[1] Criteria to determine whether a "business registration" under Article 3 (1) of the Commercial Building Lease Protection Act has the effect of publicly announcing the lease

[2] Requirements for business registration to obtain recognition of opposing power under the Commercial Building Lease Protection Act

[1] In Article 3 (1) of the Commercial Building Lease Protection Act, business registration, which provides as the requirements for opposing power along with the delivery of a building, is prepared as a public announcement method that enables a third party to clearly recognize the existence of the right of lease for the safety of transaction. Thus, whether a business registration has the effect of public announcement of a lease should be determined depending on whether it can be recognized that there is a business owner who has leased the lease building in question due to such business registration.

[2] According to Article 4 of the Commercial Building Lease Protection Act, Article 3 of the Enforcement Decree thereof, Article 5 of the Value-Added Tax Act, and Article 7 of the Enforcement Decree thereof, a person who has an interest in the lease of a building may request the head of the tax office having jurisdiction over the location of the building to allow him/her to allow him/her to peruse or provide matters concerning the lease and business registration. In cases where a business operator rents a place of business, he/she shall require him/her to attach a copy of the lease agreement to an application for business registration, and allow him/her to peruse or provide matters concerning the lease to be entered in the lease agreement attached thereto. Thus, in cases where the location of the leased object under the lease agreement attached to the application for business registration differs from that on the register of the commercial building, such business registration cannot be a valid method of public announcement in relation to the third party unless there are special circumstances. In addition, according to each of the above statutes, where a business operator rents a part of the commercial building, the interested party may request the perusal or provision of the relevant part of the building.

[1] Article 3(1) of the Commercial Building Lease Protection Act / [2] Articles 3(1) and 4 of the Commercial Building Lease Protection Act, Article 3 of the Enforcement Decree of the Commercial Building Lease Protection Act, Article 5 of the Value-Added Tax Act, Article 7 of the Enforcement Decree of the Value-Added

Plaintiff (Law Firm Love, Attorneys Lee Jong-soo, Counsel for the plaintiff-appellant)

National Agricultural Cooperative Federation

Seoul High Court Decision 2007Na62989 decided May 23, 2008

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

In Article 3 (1) of the Commercial Building Lease Protection Act, business registration, which stipulates as the requirements for opposing power along with the delivery of a building, has been prepared as a public announcement method that enables a third party to clearly recognize the existence of a leasehold right for the safety of transaction. Therefore, whether a business registration has the effect of public announcement of a lease should be determined according to whether it can be recognized that the lessee has the place of business in the lease building due to business registration in general social norms.

Meanwhile, according to Article 4 of the Commercial Building Lease Protection Act, Article 3 of the Enforcement Decree thereof, Article 5 of the Value-Added Tax Act, and Article 7 of the Enforcement Decree thereof, a person who has an interest in the lease of a building may request the head of the tax office having jurisdiction over the location of the building to allow him/her to peruse or provide matters concerning the lease and business registration. If the business operator rents his/her place of business, he/she shall attach a copy of the lease agreement to the application for business registration and allow him/her to peruse or provide the matters concerning the lease to be entered in the attached lease agreement. Thus, if the location of the leased object of the lease under the lease agreement attached to the application for business registration is inconsistent with the indication on the register of the commercial building, such business registration cannot be a valid method of public announcement in relation to the third party, barring any special circumstance. In addition, according to each of the above provisions of each of the above statutes, if the business operator rents a part of the commercial building, the interested party may request the perusal or provision of the relevant part of the plan.

According to the reasoning of the judgment below and the record, the plaintiff entered into a lease agreement with the non-party on August 4, 2003, stating that "(name omitted) the leased object under the lease agreement was "(name omitted) 3-5 stories 3-3 August 3, 2003)" with the non-party on August 4, 2003 for the purpose of selling beverages, etc. from each real estate of this case being used as a private house and registered in accordance with the classification of 304 through 310, 401 through 410, 501 through 510, such as "Seoul-si Gyeong-si 304 304 30 304 30 304 30 304 30 304 30 304 30 304 300 300 35 205 30 315 205 30 315 201.

Therefore, although the Plaintiff leased part of each real estate of this case, the location of the leased object of the lease agreement attached at the time of application for business registration is inconsistent with the indication on the registry of each real estate of this case and did not attach a drawing for the corresponding part in the application for business registration even though it was leased only a part of the commercial building. In light of the above legal principles, the Plaintiff’s business registration cannot be an effective method of public notification of the lease in relation to the Defendant, who is the mortgagee for each real estate of this case.

The court below erred in finding that the Commercial Building Lease Protection Act does not apply to the lease of this case by deeming that the plaintiff did not lease part of each real estate of this case but only leased sales business rights such as beverages, etc.; however, it is reasonable to reject the plaintiff's claim in the end because the plaintiff's business registration cannot be a method of giving public notice of effective lease under the Commercial Building Lease Protection Act, and there is no error in the misapprehension of legal principles as to opposing power under the Commercial Building Lease Protection Act, contrary to the allegations in the grounds of appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)