The case holding that Byung's liability for damages was recognized in a case where Byung, the owner of a building, demanded Eul to submit a pharmacist's qualification certificate, family relation certificate, deposit balance certificate, pharmacy operation plan, etc. in the course of consultation on the lease agreement, and the agreement was reached on the increased amount by more than 40% of the rent in the previous month, and Gap claimed damages against Byung pursuant to Article 10-4 of the Commercial Building Lease Protection Act after the termination of the lease agreement.

In a case where Gap, who leased a commercial building and operated a pharmacy, concluded a premium contract with Eul arranged to rent the pharmacy to a new lessee before the end of the lease contract, but Byung, the owner of the building, demanded Eul to submit a pharmacist's qualification certificate, family relation certificate, deposit balance certificate, pharmacy operation plan, etc. in the course of consultation on the lease contract, and as the agreement was reached by presenting the increased amount exceeding 40% of the rent in the existing month as the condition of the contract, Eul sought damages against Byung pursuant to Article 10-4 of the Commercial Building Lease Protection Act after the termination of the lease contract, the case holding that Byung, in light of all the circumstances, presented a unreasonable condition more unreasonable than that required in the process of concluding the lease contract to Eul, who wishes to directly operate the pharmacy, thereby hindering Eul to recover the premium from Eul, and Byung, Byung refused to conclude the lease contract with Byung on the ground that "A, a new lessee, who wishes to be a lessor, without any justifiable reason, was an act interfering with Gap's conclusion of the lease contract."

Article 10-4 of the Commercial Building Lease Protection Act

Plaintiff (Counterclaim Defendant, Appointed Party)

Defendant-Counterclaim (Attorney Lee Dong-woo, Counsel for defendant-Counterclaim)

July 5, 2016

1. The Plaintiff (Counterclaim Defendant, the appointed party) and the appointed party 2 jointly pay to the Defendant (Counterclaim Plaintiff) the amount calculated by the ratio of 15% per annum from June 28, 2016 to the date of full payment.

2. The plaintiff (Counterclaim defendant, the appointed party)'s claim on the principal lawsuit is dismissed.

3. The costs of lawsuit shall be borne by the plaintiff (a counterclaim defendant, a designated party) by aggregating the principal lawsuit and the counterclaim.

4. Paragraph 1 can be provisionally executed.

The main lawsuit: It is confirmed that there is no obligation, such as any premium, compensation, interest, etc., arising from ordering the portion of the ship connected in sequence 118.8 square meters, which is 118.8 square meters connected in the order of each point of the attached Form 1, among the 1st floor of the building indicated in the attached Table 1, to the Defendant (Counterclaim Plaintiff, Appointed Plaintiff, Appointed Plaintiff, hereinafter “Plaintiff”) and the Appointed Plaintiff 2 (hereinafter “Appointed”) (hereinafter “Defendant”).

Counterclaim: Paragraph (1) of this Article.

A principal lawsuit and a counterclaim shall be deemed to be combined.

1. Basic facts

A. The Plaintiff and the designated person are the co-owners of the buildings listed in the separate sheet No. 1 (hereinafter “instant building”) with the husband and wife, and the Defendant is the one who leased out of Nonparty 1, the former owner of the instant building, the part on the ship connecting each point of the attached sheet No. 2, B, C, and D (hereinafter “instant pharmacy”).

B. On July 31, 2008, Nonparty 1, the owner of the instant building, entered into a lease agreement with the Defendant on a deposit of KRW 100,000,000 for the instant pharmacy, KRW 2,50,000 for the rent month, and KRW 2,50,000 for the instant pharmacy from August 1, 2008, and delivered the said building part to the Defendant.

C. After that, on September 30, 2014, the Plaintiff and the designated parties purchased the instant building from Nonparty 1, and completed the registration of ownership transfer with the Plaintiff and the designated parties’ joint ownership on November 11, 2014. Meanwhile, the special terms attached to the contract at the time of the said sales contract state that “a comprehensive transfer and acquisition by a rental business operator,” and “a lease deposit and an existing loan shall be deducted from the balance.”

D. On July 2, 2015, the Plaintiff sent to the Defendant a certificate of content purporting to seek the name of the instant pharmacy on the ground that the instant lease agreement was terminated as of July 31, 2015, and reached around that time.

E. Accordingly, on July 3, 2015, the Defendant concluded a premium contract with Nonparty 2, which is arranged by the Defendant to rent Nonparty 2 the instant pharmacy to Nonparty 2, and concluded a premium contract with KRW 100,000,00 so that it may rent the instant pharmacy to Nonparty 2. On the other hand, the Defendant sent to the Plaintiff a certificate of content demanding that the Defendant would interfere with the Plaintiff’s opportunity to recover the premium and reached around that time.

F. On July 6, 2015, the Plaintiff: (a) proposed that a new lessee consult on a lease agreement with the new lessee by sending a certification of details to the Defendant; (b) stated “the original copy of the premium contract, a pharmacist’s certificate, a pharmacist’s career certificate, a certificate of value added tax in 2014; (c) a certificate of income tax payment in 2015; (d) a property tax payment certificate in 2014; (e) a certificate of family relation; (e) a certificate of deposit balance in the name of a new lessee; (e) a certificate of deposit balance in the name of a new lessee; and (e) a short-term operation plan and a long-term plan in the instant building on July 18, 2015; and (e) Nonparty 2 asserted that the agreement was concluded on the condition that Nonparty 2 was monthly higher than that of the previous lessee; and (e) agreed on the condition that the Plaintiff and the appointed person would sign a contract on condition of KRW 300,000,00.

G. On July 21, 2015, the Plaintiff sent to the Defendant a certificate of content that Nonparty 2 notified the Defendant that it is inappropriate for the Plaintiff to a new lessee on the ground that “Non-Party 2 lack of sufficient means to pay the deposit and rent (which depends solely on the bank balance certificate, the parent’s funds)” and “Non-Party 2 is lacking in the intent and ability to perform his/her obligations as a lessee (which did not refer to the short-term plan and long-term plan of the pharmacy operation, the bank’s opinion regarding the opening of the pharmacy, the future note, and the future vision, etc.).”

H. The Plaintiff, the owner of the instant building, and the designated parties are expected to operate the instant pharmacy directly at the instant pharmacy, and the Defendant received deposit from the Plaintiff on May 26, 2016 and ordered the Plaintiff to engage in the instant pharmacy.

(i) Relevant provisions of the Commercial Building Lease Protection Act (Law No. 13284, May 13, 2015), are as follows:

(1) Article 10-4 (Protection of Opportunity) (1) of the Table included in the main sentence. (1) No lessor shall interfere with the payment of premiums from a person who intends to become a new lessee arranged by the lessee according to the contract for premiums, by doing any act falling under any of the following subparagraphs from three months before the term of lease expires: Provided, That the same shall not apply where any ground falling under any of the subparagraphs of Article 10 (1) exists; 1. 2. The act of demanding a person arranged by the lessee to become a new lessee, or the receipt of premiums from a person arranged by the lessee to become a new lessee; 3. The act of allowing the new lessee, arranged by the lessee to become a new lessee, to pay premiums for rent to him/her for the first time after the date of the commencement of the lease; 4. The act of demanding the new lessee to pay rent for rent and deposit of a commercial building, the amount of rent and deposit of which are substantially high to the lessee at the time of the commencement of the lease;

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 3-1, 5-5, Eul evidence Nos. 1 (including each number; hereinafter the same shall apply) through 3, the purport of the whole pleadings and arguments

2. The parties' assertion

A. The plaintiff's assertion

1) The plaintiff and the selected parties are not parties to the instant lease agreement, and the deposit of the instant lease agreement exceeds the deposit stipulated in the Enforcement Decree of the Commercial Building Lease Protection Act, and thus the defendant cannot invoke the opposing power stipulated in the said Act. Thus, the defendant cannot assert the application of the provisions on the opportunity to recover the premium under Article 10-4 of the said Act on the premise that the lease agreement is still in existence.

2) Even if the Commercial Building Lease Protection Act is applicable, the rent requested by the Plaintiff to Nonparty 2 who wishes to be a new lessee is realized that there was no increase in the rent for the past years, and thus does not constitute a demand for a considerable high 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 Nonparty 1, the lessor, who was the former owner of the instant building, and thus, constitutes a lessor under the instant lease agreement.

2) Since the instant lease agreement still existed at the time of the enforcement of the amended Commercial Building Lease Protection Act, the Defendant may invoke the provision on the protection of opportunity to recover the premium under Article 10-4 of the same Act.

3) The Plaintiff is liable to compensate for damages as the Plaintiff interfered with the collection of the Defendant’s premium by demanding Nonparty 2, who intends to be a new lessee in the intention to directly operate the pharmacy at the instant pharmacy, to submit various documents not prescribed in the Act.

3. Determination

A. Whether the right to claim damages is established

1) Whether a lease agreement is succeeded and the Commercial Building Lease Protection Act is applied

In full view of the aforementioned basic facts, Eul evidence No. 6, and the purport of the entire argument, the defendant and the non-party 1 continued to renew the above contract after setting the lease term on July 31, 2008 by setting the lease term of this case as two years, and the plaintiff and the designated party agreed to deduct the lease deposit from the purchase price instead of comprehensively succeeding the lessor's status when purchasing the building of this case from the non-party 1. On July 2, 2015, the plaintiff sent to the defendant a certificate of contents seeking the name of the pharmacy of this case on the ground that the lease contract of this case terminated as of July 31, 2015, the amended Commercial Building Lease Protection Act was in force between the plaintiff and the designated party and the defendant, so the defendant can assert the opportunity to recover the premium of Article 10-4 of the Commercial Building Lease Protection Act.

2) Whether the lessor interferes with the collection of premiums by the lessee

Based on the above facts and the overall arguments, the following circumstances are comprehensively taken into account: (i) the Plaintiff and the designated person have a plan to operate a pharmacy directly at the instant pharmacy; (ii) the Plaintiff presented to Nonparty 2, who intends to be a new lessee, an increase in the amount raised by more than 40% of the monthly rent, as a condition of a contract; and (iii) the Plaintiff demanded the said Nonparty 2 to submit a family relation certificate, balance certificate, the original deposit certificate, the short-term operation plan, and the long-term plan, which are irrelevant to the lessee’s ability or ability to pay national taxes or local taxes, as well as the documents related to whether the Plaintiff is a pharmacist’s qualification certificate or national taxes, and are related to the lessee’s personal information; and (iv) the Plaintiff and the designated person presented more unreasonable conditions than those required in the process of concluding a lease contract to Nonparty 2, who wishes to operate the pharmacy directly, and thus interfere with the Defendant’s withdrawal of the premium from Nonparty 2, the Plaintiff and the designated person, without justifiable cause, refused the lease contract to the lessee.

(b) Scope of damages;

According to Article 10-4 (3) of the Commercial Building Lease Protection Act, the amount of compensation for damage shall not exceed the lower of the premium to be paid by a new lessee to the lessee and the premium at the time of termination of the lease.

According to the above basic facts, the appraisal result of Nonparty 3 and the purport of the entire pleadings, the fact that the premium to be paid by Nonparty 2 to the Defendant is 100,000,000, and the appraised amount of the premium at the time of termination of the lease can be recognized respectively as constituting 89,870,000, respectively. Accordingly, 89,870,000, which is the lower amount, shall be the amount of damages.

C. Sub-committee

Therefore, the Plaintiff and the designated parties jointly have a duty to pay to the Defendant 89,870,000 won and damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from June 28, 2016 to the day of full payment, which is obvious after the delivery date of the copy of the claim and the application for modification of the cause of the counterclaim of this case.

4. Conclusion

Therefore, the defendant's counterclaim against the plaintiff and the designated person shall be accepted on the ground of the reasons, and the plaintiff's counterclaim shall be dismissed on the ground of the ground of the reasons. It is so decided as per Disposition.

[Attachment 1] List: omitted

[Attachment 2] Drawings: Omitted

[Attachment 3] List of Selections: omitted

Promotions made by judges Seo-hee (Presiding Judge)