[1] Whether a lessor is obligated to protect an opportunity to recover premiums under Article 10-4(1) of the former Commercial Building Lease Protection Act even in cases where a lessee is unable to exercise the right to request renewal of a contract for more than five years, including the first lease period, pursuant to Article 10(2) of the same Act (affirmative)

[2] In a case where a lessor refuses to enter into a lease agreement with a new lessee arranged by the lessee solely on the ground that the lessor’s own business plan is a business plan, whether there is a justifiable reason under Article 10-4(1)4 of the former Commercial Building Lease Protection Act (negative)

[1] Articles 10(2) and 10-4 of the former Commercial Building Lease Protection Act (Amended by Act No. 15791, Oct. 16, 2018) / [2] Article 10-4(1)4 of the former Commercial Building Lease Protection Act (Amended by Act No. 15791, Oct. 16, 2018)

[1] [2] Supreme Court Decision 2018Da261124, 261131 Decided May 30, 2019 / [1] Supreme Court Decision 2017Da225312, 225329 Decided May 16, 2019 (Gong2019Ha, 1226)

Plaintiff (Counterclaim Defendant) (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Law Firm Beneficiary, Attorneys Choi Byung-cheon et al., Counsel for defendant-Counterclaim)

Suwon District Court Decision 2017Na74542, 74559 decided July 4, 2018

Of the part against the Defendant (Counterclaim Plaintiff) regarding the counterclaim of the lower judgment, the part regarding the claim for damages is reversed, and that part of the case is remanded to the Suwon District Court.

The grounds of appeal are examined.

1. Examining the reasoning and record of the lower judgment, the following facts are revealed.

A. From January 10, 1990, the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) operated the restaurant in the instant commercial building from around January 10, 199, and acquired the ownership of the instant commercial building on January 12, 1995. On May 6, 2003, the Defendant leased the instant commercial building from Nonparty 1 for one year from June 5 of the same year the deposit amount of KRW 20 million, monthly rent of KRW 1.5 million, and the contract term of the instant commercial building was implicitly renewed.

B. On May 13, 2015, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) purchased the instant commercial building from Nonparty 1 and completed the registration of ownership transfer on May 29 of the same year, and notified the Defendant of the termination of the instant lease as of June 4 of the same year around January 2016.

C. On March 9, 2016, the Defendant concluded a premium contract of KRW 50 million with Nonparty 2 with respect to the instant commercial building, and on March 22, 2016, the Defendant arranged Nonparty 2 as a new lessee and demanded the Plaintiff to enter into a lease contract. However, the Plaintiff rejected the Defendant’s demand on the ground that the Plaintiff himself plans to operate the sandbox store in the instant commercial building.

2. On the grounds indicated in its reasoning, the lower court rejected the Defendant’s claim for damages among the instant counterclaim, premised on the application of Article 10-4 of the former Commercial Building Lease Protection Act (amended by Act No. 15791, Oct. 16, 2018; hereinafter “former Commercial Building Lease Protection Act”) on the premise that Article 10-4 (2) of the same Act (hereinafter “former Commercial Building Lease Protection Act”) does not apply to tenants over five years, which is the period for exercising the right to request the renewal of the contract under Article 10(2) of the same Act.

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. In light of the language, content, and legislative intent of Article 10-4 of the former Commercial Building Lease Act, even in cases where a lessee is unable to exercise the right to request the renewal of a contract for more than five years pursuant to Article 10(2) of the same Act, the lessor is obligated to protect the opportunity to recover premiums under Article 10-4(1) of the same Act (see Supreme Court Decision 2017Da225312, 225329, May 16, 2019). Furthermore, it cannot be deemed that the lessor refuses to conclude a lease contract with a new lessee arranged by the lessee solely on the ground that the lessor is a plan to operate his/her own business (see, e.g., Supreme Court Decision 2018Da26124, 26131, May 30, 2019).

B. Examining the facts in light of the aforementioned legal principles, even if the Defendant is unable to exercise the right to demand renewal against the Plaintiff after five years of the lease period for the instant commercial building, the Plaintiff is obligated to protect the opportunity to recover the premium against the Defendant. The Plaintiff cannot be deemed to have justifiable grounds for refusing the conclusion of the lease contract with Nonparty 2 arranged by the Defendant solely on the ground that the Plaintiff plans to directly operate the sandd location in the instant commercial building. Therefore, there is room to view that the Plaintiff is liable for damages to the Defendant due to interference with the collection of the premium.

C. Nevertheless, the lower court erred by misapprehending the legal doctrine on Article 10-4 of the former Commercial Building Lease Act and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment, on the grounds that Article 10-4 of the former Commercial Building Lease Act does not apply to a lessee who is unable to exercise the right to demand renewal after the lapse of five years.

4. Therefore, the part of the judgment below against the defendant regarding the counterclaim is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)