1. Separation between ownership and use of the real estate is often presented as using the asset belongs to other as space for residential and economic activities. Rental of commercial building that use commercial building belongs to other people beca...
1. Separation between ownership and use of the real estate is often presented as using the asset belongs to other as space for residential and economic activities. Rental of commercial building that use commercial building belongs to other people became one of very common legal relationships at present, and there is Rental Protection Law for the Commercial Building that is established recently as a legal measure for responding to it, other than Civil Laws. Rental Protection Law for the Commercial Building was resolved at the National Assembly in the form of Special Law and promulgated(No. 6542) in December 29, 2001, in order to stabilize national lives by protecting lessees, the social and economical weak.
This law caused severe denunciation at the time of establishment.
Although it could be said that the lessee of the commercial building is fallen into weak status, there were some disagreements regarding whether should they are protected by special law. That is, protection by special laws, not civil laws, should be restricted to minimum, because it could relatively infringes rights of lessor or interested party. Therefore, status of the lessor should be considered, as well as protection of lessee of the commercial building.
2. There are such systems for protecting lessee of the commercial building as counteraction that allows the lessee to claim right of lease even though ownership of the commercial building would be changed, preferred right of repayment and the most preferred right of repayment that allow lessee to collect guaranty money when the building would be sold by auction, right of demand to guaranty minimum contract period (1 year) and right of demand to update (5 years) that allow invested money to be collected, control of increase and decrease of lease fee, and Right of Lease Registration Order that maintains counteraction at completion of the lease.
Examining exemplary applicable laws of foreign countries, they are stipulated on the commercial law for France, on the lease law and asset law for Germany, and on the Land and Building Lease Law, respectably. Main contents for protection of the lessee on the foreign exemplary laws are acknowledge of counteraction by lessee, guarantee of continuance period, and control of lease fee, etc. Rental Protection Law for the Commercial Building in Korea acknowledges preferred right of repayment and the most preferred right of repayment, other than protection system for the lessee that is acknowledged common to other countries. However, preferred right of repayment and the most preferred right of repayment above, those are acknowledged in Korea only, have problematic potential of conflict against rights of lessor or interested party.
3. The important point is how to protect lessee of the building when it would be sold by public sales, and there are such measures as counteraction that allows lessee to demand content of the right of lease (Period, guaranty money) as is, preferred right of repayment that allows lessee to be repaid guaranty money first under premise of completion of rental, and the most preferred right of repayment that allows lessee to be repaid specific amount of the guaranty money of the auction price first. The key point of the article is deep review and investigation on these rights. Requirement of counteraction should be established before counteraction and preferred right of repayment could be acknowledged. Once these requirements of the counteraction are prepared, they should be interpreted rigorously, since they protect lessee so powerfully. Hence, Business Registration under name of family of the lessees, or their representative occupier, not under name of the lessee, should not be acknowledged as the registration of the lessee.
4. Once public sale begins for the commercial building, the purpose of the lease, the lessee who registered right of lease, or the lessee who reported right with requirements of counteraction according to Rental Protection Law for the Commercial Building will be interested party for the public sale. These interested party lessees can deeply intervene across the public sale procedure.
The rights in which lessee can intervenes to the procedure are as following. They can make objection or complaint against decision of public sale from a point of decision to deadline, and can request prevention of infringement to the building that is object of public sale. They have right to be informed fact of share request, and can apply for the bid in bulk. Also, they could be informed deadline of the bid, and can participate at the deadline. And they have right to be informed deadline of award, right to participate in the change of terms and conditions of legal sale, right to make statement regarding award at deadline, and right to appeal against award decision. In addition, they can be informed deadline of share, can make statement regarding preparation of share table, and can make objection against the table at deadline of the share.
At this point, the important right that should be acknowledged for the lessee of commercial building is preferred right of purchase. That’s because preferred right of purchase given to the lessee who occupies and uses the building at the public sale is the best way to protect lessees, as well as solving such problems as name after award and temporary lessee.
5. The lessee, who is applied by Rental Protection Law for the Commercial Building, will be protected against procedure of public sale, but since requirement of counteraction and lessee obtained preferred right of repayment will not be published in same manner with registration according to the Rental Protection Law for the Commercial Building, is could be a factor that hinges stability of the public sale procedure. Therefore, accurate entry of detailed statement of the object to be sold by public auction is strongly demanded, and honest investigation on the sold material is necessary as well. This could be a way of prevent temporary lessees that cause problems continuously at the public sale procedure.
6. The lessees having requirements of counteraction and preferred right of repayment will be strongly protected at the public sale procedure. Counteraction and preferred right of repayment of the lessee will be important matter at the procedure. Counteraction of the lessee is that the lessee asserts continuance of the right of lease against a party who is awarded the purpose at the procedure. The counteraction is obtained from next day of applying occupation of the building and Business Registration. The most important things regarding counteraction at the procedure could be standard point of obtained counteraction. Lessee of the commercial building should prepare 'Transfer and Business Registration’, the requirement of the counteraction, before the seizure is effectuated, in order to enforce the counteraction at the procedure. However, in a case collateral right is specified to the building already, the lessee who failed to prepare requirements for the counteraction before the time of the collateral right cannot counter against successful bidder. But if the collateral right at high priority would be terminated before payment, a point where successful bidder obtain ownership, the lessee at lower priority can asserts right of lease against successful bidder. Thereby, the lessee could secure own counteraction by subrogating collateral right at high priority before the successful bidder pay the price.
Also, Transfer and Business Registration, the requirements of this counteraction that allows successful bidder to asserts right of lease, is requirement of continuance for enforce counteraction. Lessee should maintain those requirements until awarded price is paid, in order to assert the counteraction. In addition, continuance of the counteraction obtained by existing lessee(Sublessor, transferor) could be problematic if right of lease is subleased or right of lease is transferred, and in this case, continuance of the continuance should be acknowledged when transfer relationship is stipulated on the Business Registration only.
7. Also, preferred right of repayment for collecting rental guaranty money of the lessee is acknowledged at the procedure. Preferred right of repayment is a right that allows lessee to be repaid rental guaranty money from paid price for the purpose of lease, under premise of completion of rental. The lessees should have requirements of counteraction and obtain appointed day on the rental contract, in order to collect guaranty money first. Requirements of counteraction for the preferred right of repayment should be prepared until deadline of demand share. Also, the lessee should compete with other collateral right holder if there are number of interested parties(Creditors), even though there is preferred right of repayment for the lessee according to the priority at the procedure. That is, the priority is specified based on the next day of obtaining priority of registration and appointed day for the collateral right holders.
8. Lessee of small amount could be repaid specific amount first, compared with other collateral right holders. This is a system that was established in order to protect lessees of small commercial building at the social security level. For Seoul, guaranty money coming under small amount lessee is 45 million Won, of which 13.5 million Won should be paid at first. The small amount lessee should prepare requirements of counteraction before registration of public sale in order to obtain the most-preferred right of repayment, but there often cases in which owner of the building and the lessee receive small amount guaranty money by reporting as if they have requirements of small lessee just before applying for the public sale, in collusion with each other. Also, the most-preferred right of repayment makes right of collateral right holder of real estate null, by obtaining preferred share than the holder of higher priority.
Small lessee system that causes temporary lessees and makes collateral system null should be abolished fundamentally.
9. In addition, the lessee who obtained both of counteraction and preferred right of repayment can asserts right of lease with balance if he/she does not repaid full amount of guaranty money against successful bidder, even though they received shares by selecting preferred right of repayment. Also, it should be considered that the lessee failed to be repaid full share in spite of enforced preferred right of repayment at the 1st procedure could enforces preferred right again at the 2nd procedure, since the rental contract is still active, unless full amount of guaranty money is repaid.