상가건물임대차보호법상 권리금 규정의 배경과 해석

Background and Interpretation of Foregift Regulation in Commercial Building Lease Protection Act

Recently, contracting parties abusing their strong position have rippling social effects causing “Power Trip Controversy(Controversy in relationships that the stronger party suppressing the weaker one)“. From a public welfare perspective, colligating the problem with a principle of law to protect the disadvantaged, some attempts are being made to solve the problem through the interpretative or legislative methodology. For instance, recent precedents tend to exclude arguments of the contracting party in a strong position to seek specific validity regulating and revising the contract between the parties to include provisions such as ”Good Faith“ or ”Prohibition of Abuse of Right“, and the National Assembly is drafting various legislations to protect the weaker party of the contract. For decades after liberation of Korea, due to inadequate legislative system - even common law - regulating collection of foregift for commercial building lease, constant problems have been arising in association with lessee’s benefit and protection of the law. While our legislative system neglected the problem of foregift because it had to respect principle of private autonomy or due to sharp conflicts between the benefits and law protection of the parties in the legal relationship of foregift, there have been many cases where after termination of lease, lessors demand excessively high rent or refuse renewal of the contract to demand foregift from a new lessee in the same field. This kind of abuse of rights by the contracting party in a stronger position is an important situational argument for legislation of foregift. Based on such circumstances, since May 13, 2015 ‘Commercial Building Lease Protection Act (Revised)’ introduced and enforced the provisions defining foregift and several protective regulations. However, although several legislation bills had already been submitted before the revision, many problems have been arising due to inadequate discussion and the legislation process handled with more haste than caution. It would be difficult to avoid public criticism since such legislation is not realistic or effective enough to accomplish foregift protection which is directly related to the lessee’s business rights and property rights. Thus, this study reviewed the specific background of the bumpy legislative process of foregift mainly focusing on identifying the problems of the foregift protection regulations that have been legislated in a rough-and-ready manner. This study also sought to improve the effectiveness of foregift protection proposing some solutions through interpretative methodology.