건물매수청구권의 행사와 청구이의의 소

Abstract

In the lease of land for purpose of owning buildings, etc., the tenant’s right to demand the purchase of building (Article 643 and Article 283 Paragraph 2 of the Civil Act) is based on the socio-economic interest of avoiding, to the extent possible, destruction of the building at the end of the lease and thereby maintaining social utility of the building itself and on the policy consideration to enable the tenant’s recovery of investment made, and the right to create a ‘sale-similar’ legal relationship between the landlord and tenant as a result of exercise of such right, which is a formative right (right of formation). The effect of exercising the right to demand the purchase of building is sometimes raised as an objection in the ‘lawsuit for demolition (removal) of building and delivery of land’ filed by the landlord (former lawsuit) or, after a judgment accepting the claim is issued and finalized in the former lawsuit, is raised as an objection in the tenant-filed lawsuit of demurrer against the claim (latter lawsuit). The court, interpreting that the claim for demolition of building and delivery of land does not include the claim for delivery of building, holds that where the tenant has exercised the right to demand purchase of building in the former lawsuit, the landlord’s lawsuit has to be entirely dismissed unless the landlord amends his/her claim, and applying that logic to the latter lawsuit will result in the enforcement power of the finalized judgment of the former lawsuit being entirely excluded in the latter lawsuit. In that case, the tenant loses the opportunity to assert payment for building concurrently with (in exchange for) delivery of building and thus must seek payment thereof in a separate lawsuit, and the landlord also has the inconvenience of having to file a separate lawsuit for delivery of building in order to achieve the original purpose (delivery of land). However, in the lawsuit for delivery of land, the claim for demolition of building, added as enforcement method, and the claim for delivery of building, arising from exercise of the right to demand purchase of building, are the same in that both are just methods of enforcing delivery of land. So, considering that the landlord’s intent must be interpreted not just to seek, as a method of delivery of land, ownership-based demolition of building but, in cases where delivery of land is changed into delivery of building due to exercise of the right to demand purchase of building, to include ‘sale/purchase contract-based’ delivery of building, it would be reasonable to say that the claim for demolition of building in this case includes that for delivery of building. Interpreted this way, in the former lawsuit the court can order delivery of building and land concurrently with payment for building regardless of the claim being amended, and in latter lawsuit, the enforcement power of the finalized judgment of the former lawsuit can be maintained to the extent that delivery of building and land concurrently with payment for building is ordered, thus satisfying both the landlord and tenant.