상가 권리금 회수기회 방해금지 의무의 제 문제점과 입법론

Abstract

The Commercial Building Lease Protection Act (hereinafter referred to as 'Act') imposes a duty to lessors not to obstruct any lessee in receiving any premium pursuant to a premium contract from a person arranged by the lessee to become a new lessee. And if violated, the lessor has to compensate for lessee's damages. However, incomplete and vague provisions of the Act may cause various problems, and amendment or analysis theory development for the provisions is required. First, as current lessee not always has to arrange a new lessee, the provision should be revised to ‘No lessor shall obstruct any lessee in receiving legitimate premium pursuant to a premium contract from a person to become a new lessee.’ Even in the case a lessor notify a tenant of a denial to renew the contract within very short time, or when lessee’s right to request for contract renewal is in dispute, there still needs to protect lessee's right to receiving premium. Therefore, current provision of the Act should be amended to obligate the lessor to express contract renewal intention clearly six months prior to its expiration, or a new provision should be introduced to allow the lessee to extend the lease term for six months, starting from the date when the lessor expressed refusal of renewal. Furthermore, there can be a case in which the lessor delayed the negotiation process with a new lessee on no justifiable grounds, causing the current lease contract to expire, even if the current lessee arranged a person who wants to be a new lessee before the end of the contract. In this case, a new provision should be added to consider that the lessor’s act of interference in the lessee’s opportunity to collect premium as having started from ‘before the expiration of the lease contract,’ or otherwise at least should be interpreted as such. Second, regarding exceptions of the duty of the lessor, the lessee’s failure to comply with the lease contract or the lessee’s unauthorized use of sublease should not constitute grounds for exception because the issue of protecting the lessee’s right to collect premium is completely irrelevant to the aforementioned violations on the part of the lessee. Therefore, these two cases should be deleted from the list of exemptions. Third, it is desirable to delete all regulations that are considered legitimate reasons to refuse to enter into a lease contract, in the article 10-4 Paragraph 2, because they are unclear or unnecessary regulations. Fourth, in the case that the lessor or an affiliated person seeks to open a business of the same kind as the lessee’s business, it cannot be interpreted as a legitimate reason to refuse to enter into a lease contract. In order to make this clear, the term ‘compensation for damages’ should be deleted and revised to neutrally refer to responsibility for damages suffered by the lessor, or a regulation on ‘compensating’ the ‘losses’ amounting to the lessor’s premium should be added.