In the lease of a building for business use, the nature of the premium and whether the lessor bears the duty to return the premium (negative with qualification)

The payment of premiums, which is incidental to the lease of a building for business purposes, is not a content of the lease agreement, and is not a type of the lease agreement, such as tangible business facilities, fixtures, etc., or tangible and intangible property value, such as customers, credit, business know-how, or business interest arising from the location of the store, or the cost for use for a certain period. As long as the acquisition of tangible and intangible property value or the use for the agreed period is effective, the lessor is not obligated to return the premiums. However, unless there is an agreement to object to the initial lease, the lessee may receive the premiums by transferring or sub-lease the property value to another person, and therefore, the lessor may receive the premiums by allowing the lessor to transfer or sub-lease the leased property value in addition to the opportunity for the transfer or sub-lease of the lease, and therefore, even if the lessor agreed to take over the road value due to the end of the lease agreement and continue to use the value due to the termination of the lease agreement due to the circumstances of the lessor, the lessor cannot have any special obligation to return the entire or part of the premium during the agreed period.

Articles 105 and 618 of the Civil Act

Plaintiff (Attorney Shin Young-chul, Counsel for the plaintiff-appellant)

Defendant (Attorney Choi-ju et al., Counsel for the defendant-appellant)

Seoul District Court Decision 99Na53734 delivered on April 19, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. As to the assertion against the rules of evidence

The court below determined, based on its adopted evidence, that the Plaintiff, a lessee of the instant building, paid KRW 25,00,000 to the Defendant, a lessor, for the lease contract of the instant building, and determined that there was no evidence suggesting that the Plaintiff agreed to receive the premium from the Defendant when the lease contract is terminated in the future.

In comparison with the evidence on the record, the fact-finding is correct, and there is no error in matters of law such as failing to exhaust all necessary deliberations or violating the rules of evidence.

We cannot accept the allegation in the grounds of appeal.

2. As to the assertion of misapprehension of legal principle

In addition to the lease deposit or rent of a building for business use, with respect to the money paid by the lessee to the lessor in addition to the lease deposit or rent, the effect of the lease's nature, the occurrence of the repayment obligation, etc. is determined according to the agreement between the parties to the lease or the relevant commercial customs.

Therefore, if there is an agreement or commercial custom to return the premium, the lessor is obligated to return the premium in accordance with the agreement.

In the absence of such agreements or commercial customs, a lessor who was paid premiums should not be obliged to return the premiums to the lessee unless there is any opposing circumstance.

In other words, the payment of premiums in connection with the lease of a commercial building does not constitute the contents of the lease contract, and the premium itself is the transfer of intangible property value, such as tangible business facilities, fixtures, etc., such as business facilities, customers, credit, business know-how or the location of a store, or the cost for use for a certain period of time. As long as the acquisition of tangible and intangible property value or the use for the agreed period is effective, the lessor shall not be liable for the return of the premiums. However, unless there is an agreement to oppose the initial lease, the lessee may receive the premiums by transferring or using the property value to another person.

Therefore, it is reasonable to conclude that a lessor is liable to return all or part of the premium, unless there are special circumstances, such as the lessor’s failure to use the property value during the contract period due to the termination of the contract, even though the lessor agreed to take over the property value of the road at the end of the lease or to continue to use the value more than a certain period after receiving the premium, even though it was agreed that the lessor would have agreed to use the value for the lease more than a certain

In this case, the judgment of the court below which rejected the plaintiff's assertion that the premium paid by the plaintiff is the money of the nature of a loan for consumption with no interest and that it should be returned to the plaintiff upon the termination of a normal lease contract, is right and wrong as it is based on the premise that the plaintiff paid the premium as the price for using the location store during the agreed period of time, and there is no error of law

We cannot accept the allegation in the grounds of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)