Where a lessee of a commercial building has registered his/her business in the same trade name and registration number after filing a report on the closure of business, requirements for the opposing power or preferential right to payment under the Commercial Building Lease Protection Act for the claim for return of deposit money, and whether he/she has the opposing power and preferential right to payment under the Commercial Building Lease Protection Act (negative)

Articles 3(1) and 5(2) of the Commercial Building Lease Protection Act, Article 5(4) and (5) of the Value-Added Tax Act

[Plaintiff-Appellant] Plaintiff 2005Da64002 decided Jan. 13, 2006 (Gong2006Sang, 238)

Kimok-ok

Korea Mutual Savings Bank and one other (Law Firm Han-ho, Attorneys Lee Ho-ho et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2006Na1169 decided July 20, 2006

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

We examine the grounds of appeal.

If the lessee of a commercial building has the opposing power provided for in Article 3 (1) of the Commercial Building Lease Protection Act or the preferential right to payment provided for in Article 5 (2) of the same Act, he/she shall obtain a fixed date from the head of the competent tax office and obtain a business registration under the delivery of the commercial building which is the object of the lease and the Value-Added Tax Act. Among them, the business registration is required not only to acquire opposing power or preferential right to payment but also to continue to exist. Therefore, if the business operator discontinues his/her business after renting the commercial building and completes his/her business registration, such business registration cannot be deemed a legitimate business registration required by the Commercial Building Lease Protection Act as a public announcement method of the commercial lease (see Supreme Court Decision 2005Da6402, Jan. 13, 2006). Even if the business operator has reported the closure of business and re-registered the same trade name and registration number, it cannot be said that the opposing power and preferential right to payment under the Commercial Building Lease Lease Protection Act

In the same purport, the court below is just in holding that the opposing power and preferential right to payment under the Commercial Building Lease Protection Act cannot continue to exist in the case of the plaintiff who has discontinued his business registration and re-registered his business, and there is no error of law by misunderstanding the legal principles on opposing power and preferential right to payment under the Commercial Building Lease Protection Act

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 Kim Young-ran (Presiding Justice)