권리금회수 기회보호 거절에 대한 정당성 판단기준

Abstract

A key money is compensation in exchange for the transfer of tangible assets like business facilities and intangible assets such as customers, credit, the know-how on operating between the tenant and the new tenant expectant through a lease assignment in practice of commercial lease. How tenants recover the capital invested for business in the most direct way, are would be to dispose of the business property such as goodwill, sales facilities through transfer of leases. A key money deal is a deal to dispose of these the business property owed by commercial tenants. Revised commercial lease law has taken the form of legislation imposing damages liability to the lessor in the way that unreasonably withholding lease assignment shall be considered as unlawful act, in order to protect an opportunity to recover the key money in return by transferring the lease to a new tenant expectant at the end of lease However, the legal nature of revised commercial lease law is basically similar to foreign commercial lease law that try to protect goodwill of the tenant through reasonableness judgement about withholding lease assignment by the lessor. The standard rule for reasonableness judgement is not from the viewpoint of “protecting the general economic interest of the landlord”, but from the viewpoint of protecting lease property value in owing or managing the rent store. From this point of view, there are i) financial instability and ⅱ) inability to fulfill terms of the lease of the new tenant expectant, ⅲ) suitability of premises for intented use or intended unlawful use of premises, ⅳ) the need of the space changes or modifications according to the nature of occupancy in the new business, as the articles that should be considered in reasonableness judgement about withholding lease assignment by the lessor. The former two considerations are reflected in Paragraph 1.2, Subsection 1, Section 10-4 of revised commercial lease law. Whether new tenants' operating are against this usage in the cases that restrict the use of applications in the lease agreement, or the reasonableness of that conditions in the case that landlord would approve lease transfer under conditional will be the subject of even major reasonableness judgement. The protection scheme of an opportunity to recover key money should clarify its legal nature of the institution governing liability to the lessor who interfering with the tenant's goodwill and business facility in the way of unreasonably withholding lease assignment. There exist significantly difference between general only lease' assignment and commercial lease' assignment entailing transfer of business property such as business facilities or goodwill, so legislative efforts trying to differentiate commercial lease' assignment from the general lease transfer is also required as French commercial lease law.