1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The first instance court.

1. Basic facts

A. From April 12, 2013 to March 20, 2017, the Defendant operated the beauty art room (hereinafter “instant beauty art room”) with the trade name of “D” from approximately 20 square meters in the first floor store among the fourth-story buildings on the land of Incheon Nam-gu, Incheon Metropolitan City.

B. On March 4, 2017, between E and E, the owner of the above store, the Plaintiff entered into a lease agreement (Evidence 1) with E to lease the above store, and on March 2017, between the Defendant and the Plaintiff, the Plaintiff entered into an oral contract with the Defendant to take over KRW 5,000,000 for premiums (hereinafter “instant contract”).

C. On March 20, 2017, the Plaintiff paid the full amount of KRW 5,00,000 to the Defendant, and changed the trade name of the said store, facility, and equipment from the Defendant to “F” (Evidence 5) and then operated beauty room business by changing the signboard and telephone number around that time.

(No. 4) d.

On March 24, 2017, the Defendant leased 229 meters away from the instant beauty room to 34.61 meters away from the 3rd floor of the building on the Nam-gu Incheon Metropolitan City G ground, Nam-gu, and operated a beauty room by opening a beauty room with the trade name “D” from around that time.

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 2-3 and 3-5, Eul evidence 5, the video of Eul evidence 4, the purport of whole pleadings

2. Determination on the claim for damages due to violation of Article 41(1) of the Commercial Act

A. The plaintiff's assertion that the plaintiff's existing business was transferred to the plaintiff under the contract of this case, and thereby has the duty to prohibit competitive business under Article 41 (1) of the Commercial Act. However, since the plaintiff operated the same kind of business in neighboring areas after the transfer of business, the plaintiff is obligated to pay 10,000,000 won in total as damages for non-performance of obligation (i.e., consolation money of KRW 5,00,000,000 for premium paid to the defendant) and damages for delay.

B. Determination as to whether the instant contract constitutes a transfer of business