商街建物賃貸借保護法의 實效性에 關한 硏究 = A Study on the Effectiveness of the Commercial Building Lease Protection Law

국문 초록 (Abstract)

영문초록:The Korean Civil Law requires the provisions concerning the Chose right or lease (attaches importance to the contract based on free will between parties on the basis of the individualistic legal matters and formally equally stipulates the legal relations between parties to the contract) and defines it as the domain of private autonomy. But the reality is that there are frequently occurring the cases that the lessee, the economically weak, are forced to accept undue demand and inflicted with damages at the discretion of the lessor, the economically strong. Accordingly, the provisions in the Civil Law was not enough to solve this problem, and the special exception was provided and the Commercial Building Lease Protection Law was enacted to protect the economic and social status of the commercial building lessee in order to establish the fair transactional order of commercial building lease and allow small merchants to engage in their job under the stable condition. This Commercial Building Lease Protection Law takes on a strong character of the social law because the agent of economic activity continues to need the building as the space of activity for producing or providing goods or service. Herein lies several problems such as unbalanced demand and supply of building, the problem of repaying the deposit arising from avoiding the use of the Chose right system, uncertainty of the tenure, the limit of provisions on the lease of the Civil Law and the like. Main matters are summarized as follows : First, there were the problem of equity in relation to whether it is valid to divide small merchants by district and the problem of effectiveness seen by the level of the limit of converted deposit money in relation to it. Accordingly, an attempt was made to present the method of adjusting the rate as the direction of their improvement rather than the simple method of adjusting the converted deposit amount upward as well as the method of classification according to the relative importance of each trading area. Second, This study presented the problem that the bidder was not specifically included in the range of those interested in the inspection and provision(sec. 4) of the matters to be registered as well as the effectiveness of the disclosure method by means of the businessman registration as the method of disclosing the requirements for the opposing power. Third, with the introduction of the right of highest-priority satisfaction(sec. 14), its accompanying problems occurred. They included the following: the drop of the security value and the highest bid price of the commercial building: the existence of the small-amount lessee with the right of highest-priority satisfaction; the burden of those interested due to additional revenues; most small-amount stores subject to the application of theis provision; exception arising from the reality of unregistered businessmen of small commercial stores; the meaninglessness of the competition between the persons of first priority and of the same priority and the like. The phenomenon that the small-amount lessee attempted to avoid the revenue due to the provisions of this overlapping excessive protection was predicted, and this study presented the need for deletion of this provision from the view that only the provisions of strongly protecting the recovery of the lesses's deposit money through such provisions as the lessee's demand for renewal of the contract(sec. 10), the acquisition of the right of the highest-priority satisfaction due to the fixed date system(sec. 5), the order to register the right of lease. Fourth, Some of the grounds for refusal of contract renewal in relation to the lessor's right of refusal of contract renewal(sec. 10) rather excessively limit the lessor's right of property, and it does not match fairness between parties to the contract. Therefore, this study argued that it would be better to set some grounds for refusal of contract renewal as the grounds for termination of the contract rather than the grounds for refusal of contract renewal. Fifth, if an attempt is made to incorporate and develop the premiuminto the institution gradually like the claim to contract renewal(guarantee of the lessee's tenure of business) while describing the challenge of the premium, it is thought that the free contractual climate will be fostered. This is the problem that should not be limited to small-amount merchants but applies to the overall commercial building lease. And this study attempted consider the plan to restrict the extension of the dispute on lease to the civil proceedings to a maximum through the reinforcement and activation of the arbitration committee at the time of dispute over lease and resolve it smoothly in advance at the stage of arbitration procedures. As mentioned above, this study attempted to investigate the reasonable plan to secure the effectiveness of the Commercial Building Lease Protection Law and maintain fairness between parties to the lease contract while examining its major contents. Of course, it would be greatly meaningful to enact the Commercial Building Lease Protection Law under the realities that there are reasonable legal and institutional arrangements to protect small merchants. But it is natural that its first legislation is faulty as all laws are. It is thought that the Commercial Building Lease Protection Law will develop into the living special law in the process that its faults are corrected one by one. In addition, the fair and sound transactional order of overall commercial building lease will be established. Finally, it is expected that this study will be helpful as a part of the process of correcting these faults