[2] In a case where the transferee of the position of the buyer of the shop in a shopping mall after designating a type of business by store and selling it, whether a person whose business interest is at risk of being infringed may claim for the prohibition of business of the same type of business (affirmative)

In the case of the establishment of a provision on the restriction on the type of business in the contract for sale in lots, what scope of business should be restricted, and whether the change of the type of business should be absolutely prohibited or allowed within a certain scope can be freely determined by the parties in accordance with the principle of private autonomy, and the permission, scope, procedure, etc. of the change of the type of business should be determined through the reasonable interpretation of the contract for sale in lots. In this case, it is meaningful to ensure that the seller can exclusively operate the type of business (see Supreme Court Decision 2003Da45496, Nov. 10, 2005).

Meanwhile, it is reasonable to view that the owner of a building constructed a commercial building and then purchased the status of the buyer of a shop after setting the type of business for each shop and selling it in lots, or the lessee of the shop agreed to accept the obligation of restrictions on the type of business agreed upon in the sales contract in mutual relation to the shop occupants, barring any special circumstance. Thus, in a case where the transferee of the position of the buyer of the shop, lessee, etc. violates the agreement on the restriction on the type of business set forth in the sales contract, etc., a person whose business interests are infringed due to such violation has the right to claim the prohibition of business of the same type of business (see Supreme Court Decisions 2004Da2081, Sept. 24, 2004; 2006Ma164, Jul. 4, 2006, etc.).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its holding, and rejected the plaintiffs' business prohibition and claim for damages on the premise that the plaintiffs were sold after being designated as exclusive pharmacy for 106 stores among the commercial buildings of this case and being sold in lots, in light of the non-party 1's confirmation letter that there was no awareness from the seller about the restrictions on the category of business, and the promotion column of the sales contract for the above 112 stores was the blank space.

However, in light of the evidence duly adopted by the court below and the following circumstances revealed by the records, it is difficult to accept the above judgment of the court below.

① At the time of sale in the instant commercial building, several specialized department members proposed to rent out the said commercial building, and Plaintiff 1 agreed with the seller to exclusively establish a pharmacy among the instant commercial buildings, and entered the agreement with the seller to exclusively set up a pharmacy in the column for the recommended business type of the sales contract, and paid the sales price by setting the sale price at approximately KRW 12,00,000 per 12,00,000 per 12,000 per 12,000,000 per 13,000,000 per 13,000,000 per 3,000 per 1,000.

② Nonparty 2 and Nonparty 3 stated that at the time of the sale of the instant commercial building, they would allow the establishment of a pharmacy only for the above 106 hours, and that they were informed of such fact at the time of the conclusion of the sale contract with other buyers.

③ Although the number of buyers of the remaining stores, other than the above 106, were promising to open a pharmacy, they did not open a pharmacy (the above 112 store was located immediately next to an elevator, but Nonparty 1 was allowed to operate a restaurant by leasing the above store, and even if the business was in poor condition thereafter, it was not leased as a pharmacy). Defendant 1 and 2 had the above 112 store taken over from Nonparty 1 to March 2006 and opened a pharmacy, there was no way for buyers of the remaining stores except the above 106 store to attempt to establish a pharmacy.

④ Article 13(3) of the instant sales contract provides that “In principle, a buyer shall use the recommended type of business when there is a recommended type of business at the time of sale, and shall treat the overlap of the business after the sales contract with the occupant after consultation.” This is not a meaning that the recommended type of business may engage in all types of business, but a type of business may not be overlapped with the occupant of the previous type of business, and it is reasonable to interpret that the sales contract shall be selected within the extent that it does not overlap with the occupant of the previous type of

Examining the above circumstances in light of the legal principles as seen earlier, even if Nonparty 1 sold the above 112 shop, it is reasonable to view that the agreement on the restriction of the category of business has already been concluded to select the category of business among the remaining areas except the areas where the category of business, such as the pharmacy granted exclusive right, was already determined, and Defendant 2, who leased Defendant 1 or the above store, who acquired the status of the buyer from Nonparty 1, was obligated to comply with the agreement on the restriction of the category of business, barring any special circumstance. Nevertheless, the lower court’s determination that there was no agreement on the restriction of the category of business, such as designating the exclusive type of business, etc. among the store occupants of the commercial building of this case, which affected the conclusion of the judgment by misapprehending the legal principles on the interpretation of the provision on the restriction of the category of business, or by violating the rules of evidence, etc. Accordingly, the allegation in the grounds of appeal pointing

Therefore, the part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)