상가건물임대차보호법상 임차인의 권리금 회수기회 보호에 관한 비판적 고찰 - 대법원 2019. 7. 4. 선고 2018다284226 판결을 중심으로 -

The protection of the premium has long been discussed in commercial building lease. The key to these discussions was to ensure a stable recovery of the leaseholder's premium on commercial building. According to this mainstream discussion, the premium should be guaranteed according to long-approved practices. As a result, Commercial Building Lease Protection Act on May 13, 2015 contained provisions concerning the premium. Commercial Building Lease Protection Act on the protection of premiums stipulates by dividing them into Article 10-3(Definitions, etc. of Premiums), Article 10-4 (Protection of Opportunity of Collecting Premiums, etc.), Article 10-5 (Exemption from Application of Premiums), Article 10-6 (Preparation, etc. of Written Standard Premium Contracts) and Article 10-7 (Public Notification of Standards for Appraising Premiums). Article 10-4 of these regulations plays a key role in protecting premiums. <Commercial Building Lease Protection Act> Article 10-4 (Protection of Opportunity of Collecting Premiums, etc.) (1) No lessor shall obstruct any lessee in receiving any premium pursuant to a premium contract from a person arranged by the lessee to become a new lessee, by committing any of the following acts from three months prior to the expiry of the lease period until the end of the lease: Provided, That the same shall not apply where any of the grounds set forth in the subparagraphs of Article 10 (1) exists: 1. Requesting a person arranged by the lessee to become a new lessee to pay premiums; or receiving premiums from a person arranged by the lessee to become a new lessee; 2. Preventing a person arranged by the lessee to become a new lessee, from paying a premium to the lessee; 3. Requesting a person arranged by the lessee to become a new lessee, to pay remarkably large-amount of rents and deposits, compared with the tax on a commercial building, public charges, rents and deposits of surrounding commercial buildings and other charges; 4. Refusing to conclude a lease contract with a person arranged by the lessee to become a new lessee, without any justifiable grounds. (2) In any of the following cases, justifiable grounds prescribed in paragraph (1) 4 shall be deemed to exist: 1. Where a person arranged by the lessee to become a new lessee, cannot afford to pay deposits or rents; 2. Where a person arranged by the lessee to become a new lessee, is likely to violate the duty of a lessee or any reasonable ground exists, which makes it impracticable to maintain lease; 3. Where the subject-matter of the lease is a commercial building and has not been used for commercial purposes for at least 18 months; 4. Where a new lessee selected by the lessor concludes a premium contract with the lessee and pays premiums. (3) Where a lessor violates paragraph (1), incurring any loss to a lessee, he/she shall be liable to compensate for such loss. In such cases, damages shall not exceed the lesser amount of a premium to be paid to a lessee by a new lessee and premium as at the time when the lease expires. (4) Claim for damages to a lessor pursuant to paragraph (3) shall expire by completion of prescription if it is not exercised within three years from the date when the lease expires. (5) A lessee shall provide information to the lessor, to the best of his/her knowledge, on the financial capacity of the person arranged by the lessee to become a new lessee, such person’s willingness and ability to pay deposits and rents and to perform duties as a lessee. The main issues of this judgment are as follows. 1. Is it necessary for the lessee to arrange a new leaseholder in order to claim damages from the lessee for obstructing the recovery of the premiums? 2. Is it reasonable for the lessee to require the new leaseholder to be arranged until the lessee has clearly expressed his intention not to enter into a lease with him, even if the lessee arranges a person who intends to become a new leaseholder? In this paper, the basic concept of premiums was considered, the interpretation theory of the provisions of Article 10-4 of Commercial Building Lease Protection Act and the trend of recent precedents were reviewed, and the attitude of the precedent was reviewed from a critical aspect to the interpretation of this judgment. In addition, the issue of premiums protection was approached from the perspective of skepticism about the premiums system.