208 Du23197 (Counterclaim) Penalty

2. A2 (Credit for 66 Years, Women)

3. A3 (Attending 75 Years, Women)

4. A4 (Lifelong in 69, South Korea)

5. A5 (Year 74, South Korea)

[Plaintiff-Appellant] Plaintiff International Law Firm

Attorney Shin Jae-chul, and Kim Financial Resources

Representative Director;

Law Firm Jeong-man, Counsel for the plaintiff-appellant

Attorney Lee Jae-soo

2. Each of the remaining claims of the Plaintiff (Counterclaim Defendant) and the counterclaim claims by the Defendant (Counterclaim Plaintiff) are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).

4. Paragraph 1 can be provisionally executed.

Listening to the Cheongpy (the main office)

Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) pays to Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 1 18,346,280 won, Plaintiff A2 8,397,832 won, Plaintiff A3 4,136,514 won, Plaintiff A4 8,131,964 won, Plaintiff A5 1,814,444 won, and 20% per annum from December 1, 2007 to the date of delivery of a duplicate of the complaint of this case, and from the next day to the date of full payment.

[Counterclaim] The defendant, the plaintiff A1, the plaintiff A2, the plaintiff A2, the plaintiff A2, the plaintiff A3, the plaintiff A3, the plaintiff A3, the plaintiff A30,06,970 won, the plaintiff A4, the plaintiff A5, the plaintiff A5, the plaintiff 2,394,442 won, and each of the above amounts are paid 5% per annum from the day following the delivery of the copy of the counterclaim to the day of the judgment of this case, and 20% per annum from the next day to the day of full payment.

1. Basic facts

A. The defendant is a company that newly constructs and sells apartment-type factories, and the plaintiffs are the persons who vicariously performed the sales affairs of the defendant pursuant to the sales agency contract as follows (the plaintiffs are the members of the three business teams among the total four sales teams, the team leader of the plaintiff A1 and the remaining plaintiffs are the team members).

B. On March 28, 2006, the Defendant entered into a sales agency contract with DM Co., Ltd. (hereinafter referred to as DM) on the apartment-type factory (hereinafter referred to as "factory building of this case"), which was newly built on the 5th Do-dong, Busan, Daegu, and 2 lots, and entered into a sales agency contract for the factory of this case on March 28, 2006, and entered into an agreement on the above service contract around August 2006 to manage the employees of the above company, including the plaintiffs, as direct management, at the same time, 1.6% of the sales amount (hereinafter referred to as 2% of the sales amount) of the above 5th 7th 7th e.g., the Defendant entered into a sales agency contract for the above 4th 7th e.g., the apartment-type factory construction contract for the purpose of sale at the time of sale at the 0th e.g., the Defendant's sales agency's price.

[Pledge of this case] The principal, as an employee of the sales business of the factory of this case, pledges to observe the following matters with a sense of duty and morality in carrying out the sales business of the factory of this case, and he, as an employee of the sales business of this case, pledges to be fully responsible for and compensate for all damages incurred by failure to observe this order.

1. In the event a problem arises to an occupant in the future due to the provision of his wrong information and data or the sale of them in a false or unjust manner, all responsibilities for them will be borne by the principal.

2. He/she shall not engage in any other occupation in addition to the sale of the factory building of this case in addition to the sale of the factory building of this case, and, in particular, he/she shall be liable corresponding thereto if he/she considers that he/she does not assist or leave the same competitive workplace or do not leave the position.

3.Recognizing that 1/2 of all the daily charges and the sales fees received through the sale of the factory building of this case in breach of the above two paragraphs shall be liable to the Defendant Company for penalty.

D. After the formation of the instant pledge, the Defendant Company paid 60% (the first installment) out of the commission to the following month when the sales contract was concluded by the Plaintiffs’ intermediary, and paid 200% (the second installment) of the commission, excluding the reservation portion, to the following month. On October 2007, when the sale of an apartment-type factory was commenced at the time of the first sale of the apartment-type factory in i.e., i., e., e., e., e., i., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e.,

E. At the time of severanceing from employment, the sales rate of the instant factory building was 54%, and the sales rate was 90% or more for 4 months after the commencement of the Plaintiffs’ business, while the instant factory building remains unsold in lots by at least 20% even after August 2008, which is the occupancy time.

F. On the other hand, on February 20, 2008, the defendant filed a motion for temporary injunction against occupational change (this court 2008Kahap368) with the purport of the application that he/she shall not be employed in the same type of business as the sale of the factory building of this case or be employed in the sale as an agent for the same type of business as the sale of the factory building of this case or any similar type of business, but on April 24, 2008, the motion was dismissed on the ground that the prohibition agreement on occupational change on the pledge of this case (hereinafter the "agreement on the prohibition of occupational change of this case") excessively limits the freedom to choose occupation, which is in violation of good customs and other social order, and thus becomes null and void. The plaintiffs thereafter filed the lawsuit of this case seeking the payment of the reserved fees not paid from May 207, 207, the second installment fee of September 2007, and the payment of daily expenses.

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 1, Eul evidence 2 (including each number), part of Gap evidence 6, part of the personal examination result of plaintiff A2, the purport of the whole pleadings

2. The parties' assertion

The plaintiffs claim the amount of claim, such as the second payment (20%) of September 2, 2007 and the fees reserved after the occupancy of the buyer (20%) among the sales commission equivalent to 2.5% of the sales amount generated from the performance of the sales agency business in accordance with the sales agency contract with the defendant, and the fees reserved after the occupancy of the buyer (20%) as the principal lawsuit of this case.

In regard to this, the Defendant asserts that the Plaintiffs, while preparing the instant pledge, have discontinued the sale of apartment-type factory by the apartment-type factory, have violated the instant pledge by leaving the apartment-type factory due to the termination of the apartment-type sale business by the Defendant, and thus, the Defendant is obliged to pay the Defendant the total sales commission and the amount equivalent to one-half of the daily costs, which was already paid pursuant to the agreement, as the penalty, as the penalty for breach of contract, the Defendant first set off the claim against the principal claim and claimed the remainder as

3. Determination

A. Judgment on the plaintiffs' assertion

First of all, there is no dispute between the parties that the sum of the plaintiffs' secondary payments for September 2007 and the sales agency fees reserved after the occupancy of September 2007, as shown in the attached Table (Omission). In full view of the entries in the attached Table 6 and the purport of the entire arguments as to the plaintiff A2, the daily expenses corresponding to the day on which the plaintiffs worked in September 2007, namely, the plaintiff A1, 200,000 won (10 days x 20,000 won per day x 10,000 won), the plaintiff A3, A4, and A5, respectively, and the plaintiff A2, 90,000 won (9 x 10,000 won per day x 10,000 won) that the plaintiffs did not receive from the defendant. Thus, the defendant has an obligation to pay the plaintiffs the aggregate of the sales agency fees and the daily non-payment claim amount.

B. Determination of the defendants' assertion

(1) According to the above facts, the plaintiffs are prohibited from leaving the factory site of e.g., i., e., e., e., e., e., e., apartment sale site of e.g., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., g., e., e., e., e., e., e., e., e., e., g., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e.).

(2) As to this, the Plaintiffs asserted that the instant agreement on the prohibition of occupational change excessively limits the freedom of occupation, and thus becomes null and void in violation of good morals and other social order, and thus, there is no obligation to pay penalty for breach of such agreement

In full view of the aforementioned evidence and the following facts recognized by the above facts, even if the plaintiffs can be seen as trade secret with expertise or protection value only the defendant company in the course of performing the sales agency business of the factory building of this case, it seems that there is a good protective interest in that it can prevent the failure of the defendant company's sales business through the contract prohibiting the occupational change of this case, and as long as the penalty agreement based on the prohibition of the occupational change of this case exceeds the scope of the legal interest protected by the law, so long as the prohibition of the occupational change of this case is limited to the sales business of a specific company carrying on the same kind of business as the defendant company.

상당한 정도의 합리성을 결여하여 직업의 자유를 과도하게 제한하는 것으로 선량한 풍속 기타 사회질서에 반하여 무효라고 볼 수는 없다. 즉, ① 원고들은 피고 회사 건물의 분양업무를 대행하고 그 보수로 분양금액 중 일정비율을 수수료 명목으로 지급받기로 하여 피고 회사와 사이에 분양대행계약을 체결한 상인들로서 분양이 완료(원고들이 승계한 것으로 보이는 디씨엠과의 계약에 따르면 입주율 90% 달성시)될 때까지 피고 회사의 분양업무를 충실하게 이행하여야 할 의무를 기본적으로 부담하는 점, ② 원고들은 위와 같은 충실의무의 일환으로 경업금지의무를 지게 되는데(상법 제89조 참조), 이 사건 서약서는 이러한 기본적인 의무의 이행을 주된 내용으로 하되 그 일환으로 당시 수개월 내 분양 개시가 예상되던 인근 경쟁사업장에 분양대행인력이 이직함으로 인하여 발생하게 될 피고 회사 분양업무의 차질을 방지하기 위하여 그 경쟁사업장을 특정하여 전업금지를 약정하게 된 점, ③ 이 사건 공장건물인 아파트형공장은 당시 부산에서는 개념조차 생소한 영역으로 원고들 역시 피고 회사의 분양업무를 대행하는 과정에서 그 노하우를 개발하고 익혀 나간 측면이 큰데, 피고로서는 분양률이 겨우 37%에 이른 상황에서 인근 경쟁사업장에 숙련된 분양대행인력을 빼앗기게 된다면[원고들이 이 사건 공장건물 분양을 위하여 확보해 둔 고객(이른바 가망고객)까지 빼앗길 가능성도 있다] 다시 분양대행인력을 충원하여 전문 화시키기까지 상당 기간 분양업무가 지체될 것을 우려하지 않을 수 없는 상황이었던 것으로 보이는 점, ④ 이에 피고는 원고들이 분양대행계약기간 동안 책임감 있게 분양대행업무를 이행하게 하기 위해 수수료의 일정부분을 수분양자의 입주 후에 지급하기로 유보하고, 이러한 유보조치와 전직금지의무 부과 등에 대한 대상조치로서 분양대행 수수료율을 0.5% 인상한 점(디씨 엠과의 용역계약 당시 약정된 수수료 3%는 회사(◆ 디씨엠) 전체에 귀속되는 액수에 불과하고 그 해당 직원(팀장 포함)의 몫은 그 중 1.6% 였다], ⑤ 일반적인 분양대행업무가 그러하듯 이 사건 공장건물에 대한 분양대행업무 또한 그 분양물량이 소진될 때까지만 지속되는 한시적인 업무로서 전직금지의무 역시 그 기간에만 한정되는 점 등을 종합하여 보면, 피고의 분양업무대행기간 동안 □건설로 한정하여 전직을 금지한 이 사건 전직금지약정은 분양대행계약의 이행을 담보하기 위한 목적 범위 내에서 사회적으로 상당한 정도의 합리적인 필요에 따른 것으로서 유효하다고 보아야 할 것이다.

(3) Furthermore, with respect to the amount of penalty to be paid by the Plaintiffs, the agreement on the penalty under the instant written pledge is presumed to be an estimate of damages under Article 398(4) of the Civil Act (no special circumstance exists to deem the liquidated damages as a penalty for breach of contract). Meanwhile, if the estimated amount of damages is unreasonably excessive in light of the general social concept in light of all the circumstances, such as the obligee and obligor’s status, purpose and content of the contract, motive and contents of the liquidated damages, the estimated amount of damages, the ratio of estimated amount of damages to the amount of the damages, the amount of estimated damages, the size of the expected damages, and the transaction practices at the time,

The court may reduce this reasonably. In this case, the superior position of the defendant company (see Article 10 of the service contract made with DM which the plaintiff seems to succeed) that can entirely determine whether to withdraw from the company of this case, the pledge of this case was prepared at the time when the plaintiffs performed the sale by proxy of the defendant company. At that time, it is difficult for the plaintiffs to refuse to enter into the contract of prohibition of occupation or a penalty agreement upon the defendant company's request, or to negotiate terms and conditions favorably with the defendant company. The evidence submitted by the defendant alone is insufficient to prove the existence of special operating profits, such as trade secrets that can be protected as the contract of prohibition of occupation of this case. In full view of all other circumstances, it is reasonable to reduce the amount of penalty as above by 10% because it is judged that the amount of penalty is excessively excessive and unfair.

Therefore, Plaintiff A1 is obligated to pay to the Defendant penalty equivalent to KRW 8,447,390, Plaintiff A2, Plaintiff A2, Plaintiff A3, Plaintiff A3, Plaintiff A3, Plaintiff A404,348, Plaintiff A4, Plaintiff A4, and Plaintiff A5, the penalty equivalent to KRW 410,888.

C. Sub-committee

The Defendant has the duty to pay Plaintiff A1 4,194,735 won (= 8,397,832 won - 4,2032 won - 4,2036,514 - 3,404,348 won - 4,526 won (4,136,514 - 3,404,348 won), Plaintiff A452,031 won (= 8,131,964 won - 2,679,930 won) - 8,447,390 won) - 4,194,735 won (i.e., 4,197,832 won - 4,203,414,348 won) calculated from the day following the sentencing of each of the above 1,452,031 won to Plaintiff A5 up to 2081,208.28

4. Conclusion

Therefore, the plaintiffs' claims of this case are accepted within the scope of the above recognition, and each of the remaining claims of the principal lawsuit and the defendant's counterclaim are dismissed as it is without merit. It is so decided as per Disposition.

Judge Choi Sang-soo

Judges Shin Jae-won