상가임대차의 갱신요구기간 경과 후 권리금 회수기회의 보호 － 대법원 2019. 5. 16. 선고 2017다225312, 225329 판결 －

Abstract

Commercial Building Lease Protection Act provides that the tenant can request the renewal of the contract to the landlord for the contract renewal request period under the Artilcle 10. This is to ensure that the tenant has sufficient sales activity in the rental building for that period at least. And at the same time, under Article 10-4 in Commercial Building Lease Protection Act, an obligation is imposed on the landlord not to impede the opportunity to recover the rights deposit in order to recover the expense that the tenant spent for the business and the property value formed through the operation. In relation to these regulations, the lower courts rulings and the theories are divided into two views on how to identify the relationship between the tenant's right to renew the contract and the obligation to protect the right to collecting premiums imposed on the landlord. The first view is that the landlord no longer has the obligation to protect opportunity of collecting premiums after the renewal request period because the landlord is obliged to protect the right to collect premiums of the tenant only if the right to renew the lease exists. And the second view is that the right to renew the contract of the tenant and the landlord’s obligation to protect the rights of the tenant are separate means for the protection of the tenant, and therefore regardless of whether or not the renewal request period has passed the landlord is obliged to protect the rights of the tenant. The Supreme Court Decision 2017Da225312, 225329 on May 16, 2019 is the first Supreme Court decision to determine whether the landlord is obliged to protect the opportunity of collecting premiums of tenant even after the renewal request period has passed. This decision follows the latter view providing the following grounds: Article 10-4 does not provide that the landlord is exempt from the obligation because the renewal request period has expired, and article 10-4 plays a more important role after the renewal request period, and the landlord's obligation to protect the opportunity of collecting premiums after the renewal request period does not excessively limit the landlord's right to use or return the leased property. Considering the reasons given above, this decision seems appropriate. And I think this decision is very meaningful in that it provides a standard of judgment to solve the above problem.