Whether Article 10-4 of the Commercial Building Lease Protection Act, newly established on May 13, 2015, is also applied to a lease exceeding the amount of security deposit prescribed by Presidential Decree pursuant to the proviso to Article 2 (1) of the Addenda (amended by August 13, 2013) to a lease in existence as of the enforcement date, notwithstanding Article 2 of the Addenda to the Commercial Building Lease Protection Act (affirmative)

Article 2(1) and (3), and Article 10-4 of the Commercial Building Lease Protection Act; Article 2 of the Addenda ( August 13, 2013); Articles 2 and 3 of the Addenda ( May 13, 2015)

Plaintiff (Counterclaim Defendant) (Attorney Kim Tae-tae et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Attorney Choi Jae-hwan et al., Counsel for plaintiff-appellant)

Jeonju District Court Decision 2016Na9400, 9417 decided April 12, 2017

The judgment below is reversed, and the case is remanded to the Jeonju District Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

For reasons indicated in its holding, the lower court rejected the Defendant’s assertion that the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) asserted that the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) could not respond to the Plaintiff’s request for the delivery of the instant building before receiving the purchase price of the accessories, and at the same time sought payment of the purchase price of the accessories as a counterclaim against the Plaintiff.

In light of the relevant legal principles and records, although there are some parts of the reasoning of the first instance court cited by the lower court, the lower court did not err by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

A. The Commercial Building Lease Protection Act (hereinafter “Commercial Building Lease Protection Act”) provides that “this Act shall apply to the lease of a commercial building: Provided, That this Act shall not apply to the lease exceeding the amount guaranteed by Presidential Decree” (Article 2(1)). Meanwhile, the Commercial Building Lease Protection Act amended by Act No. 12042, Aug. 13, 2013 newly established Article 2(3) and provides that “Notwithstanding the proviso to paragraph (1), Article 10(1), (2), the main sentence of Article 10(3), and Article 10-2, which provide for the contract renewal request, shall apply to the lease exceeding the amount guaranteed by Presidential Decree, shall also apply to the lease exceeding the amount guaranteed by Presidential Decree.” In addition, the Commercial Building Lease Lease Protection Act amended by Act No. 13284, May 13, 2015; the provisions of Article 10(3) of the Addenda to the Commercial Building Lease Lease Protection Act (amended by Act No. 12042, Apr. 1, 2014).

In light of the language and text of the aforementioned provision related to the Commercial Building Lease Act and the legislative purport of the amended provision, Article 10-4 (Protection of an opportunity to recover premiums, etc.) of the Commercial Building Lease Act (hereinafter “Commercial Building Lease Act”) applies to a lease which is in existence as of May 13, 2015 as of the enforcement date of Act No. 13284, which is the date of enforcement of the said provision, exceeding the amount of security deposit prescribed by Presidential Decree pursuant to the proviso to Article 2(1) of the Commercial Building Lease Act. This also applies to a lease, which is not a lease concluded or renewed for the first time after August 13, 2013, which is the enforcement date of Act No. 1204

1) Article 10-4 (Protection of Opportunity to Collect Premium, etc.) of the Commercial Building Lease Act is a newly established provision on May 13, 2015. Article 13284 of the amended and enforced on May 13, 2015 made it clear that the said provision applies to “a lease in existence at the time” under Article 3 of the Addenda to the establishment of a new provision on the protection of opportunity to recover Premium as above.

2) Article 13284 of the Act, which was amended and enforced May 13, 2015, included Article 10-4 in Article 2(3) to determine that Article 2(3) of the Act shall apply to the protection of the opportunity to recover premiums even when the lease exceeds the amount guaranteed by Presidential Decree pursuant to the proviso to Article 2(1). Since Article 2(3) of the Act was inserted into the amendment on May 13, 2015, it is reasonable to view that the Addenda to the transitional provision should be determined in accordance with the Addenda as of May 13, 2015. In other words, Article 2 of the Addenda to the Act, which was amended on August 13, 2013, provides that “This Act shall not apply even if it was first concluded or renewed after this Act enters into force, and Article 10-4 of the Act, which is first amended by Article 12042, which shall not apply to Article 10-3(1) of the Addenda.”

3) Reviewing the legislative process, as a result of discussions on whether to recognize the retroactive effect of the provision on the protection of opportunity to recover premiums even after examining the legislative process, the same provision was legislated to apply the lease still in existence in consideration of the fact that the same provision does not create a duty to return premiums to a lessor, but only imposes an obligation not to obstruct the recovery of premiums in relation to a new lease to be concluded in the future, and that the same provision is applied only to a newly concluded or renewed lease, the time of application of the Act is too late and there is a possibility that the deposit, etc. is too wide, and there seems to be little discussions on the premise that the lease contract was concluded or renewed after August 13, 2013.

4) Article 2 of the Addenda to Act No. 13284 provides that “The provisions on the opposing power of Article 3 of the amended provisions of Article 2(3) concerning the opposing power of Article 3 shall apply from the lease in which the first contract is concluded or renewed after this Act enters into force,” clearly stipulates that the provisions on opposing power shall apply only to the future, and as seen above, the amended provisions of Article 10-4 provide that the provisions on the protection of goodwill shall apply from the lease in existence at the time of the enforcement of the same Act, and there is no provision that can be viewed as different application as of August 13, 2013 with respect to the application of the provision on the protection of goodwill opportunity.

B. The record reveals the following facts.

1) On May 2, 201, the Defendant leased the instant building from the Nonparty by setting the lease deposit amount of KRW 50,000,000, monthly rent of KRW 1,650,000, and the period of two years (hereinafter “instant lease contract”), and subsequently, on May 9, 2013, the instant lease contract was renewed by changing the lease deposit amount of KRW 80,000,000, monthly rent of KRW 1,650,000, and the period of KRW 1,650,000 by May 14, 2015.

2) On December 9, 2014, the Plaintiff succeeded to the status of the Nonparty’s lessor by completing the registration of ownership transfer on December 30, 2014 after purchasing the instant building from the Nonparty.

3) On March 19, 2015, the Plaintiff expressed his/her intent to refuse to renew the instant lease agreement to the Defendant, and accordingly, the instant lease agreement was terminated on May 14, 2015.

C. Examining these factual relations in light of the legal principles as seen earlier, the instant lease agreement still existed on May 13, 2015, in which the provision on the protection of opportunity to recover the premium under Article 10-4 of the Commercial Building Lease Act was enforced, and thus, even if the lease exceeds the guaranteed amount under the proviso to Article 2(1) of the Commercial Building Lease Act, the provision on the protection of opportunity to recover the premium under

The lower court determined otherwise, that Article 10-4 of the Commercial Building Lease Act does not apply to the instant lease agreement on the ground that the instant lease agreement is not not, on the ground that the instant lease agreement is not otherwise, a provision of Article 10-4 of the Commercial Building Lease Act is not applicable to the lease that is concluded or renewed for the first time after August 13, 2013 pursuant to Article 2 of the Addenda of Act No. 12042 to apply Article 10-4 of the Commercial Building Lease Act

In so doing, the lower court erred by misapprehending the legal doctrine on Article 10-4 of the Commercial Building Lease Act and the Addenda provisions. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)