In the case where a lessee asserts the right to set aside under the Commercial Building Lease Protection Act (hereinafter referred to as “this Act”) for the purpose of receiving payment in priority over other creditors despite not actually conducting business by renting a business premises, the right to set aside should not be recognized against such lessee.
Since the introduction of the provisions on guaranteeing the opportunity to recover key money and compensation for damages, some tenants who arrange new tenants arrange new tenants in order to not miss the opportunity to recover key money even though they know that the landlord will reject the contract they arranged. For this reason, many tenants who prepare for key money lawsuits, under the premise that the landlord will reject the new contract, do not make a real contract with the person who actually wants to take over the store, but rather make a fake contract with the pretend tenant and then start the lawsuit under the guise of a lawsuit. The pretend tenant problem is the same in the case of residential leases.
However, in reality, it is not easy to distinguish between a true tenant and a pretend tenant, and the general criteria for distinction are as follows:
Since payment of the rental deposit can be made through all methods of performance of obligations under civil law, such as assignment of claims and set-off, the fact that the tenant has converted the existing claim against the landlord into the rental deposit may be the most evidence to prove that the tenant is the lessee, but the Supreme Court's position is that this fact alone cannot negate the lessee's right to object (Supreme Court Decision 2001Da47535, pronounced on January 8, 2002).
If the tenant does not actually intend to use or profit from the leased building, the lease agreement in question is void as a false representation by collusion, so even if it apparently meets the requirements for opposing power, it cannot be recognized as opposing power. Cases that fall under false representation by collusion will in fact account for the majority of household tenants, and whether it falls under false representation by collusion is determined by considering various factors, such as whether the rental deposit is excessively large, whether the tenant is a relative of the previous tenant, or whether the purpose of use of the commercial building and the occupation of the tenant are completely different.
Our Supreme Court has also ruled that since the basic content of a lease is to allow the lessee to use and profit from the property, a contract in the form of a lease agreement in which the creditor uses the existing claim as a deposit for the lease in order to obtain preferential payment of the existing claim as a method of obtaining the right of opposition under the Housing Lease Protection Act, and by completing the delivery of the house and resident registration, it creates the appearance of having acquired the right of opposition as a lease agreement but does not actually have the purpose of using or profiting from the house for residential purposes, is invalid as a lease agreement as a lease agreement and therefore cannot be granted the right of opposition as stipulated in the Housing Lease Protection Act (Supreme Court Decision 2000da24184, 24191, March 12, 2002). The contents of this Supreme Court decision will be equally applicable to commercial leases.
Attorney Lee Yong-hwa of Ubiz Law Firm has extensive experience and deep expertise in the real estate field. Through his long practical experience, he has handled a variety of real estate-related issues and provides reasonable and practical solutions to customers.
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