Plaintiff (Attorney Yang Jae-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm New Daegu, Attorneys Kim Dong-ho et al., Counsel for defendant-appellant)

December 18, 2019

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall deliver to the plaintiff 85.8 square meters of the cement block slives of the ground cement slives of the Gyeongbuk-gun (location omitted) between the plaintiff and the plaintiff.

1. Facts of recognition;

A. On November 5, 1968, the Plaintiff constructed a cement block structure luxle 85.8 square meters between the seeds of single-storys on the ground (hereinafter “instant building”) around the ground.

B. On July 20, 2012, the Plaintiff leased the instant building to the Defendant by designating the instant building as KRW 2,500,000 per annum (hereinafter “instant lease”). After completing business registration on August 28, 2012, the Defendant is running a manufacturing business, such as a oil, in the instant building.

C. On July 30, 2014, the Plaintiff and the Defendant agreed to increase the rent to KRW 3,000,000 per annum with respect to the instant lease agreement, and to extend the lease period until July 20, 2019.

D. On April 6, 2019, the Plaintiff notified the Defendant that he/she had no intent to renew the instant lease agreement. On the same day, the Defendant requested the Plaintiff to renew the instant lease agreement.

E. Since then, the Plaintiff demanded the Defendant to deliver the instant building several times, but the Defendant refused to deliver the instant building when requesting the Plaintiff to renew the instant lease agreement.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 8, Eul evidence Nos. 1, 2, and 6 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

Since the term of lease expires, the defendant shall deliver the building of this case to the plaintiff.

B. Defendant’s assertion

Since the Defendant demanded the Plaintiff to renew the instant lease agreement on April 6, 2019, the instant lease agreement was renewed in accordance with Article 10 of the Commercial Building Lease Protection Act.

3. Determination

1) As examined in the above facts, it is true that the lease term of the instant lease expires on July 20, 2019.

2) However, as examined in the above facts, the Defendant requested the Plaintiff to renew the instant lease agreement on April 6, 2019, between six months and one month before the expiration of the lease term.

Unlike Article 10(2) of the former Commercial Building Lease Protection Act (amended by Act No. 15791, Oct. 16, 2018; hereinafter the "former Commercial Building Lease Protection Act"), Article 10(2) of the amended Commercial Building Lease Protection Act (hereinafter the "Revised Commercial Building Lease Protection Act") provides that "a lessee's right to request renewal of a contract may be exercised only within the extent that the total period of lease, including the initial period of lease, does not exceed five years." Article 2 of the Addenda of the Commercial Building Lease Protection Act (amended by Act No. 15791, Oct. 16, 2018; hereinafter the "former Commercial Building Lease Protection Act") provides that "The provisions of Article 10(2) of the amended Commercial Building Lease Protection Act (amended by Act No. 15791, Oct. 16, 2018) shall apply to a lessee's right to request renewal of a contract."

The amended Commercial Building Lease Protection Act shall apply to all the lease contracts that were concluded after October 16, 2018, as well as the first lease contract concluded after October 16, 2018, which was the enforcement date of the amended Commercial Building Lease Protection Act pursuant to Article 2 of the aforementioned Addenda, but are legally renewed after October 16, 2018. Therefore, the lease contract in this case shall be deemed to have been renewed upon the Defendant’s request for renewal on April 6, 2019, which was concluded after the period of the first lease, including the term of the lease, does not exceed ten years (However, the term of the lease shall be extended to the extent that the whole term of the lease including the first term of the lease does not exceed ten years).

In this regard, the Plaintiff’s assertion that the term of lease exceeds the five-year term under Article 10(2) of the former Commercial Building Lease Protection Act before the enforcement date of the amended Commercial Building Lease Protection Act shall not be included in the renewed term under Article 2 of the said Addenda. However, Article 2 of the said Addenda only provides that the term of lease subject to the amended Commercial Building Lease Protection Act shall be less than five-year term, including the initial term of lease at the time of the enforcement of the amended Commercial Building Lease Protection Act, and that Article 10(2) of the Commercial Building Lease Protection Act does not provide that the term of lease is less than five-year term, and that Article 10(2) of the said Act provides that the purport of the amended term of lease shall include not only five-year term but also more than five-year term of lease under the amended term of lease. In light of the above, it is reasonable to accept the Plaintiff’s assertion that the term of lease is more than five-year term of lease under the amended term of lease.

3) On the other hand, the Plaintiff asserts that the lessee’s right to request renewal of the contract cannot be acknowledged in the instant building where there is concern about safety accidents, such as aging, damage, or partial destruction of the building.

However, there is no particular evidence to acknowledge that there is concern about safety accidents due to aging, damage, or partial destruction of the building in this case, and thus, the Plaintiff’s above assertion cannot be accepted.

4) Therefore, the Plaintiff’s assertion based on the premise that the instant lease agreement has expired due to the expiration of the lease term is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Eslives

(1) For reference, Supreme Court Decision 2017Da9657 Decided December 5, 2017 shall be deemed to refer to the interpretation of Article 2 of the Addenda of the Commercial Building Lease Protection Act (Law No. 12042, Aug. 13, 2013), which is stipulated as the same phrase as the foregoing Addenda, (see Supreme Court Decision 2017Da9657, Dec. 5, 2017). In relation to the interpretation of Article 2 of the Addenda of the Commercial Building Lease Protection Act, “a lease which was concluded or renewed for the first time after the enforcement of this Act, shall be deemed to have been concluded before August 13, 2013 or after the expiration of the term of "a lease which was renewed after the enforcement of the amended Act, shall not be included in the case where the said provision is not renewed after the enforcement of the amended Act and shall not be included in the case where the lessor’s legitimate demand for renewal of the amended provision is unreasonable.”