee is unable to demand the renewal of the contract with the lessor more than five years after the entire term of lease. In so determining, the lower court erred by misapprehending the legal doctrine on the requirements for protection of the opportunity to recover premiums of the lessor as stipulated in Article 10-4(1) of the former Commercial Building Lease Act, thereby affecting

3. Conclusion

Therefore, the part of the judgment of the court below regarding the counterclaim is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Lee Dong-won

Justices Park Jong-young

Justices Kim Gin-soo