商街建物賃貸借保護法에 관한 考察 = (A) Study on business building lease protection act

다국어 초록 (Multilingual Abstract)

This study is to research some problems with Business Building Lease Protection Act.
Due to the IMF situation, many lessees in business buildings experienced serious economical damages. In particular, because most merchants were leasing buildings or some of building spaces for their business operations, conflicts on those leases became serious damages on their living methods. For this reason, 'Business Building Lease Protection Act' were established by the strong arguments of civil organizations.
In short, the Act purports to strengthen commercial building lease rights and thereby, protect them against lessors' abuse of their rights.
Main items for tenant protection to be considered include the object, resistance power, lease period, rent, deposit, premium, etc. Thus, this study will review such items by comparing with various legislative cases in foreign countries and research the propriety and limit of the Business Building Lease Protection Act
However, the Act applies to those commercial buildings classified into those obliged to be registered with the tax registry, and a certain level of deposit money or below is protected by its enforcement ordinance. If a commercial building is not registered for a lease, its tenants can oppose a third party or have a priority to be paid first only the next day after it is occupied by the tenants and at the same time its tenants report to the tax authority about the lease.
In addition, the tenants can request the lessor to extend the lease contract for another 5 years or shorter, and those tenants who have not their deposit money refunded can request the court to have the building registered for a lease.
The reason why tenants' right, a kind of credit is strictly protected is that their deposit money which tends to be large should be refunded to them after expiration of the lease contracts.
Moreover, even if a building is not registered, its tenants' rights can be protected only if the building is occupied by them and they report to the tax authority about the lease. As a result, a bona fide third party may suffer a loss unexpectedly. Until the Act was enacted, the Civil Code had applied to the leases of commercial buildings. Thus, lease contracts were made in favor of lessors, and in case a building was sold out through an auction, its tenants were ousted without their deposits being refunded. In this regard, it was urgent and significant to enact such a special code to protect tenants' rights.
In this sense, Business Building Lease Protection Act is similar to Housing Lease Protection Act. Both codes purport to protect the economic and social weak or the tenants' rights.
However, the two codes differ in terms of scope of applications, period of lease, causes of withdrawals from contract, causes of refusal of contract renewal, and the price of buildings for preferential refundments. Such differences seem to be attributable to the compromise between protection of tenants' rights and market functions. Anyway, Business Building Lease Protection Act has many problems which need to be reviewed by future studies which will suggest their solutions.

목차 (Table of Contents)

• 目次 = ⅰ
• ABSTRACT =ⅴ
• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 範圍와 方法 = 2
• 第2章 適用範圍 = 4
• 第1節 適用範圍 = 4
• 1. 事業者登錄 對象이 되는 建物 = 4
• 2. 主된 部分이 營業用으로 使用되는 建物 = 9
• 3. 基準 保證金額 이내의 賃貸借 = 10
• 4. 一時使用이 아닌 賃貸借 = 13
• 5. 未登記 傳貰契約 = 14
• 6. 本法 施行 後 체결된 賃貸借 = 15
• 第2節 住宅賃貸借保護法 第2條와 比較 = 15
• 1. 住宅賃貸借保護法 第2條 = 16
• 2. 營業用의 判斷 = 18
• 3. 營業用에 대한 判例 = 19
• 4. 現行法上 問題點 = 20
• 第3節 外國의 立法例 = 22
• 1. 立法例 = 22
• 2. 適用範圍 = 27
• 第4節 檢討 = 28
• 第3章 對抗力 = 30
• 第1節 對抗力 = 30
• 1. 對抗力 取得要件 = 30
• 2. 對抗力의 發生時期 = 36
• 3. 轉貸借 또는 賃借權의 讓渡 = 38
• 第2節 住宅賃貸借保護法 第3條와 比較 = 41
• 1. 所有權者와 對抗力 = 42
• 2. 抵當權者와 對抗力 = 45
• 3. 用益物權者와 對抗力 = 49
• 4. 假登記權利者와 對抗力 = 49
• 5. 押留·假押留 및 假處分權者와 對抗力 = 51
• 第3節 外國의 立法例 = 53
• 1. 立法例 = 53
• 2. 對抗力 = 56
• 第4節 檢討 = 56
• 第4章 賃貸借期間 = 59
• 第1節 賃貸借期間 = 59
• 1. 期間의 保護 = 59
• 2. 契約更新要求權 = 59
• 第2節 주택임대차보호법 제4조와 비교 = 63
• 第3節 外國의 立法例 = 64
• 1. 立法例 = 64
• 2. 賃貸借期間 = 66
• 第4節 檢討 = 67
• 第5章 借賃 = 69
• 第1節 借賃의 統制 = 69
• 1. 借賃增減請求權 = 69
• 2. 月 借賃算定時 算定率의 制限 = 73
• 第2節 住宅賃貸借保護法 第7條와 比較 = 74
• 第3節 外國의 立法例 = 75
• 1. 立法例 = 75
• 2. 借賃의 統制 = 77
• 第4節 檢討 = 77
• 第6章 保證金의 返還 = 79
• 第1節 保證金의 返還 = 79
• 1. 保證金의 意義 = 79
• 2. 保證金의 優先辨濟權 = 80
• 3. 少額保證金의 最優先辨濟 = 84
• 第2節 住宅賃貸借保護法 第3條의 2와 比較 = 86
• 第3節 外國의 立法例 = 86
• 1. 立法例 = 86
• 2. 保證金의 返還 = 88
• 第4節 檢討 = 88
• 第7章 權利金 = 91
• 第1節 權利金의 發生要因과 類型 = 91
• 1. 權利金의 發生要因 = 92
• 2. 權利金의 類型 = 92
• 3. 外國의 立法例 = 95
• 第2節 權利金의 授受 = 97
• 1. 法的 性質 = 97
• 2. 權利金의 授受 = 98
• 第3節 檢討 = 106
• 第8章 結論 = 108
• 參考文獻 = 112