[2] The case holding that, although the sales company's operation and management regulations based on the sales contract concluded between the sales company and the buyer are required to obtain approval from the sales company in writing if the buyer changes or adds the type of business, it cannot be interpreted that the buyer can open the same or similar type of business as the designated one with the approval of the sales company or that the sales company can freely approve its opening point in light of the purpose of the agreement on the sales contract that prohibits the sale contract from opening the same or similar type of business

[2] The case holding that, although the sales company's operation and management regulations based on the sales contract concluded between the sales company and the buyer are required to obtain approval from the sales company in writing if the buyer changes or adds the type of business, it cannot be interpreted that the buyer can open the same or similar type of business as the designated one with the approval of the sales company or that the sales company can freely approve its opening point in light of the purpose of the agreement on the restriction of the type of business under the sales contract, etc.

1. According to the reasoning of the lower judgment, the lower court acknowledged facts based on the evidence adopted and determined as follows.

A. The buyers of the commercial building of this case cannot arbitrarily change the type of business designated under the agreement at the time of the sales contract and the management and operation regulations of the ○○ Industry (hereinafter referred to as the “○○ Industry”). When changing, they are obligated to comply with the agreement on the restriction of the type of business (hereinafter referred to as the “industry restriction agreement”) such as obtaining approval from the ○○ Industry in writing. On the other hand, under the former Do and Retail Industry Promotion Act (amended by Act No. 4541 of March 6, 1993), those who obtained the qualification of the market establisher or market manager of the commercial building of this case and obtained the qualification of the ○○ Industry or after the abolition of this Act (amended by Act No. 5327 of Apr. 10, 1997) have the duty to maintain the business operation regulations of the ○○ Industries Association and the business operation regulations of the commercial building of this case to ensure the smooth promotion of the order of the ○○ Industry and the business operation regulations of the commercial market of this case.

B. However, in light of the fact that the respondent, as a superstore operator of the commercial building of this case on August 7, 199, obtained approval of the change of the type of business in the document from the market cooperative that managed the business after following the management and operation regulations of the ○○ industry. Even if the change of the type of business affects the value of the applicant's store, it does not constitute prohibiting or restricting the applicant's exercise of divided ownership. The purport of restricting the type of business at the time of sale is to promote the convenience of the residents' living, promote the common interests of the occupant, and maintain the commercial building smoothly, it is difficult to regard it as "matters related to the divided ownership" under Article 13 (3) of the Distribution Industry Development Act. This agreement is stipulated by the agreement or the management and operation regulations between the parties at the time of the sale contract, so long as the respondent has agreed to do so according to the management and operation regulations, it cannot be said that the respondent has violated the contract of restricting the type of business, and there is no reason to regard the change of the type of business as one designated under the Act.

C. In addition, the ○○ Industries, while managing the instant commercial building, was in bankruptcy, and ○○ Industries succeeded to the rights and duties of the market manager for the instant commercial building, and performed the management of the instant commercial building by a market association established with the consent of 2/3 or more occupant merchants on December 24, 1998, and managed the instant commercial building by acquiring the status of the superstore operator. According to the evidence 5, the ○○ shopping shopping family owner’s general meeting (hereinafter referred to as the “owner’s general meeting”) held a temporary management meeting on November 16, 1999 and appointed a market association as the manager of the instant commercial building once again, and in view of the fact that the representative of the owner’s general meeting was dismissed and the new representative of the market association was appointed, etc., it shall be deemed that the market association has the authority to approve the change of business type.

2. However, the lower court’s determination is difficult to accept.

A. It is reasonable to view that a building company constructed a commercial building and sold it in lots after designating a type of business for each shop, and then acquiring the status of the buyer of the shop agreed to accept the obligation of restrictions on the type of business agreed upon in the sales contract with each other in relation to the tenant of the commercial building, barring special circumstances. Therefore, in cases where the transferee of the position of the buyer of the shop violates the agreement on the restriction on type of business set forth in the sales contract, the transferee of the position of the buyer of the commercial building has the right to claim the prohibition of operation of the same type of business to the exclusion of infringement (see Supreme Court Decision 97Da42540 delivered on December 26, 1997, etc.).

B. According to the records, Article 4 (No. 1 and No. 2) of the contract for sale in lots between ○ Industry and respective buyers (No. 1-1 and No. 2-1) of the contract for sale in lots (the number of buyers) shall select a type of business as follows. 1. The store similar to the store that Party A designated and sold in lots cannot be opened. 2. The type of business designated by Party A may not be changed arbitrarily. 3. The type of business other than the one sold in lots may be opened after consultation with the relevant laws and regulations and the provisions of the preceding paragraph. (2) The contract for sale in lots shall be concluded in compliance with the provisions of the preceding paragraph. Article 16 (Management) of the contract for sale in lots shall be governed by the management rules of Party A, and the management rules of Party A shall be amended by Section 1 (2) of the contract for sale in lots, and the management rules of Party A shall be amended by Section 4 of the contract for sale in lots.

Therefore, in light of the literal interpretation of Article 4 (1) of the contract for sale in lots, it cannot be interpreted that the seller, etc. can open the same or similar type of business as the designated type of business, and the type of business other than the designated type of business can be opened through consultation with the seller company, and furthermore, in light of the purpose of the contract for sale in lots and the purpose of accomplishing the purpose of the agreement by the buyer, etc., Article 19 of the contract for sale in lots cannot be interpreted that the buyer, etc. can freely approve the opening of the designated type of business or similar type of business with the approval of the seller company, notwithstanding the provision of subparagraph 5 of the above Article 19 of the contract for sale in lots, or that the seller can freely approve its opening. This is because even if the seller can establish and manage the management regulations pursuant to Article 16 of the contract for sale in lots, the content of the management regulations shall not be effective because it goes beyond the purpose of the

In the end, even though the market cooperative is running the management business by leading to the management and operation regulations of the ○○ industry, it should not be approved to open the same or similar type of business as the designated business without the consent of the occupant of the designated business at least.

C. Nevertheless, the court below held that the respondent cannot be deemed to have violated the trade restriction agreement on the premise that the person obligated to comply with the trade restriction agreement can change the type of business into the same or similar type of business as the existing designated one with the approval of the purchaser or the purchaser of the status of the purchaser. Thus, the court below erred in the misapprehension of legal principles as to the purport and validity of the trade restriction agreement, and it has affected the judgment.

The part of the grounds of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)