[가처분이의][미간행]
Whether a person who takes over the position of the buyer of a shop in a commercial building after determining the type of business by store has the right to claim the prohibition of business of the same type of business if he/she violates the agreement on the restriction of type of business set by the contract for sale (affirmative)
Article 105 of the Civil Act, Article 300 of the Civil Execution Act
[Plaintiff-Appellant] 2006Ma164, 165 decided July 4, 2006 (Gong2006Ha, 1477)
Creditor 1 and one other (Attorney Ahn Byung-jin, Counsel for the plaintiff-appellant)
The debtor 1 and one other
Seoul High Court Order 2008Ra1992 dated February 13, 2009
All reappeals are dismissed.
The grounds of reappeal are examined.
It is reasonable to view that a building company constructed a commercial building to set the type of business and sell it in lots, and then the transferee or lessee of the shop agreed to accept the obligation of restrictions on the type of business agreed upon in the sales contract with each other in relation to the shop occupants, barring any special circumstance. Therefore, if the transferee or transferee of the shop violates the agreement on restrictions on the type of business set forth in the sales contract, etc., a person whose business profit is likely to be infringed is entitled to claim the prohibition of the same type of business in order to eliminate infringement (see Supreme Court Order 2006Ma164, 165, Jul. 4, 2006).
According to the reasoning of the order of the court below, the court below acknowledged the facts as stated in its holding. Since the debtor 2 operated a pharmacy in this case 705, which is a designated type of business, and the debtor 1 violated the obligation to restrict the type of business set forth in the sale contract by allowing or aiding and abetting it, the debtor 2 is entitled to claim against the debtor the prohibition of operation of the same type of business. Furthermore, due to the debtor's violation of the obligation to restrict the type of business, the creditor 1 had the right to claim against the debtor for the prohibition of operation of the same type of business. Further, even if the above creditor 2 was in a situation where it is impossible for the tenant 606 to operate the pharmacy in this case due to the debtor's non-performance of the obligation to restrict the type of business, it should be deemed that such non-performance of the obligation to restrict the type of business as above, and thus, it is sufficient for the creditor 1 to seek more damages from the tenant 2 to whom the above obligation to restrict the type of business can be caused by the tenant's's.
In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no violation of the Constitution, law, order or rule that affected the judgment, as otherwise alleged in the grounds of reappeal.
Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)