상가건물임대차 계약과 착오취소론 - ‘집합금지명령 등’의 사례를 중심으로 -

It was presumed that the government’s quarantine measures such as an order to prohibit gatherings due to the COVID-19 epidemic are dangerous to compliance with the commercial building lease contract. If it is interpreted as a risk factor to be tolerated according to the contents of the contract, compliance with the contract may be requested. However, when requesting to comply with the contract results in severe consequences for either of the contracting parties, a legal principle liberated from the binding of the contract should be required. According to the civil law and its theories, the theory of risk burden due to inability to perform, the theory of change of circumstances, and the mistake revocation theory are the principles of contract risk. In this study, I apply the mistake revocation theory to the case of ‘order to prohibit gathering, etc.’ The first question of the study is whether the action of the ‘order to prohibit gathering, etc.’ can be a cause for revocation the lease agreement for a commercial building due to a mistake in Article 109 of the Civil Act. Since a matter of mistake, it is considered that consciousness matters, so the timing of contract signing is divided into before and after measures such as ‘order to prohibit gathering’ performance and effectiveness were investigated. The ‘order to prohibit gathering, etc.’ is the government’s administrative measure and does not constitute an expression of intention by the contracting party, so it is not subject to mistake in the contents. In addition, the concluded contract would not have been considered the measure, and thus it cannot be included in the contract. The second question is whether the mistake of motive and the mistake of common motive can be applied. In a contract concluded during the process of the ‘order to prohibit gathering, etc.’, a mistake of motive is established and there exists a possibility of revocation. In this case, it may be revoked as it falls under Article 109 of the Civil Act. Unlike the unilateral motive mistake, the common motive mistake can be resolved through the subjective behavioral fundamental theory. An erroneous forecast or prediction regarding the timing of the termination of the ‘order to prohibit gathering, etc.’ is regarded as a problem of mistake in common motive, and the party under the unfavorable circumstances due to the misake (probably the lessee) may claim revocation of the agreement for commercial buildings. But if the other party (lessor) agrees to amend the contents (deposit, rent etc.) that would have been stipulated in the lease agreement if there had been no mistake, it should be regarded as irrevocable. Although a conclusion similar to the exercise of the ‘right to request increase and decrease in rent, etc.’ in Article 11 of the Commercial Building Lease Protection Act can be reached, the party who has the right to revoke the rental contract (probably the lessee) has an advantage in negotiating the agreement for the increase or decrease in rent, etc.