(영문) 대구고등법원 2017.10.26.선고 2016나1770 판결

2. It is confirmed that all obligations, such as premium, compensation, interest, etc., arising from the delivery of the portion of the ship connecting each point in the order of 118.8 meters in the attached Form 2 (Omission) among the 1st floor of the building listed in the attached Table 1 (Omission) against the Defendant (Counterclaim Defendant, Appointed Party) of the Plaintiff (Counterclaim Plaintiff) and the Appointed C do not exist.

3. The defendant-Counterclaim plaintiff's counterclaim is dismissed.

4. The total cost of the lawsuit is borne by the Defendant-Counterclaim Plaintiff.

Purport of claim and appeal

1. Purport of claim

(a) the main office;

Paragraph 2 of this Article.

B. The plaintiff (the counter-party, the designated party, the hereinafter referred to as the "Plaintiff") and the appointed party C (the "appointed party") jointly and severally pay 89,870,000 won to the defendant (the counter-party, the hereinafter referred to as the "defendant") at the rate of 15% per annum from the day following the day of service of the copy of the application for change of the claim and the cause of the counter-claim to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

Reasons

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in the statements in Gap evidence Nos. 1, 3, 5, 7, 9, 10 (including the numbers of serial numbers; hereinafter the same shall apply) and Eul evidence Nos. 1, 2, 3, and 7.

A. The Plaintiff and the designated parties are co-owners of the buildings listed in the attached Table 1 list (hereinafter referred to as the “instant building”), and the Defendant is from D, the former owner of the instant building, to whom the Defendant leased a pharmacy on the part of the ship connecting each point of the attached Form 2 A, B, C, and D, in turn, 118.8m (hereinafter referred to as the “instant pharmacy”).

B. On July 31, 2008, D, the owner of the instant building, entered into a lease agreement with the Defendant on a deposit of KRW 100,000,00 for the instant pharmacy, monthly rent of KRW 2,50,000, and lease term of KRW 2 years from August 1, 2008 (hereinafter “the instant lease agreement”), and thereafter delivered the said building part to the Defendant, and the instant lease agreement has been continuously renewed. The Plaintiff and the designated parties purchased the instant building from D on September 30, 2014, and completed the registration of ownership transfer as joint ownership with the Plaintiff and the designated parties on November 11, 201, while the special agreement attached to the said contract is stated below as to the lease of the instant building including the instant lease agreement:

1.The buyer shall verify and conclude a contract on the site, public records, and current status of lease; 3. comprehensive transfer, acquisition by transfer of rental business operators; 4. Rental deposit and existing loans shall be deducted from any balance.5. The rent shall be settled on the basis of the balance date.

D. On June 23, 2015, the Plaintiff sent to the Defendant a certificate of content that “if the instant lease agreement is terminated on July 31, 2015, it shall be increased to KRW 100,000,000, monthly rent of KRW 3500,000 (including additional tax),” and that “if the Plaintiff wishes to extend the said lease agreement, it shall be increased to KRW 3,500,000.” On July 2, 2015, the Plaintiff again sent to the Defendant a certificate of content that “the instant lease agreement was terminated as of July 31, 2015 because the Defendant did not wish to extend the contract,” and that “the instant pharmacy is transferred to the Defendant by July 31, 2015,” and reached around that time.

E. Meanwhile, the Defendant concluded a premium agreement with the Plaintiff, arranged by the Defendant, to rent the instant pharmacy to a new lessee, and concluded a premium agreement with KRW 100,000,00 in order to enable the Plaintiff to rent the instant pharmacy. On July 3, 2015, the Defendant sent a certificate of content demanding the Plaintiff to interfere with the Plaintiff’s opportunity to recover the premium and reached around that time.

F. On July 6, 2015, the Plaintiff issued a certificate of content to the Defendant and proposed that a consultation with the new lessee with respect to the lease contract with the new lessee was made, the Plaintiff indicated “the original copy of the premium contract, a pharmacist’s certificate, a pharmacist’s career certificate, a certificate of payment of value-added tax in 2014, a certificate of payment of income tax in 2015, a certificate of payment of property tax in 2014, a family relation certificate, a certificate of payment of national tax and local tax, an original deposit balance certificate in the name of a new lessee, a short-term plan for the operation of the pharmacy, and a long-term plan for the operation of the pharmacy. Accordingly, on July 18, 2015, the Plaintiff and the selected parties, the Defendant, and E agreed on only 10,000,000 won, monthly rent of 20,300,000 won (including a value-added contract) and agreed on the condition that the Plaintiff and the new lessee wish were separately selected.

G. On July 21, 2015, the Plaintiff sent a certificate of content that E is inappropriate to a new lessee on the ground that “E is deemed to lack of sufficient means to pay a deposit and rent (the submission of a certificate of deposit balance, dependence on the parent’s funds),” and “E is deemed to lack of intent and ability to perform its obligations as a lessee (at all, there was no mentioning a short-term plan and long-term plan for the operation of a pharmacy, a person’s opinion regarding the opening of a pharmacy, future notification, future vision, etc.)” under the title of “Notification of the result of consultation with a person who intends to become a new lessee,” and reached around that time.

H. On May 25, 2016, the Plaintiff, a pharmacist, retired from the hospital** on May 26, 2016, and returned the deposit to the Defendant on May 26, 2016, and received the instant pharmacy from the Defendant. The Plaintiff registered the instant pharmacy on May 27, 2016 and operated the pharmacy from around that time.

I. After receiving the instant pharmacy’s delivery, the Plaintiff leased the instant pharmacy divided into KRW 10,00,000, monthly rent of KRW 450,000 (Additional Tax separately) on September 21, 2016, by dividing the instant pharmacy into a different store from that of the said pharmacy. The Plaintiff leased the said pharmacy divided into KRW 100,000,00, monthly rent of KRW 450,000 (Additional Tax Separate Tax), while directly operating the said pharmacy at the divided pharmacy on December 19, 206, after closing the business on December 19, 2016.

2. The parties' assertion

A. The plaintiff's assertion

1) The Plaintiff and the designated parties are not parties to the instant lease contract, and the deposit of the instant lease contract is more than the deposit stipulated under the Enforcement Decree of the Commercial Building Lease Protection Act, and the Defendant cannot invoke the opposing power stipulated under the Commercial Building Lease Protection Act (hereinafter “The Commercial Building Lease Act”). Thus, the Defendant cannot assert the application of the provisions on the opportunity to recover the premium under Article 10-4 of the Commercial Building Lease Protection Act (hereinafter “the instant protection provisions”) on the premise that the lease contract is in existence.

2) The instant lease agreement is concluded on July 31, 2008, and the Defendant cannot demand renewal of the lease agreement, and thus, the instant protection provision does not apply thereto.

3) Even if the Commercial Building Lease Act is applicable, the rent requested by the Plaintiff to be a new lessee to E is realized that there was no increase in the rent between the past years, and thus does not constitute a demand for a very large amount of rent. Therefore, it cannot be deemed that the Defendant interfered with the opportunity to recover the premium.

B. Defendant’s assertion

1) The Plaintiff and the appointed parties agreed to comprehensively succeed to the lessor’s status while purchasing the instant building from D, which is the former owner and lessor of the instant building. As the amended Commercial Building Lease Act was in force, the Plaintiff and the appointed parties were in existence, and thus, the Defendant may invoke the protection provisions of the instant lease.

2) Even if five years have elapsed since the term of the instant lease agreement, the instant protection provision applies.

3) The Plaintiff demanded that E, who intends to operate the pharmacy directly at the instant pharmacy, would be a high-amount rent and demanded that the new lessee submit various documents not prescribed in the Act, thereby hindering the Defendant’s collection of premiums, and thus, is liable to compensate for damages therefrom.

3. Determination

A. The provisions pertaining to the issues of the instant case in the relevant provisions of the Family Lease Act are as follows. The provisions of Articles 10-3 and 10-4 regarding the premium were newly established on May 13, 2015 by Act No. 13284.

Article 2 (Scope of Application) (1) this Act shall apply to lease of a commercial building (referring to a building subject to business registration under Article 3 (1)): Provided, That this shall not apply to cases where the principal part of the leasehold property is used for business purposes: Provided, That this shall not apply to lease exceeding the amount of deposit prescribed by Presidential Decree, notwithstanding the proviso to paragraph (1).

(2) The right to request renewal of a contract may be exercised only within the extent that the whole period of lease, including the initial period of lease, does not exceed five years. Article 10-3 (Definition, etc. of Premium) (1) The term "person operating a business in a commercial building, the object of the lease, or who intends to operate a business, means the cost for transfer or use of tangible and intangible property value, such as business facilities, fixtures, credit, business gains, business advantages in accordance with the location of the commercial building, etc., which is the cost for the lessor or the lessee to pay to the lessee in addition to the deposit and rent. (2) The term "person who intends to become a new lessee" means the contract under which the new lessee is required to pay the premium to the lessee in addition to the deposit. (3) The term "person who intends to become a new lessee" means the act of causing the new lessee to be paid the premium to the new lessee in accordance with the contract, and the act of demanding the new lessee and the new lessee to pay the premium to the new lessee in consideration of the following acts:

2. Where a person arranged by a lessee as a new lessee is likely to violate his/her duty as a lessee or there exists any other substantial cause for which it is difficult to maintain the lease; 3. Where the new lessee selected by the lessor has concluded a premium contract with the lessee and has paid the premium for profit; 4. Where the new lessee has paid the premium in violation of paragraph (1), he/she shall be liable to compensate for the loss. In such cases, the amount of compensation shall not exceed the lesser of the premium to be paid by the new lessee and the premium as at the time of the termination of the lease. (5) The lessee shall provide the lessor with information about his/her intention and ability to pay the deposit and rent of the new lessee to the new lessee or to perform his/her duty as the lessee. (4) This Act shall enter into force from the date of its promulgation, and the provisions of Article 4 (1) to Article 3 (4) shall enter into force from the date of the first enforcement of the provisions of Article 3 (1) to the date of the enforcement of the Act concerning the premium for lease.

B. Whether the lease agreement is succeeded and the protection provision of this case is applied

In full view of the facts stated in subparagraph 6 and the purport of the entire argument, the following facts are acknowledged: (a) the Defendant and D continued to renew the instant lease contract after setting the lease term of two years on July 31, 2008; (b) the Plaintiff and the designated parties agreed to comprehensively succeed to the lessor’s status while purchasing the instant building from D; and (c) the Plaintiff sent to the Defendant a certificate of the content demanding the delivery of the instant pharmacy on July 2, 2015 on the ground that the instant lease contract was terminated as of July 31, 2015; and (d) the instant provision of the Protection of the Commercial Building Lease Act (amended by Act No. 13284, May 13, 2015) enters into force from May 13, 2015 to the lease continued (Article 3 of the Addenda).

Therefore, as at May 13, 2015, when the amended Commercial Building Lease Act enters into force, the instant lease agreement existed between the Plaintiff, the designated party and the Defendant, barring any special circumstance, the Defendant may assert the application of the instant protection provision to the Plaintiff and the designated party. Ultimately, the Plaintiff’s assertion on this part is without merit.

C. On July 31, 2008, the term of lease of this case five years and the possibility of applying the protection provisions of this case was concluded and renewed between D and the defendant on July 31, 2008. On September 30, 2014, the term of the lease of this case terminated on July 31, 2015 by the plaintiff's notification of termination after the status of the lessor was succeeded from D to the plaintiff and the designated person. However, as in this case, the protection provisions of this case cannot be deemed not to apply solely on the ground that the term of lease including the initial term of lease is more than five years, and the right to request renewal of the contract of this case is not recognized pursuant to Article 10 (2) of the Commercial Building Lease Act. Accordingly, since the term of the lease of this case was five years, the protection provisions of this case may not apply, this part of the plaintiff's assertion is without merit.

(1) Article 10 (2) of the Commercial Building Lease Act explicitly states, with respect to the tenant's right to request renewal of the contract, that "it may be exercised only within the extent that the whole period of lease including the initial period of lease does not exceed five years," but there is no such restriction provision.

(2) The proviso of Article 10-4 (1) of the Commercial Building Lease Act provides that a lessor shall not be obliged to make a request for the renewal of a contract under each subparagraph of Article 10 (1) of the Commercial Building Lease Act if there is a reason to refuse a request for the renewal of a contract, and there is no such provision for a lessee to exercise a right to request the renewal of a contract under Article 10 (2) of the Commercial Building Lease Lease Act. However, in comparison with "where a lessee may refuse a request for renewal for a reason under each subparagraph of Article 10 (1) of the Commercial Building Lease Lease Act although the lessee has the right to request the renewal of the contract," and "where a lessee does not have a right to request the renewal of the contract any longer because he/she has a five-year lease term, the need to protect the lessee's premium is greater. In other words, the reason under each subparagraph of Article 10 (1) of the Commercial Building Lease Lease Lease Act, except for cases where a lessor has provided a lessee with a reasonable compensation under an agreement, and there is no more specific reason to protect the lessee's.

(3) The legislative intent of Article 10(1) of the Commercial Building Lease Act is to guarantee the minimum business period to the lessee in order to realize the legislative purpose of the Commercial Building Lease Act, which aims to ensure the stability of the national economic life, while Article 10-4 of the Commercial Building Lease Act is to provide that the lessee shall recover the value of the property created in the form of money, which is almost impossible for the lessee to recover in the form of money for the premium, and the two systems differ from each other. Therefore, Article 10(2) of the Commercial Building Lease Act, which is a restriction on the right to request the renewal of the contract, shall not apply mutatis mutandis to the case where a person who operates or operates a business in the commercial building subject to the lease, or a person who intends to operate a business, transfers or uses tangible or intangible value, such as business facilities, fixtures, customers, credit, business know-hows, business gains from the location of a commercial building.

④ In this respect, even if the main sentence of Article 10-4(1) of the Commercial Building Lease Act is applied to a lessor unless the lessee is obliged to renew the contract, it cannot be said that the purpose of the protection provision of this case is to ensure that the lessee can recover the property value formed by the type of floating or intangible property through his/her business in the form of premium, even though the lessee is not obliged to do so, it cannot be said that the lessee has breached the purpose of the protection provision of this case to ensure that the lessee can recover the property value formed by the type of floating or intangible property through his/her business without any justifiable reason. In addition, the lessor, for whom the five years have passed since the lease term was extended, may demand and carry out the rent and deposit to the extent that it is considerably high in terms of newly concluding the lease contract with the new lessee, and even if the lessor for whom the five years have not passed since the lease term had been extended, it is difficult to unilaterally demand the lessee to reduce the rent and deposit within the scope of the previous lessee’s liability for damages and the amount of deposit determined by the lessee.

⑤ On the other hand, in the event that a cause under any subparagraph of Article 10(1) of the Commercial Building Lease Act exists or a justifiable cause under Article 10-4(2) of the same Act exists, a lessor may recover the right to use and profit from the leased object without being subject to the restriction on the opportunity to recover the premium of a lessee. Article 10-4(5) of the same Act provides a lessor with information on the capacity, etc. of a new lessee arranged by the lessee, thereby allowing the lessor to obtain information on justifiable grounds. Therefore, even if Article 10(2) of the Commercial Building Lease Protection Act does not apply mutatis mutandis, the lessor’s right to use and profit from the leased object is excessively restricted.

6. As such, the period of the tenant's business operation in a commercial building and the size of the value of tangible and intangible property accumulated in the commercial building and the degree of trust accumulated between the landlord and the lessee, the value of tangible and intangible property formed in the commercial building in which the tenant has operated for a long period of more than five years is greater. Even if the tenant has recovered the value of tangible and intangible property remaining in the commercial building during the lease period due to the increase of large operating income during the lease period, if such value of intangible and intangible property remains in the commercial building at the time of the termination of the lease, it would be contrary to the legislative intent of the protection provisions of this case.

7) If Article 10(2) of the Commercial Building Lease Act applies mutatis mutandis to the protection provision of this case, a lessee, unlike a lessor who intends to obtain a five-year lease period, intends to terminate a lease agreement within five years without paying a five-year lease period guaranteed by the Commercial Building Lease Act to recover some of the tangible and intangible property values attached to a commercial building as premium, and ultimately, the lessee’s exercise of the right to request renewal of the contract is chilling. Such increase in a short-term lease goes against the legislative purpose of the Commercial Building Lease Act to ensure the stability of national economic life.

D. Whether the plaintiff and the designated parties interfere with the collection of premiums by the defendant

Considering the above facts and the following circumstances revealed in full view of all the evidence as seen earlier, the Plaintiff and the designated party did not enter into a lease agreement with E arranged by the Defendant. Moreover, it is difficult to deem that the Plaintiff and the designated party interfered with the Defendant’s receipt of the premium from E arranged by the lessor by providing “the act of refusing to enter into a lease agreement with a new lessee arranged by the lessee without justifiable grounds” as stipulated in Article 10-4(1)4 of the Commercial Building Lease Act, and there is no evidence to prove otherwise that the Defendant interfered with the acts stipulated in each subparagraph of Article 10-4(1) of the Commercial Building Lease Act. Therefore, this part of the Defendant’s assertion is without merit.

① Considering the fact that the Defendant and D did not raise rent once more than seven years after July 2008 when concluding the instant lease contract, it is difficult to deem that the Plaintiff was unreasonably demanding that the Plaintiff be rent of KRW 100,000,000 as it was monthly rent of KRW 2,50,000 and KRW 3,500,000 (including value-added tax), and that the Plaintiff was considerably high rent of KRW 30,000, KRW 00, KRW 00, KRW 300, KRW 450, KRW 00, KRW 00, KRW 100, KRW 300, KRW 00, KRW 10, KRW 100, KRW 100, KRW 450, KRW 10, KRW 300, KRW 10, KRW 100, KRW 30, KRW 10,000, KRW 30, KRW 4500, KRW 10,000.

Nevertheless, E has taken the position of KRW 3,000,000 monthly rent to the Plaintiff, and eventually, the conclusion of the lease contract was nonexistent.

② Around June 2015, the Plaintiff notified the Defendant that he would raise the monthly rent of KRW 3,500,00 (including value added tax) to the Defendant. As such, the Plaintiff was aware of the fact that the Plaintiff would rent the instant pharmacy to the new lessee and the new lessee. If so, the Defendant should have determined the amount of the premium on the premise that the Plaintiff would have been able to enter into the premium contract with E by notifying such circumstances and by such rent. Nevertheless, upon entering into the premium contract with E, the Defendant did not express such fact in entering into the premium contract with E, and on the premise that E would have been 3,00,000,000 won, it appears that the Defendant would have entered into the premium contract with the Defendant on the premise that it would have been 10,000,000 won. In such a case, it is difficult to view that the Plaintiff, a lessor, waivers its right to determine its rent and would have been 100,000 won,00 won, more than 30,000000 won,000 won,000 won.

Furthermore, the method of calculating operating profit under the profit and loss statement is derived from the "a method of investigating transaction practices, etc. in the region to which the target commercial building belongs and extracting profits accruing from the intangible property at a certain rate from among the total operating profits" without adopting the method of calculating operating profit for the reason that the appraised amount of KRW 89,870,000, which was appraised in this case does not reach the self-employed personnel expenses. Therefore, it is not deemed that the Plaintiff interfered with the Defendant’s opportunity to recover the premium solely on the grounds that the above appraised amount of the premium was not guaranteed to the Defendant.

③ Around June 23, 2015, the Plaintiff sent to the Defendant a certificate of the content of whether the lease agreement was extended, and notified the Defendant of the termination of the lease agreement. Around July 2015, the Plaintiff attempted to conclude the lease agreement with E arranged by the Defendant, but did not enter into the contract on rent. The Plaintiff was working until May 25, 2016 at the time of delivery of the instant pharmacy from the Defendant (i.e., the time coming after the delivery of the instant pharmacy from the time to May 25, 2016) (i.e., the date of the transfer of the instant pharmacy from May 2016). In light of such circumstances, it is difficult to deem that the Plaintiff interfered with the Defendant’s collection of the premium by presenting unreasonable conditions to E arranged by the Defendant for the purpose of operating the instant pharmacy.

④ In light of the following: (a) the Plaintiff’s demand not only for the certificate of qualification as a pharmacist or the documents related to whether the Plaintiff is delinquent in national or local taxes, but also for the submission of a family relation certificate, deposit balance certificate, pharmacy operation plan, etc., which is related to personal information, is merely a mere reason to deem that a new lease contract has not been concluded; (b) the Commercial Building Lease Act provides for the lessee’s duty to provide information on the intent and ability to perform the obligation as a new lessee, such as the rent, etc., of a person who intends to become a new lessee, or a lessee (Article 10-4(5)); and (c) the case where the new lessee has no capacity to pay a deposit or rent, or is likely to violate the obligation as a lessee, the lessor is deemed to have refused to enter into a lease contract with E without justifiable grounds solely on the ground that the Plaintiff demanded the presentation of the above documents (Article 10-4(2)1 and 2).

E. Sub-committee

Ultimately, it is difficult to recognize liability for damages caused by the obstruction of the Defendant’s collection of premiums in relation to the instant lease agreement to the Plaintiff and the designated parties, and on a different premise, the Defendant’s assertion is without merit. Furthermore, there is no evidence to prove that the Plaintiff and the designated parties have all other obligations, such as premium, damages, and interest thereon arising from the delivery of the instant pharmacy to the Defendant. Therefore, such obligations do not exist, and as long as the Defendant contests this, there is benefit

4. Conclusion

Therefore, the plaintiff's claim of the principal lawsuit shall be accepted for the reason that it is reasonable, and the defendant's counterclaim shall be dismissed for the reason that it is not reasonable. Since the judgment of the first instance is unfair for the conclusion differently, the judgment of the court of first instance shall be accepted, and the judgment of the court of first instance shall be revoked and the plaintiff'