지원사업
학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
오류제보하기
Even if the Commercial Lease Protection Act, as it stands, has good systematic mechanisms such as registration decree, contract renewal claim, or request for increase/decrease of a rent, Preferential performance etc.; however, it has realized only a half of the expected result by keeping silencenot least about the problem of foregift (alias premium).
Though the right or status of economically stronger man the lessor is guaranteed and protected well until now, but the status of the weak lessee is still very constrained under the principle of contract liberty. Especially, giving and receiving foregift in addition is prevalent by a lease of a mall or business place; and the receipt of foregift and its repayments are arranged by a special contract or in general practice. The problem of foregift is now no more to be leaved alone to settle the disputes between lessors and lessees, considering the aspect of public interests the redevelopment of urban commercial buildings, for example. In spite of the fact, that the foregift also has not less value of property as the deposit of lease, but as the case stands in reality, it is not controlled, even if the given and taken foregift amounts to several times of rated deposit; and so, in many cases, the leaseholders have to suffer a lot of loss, because they cannot withdraw their invested foregift. For it works as a factor of social-economical instability at the end, this issue is becoming more and more serious problem.
On the other hand, the foregift should not be understood or dealt with by or in the lump, because its causes and contents are very complex and manifold. For this reason, it seems to be difficult to regulate each of the foregift legally, and in fact even impossible to execute those regulations. Until now, however, considering the issues related to foregift, there are often cases, where a leaseholder faces rough going or unfair situation without his own responsibility, as he is quitted, without withdrawing foregift he invested even before the period of location is expired. Though, recently, there are occasionally some judgments of the Supreme Court dealing with cases of foregift, but not concerned about any appropriate and concrete criterionof the judgment accounting for the reasons and contents of foregift agreement, the suit for foregift repayment is often rejected only because a binding contract for the repayment of foregiftis not prepared. This is caused by the fact, that there is no precise legislative criterion about the foregift. Therefore, I would like to suggest a revision plan to improve the foregift management.
As I already mentioned, the foregiftgiven and taken in contract practices are actually very difficult to define in a sweeping statement becauseof its complexity and variety in forms and contents. Nevertheless, disputes related with foregift will be occurred continuously, if the foregift sometimes several times more than the rated deposit - is leaved simply in the dealing practices alone. It should be also an overshoot, when the disputes are treated on a case by case basis, without any proper criterion. Even if the maximum limit of foregiftcould not be controlled uniformly in the lumP, it is strongly needed to enact a law to regulate the problems of foregift transaction, so that the interests of lessor as well as of lessee can be harmonized each other, as we see the maximum of deposit raising is controlled by the Housing Lease
Protection Act.
Though the right or status of economically stronger man the lessor is guaranteed and protected well until now, but the status of the weak lessee is still very constrained under the principle of contract liberty. Especially, giving and receiving foregift in addition is prevalent by a lease of a mall or business place; and the receipt of foregift and its repayments are arranged by a special contract or in general practice. The problem of foregift is now no more to be leaved alone to settle the disputes between lessors and lessees, considering the aspect of public interests the redevelopment of urban commercial buildings, for example. In spite of the fact, that the foregift also has not less value of property as the deposit of lease, but as the case stands in reality, it is not controlled, even if the given and taken foregift amounts to several times of rated deposit; and so, in many cases, the leaseholders have to suffer a lot of loss, because they cannot withdraw their invested foregift. For it works as a factor of social-economical instability at the end, this issue is becoming more and more serious problem.
On the other hand, the foregift should not be understood or dealt with by or in the lump, because its causes and contents are very complex and manifold. For this reason, it seems to be difficult to regulate each of the foregift legally, and in fact even impossible to execute those regulations. Until now, however, considering the issues related to foregift, there are often cases, where a leaseholder faces rough going or unfair situation without his own responsibility, as he is quitted, without withdrawing foregift he invested even before the period of location is expired. Though, recently, there are occasionally some judgments of the Supreme Court dealing with cases of foregift, but not concerned about any appropriate and concrete criterionof the judgment accounting for the reasons and contents of foregift agreement, the suit for foregift repayment is often rejected only because a binding contract for the repayment of foregiftis not prepared. This is caused by the fact, that there is no precise legislative criterion about the foregift. Therefore, I would like to suggest a revision plan to improve the foregift management.
As I already mentioned, the foregiftgiven and taken in contract practices are actually very difficult to define in a sweeping statement becauseof its complexity and variety in forms and contents. Nevertheless, disputes related with foregift will be occurred continuously, if the foregift sometimes several times more than the rated deposit - is leaved simply in the dealing practices alone. It should be also an overshoot, when the disputes are treated on a case by case basis, without any proper criterion. Even if the maximum limit of foregiftcould not be controlled uniformly in the lumP, it is strongly needed to enact a law to regulate the problems of foregift transaction, so that the interests of lessor as well as of lessee can be harmonized each other, as we see the maximum of deposit raising is controlled by the Housing Lease
Protection Act.
목차
Ⅰ. 序說
Ⅱ. 權利金의 發生要因과 類型
Ⅲ. 權利金契約의 法的 性質과 效果
Ⅳ. 權利金 返還問題와 當事者
Ⅴ. 權利金과 附屬物買受請求權
Ⅵ. 權利金과 必要費ㆍ有益費 등의 返還請求權
Ⅶ. 結論
參考文獻
ABSTRACT
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UCI(KEPA) : I410-ECN-0101-2009-360-017573808