轉貸借를 통한 상가건물의 활용에 관한 小考- 상가건물임대차보호법 改正試案을 포함하여 -

The Korean Civil Code, the Commercial Building Lease Protection Act and the Housing Lease Protection Act do not permit the transfer of lease rights and sublease without the consent of the lessors. This is because, in the case of transfer or sublease without lessor’s consent, the leaseholder is granted the right to terminate the contract. From the perspective of tenants, however, the sublease can be a very useful tool for the use of the actual store, and there are aspects that are beneficial to the lessors who want to secure a stable rent by allowing it as well. In fact, our Supreme Court limits the termination of the contract on the basis of the so-called betrayal theory even if sublease without consent takes place in certain cases, and as a result of checking foreign legislation, it is found that the transfer without the consent of the leaseholder is often allowed in principle. Furthermore, considering the tendency of rental rights to materialise(Verdinglichung), it is not logically excessive to allow sublease even if the lease is in the area of obligation law(Obligationrecht). In other words, it may be assumed that the current attitude of our legislation can be changed, depending on the practical needs. However, it is not considered necessary to allow the subleases in all cases by revising the Civil Code. Therefore I propose that the revise of Commercial Building Lease Protection Act to allow the sublease is necessary considering the practical possibility or effectiveness of revision. With these amendments, the possibility of co-prosperity between lessors and lesseers will be raised by one step if the sublease is active in the transaction practices.