점포임차인의 영업보호에 관한 연구 (The Study on the Protection of Business Tenant)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 70권 / 623 ~ 694페이지
· 저자명 : 김영두

초록

The korean self-employment rates is relatively high. This is due to the labour market flexibility caused by the asian financial crisis of the late 1990's. The unemployed who have failed to be reemployed have no choice but to establish a business and become a self-employed person. The inadequacy of supply of commercial buildings caused by the increase of the self-employed persons has enabled the landlords to exploit the business tenants. Since early 2000's there have been growing complaints of business tenants about the exploitation of landlords in Korea. Especially when the economy of the certain commercial zone is boosted, most of the landlords refuse the renewal of a tenancy and the tenants should quit the premises.
In Korea, the Commercial Building Lease Protection Act("CBLPA"), which was enacted 2002, protects the commercial tenancy in three points. First, at the termination of the tenancy, the tenant can request a renewal for 5 years from the entering the contract. Second, the deposit is protected. Third, the tenant can assert his rights against the assignee of the premises. However this Act have failed to protect the business tenants from the unscrupulous landlords at the end of a tenancy. The Government has prepared the amendment of CBLPA. The options for the protection of commercial tenants are as follows. First option is to prohibit the landlords from receiving a premium and introducing rent control. The main reason why the landlord tends to refuses to renew a tenancy is for receiving a premium or higher rent from a new tenant. Retail and Commercial Leases Act 1995 of South Australia, Section 15 prohibits the landlord from accepting the premium with the granting of a tenancy. Second option is to empower the tenants to apply a new tenancy to the court or the conciliation committee. If the tenant can apply for a new tenancy, the landlord will have no chance to abuse their bargain power. The Landlord and Tenant Act 1954 of England secures the continuance of tenancy with this option. Third option is to have the tenant compensated when the landlord refused to renew a tenancy. If the landlord has to pay compensation for the loss of the tenant in case of refusal of a renewal, he will be likely to renew a tenancy rather than to refuse. This option can be found in French Commercial Code.
2014. 9. Korean government reported the final amendment, which is aiming at the security of tenure of a tenancy indirectly. The contents of this amendment are as follows. First, The landlord has no obligation to renew at the end of a tenancy. Second, if the landlord refuses to renew, the tenant shall have the chance to dispose of his business and recoup his investment into the premises and the business. Third, if the landlord refuses to renew, he has to cooperate with the tenant for the assignment of the business by way of entering into a new tenancy with the one who would be an assignee of the present tenant's business. Fourth, if the landlord refuses to renew and to allow a new tenancy to the one who would be an assignee of the tenant's business, he should compensate the tenant's loss for quitting the premises.

영어초록

The korean self-employment rates is relatively high. This is due to the labour market flexibility caused by the asian financial crisis of the late 1990's. The unemployed who have failed to be reemployed have no choice but to establish a business and become a self-employed person. The inadequacy of supply of commercial buildings caused by the increase of the self-employed persons has enabled the landlords to exploit the business tenants. Since early 2000's there have been growing complaints of business tenants about the exploitation of landlords in Korea. Especially when the economy of the certain commercial zone is boosted, most of the landlords refuse the renewal of a tenancy and the tenants should quit the premises.
In Korea, the Commercial Building Lease Protection Act("CBLPA"), which was enacted 2002, protects the commercial tenancy in three points. First, at the termination of the tenancy, the tenant can request a renewal for 5 years from the entering the contract. Second, the deposit is protected. Third, the tenant can assert his rights against the assignee of the premises. However this Act have failed to protect the business tenants from the unscrupulous landlords at the end of a tenancy. The Government has prepared the amendment of CBLPA. The options for the protection of commercial tenants are as follows. First option is to prohibit the landlords from receiving a premium and introducing rent control. The main reason why the landlord tends to refuses to renew a tenancy is for receiving a premium or higher rent from a new tenant. Retail and Commercial Leases Act 1995 of South Australia, Section 15 prohibits the landlord from accepting the premium with the granting of a tenancy. Second option is to empower the tenants to apply a new tenancy to the court or the conciliation committee. If the tenant can apply for a new tenancy, the landlord will have no chance to abuse their bargain power. The Landlord and Tenant Act 1954 of England secures the continuance of tenancy with this option. Third option is to have the tenant compensated when the landlord refused to renew a tenancy. If the landlord has to pay compensation for the loss of the tenant in case of refusal of a renewal, he will be likely to renew a tenancy rather than to refuse. This option can be found in French Commercial Code.
2014. 9. Korean government reported the final amendment, which is aiming at the security of tenure of a tenancy indirectly. The contents of this amendment are as follows. First, The landlord has no obligation to renew at the end of a tenancy. Second, if the landlord refuses to renew, the tenant shall have the chance to dispose of his business and recoup his investment into the premises and the business. Third, if the landlord refuses to renew, he has to cooperate with the tenant for the assignment of the business by way of entering into a new tenancy with the one who would be an assignee of the present tenant's business. Fourth, if the landlord refuses to renew and to allow a new tenancy to the one who would be an assignee of the tenant's business, he should compensate the tenant's loss for quitting the premises.

참고자료

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