[1] Whether a premium contract should be concluded in advance between a lessee and a new lessee in order to establish liability for damages caused by interference with collecting premiums under Article 10-4 of the former Commercial Building Lease Protection Act (negative)

[2] In a case where Party A, a lessor of a commercial building, received money from Party B on the condition of acquiring all facilities installed in the commercial building upon entering into a new lease agreement with Party B at the time of the agreement on the lease agreement with Party B, and Party B, separate from the existing lease agreement, provided that Party B had paid the lessor the money other than the rent each month in accordance with the facility investment reimbursement agreement entered into with Party B, and sought damages against Party B on the ground of interfering with the collection of premium, the case holding that Party B did not have any room to deem that Party B interfere with the collection of premium or suffered any damage from Party B, in light of all the circumstances, since Party B did not plan the conclusion of the premium agreement itself from the beginning

[1] In full view of the language, content, legislative intent, etc. of Articles 10-3 and 10-4 of the former Commercial Building Lease Protection Act (amended by Act No. 15791, Oct. 16, 2018; hereinafter “the Commercial Building Lease Protection Act”), a lessee has arranged a person who intends to become a new lessee to do so upon presenting specific personal information to the lessor. The lessor is liable to compensate for damages suffered by the lessee if the lessee obstructs the collection of the premium from the new lessee by doing any act falling under any of the subparagraphs of paragraph (1), such as demanding for the premium to a person who intends to become a new lessee during the period prescribed in Article 10-4(1). The detailed reasons are as follows.

① The phrase “in accordance with the premium contract” stipulated in the main sentence of Article 10-4(1) of the Commercial Building Lease Act is not clear in itself as to the premise that the lessee is a new lessee and the lessee is the status of concluding the premium contract. However, each subparagraph of Article 10-4(1) of the Commercial Building Lease Act does not premised on the premise that the lessee should have entered into the premium contract with the new lessee, by prohibiting the lessor from demanding the person who intends to become a new lessee to pay the premium or receiving the premium from him/her. In addition, Article 10-4(3) of the Commercial Building Lease Lease Act provides that even if the premium contract has not been concluded, the lessor’s damages for interference with the collection of the premium can be determined as “the premium at the time of termination of the lease”.

② Article 10-4 of the Commercial Building Lease Act provides that a lessee arranged a lessee to enter into a lease agreement with him/her by finding a new lessee upon the termination of the lease, and guarantees the lessor to recover economic benefits, such as expenses invested in the meantime or designation and credit formed by business activities from a new lessee in the form of premium, and prevents the lessor from unfairly infringing on the lessor. This is not limited to the lessor’s interference with the performance of the premium agreement entered into between the lessee and the new lessee, but prevents the lessee from entering into a premium agreement with the new lessee, by prohibiting the lessee from interfering with the opportunity for the lessee to receive the premium.

③ Realistically, premium is determined in line with the terms and conditions of a lease agreement, such as rent, deposit for lease, and period. The amount of premium to be paid by a person who intends to become a new lessee may vary according to the terms and conditions of a lease agreement with a lessor. For this reason, there are cases where premium contracts and a lease agreement are simultaneously made.

In a case where a lessor appears to have refused to enter into a new lease agreement itself, such as demanding the lessee to rent a deposit or rent at a high price or demanding the lessee to not rent a commercial building any longer, it is practically impossible to enter into a premium contract because the lessee finds a person who intends to become a new lessee. Such lessor’s act constitutes an act of interference provided for in Article 10-4(1)3 and 4 of the Commercial Building Lease Act. Even if a premium contract has not been entered into between a lessee and a new lessee, the lessor shall be deemed liable for damages on the ground of interference with the collection of the premium of the lessee.

[2] In a case where Gap, a lessor of a commercial building, received money from Byung on the condition of acquiring all facilities installed in the commercial building upon entering into a new lease agreement with Byung at the time of concluding the lease agreement with Byung, and Eul, separate from the existing lease agreement, received money other than rent from the landlord every month in accordance with the repayment agreement for facility investment expenses concluded with Byung, and sought damages against Eul on the ground of interference with the collection of premium, the case holding that Eul did not require the premise that the contract for the premium was concluded between Byung and the new lessee in order to seek damages for interference with the collection of premium, although Eul did not require the premise that the contract for the premium was concluded between Byung and the new lessee, as well as that Eul did not enter into the contract for the premium with Byung school to receive the premium, and there was no entirely discussion about the object of the premium contract with Byung and the scope of facilities that Eul could transfer to Byung in relation to the repayment agreement for facility investment expenses with Byung, and it did not raise any objection to Byung's receipt of the premium from Byung school.

[1] Articles 10-3 and 10-4 (1) and (3) of the former Commercial Building Lease Protection Act (Amended by Act No. 15791, Oct. 16, 2018) / [2] Article 10-4 (1) and (3) of the former Commercial Building Lease Protection Act (Amended by Act No. 15791, Oct. 16, 2018)

Plaintiff (Law Firm Song, Attorneys Hong Sung-sung et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Beneficiary, Attorneys Noh Ho-ho et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2017Na67768 Decided May 24, 2018

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the assertion of misconception of facts and misapprehension of legal principles as to the claim for damages due to interference with the collection of premiums

A. According to Article 10-4 of the Commercial Building Lease Protection Act (amended by Act No. 15791, Oct. 16, 2018; hereinafter “Commercial Building Lease Protection Act”) prior to the amendment, a lessor shall not interfere with the receipt of a premium from a person who wishes to become a new lessee arranged by a lessee under a premium contract, by engaging in an act falling under any subparagraph of paragraph (1), such as demanding the lessee to pay a premium from three months before the lease term expires (which was changed to six months due to the amendment of the aforementioned Act) to the end of the lease or refusing to conclude the lease contract without justifiable grounds (main sentence of paragraph (1)). In such cases, a lessor is liable to compensate for damages if the lessor causes damages to a lessee in violation of this provision. In such cases, the amount of damages shall not exceed the lower amount of the premium to be paid by a new lessee to the lessee and the premium at the time of the termination of the lease contract (Paragraph (3)).

Here, premium refers to the cost for the transfer or use of tangible and intangible property value, such as business facilities, fixtures, customers, credit, business know-how, and business interest in accordance with the location of a commercial building by a person who conducts a business or intends to conduct a business in the commercial building subject to the lease, which is the cost of money, etc. paid in addition to the deposit and rent (Article 10-3(1) of the Commercial Building Lease Act), and the premium contract refers to a contract under which a person who intends to be a new lessee pays the premium to the lessee (Article 2).

B. Comprehensively taking account of the language, content, legislative purport, etc. of Articles 10-3 and 10-4 of the Commercial Building Lease Act, a lessee arranged a person who intends to become a new lessee by presenting specific personal information to the lessor. The lessor is liable to compensate for damages suffered by the lessee if the lessee obstructs the collection of the premium from the new lessee by doing any act falling under any of the subparagraphs of Article 10-4(1), such as demanding a person who intends to become a new lessee during the period stipulated in Article 10-4(1) to do so. The detailed reasons are as follows.

1) The text of Article 10-4(1) of the Commercial Building Lease Act provides that the phrase “in accordance with the premium contract” under the main sentence of Article 10-4(1) is not clear only by itself on the premise that the lessee is the status of concluding the premium contract with a new lessee. However, each subparagraph of Article 10-4(1) of the Commercial Building Lease Act does not premised on the premise that the lessee should have entered into the premium contract with the new lessee by prohibiting the lessor from demanding the new lessee to pay the premium or receiving the premium from the new lessee. In addition, Article 10-4(3) of the Commercial Building Lease Lease Act provides that even if the premium contract has not been concluded, the lessor’s damages for interference with the collection of the premium can be determined as “the premium at the time of termination of the lease.”

2) Article 10-4 of the Commercial Building Lease Act provides that a lessee is arranged to find a person who intends to become a new lessee upon the termination of the lease so that the lessee can enter into the lease contract, and can recover economic benefits, such as expenses invested by the new lessee or designation or credit formed by business activities from the new lessee in the form of premium, and the lessor may not unfairly infringe on the lessor. This does not limit the lessor’s interference with the performance under the premium contract concluded between the lessee and the new lessee, but prevents the lessee from entering into the premium contract with the new lessee and preventing the lessee from entering into the premium contract, thereby hindering the lessee’s opportunity to receive the premium.

3) Realistically, premium is determined in line with the terms and conditions of a lease agreement, such as rent, deposit for lease, and period. The amount of premium to be paid by a person who intends to become a new lessee may vary according to the terms and conditions of a lease agreement with a lessor. For this reason, there are cases where premium contracts and a lease agreement are simultaneously made.

In a case where a lessor appears to have refused to enter into a new lease agreement itself, such as demanding the lessee to rent a deposit or rent at a high price or demanding the lessee to not rent a commercial building any longer, it is practically impossible to enter into a premium contract because the lessee finds a person who intends to become a new lessee. Such lessor’s act constitutes an act of interference provided for in Article 10-4(1)3 and 4 of the Commercial Building Lease Act. Even if a premium contract has not been entered into between a lessee and a new lessee, the lessor shall be deemed liable for damages on the ground of interference with the collection of the premium of the lessee.

C. Examining the reasoning of the lower judgment in light of such legal doctrine, the lower court erred by misapprehending the legal doctrine that the Plaintiff should be presumed to have concluded a premium contract between the Plaintiff and the new lessee in order to seek damages due to interference with collecting premiums.

However, according to the reasoning of the judgment below and the records, the plaintiff did not conclude a premium contract with ○○○ school as a new lessee, and there was no entirely discussion about the subject matter of the premium contract with ○○ school as well as the scope of facilities that the plaintiff can transfer with respect to the repayment agreement with ○○ school as to the facility investment expenses with ○○ school as well as the subject matter of the premium contract with ○○ school as the scope of facilities that the plaintiff could transfer to ○○ school in order to receive the premium, and the defendant did not raise any objection even about the receipt of the facilities from ○○ school as above. As such, the plaintiff and ○○ school did not plan the conclusion of the premium contract itself from the beginning of the year, so there is no room to deem that the defendant interfered with the collection

Therefore, the lower court’s conclusion that the Plaintiff’s claim for damages is justifiable, and the lower court’s error did not adversely affect the conclusion of the judgment. Therefore, the Plaintiff’s ground of appeal on this part is rejected

2. As to the assertion of misapprehension of legal principles as to claim for damages due to tort

The lower court deemed that the Defendant, the owner of the instant shopping mall, received the installation from the ○○○ School cannot be deemed to have constituted tort as alleged by the Plaintiff. Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on tort, contrary to what is alleged in the grounds of appeal.

3. As to the assertion of misapprehension of legal principles as to the validity of the agreement

On December 22, 2015, the lower court dismissed the Plaintiff’s conjunctive claim, namely, the Defendant’s ancillary claim, and the Defendant’s claim that the equipment owned by the Plaintiff return the cost of the equipment to a new lessee on the ground that the equipment owned by the Plaintiff was transferred to the new lessee and the equipment was received. Thus, the lower court rejected the Plaintiff’s claim that the equipment should be returned to the unjust enrichment.

According to the fact-finding and judgment of the court below, this part of the ground of appeal disputing the court below's additional determination that the agreement on overdue rent and late payment damages cannot be deemed null and void is merely related to the lease deposit not claimed by the plaintiff, and the plaintiff's conjunctive claim seeking the return of unjust enrichment equivalent to the value of equipment owned by the plaintiff does not affect, and it cannot be accepted without further review.

4. Conclusion

Therefore, the Plaintiff’s 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 Kwon Soon-il (Presiding Justice)