상가임대차에서 권리금에 관한 법리의 형성과 과제 = The Formation and Challenges of Legal Principles Regarding the Key Money in Commercial Building Leases

다국어 초록 (Multilingual Abstract)

In the case of a commercial building lease, the legal relationship of the key money was formed by the practices of the trading community, and the legal basis began to be established by precedents. In the 1950s and 1960s, the key money was received as a premium in various types of contracts. In the 1970s and 1980s, the key money was subdivided into categories such as the key money for facility rights fees and business operation rights fees, etc., focusing on the legal relationships related to commercial building lease.
Since the 1990s, specific legal principles on the protection of the key money, such as the protection of the opportunity to recover the key money, have been presented, laying the theoretical foundation for the establishment of new provisions on the key money in the 2015 amendment to the Commercial Building Lease Protection Act(Hereinafter referred to as CBLPA 2015). Additionally, prior to CBLPA 2015, there have been judgments that recognized the obligation to compensate for damages due to tort liability by the landlord and the liability for damages arising from the tenant's breach of contract in transferring the leasehold rights, and recognized these two obligations as joint and several obligations. Such legal principles are believed to be maintainable under the current law, which only stipulates the landlord's liability for Tort, through interpretation.
It is evaluated that precedents and theories prior to CBLPA 2015 provided the legislative basis for the newly established provisions on the key money. Based on this legislative basis, the legal doctrine on the key money after the amendment of the provisions on the key money began to shift to clarify the interpretation of the new provisions on the key money and the relationship with the relevant provisions of the existing Commercial Building Lease Protection Act. The legal doctrine on the practices of transactions on the key money greatly contributed to the amendment of the provisions on key money through CBLPA 2015. It is necessary to enhance the effectiveness and normativity of the legal relationship on the key money through the amendments to the provisions on the key money by reflecting the numerous precedents and theories on individual issues that have been raised over the past 10 years since the amendment of the provisions on the key money.