Interpretation of Article 12(1) of the Do and Retail Trade Promotion Act

Article 12(1) of the Do and Retail Trade Promotion Act provides that "if a market founder sells in lots the area exceeding 1/2 of the total store area, it seems that only the case where a market founder sells in lots the store, it is applicable to the sale in lots, but on the other hand, the sale in lots refers to the sale in installments to many persons, and it is possible for the market founder to sell in lots, not only the market founder, but also the owner of the building who constructed the market building that is not the market founder, to sell in lots. Therefore, it is not limited to the case where a market founder sells in lots the area exceeding 1/2 of the total store area. It is not limited to the case where a market operator sells in lots the area exceeding 1/2 of the total store area, if any person directly operates the area exceeding 1/2 of the total store area as a result of the sale in lots, he/she succeeds to the status of the market founder, and if there is no person corresponding thereto, the association that has organized more than 2/3 of the total store area.

Article 12(1) of the Do and Retail Trade Promotion Act

Plaintiff, Ltd.

Defendant Cooperatives

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The judgment confirming that the defendant does not have the right to manage the market listed in the attached list.

1. Basic facts

Fully taking account of the evidence Nos. 2-1 (Market Establishment Permit), 2 (Certificate of Designation of Market Manager), 3 (Certificate of 1, 2 (No. 4-1, 2 (No. 4-2), 5 (No. 6-1, 6-7 (No. 7), 8 (No. 8 (No. 9), 9 (No. 9-10), 10 (Written Request for Application for Succession to the Status of Market Opening), 2 (Minutes), 3 (Articles of Incorporation), 4 (No. 4), 5 (No. 6 (No. 4), 6 (No. 6), 7 (No. 7) and 7 (No. 1, No. 38 (No. 38) and 3 (No. 1, No. 48) as a whole, the facts of the No. 2-3 (No. 1, No. 3) are acknowledged.

A. On March 18, 1988, the housing improvement redevelopment partnership in Zone 4 Zone 1 was conducted by the head of Seoul Special Metropolitan City, Nowon-gu, Seoul Special Metropolitan City on the site and facilities after completion of the redevelopment project, including the improvement of housing on the surface of 173-1, 173-2, and 10-7, upon receipt of the management and disposal plan under Article 41 of the Urban Redevelopment Act, around April 1989, the construction work was completed and the construction completion report was completed pursuant to Article 48 of the same Act, and the redevelopment project was completed, and the redevelopment project was completed by submitting a construction completion report pursuant to Article 48 of the same Act and publicly announced. The above redevelopment partnership sold 341 stores in the above execution zone (the building sites and 108-dong, 109-dong, 109-dong, and 109-dong, respectively, to 341 owners of the previous stores in the above execution zone.

B. The above commercial facilities fall under Article 2 subparag. 1 of the Do and Retail Trade Promotion Act (amended by Act No. 4889, Dec. 31, 1986) and Article 2 subparag. 1 of the Enforcement Decree (Presidential Decree No. 12211, Jul. 1, 1987) of the Do and Retail Trade Promotion Act (amended by Act No. 4889, Dec. 31, 1986); since the Do and retailer and the service provider supporting the Do and retailer continuously sell goods or provide services at the facilities within a certain zone, the shop owner who purchased the above commercial facilities with a size of 30 square meters or less at the total store size of 1/2 or more of the 1989. The 20th general meeting of the 5th general meeting of the 197th general meeting of the 197th company to establish the 19th company to secure the 10th company's business to establish the 5th company's establishment.

C. However, since its establishment, the Plaintiff Company was unable to pay electricity and water supply fees due to the defective capital, the salesroom occupants' overdue management fees, the salesroom occupants' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' overdues' meeting was held at the time of its establishment, and the above non-party 3 formed a delegation agreement with the management authority's management authority's powers's representative, which was delegated by the non-party 4, the representative director of the Plaintiff Company at the time of its establishment, but this delegation agreement was null and void due to the lack of a special resolution of the general meeting of shareholders under the Commercial Act, and the Plaintiff Company filed a lawsuit against the above management committee for nullification of the management delegation agreement's invalids.

D. However, eight promoters centered on Nonparty 3, etc. established a cooperative as stipulated in Article 12(1)2 of the Do and Retail Trade Promotion Act and opened an inaugural general meeting for the establishment of the above commercial building with consent from 150 shop occupants from among 214 shop occupants. On June 18, 1996, the above general meeting prepared the articles of association stating the amount of one unit of union members, the method of payment, the disposal of surplus funds, and the disposal of losses, etc. at the above general meeting, and appointed Nonparty 5 and directors as the president of the defendant cooperative. After completion of the establishment procedure as stipulated in the Do and Retail Trade Promotion Act and the Small and Medium Enterprise Cooperatives Act including obtaining authorization for establishment from the Seoul Special Metropolitan City Small and Medium Enterprise Cooperatives on September 24, 1996. After reporting the succession to the market establishment of this commercial building to the Plaintiff’s position as the founder of the above commercial building, and received notification from the Plaintiff on November 3, 1998.

2. Judgment on the ground of the Plaintiff’s claim

A. First, the Plaintiff asserts that Article 12(1) of the Do and Retail Trade Promotion Act, in case where a market founder sells the area exceeding 1/2 of the total store area, the person who directly operated the area exceeding 1/2 of the total store area as a result of sale succeeds to the status of the market founder, and that if there is no corresponding person, the association organized by more than 2/3 of the salesroom occupants and more than 1/2 of the salesroom occupants succeeds to the status of the market founder. Thus, even though the market founder of this commercial building sold the area exceeding 1/2 of the total store area, the association established in violation of this provision cannot succeed to the status of the Defendant market founder, and the Plaintiff still has the right to manage this commercial building as the market opener.

However, it seems that Article 12(1) of the Do and Retail Trade Promotion Act applies only to the case where a market founder sells a store in excess of a half of the total store area. However, it is possible for the market founder to sell the store in installments to many people, not only the market founder, but also the owner of the building who constructed the market building which is not the market founder. Thus, Article 12(1) of the Do and Retail Trade Promotion Act applies only to the case where the sale in lots exceeds a half of the total store area. In addition, Article 12(1) of the Do and Retail Trade Promotion Act does not apply to the case where the area exceeds a half of the total store area, regardless of who is the result of the sale in lots, if there is a person who has sold in lots exceeding a half of the total store area, and if there is no person corresponding thereto, he succeeds to the status of the market founder, and if there is no one who has established the 2/3 or more of the total store area, the plaintiff's assertion that the total market area exceeds one half of the total store area.

B. In other words, the Plaintiff asserts that, under Article 12 (2) of the Do and Retail Business Promotion Act, a cooperative organized under Article 12 (1) of the Do and Retail Business Promotion Act provides that it shall be a business cooperative under the Small and Medium Enterprise Cooperatives Act, and therefore, a person who is eligible to become a member of the Defendant cooperative shall be limited to a small and medium business proprietor, and as such, a person who is not a small and medium business proprietor shall not be a member of the Defendant cooperative. Since 42 of the 150 members of the Defendant cooperative are those who operate a hospital (including an oriental medical clinic) or real estate brokerage business, singing, singing, or singing, and they are not wholesalers and retailers, they are not small and medium business proprietors, and therefore, they are not members of the Defendant cooperative, and therefore, the establishment

However, Article 2 of the Framework Act on Small and Medium Enterprises and Article 2 of the Enforcement Decree of the same Act provide that a person who runs a service business as well as wholesale and retail business shall be deemed a small and medium enterprise if the number of regular workers and the size of assets is less than a certain size of business, and the above 42 of the plaintiff's assertion shall not be deemed to be included in the small and medium enterprise. Therefore, the plaintiff's assertion that the above 42 persons are not small and medium enterprises

3. Conclusion

As seen above, as long as the defendant union established lawfully and effectively and succeeded to the status of the market founder as to the market of this case, it shall be deemed that the right was succeeded from the plaintiff to the defendant union. Thus, the plaintiff's claim of this case under the premise that the plaintiff has the right to manage the market of this case as the founder of the market of this case is dismissed as it is without merit. It is so decided as per

Judges Lee Dong-chul (Presiding Judge)