[2] The case holding that where a transferor establishes an English teaching school in the vicinity of a transferor who transfers the business of an English private teaching institute, the transferor shall not operate the English teaching school in the same kind of business and shall not lease or transfer his/her goodwill to a third party

[2] Where a transferor who concluded a contract for transfer of right with an existing English private teaching institute establishes an English teaching school in neighboring areas, the case holding that the above contract for transfer of right constitutes a contract for transfer of business under Article 41 of the Commercial Act, and the English teaching school operated by a transferor is not identical or similar to the business of a private teaching institute of a transferee due to the reason that the transferor's business is identical or similar to the business of a private teaching institute of a transferee, and that the transferor shall not operate the English teaching school of the same kind, and shall not lease or transfer its business

2. The debtor shall not lease or transfer to a third party the goodwill of the English teaching school as described in paragraph (1) above;

3. The execution officer shall publicly announce the purport of the above order in the proper manner.

4. Costs of the petition shall be borne by the debtor;

According to the overall purport of the record and examination of this case, the following facts are substantiated.

A. The debtor around May 2006 opened a △△△ English Institute (hereinafter “instant private teaching institute”) by leasing the 1st floor of the building located in the Daegu Suwon-gu 1, Daegu-gu 1 (number omitted) from Nonparty 1 and operated the said private teaching institute by directly providing English teaching for the students of the private teaching institute (hereinafter “private teaching institute”).

B. On January 27, 2007, the creditor acquired all of the facilities, etc. of the pertinent private teaching institute by concluding a contract for the transfer of rights with the debtor (hereinafter “instant contract for the transfer of rights”) as follows.

- - Sound

① The facilities of the instant private teaching institute and key money shall be KRW 17,500,000, and the creditor shall pay to the debtor the remainder KRW 2,000,000 on the date of the contract, and the remainder KRW 15,500,000 on the date of the contract. < Amended by Act No. 8513, Mar. 15, 2007

2. All facilities, etc. held on the date of this contract are included in the premium above.

3. The debtor shall confirm that 30 or more private teaching institutes of this case exist as of the date of this contract, and shall cooperate so that the creditor succeeds to the private teaching institutes of this case.

C. After that, the debtor withdraws from the above lease agreement relationship with the non-party 1, and the creditor entered into a lease agreement with the non-party 1 on February 28, 2007 on the condition that the deposit, rent, etc. is the same with the debtor, thereby succeeding the debtor's status as the lessee with respect to the part on the first floor of the above building.

D. At the time of the instant contract for the transfer of right, the obligor permitted and accepted the obligee’s use of the “△△△ English Institute” mutually as it is, at the time of the instant contract.

E. Accordingly, the creditor requested the Daegu-gu Office of Education to change the founder of the instant private teaching institute from the debtor to the creditor on March 12, 2007, and completed the registration of change on March 12, 2007, and completed business registration with the same trade name in the Dong Daegu District Tax Office on March 15, 2007, and thereafter, from around that time, the creditor started and operates the private teaching institute of this case.

F. Meanwhile, after the transfer of the instant driving school, the debtor entered into an employment contract with a police officer on March 2007 and continued English teaching for the students of the instant driving school, who were employed as an instructor of the instant driving school.

G. After that, on July 2008, the debtor retired from the English teaching institute instructor of the instant case on the Haman on the ground that, on the 3rd floor of the building indicated in the annexed drawings which was approximately 300 meters away from the location of the said teaching institute, the debtor established the English teaching school (hereinafter “the English teaching school of this case”) with the trade name of “○○○ English teaching school” in the part of the ship (a) indicated in the annexed drawings among the 3rd floor of the building indicated in the annexed drawings, which was located in approximately 300 meters away from the location of the said teaching institute, and primarily operated the English teaching business for elementary and middle students.

2. Determination on the right to be preserved

A. Whether the instant contract constitutes a transfer of business

1) Parties’ assertion

A creditor asserts that this case’s contract constitutes a transfer of business under Article 41 of the Commercial Act. The debtor asserted that, around May 2006, the contract of the transfer of right was merely an agreement to receive the physical equipment and premiums of the pertinent private teaching institute, and that it was not an agreement for the transfer of business, since the creditor received the said premiums from the creditor while transferring the facilities of the instant private teaching institute to the creditor, the contract of the transfer of right is merely an agreement to receive the physical equipment and premiums of the instant private teaching institute, and that it was not an agreement for the transfer of business.

(ii) the board;

In the transfer of business under Article 41 of the Commercial Act where the transferor has the duty to prohibit the competitive business, the business refers to the functional property as an organic integration organized for a certain business purpose. The functional property as an organic integration here refers to the fact-finding relation with the tangible and intangible properties and economic values that constitute the business operation function as the source of revenue and the functional property as the source of revenue that systematically combines the above function as the source of revenue and becomes the object of transaction like one goods. Thus, whether the transfer of business can be viewed as the existence of a transfer of business should be determined according to the issue of whether the transferee can continue the same business activity as that of the transferor, without starting from the point of view of the business operation in the pertinent field, by transferring the functional property as the source of revenue which is organicly organized (see Supreme Court Decision 97Da35085 delivered on November 25, 1997).

According to the overall purport of the record and examination of this case, it can be acknowledged that the creditor acquired the private teaching institute of this case as it is to conduct the private teaching institute of this case. The creditor succeeded to the lessee's status under the existing lease agreement of the private teaching institute of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of documents or document program files containing the contents related to the operation of the private teaching institute of this case of this case of the facility of the private teaching institute of this case of this case of this case of this case of this case, teaching materials, various forms of teaching materials, counseling history files, address records, teaching method, etc. The creditor succeeded to the lessee's status under the existing lease agreement of this case between the debtor and building owner after the transfer contract of right of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of transfer of right.

In addition to the above facts, it is natural that the creditor's business operation in this case was transferred to the creditor while maintaining its identity in this case, and it is practically difficult for the creditor to separately develop a new student market other than the existing private teaching institute students, and the customer relationship of the private teaching institute (private teaching institute) cannot be subject to individual takeover and transfer by nature. However, in light of all the circumstances, such as the fact that the debtor's business operation is replaced by the debtor's change of private teaching institute's private teaching institute's business operation and English teaching, and that the former customer relationship is maintained by the debtor's customer (private teaching institute or parents)'s evaluation of the debtor's private teaching institute's business operation and English teaching. Thus, the contract in this case constitutes a business transfer agreement under the Commercial Act.

B. Whether the English teaching school of this case constitutes the same type of business

The debtor asserts to the effect that the English teaching school of this case operated by him is not a same type of business subject to the prohibition of competitive business as provided in Article 41 of the Commercial Act, since there is a difference between the educational institute of this case and the academic program of this case, the subject, the instructor and the business target of the creditor.

same kind of business under Article 41 of the Commercial Code means the same kind of business within a broad sense including businesses which cause competition as well as businesses which cause competition, or businesses with alternative relationships.

According to the records, the English teaching school of this case of the debtor only differs from the number of instructors who teach one instructor, and since the subjects, subjects, methods, contents of lectures, tuition fees, etc. of this case are deemed to be identical or similar to the business of the private teaching institute of this case operated by the creditor, it shall be deemed to constitute the competitive business of the above private teaching institute. Therefore, the debtor's above assertion is without merit.

C. Scope of duty not to engage in competitive business

In cases where a transferor transfers his/her business, unless otherwise agreed, the transferor shall not engage in the same kind of business for ten years by the same Special Metropolitan City, Metropolitan City, Si, and Gun, and the neighboring Special Metropolitan City, Metropolitan City, Si, Si, and Gun pursuant to Article 41(1) of the Commercial Act, which provides that the duty of prohibition of competitive business to be borne by the transferor shall prohibit him/her from engaging in the same kind of business or engaging in the same kind of business on the ground of a third party. Thus, in cases where the transferor creates a business in violation of his/her duty of omission, it is required to discontinue the business for the purpose of eliminating the violation of the duty of omission, and even if the transferor leases or transfers the business to another person, as long as the business remains in the substance of the business, it is also possible to prohibit the lease, transfer, or other disposition of the business to a third party other than the prohibition of his/her business by force (see Supreme Court Decision 96Da37985, Dec. 23, 196)

Therefore, the debtor, as the transferor of the business of the above private teaching institute, shall not operate the English teaching school of this case, which is the same kind as the above private teaching institute, and shall not lease or transfer the operating right of the above English teaching school to a third party.

3. Conclusion

Therefore, the creditor's application for provisional disposition of this case is sufficient to vindicate the preserved right, and as long as the debtor still contests the existence of the duty of prohibition of competitive business under Article 41 of the Commercial Act and continues to operate the same kind of business in the store of this case, the necessity of preservation is recognized and reasonable, it is so decided as per Disposition.

[Separate Map] Drawings: Omitted

Judges Lee Jong-jin (Presiding Judge)