2. The costs of lawsuit shall be borne by the creditor;

According to the records, the debtor was leased the first floor store from November 23, 1997 to operate the second floor store with the trade name of "○○○" at Dong Young-si (hereinafter omitted), and on December 8, 2007, he received lease deposit amounting to KRW 15 million from the creditor on December 8, 2007, and decided to transfer the above second floor store to the creditor with the above trade name, facility, house, etc. (hereinafter "the transfer contract of this case"). The creditor received the above money from the creditor, and the creditor was engaged in the second floor business with the same trade name at the above store from around that time. The debtor started the business with the trade name of the US site of 70 meters away from the above store from January 18, 2008.

2. The assertion and judgment

A. The assertion

The obligee asserts that, since the above 7 million won is the consideration for the transfer of ○○○’s business, this case’s transfer contract constitutes the transfer of business, and the obligor is obligated to prohibit competitive business by the transferee of business pursuant to Article 41 of the Commercial Act. As seen above, the obligee is entitled to preserve the application of this case. As seen above, if the obligor runs the business at the present ○○○○○, and thus, the obligor is in violation of the prohibition of competitive business, and thus the obligee is unable to recover from the obligee. Thus, the obligor asserts that there is a need to preserve the above 7 million won of the above equipment is merely the consideration for the transfer of cosmetic and equipment in the above store, and there is no obligation to prohibit competitive business as the transferee of business.

B. Determination

(1) First, as to whether there was a special agreement on the prohibition of competitive business, there is insufficient evidence to acknowledge the fact that the debtor, while transferring the above ○○○’s business to the creditor, did not receive any more sources of origin, solely on the basis of the written evidence Nos. 1 and 3, and the statement by the witness of the non-party. There is no evidence to acknowledge otherwise.

(2) The term "transfer of business" means a company organized for a certain business purpose, that is, the human and material organization is transferred as a whole while maintaining its identity, and only a part of the business can be transferred. The identity of business here is a matter of fact-finding that should be determined by the general social concept, but it is not determined by what kind of business property should be transferred to any extent, but it should be determined by what kind of business property should be transferred, and it should be functioned as a whole or an important part of the business organization because the business organization is maintained and the business organization can function as a whole or an important part. For example, if the business organization was dissolved and transferred even if the entire business property was transferred, the transfer of business is not a transfer, while the part of the business facility was transferred without reserving its part is recognized as maintaining the existing organization (see Supreme Court Decision 200Du8455 delivered on March 29, 202, etc.).

In light of the above legal principles, since the transfer contract of this case is determined whether the creditor has received the business from the debtor while maintaining the identity of the business, the transfer contract of this case can be seen as transfer of the business. Thus, according to the records, the debtor's newspaper advertisement is made to sell the above store, and the creditor is recognized as having received the whole of the ○○ and its facilities from the debtor, but the above circumstance alone is insufficient to recognize the identity of the business as seen below, and there is no other evidence to acknowledge it.

Rather, according to the records, the ○○○○○ operated by the creditor is deemed to have been 10 if the size of the business site was 190 U.S. employees. In the past, the neighboring court and the tax office had good business zone, but the surrounding right has been deteriorated since several years ago, and the creditor has operated the ○○○○○○○○○ business mainly with the mins. The creditor, upon entering into the instant transfer contract, received only the above physical facilities, and did not receive any agreement on the economic value of the ○○○○○○ business, i.e., the business rain, customer relationship, and the purchase line relationship. It is recognized that the ○○○○○○○○○○○○○○ had no agreement on the ○○○○○○○○○○○○○○’s business facilities. In light of the fact that the 190 U.S. source was more than 190 U.S. source, and the ○○○○○○○’s physical equipment and the Ga○○○○○’s trust.

Therefore, the application of this case under the premise that the transfer contract of this case is a transfer of business is without merit.

3. Conclusion

Therefore, the motion of this case is dismissed, and it is so decided as per Disposition.

[Attachment Form 5]

Judges Hong-sung (Presiding Judge)