상가권리금 회수기회 보호를 위한 상가건물임대차보호법 개선방안

The number of self-employed merchants with their own businesses in Korea exceeds the OECD average. There are also premiums received by merchants, as well as many disputes associated with the custom of secretly exchanging them among tenants; therefore, legislation for adequate regulation and protection is needed. To meet such needs, premiums that had not been legally acknowledged were defined and legalized by amending the Commercial Building Lease Protection Act in 2015. The regulation on protection of the opportunity to collect premiums was newly established to allow tenants to stably collect premiums and require landlords to compensate for damages. However, despite such legislative complementary measures, disputes over premiums became more intensified. According to the 2018 amendment, the period for exercising the right to request the renewal of a contract was extended from five years to 10 years, and the period for collecting premiums was extended from three months to six months. However, disputes related to premiums are still occurring constantly because of the remaining “poison pill” and legislative defects that weaken the position of tenants in the current Commercial Building Lease Protection Act. Regarding the poison pill, the provisory clause of Article 10-4 (1) in this Act that prescribes protection of the opportunity to collect premiums stipulates the landlord’s reason for refusing to renew a contract. As such, this regulation must be applied even though there is no relevance regarding legislative intent or content in the regulation on protection of the aforementioned opportunity, thus limiting the tenants from collecting the premiums for various reasons. Next, there are legislative limitations and defects that cause an imbalance in the positions of the parties by weakening the position of the tenants. First, the period during which a lease continues to exist is short in terms of legal renewal, and the applicability scope of the right to request the renewal of a contract is narrow in Article 10 (Request for Contract Renewal). Second, in Article 10-4 (Protection of Opportunity of Collecting Premiums), the period for collecting premiums is short, the landlord’s obstruction prohibition duty is abstract, and the premium appraisal method is abstract rather than concrete. Furthermore, there is no regulation for protecting the opportunity to collect premiums, regardless of the period during which the right to request the renewal of a contract can be exercised. Third, the length of time for the right of claim for an increase or a decrease in rent is short (i.e., just one year). Fourth, there is no rule to regulate an unreasonable rent request if there is a change in landlords. Fifth, there is no compensation plan in case of rebuilding and redevelopment. Finally, there is no obligation to write and submit a contract for premiums. As such, the Commercial Building Lease Protection Act has institutional issues and matters that require the cooperation of relevant parties. Therefore, to resolve such institutional issues as legislative defects and poison pills, it is necessary to partially amend the Commercial Building Lease Protection Act in a more realistic way. For example, to ensure cooperation among the parties, landlords should consider providing a guarantee of existence so that the tenants can operate their businesses in a stable environment. Additionally, cooperation is needed so that the tenants can smoothly collect premiums after a business closes. Furthermore, tenants should write a premium contract, specify the amount of the premium in the application form when registering a business at the tax office, and submit the premium contract. In addition, there must be a change in perception to regard landlords and tenants as equal business partners in the commercial building leasing market. The relationship must not be a dominant-subordinate relationship but a cooperative, win-win relationship whereby the parties mutually understand and respect each other.