(영문) 부산지방법원 동부지원 2019.5.29.선고 2017가단218491 판결

1. The defendant shall pay to the plaintiff 24,359,00 won with 5% interest per annum from December 22, 2016 to May 29, 2019, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 40% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 43,838,00 won with 5% interest per annum from December 22, 2016 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

A. On December 21, 201, the Plaintiff leased the first floor (hereinafter referred to as “instant commercial building”) among the second floor located on the D’s land in Nam-gu, Busan (hereinafter referred to as “instant building”) from C from December 21, 201 to December 21, 201, with a deposit of KRW 20,000,000, monthly rent of KRW 1,100,000, and the period from December 23, 2011 to December 21, 2013, and operated a restaurant in the instant commercial building with the trade name of “E” from around that time.

B. On December 21, 2013, the Plaintiff leased the instant commercial building from the Defendant, who purchased the instant building, as a deposit for 50,000,000 won, monthly rent of KRW 1,100,000, and the period from December 21, 2013 to December 24, 2013. On December 21, 2015, the Plaintiff leased the instant commercial building from the Defendant as a deposit amount of KRW 70,000,000, monthly rent of KRW 1,000,000, and the period from December 21, 2015 to December 21, 2015 (hereinafter “instant lease”).

C. On June 27, 2016, the Defendant sent to the Plaintiff a certificate of content that “the instant building may not be extended if the contract term expires” (hereinafter referred to as “certificate of content of this case”) to the effect that: (a) the instant building was an old-age building for which 40 years have passed since it was constructed; (b) the risk of collapse of heavy water from the exterior walls of the building and the entire second floor; and (c) due to such circumstances, the Defendant seeks to repair the said building considerably.

D. Accordingly, around December 21, 2016, the Plaintiff recovered the Plaintiff’s goods in the instant commercial building and removed them from the instant commercial building.

【Uncontentious facts, Gap’s entries, Gap’s evidence 1, 2, 4, and 5 (if any, including a serial number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. The Defendant violated Article 10-4(1)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”) by deceiving the Plaintiff as if it were to perform substantial repair work due to the risk of the collapse of the building of this case by sending the Plaintiff the certification of the content of this case on June 27, 2016, and by allowing the Plaintiff to withdraw from the commercial building of this case. Accordingly, the Defendant breached Article 10-4(3) of the same Act. Accordingly, pursuant to Article 10-4(3) of the same Act, the Defendant is obliged to pay the Plaintiff the Plaintiff the amount equivalent to the premium at the time of the termination of the instant lease (24,359,000 won without property value + KRW 24,479,000,0000, excluding the value of tangible property collected by the Plaintiff, KRW 500,109,79).

B. Even if Article 10-4 of the former Commercial Building Lease Act does not apply to the case of the lease of this case, even if the Plaintiff failed to act as a new lessee, the Defendant, as above, by deceiving the Plaintiff, lost the opportunity to recover the premium itself, thereby causing the Plaintiff to commit a tort under Article 750 of the Civil Act. Therefore, the Defendant is obliged to pay the Plaintiff the amount equivalent to the said premium, 43,838,000 won, and damages for delay.

3. Determination

A. As to the claim for damages caused by interference with the collection of premiums under the former Commercial Building Lease Act

1) Relevant statutes (former Commercial Building Lease Act)

(1) Article 10 (Request for Renewal of Contract) (1) If a lessee requests the renewal of contract between six months and one month prior to the expiration of the lease term: Provided, That this shall not apply to cases where the lessee falls under any of the following subparagraphs; 2. Where the lessee has rent money to the lessee by fraud or other improper means; 3. Where the lessee has provided reasonable compensation to the lessee; 6. Where the lessee is unable to attain the purpose of the lease because the lessee has destroyed all or part of the leased building by intention or gross negligence; 7. Where the lessee is required to restore the occupancy of the leased building to the lessee or to reconstruct all or part of the leased building by the reason falling under any of the following items:

2) Specific review

As above, Article 10-4(1) of the former Commercial Building Lease Act requires a tenant to act as a representative of a new tenant as an element of the concept of the act of interference of a lessor prohibited, and Article 10-4(3) of the same Act also requires a tenant to act as a representative of a new tenant.

However, Article 10-4 of the former Commercial Building Lease Act does not apply to the lease of this case, since the plaintiff himself/herself is also a person who did not act as a new lessee.

Therefore, the plaintiff's claim on a different premise is without merit.

B. As to the claim for damages caused by a tort

1) Occurrence of damages liability

In full view of the following circumstances acknowledged by adding the aforementioned evidence, Gap evidence Nos. 3 and 6 through 9, and witness F’s testimony to the overall purport of the pleading, the defendant should perform substantial repair works to prevent the collapse of the building of this case, even though he was aware of the risk of the collapse of the building of this case and did not intend to do so, so that he could not move out of the commercial building of this case. Accordingly, the plaintiff deceivings the plaintiff to the purport that he would change the removal from the commercial building of this case. Accordingly, the plaintiff was deprived of the opportunity to recover the premium itself by arranging a new lessee from three months before the termination of the lease contract of this case until the termination of the lease contract of this case. Thus, the defendant is liable to compensate the plaintiff for damages incurred thereby, barring any special circumstances.

O) There is no evidence suggesting that the Defendant, at the time of providing the Plaintiff with the proof of the content of the instant building, knew the risk of collapse of the instant building, or had the intent to prevent it or to reinforce the safety of the building.

The evidence submitted by the Defendant, while the delivery of the instant commercial building from the Plaintiff and the overall repair work, is generally related to the interior work for the Defendant’s business, and it seems that there is no direct relation to the construction work to prevent the collapse of the instant building or to reinforce safety.

Although the Plaintiff paid KRW 70,00,000 to the lessee at the time of the first lease of the commercial building of this case, it appears that the Defendant gave up the intermediation of the new lessee prior to the termination of the instant lease agreement and gave out the commercial building of this case, it seems that the Defendant notified the Plaintiff of the fact that the Plaintiff was in danger of collapse in the building of this case, and thus, it was the main cause for the Plaintiff to perform large-scale repair works to prevent this.

○ The Defendant asserts that the instant lease agreement constitutes a case where the Plaintiff is unable to exercise the right to request the renewal of the contract due to the lapse of five years of the entire lease period. However, in light of the language and content of Article 10-4 of the former Commercial Building Lease Act and the legislative intent of Article 10(2) of the former Commercial Building Lease Act, in a case where the lessee is unable to exercise the right to request the renewal of the contract for more than five years, the lessor is obliged to protect the opportunity to recover the premium under Article 10-4(1) of the same Act (see Supreme Court Decision 2017Da225312, 225329, May 16, 2019). Therefore, the Defendant’s above assertion cannot be accepted.

2) Scope of damages

In full view of the following circumstances acknowledged in addition to the aforementioned evidence and the purport of the entire argument by appraiser G, it is reasonable to view that the amount of damages suffered by the Plaintiff by deprivation of the opportunity to recover the premium per se at the time of termination of the instant lease agreement is KRW 24,359,00.

The damages suffered by the Plaintiff due to the Defendant’s deception are the opportunity to recover the premium, which is recognized by Article 10-4 of the former Commercial Building Lease Protection Act, and the value of the opportunity to collect the premium itself can be seen as the amount equivalent to the premium at the time of termination of the instant lease contract.

○ Expert G assessed the value of intangible property at KRW 24,359,00 as of January 12, 2016, which was at the time of the termination of the instant lease agreement, and determined the value of intangible property at the premium price on the ground that the value of tangible property (business facilities and equipment) is likely to calculate the quantity for tangible property (business facilities and equipment) due to the absence of business facilities at the time.

The plaintiff seems to have removed from the commercial building of this case and collected some of the equipment and business facilities.

O The Plaintiff asserts that the appraised value of the business facilities not collected at the time of the termination of the instant lease agreement is KRW 24,479,00. In addition, it is recognized that the value of tangible property estimated by the said appraiser based on the practical experience is a fact that the value of the tangible property is 24,479,000, but it is not deemed that the appraiser presented specific transaction cases and assessed based on it. There is no evidence to view that the value of tangible property is KRW 24,479,00.

3) Sub-determination

Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 24,359,00 as well as damages for delay calculated at the rate of 5% per annum under the Civil Act from December 22, 2016, which is the day following the termination date of the instant lease agreement, to May 29, 2019, which is reasonable for the Defendant to dispute about the existence or scope of the obligation to perform, and 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

4. Conclusion

Thus, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.