[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] Whether a lessee should have arranged a person who intends to become a new lessee in order to claim damages due to interference with the collection of premiums against a lessor (affirmative in principle) / Whether a lessor may claim damages due to interference with the collection of premiums against a lessor even if the lessee did not actually act as a new lessee, where the lessor clearly expresses that he/she did not intend to conclude a lease contract with a person who is to be a new lessee, without justifiable grounds (affirmative)

[3] In a case where Party A, a commercial lessor, did not intend to renew a contract to Party B before the expiration of the lease term and planned to directly use the commercial building, and Party B claimed damages for interference with the collection of the premium against Party B, the case holding that the lower court erred by misapprehending the legal doctrine on the ground of a lessor’s breach of the duty to protect the opportunity to recover the premium, even if Party B did not act as the new lessee, and even if Party B did not act as the new lessee, it was entitled to claim damages on the ground of the lessor’s breach of the duty to protect the opportunity to recover the premium, and the same applies even if five years have passed since the entire lease term expired

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

[1] Supreme Court Decision 2017Da225312, 225329 Decided May 16, 2019 (Gong2019Ha, 1226) / [2] Supreme Court Decision 2018Da28426 Decided July 4, 2019 (Gong2019Ha, 1519)

Plaintiff (Counterclaim Defendant) (Law Firm LLC, Attorneys Kim Han-han et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Law Firm Seol, Attorneys Shin Don-do et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Chuncheon District Court Decision 2017Na52136, 52143 decided June 20, 2018

The part of the judgment of the court below regarding the counterclaim shall be reversed, and that part of the case shall be remanded to the Chuncheon District Court.

The grounds of appeal are examined.

1. Case history

Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On September 7, 2010, the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) concluded a lease agreement with the Nonparty, who was the former owner of the instant store, setting the instant store as deposit amounting to KRW 10 million, monthly renting KRW 500,000, and from September 7, 2010 to September 6, 2015, and operated convenience stores at the instant store.

B. The Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) donated the instant store from the Nonparty and completed the registration of ownership transfer on April 9, 2013.

C. On March 2015, before the expiration of the lease term, the Plaintiff expressed his/her intent to renew the contract by oral consultation with the Defendant on the renewal of the lease term, and expressed his/her intent to directly operate convenience stores on the Plaintiff’s side. Although the Plaintiff and the Defendant negotiated on the termination of the lease term by directly paying the acquisition price of goods at convenience stores and the premium for operating convenience stores to the Defendant, the negotiations were concluded due to the difference between the two parties.

D. After that, on April 14, 2015, the Plaintiff notified the Defendant of the absence of intent to renew the instant lease agreement with the content certification and demanded the Defendant to deliver the instant store on an unconditional basis upon the expiration of the period.

E. Before the expiration of the lease term, the Plaintiff and the Defendant, around August 29, 2015, notified the Plaintiff again that it is impossible to recognize the premium as a whole in addition to the delivery of the store after the expiration of the contract term, and that the Defendant found another person who is willing to accept the right to lease of the instant store, and that he/she was able to receive the right to lease of the instant store, but the Plaintiff rejected it.

2. The judgment of the court below

In accordance with Article 10-4(1) and (3) of the former Commercial Building Lease Protection Act (amended by Act No. 15791, Oct. 16, 2018; hereinafter “the Commercial Building Lease Protection Act”), the Defendant sought compensation against the Plaintiff due to interference with the collection of the premium. Accordingly, the lower court dismissed the Defendant’s counterclaim, based on the following: (a) where the lessor could refuse the lessee’s request for renewal of the lease or the lessee could not exercise the right to request renewal of the lease; (b) the lessor’s duty to protect the lessor’s opportunity to recover the premium pursuant to Article 10-4(1) of the Commercial Building Lease Protection Act is not recognized; and (c) even if the lessor’s obligation to protect the lessor’s opportunity to recover the premium is recognized, it is difficult to deem that the Plaintiff was the lessor’s opportunity to recover the premium, even if the Defendant had

3. Judgment of the Supreme Court

A. (1) In light of the language, content, and legislative intent of Article 10-4 of the 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 Commercial Building Lease Act, the lessor is obliged to protect the opportunity to recover the premium pursuant to Article 10-4(1) of the same Act (see Supreme Court Decision 2017Da225312, 225329, May 16, 2019).

2) In addition, in light of the contents and legislative intent of Articles 10-4(1)4 and (3) and 10-3 through 10-7 of the Commercial Building Lease Act, in principle, the lessee should have arranged a person who intends to become a new lessee in order to seek damages for interference with the collection of the premium to the lessor. However, if the lessor has expressed the lessee’s intention not to conclude the lease even if he acted as a new lessee without any justifiable reason, even if the lessee does not act as a new lessee, the lessor’s refusal of the above refusal constitutes a refusal under Article 10-4(1)4 of the Commercial Building Lease Act even if the lessee does not act as a new lessee, and the lessee may claim damages against the lessor due to the interference with the collection of the premium pursuant to Article 10-4(3) of the Commercial Building Lease Act (see Supreme Court Decision 2018Da284226, Jul. 4, 2019).

B. Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Plaintiff clearly expressed to the Defendant that it would not conclude a lease contract with the new lessee because the Plaintiff plans to directly use the instant commercial building after the expiration of the lease term of this case. In such a case, demanding the Defendant to arrange for a new lessee is unreasonable. Therefore, barring any special circumstance, the Defendant may claim damages against the Plaintiff on the ground of a lessor’s breach of the duty to protect the lessor’s opportunity to recover the premium even if the Plaintiff did not act as the new lessee. This doctrine holds true even if the entire lease term between the Plaintiff and the Defendant has expired five years.

C. Nevertheless, the lower court determined that the Plaintiff was not liable for damages pursuant to Article 10-4(3) and (1) of the Commercial Building Lease Act, since the Plaintiff did not actually act on the part of the Plaintiff, inasmuch as the entire term of lease is five years and the lessee is unable to demand the renewal of the contract to the lessor, Article 10-4(1) of the Commercial Building Lease Act is not applicable. In so doing, the lower court erred by misapprehending the legal doctrine on the protection of opportunity to recover the premium under Article 10-4(1) of the Commercial Building Lease Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

4. Conclusion

Therefore, among the judgment below, the part of the counterclaim claim 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 Kim Jong-hee (Presiding Justice)