2019 Ghana 10882 Building Name Map (Delivery)

A

Attorney Doh-soo et al., Counsel for the plaintiff

B

Law Firm Shingu, Counsel for the defendant-appellant

Attorney Kim Dong-ho

December 18, 2019

February 5, 2020

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall deliver to the plaintiff 85.8 square meters between the defendant's cement block structure slive roof slives of single storys on the ground of Gyeongbuk-gun, Chungcheongnambuk-gun.

1. Facts of recognition;

A. On November 5, 1968, the Plaintiff constructed 85.8m (hereinafter “instant building”) between cement block structure slives slives slives slives slives slives slives slives on the ground of Seongbuk-gun, Seongbuk-do.

B. On July 20, 2012, the Plaintiff leased the instant building to the Defendant as KRW 2,500,000 annually (hereinafter referred to as “instant lease”). After completing business registration on August 28, 2012, the Defendant is running a manufacturing business, such as oil, etc., in the instant building.

C. On July 7, 2014, the Plaintiff and the Defendant agreed to increase the rent to KRW 3,00,000 per annum with respect to the instant lease agreement, and to extend the lease term until July 20, 2019. D. The Plaintiff notified the Defendant on April 6, 2019 that he/she did not wish to renew the instant lease agreement. The Defendant demanded the Plaintiff to renew the instant lease agreement on the same day.

E. Since then, the Plaintiff demanded the Defendant to deliver the instant building several times, but the Defendant refused to deliver the instant building when requesting the Plaintiff to renew the instant lease agreement.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 8, Eul evidence Nos. 1, 2, and 6 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

Since the term of lease expires, the defendant shall deliver the building of this case to the plaintiff.

B. Defendant’s assertion

Since the Defendant demanded the Plaintiff to renew the instant lease agreement on April 6, 2019, the instant lease agreement was renewed under the same conditions as before the previous judgment pursuant to Article 10 of the Commercial Building Lease Protection Act.

3. Determination

1) As examined in the above facts, it is true that the lease term of the instant lease expires on July 20, 2019.

2) However, unlike Article 10(2) 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"), which provides that "the right to request renewal of the lease of this case may be exercised only for a period not exceeding five years, including the initial lease period, between six months and one month before the expiration of the lease term." Unlike Article 10(2) 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"), Article 10(2) of the amended Commercial Building Lease Protection Act (hereinafter referred to as the "Revised Commercial Building Lease Protection Act") provides that "the lessee's right to request renewal of the lease of this case, including the initial lease term, may be exercised for a period not exceeding 10 years, and Article 10(2) of the Addenda of the Commercial Building Lease Lease Lease Protection Act (amended by Act No. 1016.2.18.

The amended Commercial Building Lease Protection Act shall apply to all the lease contracts that were concluded after October 16, 2018, as well as the first lease contract concluded after October 16, 2018, which was the enforcement date of the amended Commercial Building Lease Protection Act pursuant to Article 2 of the aforementioned Addenda, but are legally renewed after October 16, 2018. Therefore, the lease contract in this case shall be deemed to have been renewed upon the Defendant’s request for renewal on April 6, 2019, which was concluded after the period of the first lease, including the term of the lease, does not exceed ten years (However, the term of the lease shall be extended to the extent that the whole term of the lease including the first term of the lease does not exceed ten years).

In this regard, the plaintiff's assertion that the lease term exceeding the five-year lease term as stipulated in Article 10 (2) of the former Commercial Building Lease Protection Act is not included in the "Renewald Lease under Article 2 of the Addenda." However, Article 2 of the above Addenda does not stipulate that the term of lease including the first term of lease at the time of the enforcement of the amended Commercial Building Lease Protection Act is not more than five years, and Article 10 (2) of the Commercial Building Lease Protection Act provides that the term of lease including the first term of lease at the time of the enforcement of the amended Commercial Building Lease Protection Act is not more than five years, and the purpose of the amendment of the above Article 10 (2) of the Commercial Building Lease Protection Act is to "the stable operation of the tenant of the commercial building by extending the term of exercise of the right to request the renewal of the contract from five years to ten years, and it is reasonable to recognize that the term of lease is more than five years after the amendment of the Commercial Building Lease Lease Lease Protection Act without any difference in the term of lease.

The plaintiff's above assertion cannot be accepted.1)

3) Meanwhile, the Plaintiff asserts that the lessee’s right to request the renewal of the contract cannot be acknowledged in the instant building where there is concern about safety accidents, such as aging, damage, or partial destruction of the building (Article 10 subparag. 7(b) of the Commercial Building Lease Protection Act).

However, there is no particular evidence to acknowledge that there is concern about safety accidents due to aging, damage, or partial destruction of the building in this case, and thus, the Plaintiff’s above assertion cannot be accepted.

4) Therefore, the Plaintiff’s assertion based on the premise that the instant lease agreement has expired due to the expiration of the lease term is without merit.

4. Conclusion

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

Judges Slocks

1) As reference, the Supreme Court Decision 2017Da9657 Decided December 5, 2017 (hereinafter referred to as the “Supreme Court Decision”) provides for the same term as Article 2 of the Addenda.

in relation to the interpretation of Article 2 of the Addenda to the Commercial Building Lease Protection Act (Law No. 12042, August 13, 2013), "this Act shall apply."

The first lease concluded or renewed after August 13, 2013 is enforced by the Commercial Building Lease Act.

(A) A lease entered into on or before August 13, 2013, but renewed after August 13, 2013;

K. Therefore, the lease is not renewed after the enforcement of the amended Act, and the expiration of the period, etc. is terminated.

In this case, I explained that "......."

(2) If the lease is not renewed after the enforcement of the amended Act and the termination of the lease is due to the expiration of the term.

However, there is a view that the plaintiff's above argument is identical to the plaintiff's above argument by extensively interpreting the phrase "not mentioned."

The above Supreme Court ruling is a case in which the lessee cannot be deemed to have made a lawful request for renewal to the lessor.

As such, it is unreasonable to interpret the above explanation in an unreasonable manner beyond the ordinary meaning of the phrase.

It is not appropriate to apply to a case in which the lessee makes a legitimate request for renewal of the contract to the lessor.

When enacting or amending a law, the legislators are obligated to clearly define the provisions so that there is no dispute in interpretation.

Nevertheless, there is unnecessary confusion by the legislators by enacting the Addenda provisions without neglecting such duty and making it unclear.

As a result, this problem should be corrected in the amendment process of the Commercial Building Lease Protection Act.