상가임차인의 보호와 권리금

Abstract

The 「Commercial Building Lease Protection Act」 guarantees a virtually five-year lease term for each commercial tenant. Aside from the foregoing, this act protects the opportunity to recover the shop key money of existing tenant by preventing the lessor from interfering with the shop key money transaction between the new tenant and the existing tenant. These two schemes should be regarded as being closely related as schemes for the protection of commercial tenants. However, on reviewing foreign legislation cases for the protection of commercial tenant, it can be seen that the concern mainly lies in the continuance of lease. In contrast, South Korean legislations seem to be more interested in protecting shop key money than in guaranteeing the continuance of lease. However, the protection of shop key money should not be the core of the protection of commercial tenants not only because the evaluation of shop key money is excessively subjective, but also because whether the protection of shop key money will be helpful for the protection of commercial tenants in the long term is questionable because shop key money is paid and received between new and old tenants. Eventually, the key to the protection of commercial tenants should be ensuring the continuance of leases. However, simply extending lease periods cannot sufficiently protect commercial tenants because the lease cannot but be terminated one day or other unless it is permanent and cases where shop key money cannot be recovered cannot but occur as the practice regarding the payment of shop key money has already been formed. To solve such a problem, this article is intended to argue the following measures. First, in order to reduce the interest in shop key money in the protection of commercial tenants and to turn the interest toward what merchants basically demand, that is, the continuance of business, shop key money should be objectified further. To this end, rather than subjectively assessing the value of the business rights of the existing tenant by simply paying attention to how much shop key money was paid when the existing tenant began business, the value of the business rights should be objectively assessed focusing on how much the prospective tenant is interested in the business. Second, the issue regarding shop key money should be made transparent. To this end, first, the preparation of a standard shop key money agreement set forth under Article 10-6 of the 「Commercial Building Lease Protection Act」 should become mandatory. In addition, the transactions of shop key money should become mediatable by certified realtors so that the prospect tenant can identify information on the market value of the existing business more easily. Third, locational benefits are not something that can be enjoyed by tenants. Therefore, deleting the locational benefits from the coverage of shop key money is desirable; provided that, given the fact that the tenant contributes to locational benefits to some extent through his/her business, inducing the lessor and the tenant to share the value of locational benefits through a separate agreement is also thought to be necessary.