상가임대차법 제10조의 위헌성 및 개선방안

Abstract

Survival of the contract is significant when it is possible to achieve the objectives of the contract. However, the opinion was raised from the time of enactment that the current regulations, which only specifies the veto rights to renew to the lessor, can be overly protective. In light of this background, in this study, I will investigate the Article 10 of the Shopping Center Lease Protection Act(hereinafter the Act) which defines a shopping center lease period to see the unconstitutionality and the directions of system. The study results show that there is no practical benefit of statutory cancellation as defining the reason for statutory cancellation as the right to refuse renewal, and cancellation by contract is also not permitted by mandatory provisions. So the legal relations are actually likely to continue by choice of the lessee no matter what happens. However this regulation is overly protected, even though it meets the legitimacy of purpose, it doesn't meet requirement of appropriateness of means, minimum of infringement and comparison sentence. And it is considered that it infringes the protection of right to pursue happiness because it deprives possibility to avoid while unilaterally imput market risk by forced period and do not allow any right of termination. It is discriminatory outcome of this paper that it derived the need for the provision of statutory cancellation reason by considering the constitutional value related to survival of the contract, and presented statutory cancellation reason and the right to refuse renewal reason. However, subjects of the study are limited to the current provisions, those missing parts are issues to be resolved in subsequent studies. If I distinguish the statutory cancellation reason and the refuse renewal reason through more variety case study, it would help develop more significant system that revives the purpose of legislation in harmony with the legal system