In order to acquire a preferential payment right for the rental deposit under the Commercial Building Lease Protection Act (hereinafter referred to as “this Act”), in addition to acquiring the requirements for opposing, a fixed date must be provided in the lease agreement. If only the requirements for opposing are acquired, a defense of simultaneous performance can be made against the buyer’s claim for title until the deposit is returned, but the preferential payment right cannot be exercised from the sale proceeds.
The legislative intent of stipulating a fixed date as a requirement for preferential payment is, first, to confirm the priority of preferential payment rights, and second, to prevent the rights of good-faith third parties from being infringed upon by collusion between the landlord and tenant. By requiring a fixed date in the lease agreement, the purpose is to prevent subsequent changes or manipulation of the deposit through collusion between the landlord and tenant.
Generally, the fixed date refers to the date that is legally recognized as complete evidence of the date on which the document was written, and refers to a date that cannot be changed by the parties later (Supreme Court decision 98다28879, October 2, 1998). A document with a fixed date refers to a document with the above date, as prescribed in Article 3 of the Supplementary Provisions of the Civil Act. In the case of a housing lease, the fixed date can be established by having a notary public stamp the fixed date on a private lease agreement pursuant to Article 3 of the Supplementary Provisions of the Civil Act. However, since this Act stipulates that the fixed date on the lease agreement must be received “from the head of the competent tax office,” the method of granting the fixed date stipulated in the Supplementary Provisions of the Civil Act as described above does not apply, and the fixed date must be granted on the lease agreement by the head of the competent tax office.
The date of confirmation under this Act is the date on which the Director of the Tax Office acknowledges the existence of a lease agreement, and the Director of the Tax Office records the date of confirmation and number on the contract and stamps its official seal.
There is a question as to whether the meaning of “receiving a fixed date on a lease agreement” in Article 5, Paragraph 2 of this Act requires the existence of a lease agreement with a fixed date. In other words, if a lease agreement with a fixed date is lost or destroyed, whether the right of preferential payment can be exercised if it is proven by other evidence that the lease agreement has a fixed date is lost or destroyed. Since the effect of the fixed date occurs by receiving a fixed date on a lease agreement, even if a lease agreement with a fixed date is lost or destroyed, the effect that already occurred due to the fixed date will not be extinguished. Accordingly, if it is clearly proven that a fixed date was granted by the head of the competent tax office, it can be said that the lessee “received a fixed date on a lease agreement” in Article 5, Paragraph 2 of this Act. The Supreme Court also ruled that a tenant who acquired the preferential payment right as stipulated in Article 3-2, Paragraph 2 of the Housing Lease Protection Act cannot be considered to have lost the preferential payment right simply because the lease agreement was later lost or destroyed, and that even though the landlord who received the previous lease agreement back from the tenant destroyed the lease agreement, the fact that the tenant received the confirmed date on the previous lease agreement can be proven according to the issuance ledger of the confirmed date stored at the office of the Gwanghwamun Joint Law Firm, which is notarized (Supreme Court decision 99da7992, June 11, 1999).
Since a definite date has been assigned to a lease agreement, even if the leased property, etc. are described somewhat inaccurately in the lease agreement with the definite date, the validity of the definite date cannot be denied.