상가건물 임대차보호법 제10조의4 제2항 제3호에 관한 고찰

Abstract

In the lease of a commercial building, the lessor has an obligation not to interfere with the collection of goodwill by the lessee. However, the lessor can be exempt from such obligation if the lessor, on the basis of a “justifiable cause,” has refused to conclude the rental contract with the person arranged by the lessee. Article 10-4(2) of the Commercial Building Lease Protection Act provides an example of a case considered to be based on a justifiable cause, and one such case, mentioned under Item 3 of the same paragraph, is “where the subject matter of the lease is a commercial building and has not been used for commercial purposes for at least 18 months.” The operative phrase in Article 10-4(2) Item 3 of the Commercial Building Lease Protection Act can be read in multiple ways, thereby causing much controversy in practice. This applies to the trial stage as well, resulting in lower court rulings that either interprets the subject as the “lessor” and the base point as “after the end of the lease period” (hereinafter “View (a)”) or interprets the subject as the “lessee” and the base point as “before the end of the lease period” (hereinafter “View (b)”). This paper first examined, from multiple angles, the operative phrase “intent of the legislators” and the purpose of law with regard to Article 10-4(2) Item 3 of the Commercial Building Lease Protection Act and then concluded that View (a), which interprets the subject as the “lessor” and the base point as “after the end of the lease period,” is more valid. Moreover, upon considering the number of cases, this paper aimed to propose a coherent line of reasoning by assessing the applicability of Article 10-4(2) Item 3 of the Commercial Building Lease Protection Act to each of the following cases. However, aside from the question of whether it is valid to interpret the subject as the “lessor” and the base point as “after the end of the lease period” under the current law, it is necessary to acknowledge that the item in the article of the Commercial Building Lease Protection Act leads to various fallouts. Consequently, a legislative change should be considered urgently.