(영문) 서울중앙지방법원 2019.1.21 선고 2018가단5059836 판결

1. The defendant shall pay to the plaintiff 30 million won with 5% interest per annum from February 21, 2018 to the date of this judgment, and 15% interest per annum from the next day to the date of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 50 million won with 5% interest per annum from February 20, 2018 to the date of this judgment, and 15% interest per annum from the next day to the date of full payment.

Reasons

1. Basic facts

A. The Plaintiff is operating a foreign language education institute for elementary school students and middle school students on the Gangnam-gu Seoul Metropolitan Government C building, the second, and the third floor.

B. On November 12, 2016, the Plaintiff entered into an employment contract (hereinafter “instant employment contract”) with the Defendant, who is an English instructor, with the term of contract from January 1, 2017 to December 31, 2017, with the amount of KRW 4 million per month (30,000 per hour, an additional payment of KRW 90,000 per hour, and the additional payment of KRW 250,000 per hour, at a rate of 90 to 250,000). The Defendant recognized all information and know-how acquired in the course of performing his/her duties as important business matters and confidential matters, and recognized that the Defendant could not work or open at a Ddong or neighboring private teaching institutes, etc., where the Plaintiff’s private teaching institute is located (hereinafter “instant competition prohibition agreement”), and agreed to pay damages to the Plaintiff in violation of the agreement to compensate for damages (hereinafter “instant agreement and damages”).

B. Around November 2017, the Defendant notified the Plaintiff that he/she had no intention to extend the instant employment contract, and the said employment contract was terminated on December 31, 2017. From January 1, 2018, the following day, the Defendant, from the Plaintiff’s educational institute, worked as a English lecturer at the F Language Research Institute located in Gangnam-gu Seoul E, Seoul, which was approximately 500 meters away from the Plaintiff’s educational institute, and retired from his/her office around September 29, 2018.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1, the purport of the whole pleadings

2. Determination as to the cause of claim

A. The nature of the instant damages agreement

The agreement of penalty for breach of contract is presumed to be liquidated damages pursuant to Article 398(4) of the Civil Act, and it is reasonable to view that the Defendant estimated the amount of damages to be paid in advance to the Plaintiff in the event that the Defendant violated the agreement of prohibition of competition in this case, on the following grounds: “If the Defendant works or starts to work at the Gangnam-gu Seoul Metropolitan Government Ddong and its neighboring private teaching institutes within one year after the termination of the contract of this case, it shall be paid KRW 50 million to the Plaintiff.

(b) Occurrence of liability for damages;

In cases where the amount of damages is predetermined due to nonperformance, a creditor may claim the estimated amount of damages without proving the occurrence and amount of damages (see, e.g., Supreme Court Decision 2009Da83797, Feb. 25, 2010). The Defendant, from January 1, 2018, which was within one year after the termination of the instant employment contract, violated the instant clause of prohibition of competitive business by making English lectures in the Gangnam-gu Seoul EF Research Institute located at the Plaintiff’s educational institute in Seoul EF in which the Plaintiff’s educational institute is located, as seen earlier. Therefore, barring special circumstances, the Defendant is obligated to pay the Plaintiff KRW 50,000,00 and damages for delay due to the breach of the said agreement.

C. Scope of damages

1) Article 398(2) of the Civil Act provides that a court may reduce the estimated amount of compensation for damages to an unreasonable and excessive extent. Here, “unfairly excessive case” refers to cases where payment of the estimated amount of compensation may result in the loss of fairness by imposing unfair pressure on the obligor in light of the general social concept, taking into account all the circumstances, such as the status of the obligee and obligor, the purpose and content of the contract, the motive behind the liquidated amount of compensation, the ratio of the estimated amount of compensation, the estimated amount of compensation for damages to the amount of debts, the expected amount of damages, transaction practices and economic conditions, etc. In order to determine whether the estimated amount of compensation for damages is unduly excessive and the reasonable scope of reduction thereof, the court should comprehensively consider all the aforementioned circumstances arising between the aforementioned circumstances at the time of the closing of argument in the fact-finding court (see, e.g., Supreme Court Decision 2015Da209347, Sept. 13, 2018).

2) The following circumstances acknowledged as seen earlier and the evidence in Gap evidence Nos. 10 and 11 were comprehensively taken into account the entire arguments, namely, ① the compensation agreement of this case unilaterally set out only with respect to the amount of damages to be borne by the defendant, and the amount seems to be excessive under social norms by reaching KRW 50 million. ② The plaintiff seems to unilaterally demand the defendant to enter into an agreement disadvantageous to the defendant by taking advantage of the superior position of the contract between a private teaching institute and an instructor. ③ In the event the defendant imposes liability on the defendant by applying the language and text of the agreement of this case, it would be unfair that the defendant bears the responsibility for the period during which the non-commercial business was not violated, ④ the period during which the non-commercial business was prohibited under the agreement of this case and its regional characteristics and scope are somewhat excessive. In light of all the circumstances revealed in the proceedings of this case, it is reasonable to limit the damages to be paid by the defendant to KRW 30 million.

D. Sub-committee

Therefore, barring any special circumstance, the Defendant filed a claim against the Plaintiff for compensation for damages of KRW 30 million and damages for delay from February 21, 2018, which is the day following the date on which the claim for performance is made (the Plaintiff filed for payment of damages from February 20, 2018). However, in light of the nature of the damages liability under the instant agreement, the damages liability under the instant agreement is an obligation with no due date for performance, and thus, the Defendant is liable for delay only from the time when the obligor receives the claim for performance. Therefore, the Defendant’s delayed payment liability is deemed reasonable to dispute over the existence or scope of the obligation of the Defendant after the date of this judgment, which is the day following February 21, 2018, on which the Plaintiff’s mail verifying the content of the instant agreement delivered to the Defendant seeking the performance of the said agreement, and as requested by the Plaintiff, the Defendant is liable to pay damages for delay calculated at each rate of 5% per annum under the Civil Act and 15% per annum under the Special Act on Expedition, etc.

3. Defendant’s defense and judgment

A. Defendant’s defense

1) The instant agreement on the prohibition of competitive business constitutes a juristic act with a content that violates good morals and other social order, and thus, is null and void in accordance with Article 103 of the Civil Act, as it constitutes a juristic act with a content that threatens the defendant’s right to life and excessively limits the freedom of choosing an occupation and the right to work, etc. of workers guaranteed by the Constitution, for one year after the termination of the instant agreement without any provision in return for the prohibition of competitive business.

2) The instant agreement is a contract under which the penalty or amount of damages for nonperformance of an employment contract is scheduled, and is null and void in violation of Article 20 of the Labor Standards Act.

B. Determination

1) As to the allegation that the instant agreement on the prohibition of competition is null and void in breach of good morals and other social order

A) In a case where an agreement on the prohibition of competitive business concluded between an employer and an employee excessively limits the freedom to choose an occupation and the right to work, etc. of an employee guaranteed by the Constitution or excessively limits free competition, it shall be deemed null and void as a juristic act contrary to good morals and other social order as stipulated under Article 103 of the Civil Act. The determination on the validity of such agreement ought to comprehensively take into account the interests of the employer, the status of the employee, the period, area, and type of occupation subject to the restriction on competitive business, the existence of remuneration for the employee, the reason why the employee retires, the public interest, and other circumstances (see, e.g., Supreme Court Decision 2009Da8244, Mar. 11,

B) In light of the following circumstances, the evidence as seen earlier and the statements in Gap evidence Nos. 5, 6, 7, 12, 13, and 14 (including serial numbers), and the overall purport of the pleadings, given that the agreement on the prohibition of competition in this case is difficult to be deemed to be contrary to good morals and other social order, and therefore, this part of the defendant’s assertion is without merit.

① The Defendant formed the Plaintiff through the instant employment contract between the Plaintiff and the Defendant.

Inasmuch as lectures using the type of equipment and intangible services give students an opportunity to deliver their lectures, know-hows, experience, etc., by using the type of equipment and intangible services, it is difficult to evaluate that students’ lectures are solely attributable to the Defendant’s efforts and capabilities.

② However, a private teaching institute operated by the Plaintiff imposes restrictions on business competition with other private teaching institutes belonging to the same business district for students who are attending, or reside in, an elementary school or a middle school located around the private teaching institute. In the event that the Plaintiff’s private teaching institute is opened at the same place in the vicinity after the Plaintiff’s retirement from, or leaves from, a competitive teaching institute, it is highly likely that the students, who were demoted in the private teaching institute for the Plaintiff’s operation, will move

③ In the event of the foregoing situation, the Defendant’s tangible and intangible facilities and letters provided by the Plaintiff.

On the other hand, on the other hand, the plaintiff has suffered losses due to the decrease in the sales of the plaintiff's own students, and the students remaining in the plaintiff's private teaching institute are also likely to be able to keep a private teaching institute only because the continuity of lectures is disturbed and the continuity of lectures is disturbed.

④ The Defendant would receive monetary compensation directly due to the instant non-business prohibition agreement.

Although there is no agreement, the labor contract of this case contains the content that guarantees at least 4 million won per month to the defendant, in light of the fact that the number of students attending the defendant's lecture may not be many, unlike a private teaching institute in general, the labor contract of this case includes the provision that guarantees at least 4 million won per month, which seems to have influenced the conclusion of the labor contract in spite of the same provision as the above agreement prohibiting competition.

6 In the event that there is no agreement, such as the agreement on the prohibition of competition in the instant case, the Institute of Competition shall each other.

The order of trade in the private teaching institute industry is disturbed and the right to teach students who hear lectures in the private teaching institute is likely to be infringed due to frequent occurrence of school life instructors.

(6) Although the Defendant is subject to restriction on freedom of occupation within a certain scope under the instant non-commercial agreement, the period of prohibition of occupation under the said non-commercial agreement is one year, and the area of prohibition of occupation is also limited within a certain scope. The Defendant may obtain income by making English lectures without any restriction in the remaining areas except the areas prohibited under the said non-commercial agreement. Thus, it is difficult to view that the Defendant’s freedom of occupation is in essence infringed.

2) As to the allegation that the instant agreement was invalid in violation of Article 20 of the Labor Standards Act

Article 20 of the Labor Standards Act provides that "An employer shall not enter into a contract which stipulates a penalty for breach of an employment contract or an amount of compensation for breach of an employment contract." The purport of the provision is that if an employee pays a penalty for breach of an employment contract or compensation for breach of an employment contract even if he/she did not receive any compensation for breach of an employment contract, he/she entered into an unfavorable employment contract, even if he/she did not escape from the detention of the employment contract. Thus, by prohibiting the above agreement on the penalty for breach of an employment contract or compensation for breach of an employment contract, it is intended to prevent the employee from being unfairly forced to work under restrictions on his/her freedom of retirement, guarantee the worker’s freedom to choose at the time of concluding the employment contract, and protect the termination of an unfavorable employment contract (see, e.g., Supreme Court Decision 2001Da53882, Apr. 28, 2004). This case’s agreement merely prohibits the Defendant from engaging in competitive business within a certain regional range after the termination of the employment contract between the Plaintiff and the Defendant.

4. Conclusion

The plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as they are groundless.