상가건물임대차보호법상 근대민법 3대원칙의 수정원리의 적정성에 관한 검토

Abstract

The current legislative process is not based on policy research, but on the opinion of stakeholders. Although the House Lease Protection Act is considered to have a low level of social recognition of its protection compared to the lease of land or the lease of housing, it tends to protect the tenant more strongly. As the landlord cannot always claim to be a social or economic stronghold, there is no absolute social or economic weakness for the tenants. Although the interests surrounding the commercial building tend to be legislated by the restriction of private autonomy from the viewpoint that the tenant is a social and economic weak, the tenant is also an investor who is faithful to the principle of free market economy like the mall owner. If so, it should be considered that the landlord and the tenant should distribute a fair profit. In this respect, the regulations on the premium in the Commercial Building Lease Protection Act are very inappropriate even considering the tenant protection. By extending the lease period on the line that balances mutual benefits, it protects the tenant, and at the same time reduces the sacrifice of the landlord; further it frees the conversion of the industry which would double the size of the economy. From this point of view, the right to renew the contract should be increased to 10 years, and it is desirable to discard the regulations concerning the premium. The ruling of the succession of the landlord is ignoring the fact that, contrary to the purpose of protection of the tenant, there are some cases that it stands against to protect the tenants, by ignoring the individual characteristics of the matters involved in the inheritance of the status of the landlord during the legislative process. Therefore, the Tenant Protection Regulations that does not apply and rather go against to tenant protection is no longer be required to protect the tenant, and in such limitations, it should be interpreted that the lessee can arbitrarily exclude the application of the rule. If the time period is not defined by Article 9, Paragraph 1 of the Act or if the period is set to be less than one year, it shall be considered as one year, but Article 9 of the Act shall not apply to leases exceeding the guarantee amount set forth in the Presidential Decree. In the absence of a contractual term agreement, this provision shall not apply; it appears to be a legislative defect from the exclusion of the application of Article 9. Even if it can be said that there is room for recognition when arranging for new tenants of the same type of sales as those of the foregift, theoretically there is no room for the foregift to be required when a new tenant of heterogeneous business is arrested. If you particularly consider it, you can say "Advantages of business according to the location of a commercial building" among the contents of the right described in Article 10-3 of the Act, but such profit should belong to the landlord. Sales jobs can change from time to time in accordance with changes in the free market, and Article 10-4 of the collection of the premium can be seen to act as a source of blockade of industry conversion. When a new tenant selected by the landlord pursuant to Article 10-4, paragraph 2, item 4 is desirous of heterogeneous operation, after entering the rights contract with the lessee, unless the lessee pays the same it may be an act of obstructing withdrawal of deposits pursuant to Article 1, item 4 of Article. This provision may be a regulation that unfairly infringes on the landlord's freedom of choice or contractual freedom of contract. It can be told that it is basically forgotten that it should be legislated in the direction of maximizing the profit generation through the business for the policy reason of the existence of commercial building.