2. The defendant shall pay to the plaintiff 5,00,000 won with 5% interest per annum from October 1, 2010 to October 22, 2010, and 20% interest per annum from the next day to the day of full payment.

3. The plaintiff's remaining claims are dismissed.

4. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

A. On March 23, 2010, the Plaintiff entered into a contract with the Defendant to purchase all the facilities and fixtures of the house, apparatus, etc. and the right to lease and goodwill of the above restaurant (hereinafter referred to as the “lease deposit amounting to KRW 15 million”) under the name of the premium (hereinafter referred to as the “transfer contract of this case”) at KRW 3 million on the same day. On March 24, 2010, the Plaintiff paid the Defendant the down payment of KRW 3 million on the same day. On March 24, 2010, the Plaintiff concluded a lease contract with the OO, a lessor of the above restaurant, KRW 15 million, KRW 1.3 million, KRW 1.3 million, KRW 1.000, KRW 1.3 million, KRW 1.000, KRW 1300,000, KRW 300,000 among the above restaurants, and paid the remainder to the Defendant on the same day.

B. After the Defendant transferred the above 00 restaurant, around May 2010, the Defendant started to run a Chinese-style restaurant business with the trade name of approximately 1 km away from the above 00 restaurant, Gangdong-gu, Seoul Macheon-dong Maecheon-dong MaMa-gu.

C. On September 13, 2010, the Defendant transferred the restaurant to Nonparty Kim 00 for facility cost of KRW 30 million, and Kim 00 reported general restaurant business in the name of Kim 00 on September 16, 2010, and operated MaMaMaMaMaMa.

[Ground of recognition] Unsatisfy, Gap evidence 1-1, 2, Gap evidence 3, Gap evidence 4-1, 2, Gap evidence 5-1, 4-3, Eul evidence 5-1 through 3, Eul evidence 5 and 6-2, Gap evidence 5 and 4-1, each of Gap evidence 2-1, each of Gap evidence 2-1, and the purport of the whole pleadings.

2. The argument and judgment of the parties

A. The parties’ assertion

1) The plaintiff's assertion

After the Defendant transferred 00 restaurants to the Plaintiff, the Defendant opened and operates the same medium-type restaurant at a place located within five minutes in the Do newsletter from the above 00 restaurant. This is in violation of the duty of prohibition of competitive business by the transferor of the business as prescribed by Article 41(1) of the Commercial Act, and the Plaintiff committed an act in violation of the principle of trust and good faith. Accordingly, the Plaintiff is suffering from enormous damages to 00 restaurant business, and the Defendant shall not operate the restaurant business for ten years from March 25, 2010 in Gangdong-gu in Seoul, but is obliged to pay at least thirty million won of business rights and delay damages incurred by the Plaintiff.

2) Defendant’s assertion

On October 19, 2007, the defendant acquired 00 restaurants from the non-party Kim Jong-hwan, paid 45 million won for facility costs, and thereafter, paid 27,722,00 won in total. The defendant paid 34 million won from the plaintiff and failed to recover the facility costs incurred by the defendant. The transfer of 00 foods is limited to the transfer of physical property, such as facility and lease, and the plaintiff was understood that the defendant opened the 00 restaurants at a distance to the extent that it does not interfere with the plaintiff's business. Thus, the defendant does not violate the duty of prohibition of competitive business under the Commercial Act, which established the 'MaMaMa' restaurant.

B. Determination

1) Determination as to whether the business is transferred under the Commercial Act

Business referred to in Article 41 (1) of the Commercial Act means an organic integration organized for a certain business purpose.

The functional property as a functional property refers to the functional property as a whole, and the functional property as an organic integration means that the factual relations with a type, intangible, and economic value that constitute a business group function as a source of profit by systematically combining them, and that the functional property as the source of profit that systematically combines as such becomes an object of transaction like one goods. Thus, the issue of whether a transfer of business is deemed to have been made shall be determined depending on whether the transferee can be deemed to have continued to engage in the same business activity as the transferor who transferred the functional property as the source of profit organically organized (see, e.g., Supreme Court Decisions 8Da10128, Dec. 26, 1989; 97Da35085, Nov. 25, 197; 2007Da8272, Apr. 11, 2008).

In light of the following circumstances, the defendant transferred the right to lease of the above restaurant to the plaintiff along with a 00 restaurant's equipment and a house-type facility, etc., and the plaintiff is running a restaurant by using 00 trade names acquired from the defendant, and the defendant seems to have transferred 00 trade names and the right to operate the restaurant accordingly. When the defendant operated 00 restaurant, the main store and the main store assistant who worked for 00 restaurant are working for the plaintiff, and the plaintiff operated 00 restaurant without changing the kind of restaurant business, etc., the transfer contract of this case constitutes an organic transfer contract of business as a whole, and it is reasonable to view that the transfer contract of this case constitutes a transfer contract of business under the Commercial Act.

2) Determination as to the claim for prohibition of competition

Article 41(1) of the Commercial Act prohibits the same business for 10 years after the date of transfer of business. The defendant, as the plaintiff seeks after the date of conclusion of the transfer contract of this case, 10 years from March 25, 2010, as the defendant seeks.

The operator is obligated not to engage in the medium-type restaurant business that is the same kind of business in Gangdong-gu Seoul Metropolitan Government until March 25, 2020.

In this regard, there is no evidence to prove that the plaintiff understood that he had the defendant open a middle Korean restaurant in the vicinity of 00 restaurants, so the defendant's assertion about this is without merit.

3) Determination as to claim for damages

A) As seen in the above basic facts, the defendant transferred 00 restaurants to the plaintiff, and established a same kind of restaurant in the name of 'Ma Ma Ma *' in the surrounding areas, thereby causing a violation of the duty of prohibition of competition. As to the plaintiff's loss of KRW 30 million in operating premium due to the defendant's violation of the duty of prohibition of competition, it is not enough to recognize that the plaintiff suffered property loss or business loss corresponding thereto, and there is no other evidence to acknowledge this otherwise.

B) However, it is obvious in light of the empirical rule that the plaintiff suffered an intangible mental suffering due to the defendant's violation of the defendant's duty of prohibition of competitive business. This is a special damage that can not be recovered only with the prohibition of competitive business, and there is a proximate causal relation with the defendant's violation of prohibition of competitive business, and the defendant also knew or could have known such circumstances. Thus, the defendant is obligated to give money to the plaintiff. When comprehensively considering all the circumstances revealed in the arguments, such as the distance between the above two restaurants, the hours and similarity of food handled, the defendant's like restaurant business, the defendant's " ? 's transfer of the restaurant' to others, it is reasonable to determine the amount as five million won.

3. Conclusion

Therefore, the defendant shall not engage in the Jung-gu Seoul Metropolitan Government restaurant business until March 25, 2020. The plaintiff shall not be paid damages for delay at a rate of 20% per annum under the Civil Act from September 27, 2010 to October 22, 2010, which is the day following the delivery date of the copy of the request for change of the purport of the claim and the cause of the claim, as the plaintiff seeks, from September 27, 2010 to October 22, 2010, which is the day after the judgment of this case, that it is reasonable to dispute about the existence and scope of the defendant's obligation, and from the next day to the day of complete payment, the plaintiff's claim of this case shall be accepted within the scope of the above recognition and shall be dismissed as it is without merit.

Judges Kim Jong-ho

Justices Kim Tae-hun