[1] Criteria for determining whether an agreement violates the provisions of Article 643 of the Civil Code concerning the tenant's right to demand purchase is disadvantageous to the lessee, etc.

[2] In a case where a building owned by a lessee is not an object of sectional ownership and is extended to a lessee or a third party’s land besides leased land, whether the lessee may exercise the lessee’s right to purchase (negative)

[1] Since the provisions of Article 643 of the Civil Act concerning the right to demand a lessee's purchase are mandatory provisions, which are disadvantageous to the lessee, is null and void. Thus, the issue of whether an agreement is unfavorable to the lessee should first be determined by the terms and conditions of the relevant contract itself, but if special circumstances can be acknowledged that the lessee cannot be deemed disadvantageous to the lessee, considering the details of the conclusion of the agreement and the overall circumstances, etc., of the agreement, it shall not be deemed to be contrary to the above mandatory provisions (in case where a lease contract is concluded with the purport that the landowner only takes a nominal rent and temporarily grants the use of the land, the case holding that the agreement does not constitute an unfavorable agreement against the lessee to remove the building at any time upon the request of the lessor and deliver the land to the lessee).

[2] In a case where a building owned by a lessee is not the object of sectional ownership, and is constructed over the land owned by a lessee or a third party other than the land owned by a lessor, a lessee’s claim for purchase of a building is not allowed.

[1] Articles 643 and 652 of the Civil Act / [2] Article 643 of the Civil Act

[1] Supreme Court Decision 91Da36130 delivered on April 14, 1992 (Gong1992, 1572), Supreme Court en banc Decision 93Da16130 delivered on June 22, 1993 (Gong1993Ha, 2096), Supreme Court Decision 93Da26687 delivered on December 28, 1993 (Gong194Sang, 521), Supreme Court Decision 94Da34265 delivered on July 11, 1995 (Gong195Ha, 2583) / [2] Supreme Court Decision 93Da42634 delivered on March 21, 196 (Gong196, 1109)

Rule 20

Sheet machines;

Jeonju District Court Decision 96Na1507 delivered on September 19, 1996

The judgment of the court below is reversed, and the case is remanded to Jeonju District Court Panel Division.

First, we examine the second ground for appeal.

1. The court below acknowledged that, on December 11, 1974, the registration of ownership transfer was made in the name of the plaintiff with respect to the land of this case on the land of this case (hereinafter "land of this case"), the defendant owned the building of this case on some of the land of this case and occupied the land of this case. The period between the defendant and the defendant around November 10, 1993 as to the land of this case shall be one year from November 15 to November 15, 1994 of the same year, and the rent shall be 30,000,000 won per annum, and determined that the lease contract of this case was concluded for the purpose of owning the building of this case, and rejected the plaintiff's claim that the above lease contract of this case was concluded for the purpose of the lease contract of this case, and that the lease contract of this case was concluded for the purpose of removing the building of this case and the plaintiff's claim that the above purchase right of this case was null and void by the agreement between the plaintiff and the defendant.

2. Article 643 of the Civil Act concerning the right to demand a lessee’s purchase is a mandatory provision. Therefore, an agreement contrary to this provision that is unfavorable to the lessee is null and void. The issue of whether the agreement is unfavorable to the lessee is based on the terms and conditions of the relevant contract itself, but if special circumstances can be acknowledged that the lessee cannot be deemed disadvantageous to the lessee, considering the process of concluding the contract, overall circumstances, etc., it shall be deemed that the above mandatory provision does not conflict with (see Supreme Court Decisions 93Da26687, Dec. 28, 1993; 93Da16130, Jun. 22, 1993; 91Da36130, Apr. 14, 1992).

According to the records, the plaintiff first requested the defendant to remove the building of this case and transfer the land of this case, and if so, the defendant agreed to deliver the building of this case at any time at the request of the plaintiff, such as new construction of the building, etc., and in fact, the plaintiff requested the removal of the building of this case after the above lease term has expired and newly constructed the house of this case on the land of this case. In light of the lease contract of this case itself, it can be known that the lease of this case itself is set at KRW 300,00,00, which is the value of the rent relatively low, without the contract of lease deposit. Thus, in this case, if the defendant did not possess the right of possession of the building of this case and the defendant did not temporarily permit the use of the building of this case to the defendant under the pretext of the title of this case, it cannot be concluded that the whole special agreement of removal of the building of this case was disadvantageous to the defendant by considering the whole conclusion of the lease contract of this case as a witness or non-party 4.

3. We examine the attached cases and records, it is unclear whether the building owned by the defendant on the register is attached to the building of this case, and further, it is questionable whether the building of this case can be the object of sectional ownership because it is independent from other parts due to its structural stability or use due to the building of this case. If the building of this case is not the object of sectional ownership, or if the building of this case is constructed across the land owned by the defendant or a third party other than the land of this case owned by the plaintiff, the right to purchase the building of this case shall not be allowed (see Supreme Court Decision 93Da42634 delivered on March 21, 1996). The court below should also be seen in this regard.

4. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)