토지 임대차에서 지상물매수청구권이 행사된 경우 토지인도청구의 인용 여부에 대한 연구

The supreme court judicial precedents say that if in a lawsuit in which the lessor requests delivery of the land after the land lease is terminated, the lessee exercises the right to demand for the purchase of ground facilities, the claim for the delivery of the site of facilities among the land should be rejected, and there is the relationship of concurrent performance between the lessee’s duty of registration for transfer of the ownership of ground facilities(and duty of delivery of ground facilities) and the lessor’s duty to pay sales price. However, I think that though the right to demand for the ground facilities purchase is exercised, the claim for the delivery of the site of facilities should be accepted. The lessor dose not lose the right to demand the return of land nor does the lessee get the right to occupy the site just because the right to demand for the ground facilities purchase is exercised. The lessor can prepare for the possibility of the demolition of ground facilities by requesting delivery of site. Also, if the site is the part of rental land, the acceptance of the claim of delivery of site is helpful for a speedy and economical trial. Regarding the range of concurrent performance, I think that the lessee’s duty of registration for transfer of the ownership of ground facilities(and duty of delivery of ground facilities) is in the relation of concurrent performance not only with the lessor’s duty to pay sales price but also with the lessor’s duty to return rental deposit. If the relation with the duty to return rental deposit is denied, an unfair result may occur where the lessee has to deliver the site without receiving the deposit back. But as to the lessee’s duty of delivery of land, it is enough to recognize the relationship of concurrent performance with the lessor’s duty to return rental deposit. The reason is that though the relation with the lessor’s duty to pay sales price is denied, there is no problem with the protection of lessee.