Plaintiff (Attorney Park Young-chul et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Seoe, Attorney Kim Jong-young, Counsel for the defendant-appellant)

October 25, 2006

Seoul Central District Court Decision 2005Gahap16398 Delivered on December 2, 2005

1. The plaintiff's appeal is dismissed.

2. At the request added to the trial of the party, the defendant shall not allow a person to carry on the Taekwondo hall business at the Sungnam-si (hereinafter referred to as the "Dong and its lot number omitted) in the event that he carries on the Taekwondo hall business or rents, subleases or sells the above commercial building to another person.

3. Two-minutes of the litigation costs after the filing of the appeal shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Revocation of a judgment of the first instance;

2. The defendant shall pay to the plaintiff 10 million won with 5% interest per annum from the delivery date of a copy of the complaint of this case until the date of the judgment of the appellate court, and 20% interest per annum from the next day to the date of the full payment (the plaintiff reduced the claim of the monetary claim in the appellate court).

3. It is as set out in the Disposition No. 2 (the plaintiff added the claim for business prohibition at the trial).

1. Basic facts

The following facts are either in dispute between the parties or in accordance with Gap evidence Nos. 1, 2, 3, 5, and Eul evidence Nos. 1, 2, and 5 (except for the part which is not trusted after the entry of Eul evidence No. 5). The whole purport of the pleadings is considered as a whole.

A. On October 14, 2002, the Plaintiff purchased 109 Dong 302 from Sungnam-si (hereinafter referred to as “instant commercial building”) Masung-si (hereinafter referred to as “Dong and lot number omitted”), and the Defendant sold 412 of the instant commercial building from Nonparty 1 Co., Ltd. on October 4, 2002.

B. The form of the contract for the supply of commercial buildings prepared by the Plaintiff and the Defendant between the non-party 1 and the non-party 1 (hereinafter “instant contract”) consists of a total of four pages, and the contents of Article 6 set forth in the second page are as follows.

Article 6 (Use of Virtual Prize)

1) “A” shall designate and sell the above display value for the following purposes in accordance with the content of a plan for sale (or a sale advertisement) prepared within the scope of the content of the approval of the plan of business or the building permit, and thereby make it open for the following purposes: Provided, That this shall not apply where the sale plan (or sale advertisement) does not designate the commercial use.

◇ 상가의 용도 :

2) “B (contractor)” shall operate the business for the above purpose, and shall consult in advance with “A” so as not to prejudice the harmonization and activation of the composition of the entire apartment housing and commercial buildings in case of changing for other purposes.

3) If “B” intends to modify the purpose of use after the store occupants, it shall be governed by the regulations on the autonomy of commercial buildings, etc.

다. 원고와 피고가 각 상가 분양계약을 체결하면서 작성한 이 사건 계약서 제6조의 ‘◇ 상가의 용도’란에는 아무런 기재도 없으나, 소외 1 주식회사로부터 분양업무를 위임받은 소외 2 주식회사의 소속 직원이 원고에게 분양하는 위 302호 상가에 관한 이 사건 계약서의 제1면 하단에 “ ※ 본 건물 내 태권도 같은 업종 신규 분양치 않음”이라는 문구를, 피고에게 분양하는 위 412호 상가에 관한 이 사건 계약서의 제1면 상단에 “ ※ 보습학원”이라는 문구를 각 기재해 주었으며, 한편 이 사건 상가 건물에 관한 분양계약 중 위와 같이 업종이 기재된 경우는 전체 상가 84개 중 7개였다.

D. Around April 2003, Nonparty 1 Co., Ltd. announced that the sale of the instant commercial building was completed, and around September 2003, that the sale of the instant commercial building was scheduled to be carried out. In addition, Nonparty 1 Co., Ltd. announced that the sales of the instant commercial building was scheduled to be carried out, and announced that the sales of the instant commercial building was notified of the use of the store (e.g., Taekwondo 109, 302, 109, 412, and 109, 412) and that the sales of the instant commercial building would inform the buyers of whether the contact would overlap

E. The plaintiff completed the report on the sports facility business on September 30, 2003 and operated the Taekwondo hall in the commercial building No. 302. The defendant around March 2003 leased the above 412 commercial building to the non-party 3 for the use of Taekwondo hall, and the non-party 3 operates the Taekwondo hall from October 2003.

2. The allegations and judgment of the parties

A. Determination on the claim for prohibition of business

(1) Plaintiff’s claim

Although the Defendant, in accordance with the terms of the sales contract for the above 412 commercial buildings, or at least bears the duty of restricting the business to operate the same type as the Plaintiff, it infringes the Plaintiff’s business right by leasing the commercial buildings to the same type of business as the Plaintiff designated, and thus, it is against the Plaintiff’s business right in violation of the duty of restricting the business. Thus, the Defendant is urged to prohibit the Defendant from engaging in the same type of business or having the lessee, etc. conduct the same type of business in the commercial building as the Plaintiff designated.

(2) Defendant’s assertion and judgment

(A) The defendant asserts that Article 6 of the contract of this case was not incorporated into the contract of this case pursuant to Article 3 of the Regulation of Standardized Contracts Act since it was not possible to explain the contents of Article 6 of the contract of this case at the time of selling 412 commercial buildings, and even if Article 6 of the contract of this case remains effective to the plaintiff, it is only a new obligation to limit the sale to be borne by the non-party 1 corporation to the plaintiff, and it is not effective to the defendant who already purchased 412 commercial buildings before the plaintiff entering into the contract of this case

In principle, if the contractor of the contract violates the duty to specify and explain the terms and conditions which correspond to the important terms and conditions of the contract, it shall not be asserted as the content of the contract. However, if the terms and conditions are general and common in transactions, and the contractor could have sufficiently predicted the terms and conditions without any separate explanation, or if he knows the contents sufficiently, he does not have the duty to specify and explain the terms and conditions (see Supreme Court Decision 2004Da26164, 26171, Dec. 9, 2005). Thus, the defendant's receipt of the contract of this case, stating the phrase "*" in the above 412 terms and conditions as the contract of this case, in lieu of receiving exclusive benefit from the stated business type, it shall be deemed that it can not be argued as the duty to guarantee exclusive profit for the purchaser of the contract, and the defendant's assertion that the contract of this case is not in violation of the duty to explain and explain the terms and conditions as to the non-party 1's exclusive interest in the contract of this case and the non-party 1's exclusive interest in this case.

In addition, as determined later, the duty of restriction on business of the buyer due to the specific type of business is effective not only for the seller, but also between the buyer of the sale by specifying the type of business, and the circumstance that the defendant concluded the sale contract prior to the plaintiff cannot affect the establishment of the duty of restriction on business between the buyer and the buyer. Therefore, the defendant's assertion on this part is without merit.

(B) Even if Article 6 of the contract of this case is incorporated into a contract and effective for the defendant, Article 6 (1) of the contract of this case provides that "the designation of commercial use is made in the sale plan (or the sale advertisement)" is effective, and there is no reason to apply Article 6 of the contract of this case since the sale plan of this case (or the sale advertisement of this case) has designated commercial use, and therefore, the type of business listed in the contract of this case is merely a recommended type of business not designated type under Article 6 of the contract of this case. Thus, if the recommended type of business is not designated type of business, the contract of this case does not include any provision on the recommended type of business, so there is no business restriction obligation for the recommended type of business, and further, the business restriction obligation of the seller of commercial buildings is recognized only in the case where the sale plan of this case is designated or recommended to all the sale price of commercial buildings, and there is no reason to impose any restriction on the business among them.

However, even if the sale plan (or the sale advertisement) did not pre-designated the use of each commercial building, the designation of the type of business at the time of the conclusion of the individual sale contract between the seller and the buyer (the "specific type of business" of the defendant's assertion) is not prohibited, as long as the specific type of business is not prohibited, the contents of Article 6 of the contract of this case are analogically applied to the determination of the contents of the business restriction obligation between the buyer and buyer when the specific type of business is specified in the individual sale contract (the individual sale contract of this case does not have any reason to specify the recommended type of business in the individual sale contract). Thus, it is consistent with the intent of the buyer of this case (the individual sale contract of this case does not have any reason to specify the recommended type of business in the individual sale contract of this case). In addition, since the contract of this case does not have any reason to recognize the business restriction obligation for the seller and buyer, it cannot be said that there is no reason to impose any specific type of business among the plaintiff and the defendant's specific type of business.

B. Determination on the claim for damages

(1) The plaintiff suffered losses of 4.8 million won per month from September 30, 2003, which the plaintiff opened a Taekwondo hall by infringing the plaintiff's business due to the defendant's violation of the duty of restricting the business, (80,000 won per month for the 60 students of Taekwondo ground operated by the non-party 3, the lessee of the defendant). The plaintiff is entitled to first claim KRW 100,000,000,000,000 per month.

(2) Comprehensively taking account of the overall purport of the pleadings in the statement No. 3 and No. 7 of Dop, Nonparty 3 may recognize the fact that Nonparty 3 operated the Taekwondo hall in the vicinity of the building of this case and moved to the above No. 412, which he leased from the defendant, and operated the Taekwondo hall in the center of the previous original students. According to the above facts, even if Nonparty 3 did not operate the Taekwondo hall in the commercial building of this case, it cannot be said that all the existing original students of Nonparty 3 were registered as the original students of the Taekwondo hall operated by the plaintiff. Thus, it cannot be concluded that the tuition fees that Nonparty 3 received from the original students cannot be the plaintiff's damages immediately, and furthermore, it cannot be concluded that damage was caused only on the ground that the business of the same kind of commercial building of this case was carried out by the defendant, and there is no other evidence to recognize that the damage was caused to the plaintiff due to the violation of the defendant's business restriction obligation.

3. Conclusion

Therefore, the plaintiff's claim for damages of this case is dismissed as it is without merit, and it is reasonable to accept the claim for damages of this case, and the judgment of the court of first instance which dismissed the plaintiff's claim for damages of this case is just, and the plaintiff's appeal is dismissed as well as the defendant's business prohibition is ordered as stated in Paragraph 2 of this case according to the added claim for business prohibition. It is so decided as per Disposition.

Judges, legal aid (Presiding Judge)