[영업금지가처분][공1997.2.15.(28),518]
[1] Whether a disposition of lease, transfer, etc. against a third party in addition to the prohibition of one's own business may be ordered by compulsory performance of the duty not to engage in competitive business (affirmative)
[2] The above / [1] The legal effect of an act of disposal in violation of the order of provisional disposition (effective)
[1] An agreement on a contract for the transfer of business or an obligation not to engage in the competitive business under Article 41 of the Commercial Act, the purpose of which is to prohibit a transferor from carrying on the same kind of business or engaging in the same kind of business on the ground of a third party. Thus, if a transferor creates a business in violation of his/her duty of omission, it is required to discontinue the business in order to resolve the violation of his/her duty, and even if the transferor leases or transfers the business to another person, as long as the substance of the business remains, the violation of duty is not to be resolved. Thus, it is also possible to prevent a third party from leasing, transferring, or taking other measures in addition to the prohibition of his/her business by force
[2] [1] The legal effect of the act of disposal such as the lease and transfer of the transferor to a third party by the order of provisional disposition under the above Paragraph (1) is not denied, but merely the transferor is subject to the sanction against the breach of duty by the transferor.
[1] Article 41 of the Commercial Act, Article 714 of the Civil Procedure Act / [2] Article 41 of the Commercial Act, Article 714 of the Civil Procedure Act
Park fixed-type (Attorney Lee Im-soo, Counsel for the plaintiff-appellant)
Kim Mobilization (Attorney Park Jong-hoon, Counsel for the defendant-appellant)
Seoul High Court Decision 95Na38891 delivered on July 16, 1996
The appeal is dismissed. All costs of appeal are assessed against the respondent.
The grounds of appeal are examined.
On the second ground for appeal
According to the reasoning of the judgment below, the court below held that the respondent runs general restaurants in the name of "doz" in the 5th floor of the 12th floor of the 12th floor of the Seoul Mapo-gu, Seoul, and agreed not to conduct the same kind of business in transferring all of its businesses to the applicant around February 15, 1995, but on May 15 of the same year, the above "Dozz" opened general restaurants in the name of "Maz" in the 354-17th floor of the Seoul Mapo-gu, Seoul, Mazz., which is a place 100 meters away from the above Dozzzz, and that the respondent did business like the above Dozzz's business contents and the Respondent's request for provisional disposition of the 12th floor of the 12th floor of the 12th floor of the 195, the court below did not err in the misapprehension of the evidence of facts finding that it violated the above Doz's business ethics.
On the first ground for appeal
The court below affirmed the judgment of the court of first instance which ordered the respondent that the respondent shall not engage in the same kind of business, as well as the above business transfer contract, and that the respondent shall not continue to operate the general restaurant at the above 'Mada' restaurant or to lease, transfer, or take any other disposition against the third party on the ground that the above recognition necessity of preservation is recognized. Since the respondent's duty to prohibit the respondent from engaging in the same kind of business or operating the same kind of business on the ground of the third party, if the respondent creates a business in violation of his duty of omission, the respondent is required to discontinue the business in order to solve the violation of the duty of omission, and even if the respondent leases or transfers the business to the third party, the violation of the duty of non-performance remains, and therefore, the prohibition of lease, transfer, or other disposition is justifiable, and there is no error of law by misunderstanding the legal principles as to the scope of non-performance of the obligation of non-performance, such as the theory of non-performance of the obligation of non-performance of the above dispositive act.
Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-soo (Presiding Justice)