상가건물임대차보호법상 권리금 법제화에 대한 소고－ 임대인의 방해행위에 따른 손해배상과 관련하여 －

Abstract

I stick to the point of view that premium of “commercial building lease protection must be basically left into the principle of private autonomy before the “Commercial Building Lease Protection Act(CBLPA)” revision. However, I have no reasonable ground on that because the Act codified the issue related premium by modification of the CBLPA. Obviously, the painful wound cured by the revision of the Act, and now the most urgent task is to prepare the plan of complete recovery during the curing process. The critical policy is win-win scheme that can be realized in the course of enforcement with the effort to reduce the loss by minimize the possibility of conflict even if the first enactment is not fully satisfied of the both landlord and tenants. The Department of Justice proclaimed that they expected win-win game between landlord and tenant stating that the goodwill does not disappeared or subject to the landlord by the termination of rental contract but it is guaranteed the tenant have the proper opportunity of collection of the premium by the codification of the CBLPA. Therefore, I argued detailed the unexpected issue under the CBLPA in order to contribute to get settled of the premium issue at an early state. The main points that I have dealt with in this piece are as follows: (i) whether the property right of landlord is damaged, (ii) the view on the liability of damages is torts and it must be solved by the invasion of the third party, (iii) whether there is an interference of landlord in the collection process of premium and tenant get the profit during the period of rent and those interest can be deducted, (iv) intention of utilization penalty and cancellation fee when standard form of premium contact is made, (v) review the type of time period of premium collection. Furthermore, I review the issue that are not being expected under the CBLPA such as whether tenant can claim the refund of unjustified enrichment against landlord if landlord reject contract that are arranged new tenant by the current tenant with the view to receive premium in the future, the tenant did not use the commercial building for more than one and half years for business purpose, and after the contact expired the landlord accept premium by the new tenant. The enactment of premium is quite unique legislative together with Junsekwon rights and no same legislation is appeared in the codes, it is unusual law in the world and I believe this became a model case legislation amon the world jurisdiction if we follow up the new trend with continuous supplement of the system.