개정 상가건물임대차보호법과 바람직한 임차인 보호방안

• 영문명: The Revision of Commercial Building Lease Protection Act and Desirable Policy of Protection of Tenants - Guarantee of Renewal and Compensation of Business
• 발행기관: 한국민사법학회
• 저자명: 이상용(Sang Yong Lee)
• 간행물 정보: 『민사법학』제73호, 49~109쪽, 전체 61쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2015.12.31

영문 초록

The phenomenon referred to as “premium in Korea is a group of various legal relations which have different contents and forms. These relations can be most extensively explained by analyzing whose and which interest should be protected in the context of tenancy. The analysis shows that location-interest should belong to landlords while business-interest should belong to business owners. In principle, business-interest can be reflected in rents via rent adjustment claim. If the landlord himself is the business-owner, established case law can deal with the problem of the restoration of premium adequately. Accordingly, the problem of premium can be rephrased as the problem of how to protect the business interest of tenant-business-owner. This approach could produce extensive and efficient policy. Many legal systems adopt this approach for this reason. Typical way of protection of tenants’ business interest includes guarantee of renewal and compensation of business. The former is more effective and efficient way but needs to be complemented by the latter in those exceptional cases where it is allowed for landlords to refuse to renew tenancy. Commercial Building Lease Protection Act (“CBLPA”) awards tenants claim for renewal within 5 years of from the beginning of the tenancy, which is insufficient to function as a proper system of guarantee of renewal. This is not only because 5 years is much shorter than the period that affects the decision of tenants on the amount of investment in the premise, but also because the fact that landlords can arbitrarily decide whether to renew tenancy after that period causes a gap between expected available tenancy period and actual available tenancy period, which leads to unexpected loss of tenants and social under-investment. Recently revised CBLPA impose on landlords duty to refrain from interference with tenants’ effort to reclaim the premium. This practically acts as a system of indirect guarantee of renewal and compensation of business beyond the period for exercise of the claim for renewal. But this function is very limited because of the narrow extent of the duty to refrain from interference. The standard to asses the amount of loss, especially the appraisal of premium is largely inappropriate and imperfect. Above all, vesting tenants with location-interest and the ambiguity of the period for assessment of expected interest implicates a lot of problems. There is also the need to revise some articles to obviate the evasion of law on the part of landlords and secure the viability of the system. All things taken together, it is required to introduce more comprehensive system of guarantee of renewal and compensation of business. As for guarantee of renewal, the maximum period for exercise of the claim for renewal should be extended longer than the period that affects the decision of tenants on the amount of investment, or abolished altogether. As for compensation of business, we need to go further than just relying on the private disposal of tenants by way of the reclamation of premium, and make landlords compensate for tenants’ business interest when tenancy terminates before the period of guaranteed renewal expires. In the assessment of the amount compensation, it is desirable to prevent the overlap with the system of the protection of tenants’ opportunity of reclamation of premium and have those systems reconcile with each other.

목차

Ⅰ. 들어가며

Ⅱ. 권리금의 의의

Ⅲ. 문제되는 이익 상황

Ⅳ. 각국의 입법례

Ⅴ. 개정 상임법의 검토

Ⅵ. 바람직한 임차인 보호방안

Ⅶ. 글을 맺으며

키워드

권리금 존속보장 영업보상 상가건물 임대차 임차인 보호 임대차가능기간 상가건물임대차 권리금 회수기회 갱신요구권 key-money premium commercial lease protection of business tenant guarantee of renewal compensation of business claim for renewal