[1] The meaning of the "commercial building lease" subject to the Commercial Building Lease Protection Act and the standard for determining whether the "commercial building lease" constitutes such "commercial building"

[2] In a case where a lessee, while running a gambling business by leasing a part of a commercial building, was engaged in business activities, such as receiving an order for gold works from a container stuff adjacent to the leased part and receiving commission fees, the case holding that the leased part constitutes a commercial building governed by the Commercial Building Lease Protection Act

[1] In light of the purpose of the Commercial Building Lease Protection Act and the main text of Article 2(1) and Article 3(1) of the same Act, a commercial building lease governed by the Commercial Building Lease Protection Act refers to a building subject to business registration, which is used for the commercial purpose of profit-making business, which is the object of the lease. In addition, whether it is a commercial building subject to the Commercial Building Lease Protection Act shall be determined depending on whether it is used for business purpose in light of the current status and purpose of the building not indicated in the public record, but rather, in light of the current status and purpose of the building, and whether it is a commercial building subject to the Commercial Building Lease Protection Act. Although it cannot be said that it is used for business purpose, a factory, warehouse, etc. consisting of only factual acts such as storage

[2] In a case where a lessee, while carrying out the gambling work by leasing a part of a commercial building, was engaged in business activities such as receiving an order for the gambling work from an adjacent container stuff and receiving fees from customers, the case holding that the court below erred by misapprehending the legal principles in holding that the leased part and the adjacent container stuffs are a commercial building to which the Commercial Building Lease Protection Act applies, since they are all engaged in the gambling work and business activities together with the gambling work, the leased part should be deemed to be a commercial building to which the Commercial Building Lease Protection Act applies, and that such circumstance is not a factory where the main part of the leased part is not business use.

[1] Articles 1, 2(1), and 3(1) of the Commercial Building Lease Protection Act / [2] Articles 1, 2(1), and 3(1) of the Commercial Building Lease Protection Act

Plaintiff (Attorney Kim H-soo, Counsel for the plaintiff-appellant)

Defendant

Gwangju District Court Decision 2008Na3080 Decided May 13, 2009

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

1. Article 1 of the Commercial Building Lease Protection Act provides that "the purpose of this Act is to prescribe special cases concerning the Civil Act with respect to the lease of a commercial building, thereby ensuring the stability of national economic life," and the main sentence of Article 2(1) provides that "this Act shall apply to the lease (including the case where the main part of the leased object is used for business purposes) of a commercial building (referring to a building which is subject to business registration under Article 3(1))," and Article 3(1) of the Commercial Building Lease Protection Act provides that "a lease shall take effect against a third party from the following day, even if the lessee has no registration, if he/she files an application for business registration under Article 5 of the Value-Added Tax Act, Article 168 of the Income Tax Act, or Article 111 of

In light of the purpose of the Commercial Building Lease Protection Act and the above provisions, the lease of a commercial building to which the Commercial Building Lease Protection Act applies refers to a building subject to business registration, which is used for the commercial purpose of profit-making business of the object of the lease. Moreover, whether it constitutes a commercial building subject to the Commercial Building Lease Protection Act shall be determined depending on whether it is used for business in light of the current status, use, etc. of the building, rather than the indication in the public register, and whether it is a commercial building subject to the Commercial Building Lease Protection Act, and a factory, warehouse, etc. which merely stores, manufactures, processes, etc. goods, is not used for business purposes. However, if activities for profit-making purposes are carried out together, it shall be deemed as a commercial

2. A. According to the judgment below and the evidence duly employed by the court below, the plaintiff leased approximately 20 square meters of the 409.20 square meters of the 1st floor of the building of this case owned by the thermal metal (hereinafter "Usung metal") on November 8, 2003, with the lease deposit 25 million won, and the lease period of November 8, 2003, with the lease deposit 5 years from November 8, 2003. The plaintiff delivered the leased portion of this case on November 8, 2003, and completed the registration of the business with the name of the transfer deposit in the Mari-ju, and after receiving the lease fee from the customers on the order of the use of the leased portion and the adjacent container, the plaintiff received the lease deposit from the customers.

B. In light of the legal principles and facts seen earlier, the leased part of the instant case and the container stuffs adjacent to the leased part are one place of business that conducts business activities together with the gambling business. Therefore, it is reasonable to view that the leased part of the instant case constitutes a commercial building to which the Commercial Building Lease Protection Act applies.

Nevertheless, the court below held that the main part of the leased part of this case is not a factory that is not a commercial use and is not subject to the Commercial Building Lease Protection Act, without considering the circumstances in which business activities were conducted in the container stuff adjacent to the leased part of this case. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the scope of application of the Commercial Building Lease Protection Act, and affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)