Plaintiff 1

Plaintiff 2 (Attorney Park Young-chul, Counsel for plaintiff-appellant)

Gyeong Faz. (Law Firm Wulul, Attorneys Park Young-man et al., Counsel for the plaintiff-appellant)

September 5, 2018

Daegu District Court Decision 2015Da115937 Decided February 27, 2018

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. All of the plaintiffs' claims corresponding to the above revocations are dismissed.

3. The plaintiff 2's appeal is dismissed.

4. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

① The Defendant: (a) performed the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed under Article 28123 on June 28, 2012 with respect to the area of 982 square meters prior to Busan Metropolitan City ( Address 1 omitted); and (b) made to Plaintiff 2 the purport of the claim and the purport of the application for modification of the cause of the claim, stated as of December 31, 2013 (the purport of the claim as of August 21, 2016, stated as of December 31, 2014; (b) in light of the content of the cause of the claim, it appears to have been written in writing as of December 31, 2013) to August 21, 2016, the Defendant shall pay the amount calculated at the rate of 5% per annum from the following day until the delivery date of a duplicate of the application for modification of the cause of the claim and the claim until the full payment date.

2. Purport of appeal

A. Plaintiff 2

Of the judgment of the court of first instance, the part against Plaintiff 2 that orders payment under the following subparagraphs shall be revoked. The defendant shall pay to Plaintiff 2 61,325,60 won with 5% interest per annum from December 31, 2013 to the delivery date of a duplicate of the petition of appeal of this case, and 15% interest per annum from the next day to the date of full payment.

B. Defendant

The same shall apply to the order.

1. Basic facts

A. On June 1, 2012, Plaintiff 2 entered into a lease agreement with the Ulsan-gun ( Address 2 omitted) Special Metropolitan City Industrial Complex (hereinafter “instant industrial complex”) with respect to 301.19 square meters (hereinafter “instant store”) of 2 lots of Cdong underground (cafeteria and store store) in Ulsan-gun (hereinafter “instant industrial complex”) (hereinafter “instant industrial complex”), with the term of lease from June 1, 2012 to May 31, 2017; and Plaintiff 2 entered into a lease agreement with respect to free use for five years by bearing all construction expenses.

B. On June 5, 2012, Plaintiff 2 entered into the “CU △△△△△△△△△△△△△△△,” and opened and operated a store from July 1, 2012, after which the Defendant changed the business mark into “CU (CU)” (hereinafter “instant contract”). On August 2012, Plaintiff 2 entered into a new contract with the same content as the previous one (hereinafter “instant contract”). The main content of the instant contract is as follows.

(1) Article 4 (Independence of Parties to Contracts) (1) Each franchiser and franchisee shall carry out the functions of managing cU points on the basis of the rights and obligations stipulated in this Agreement, and shall not have any special relationship between the franchiser and the franchise business operator, such as acting for each other, delegation relationship, employee relationship, and partner relationship. (2) Each franchisee shall, at his/her own expense and at the same time, prepare for the following matters at his/her own expense. (3) Each franchiser shall prepare for the execution of this Agreement before the opening of the Agreement with the franchiser with respect to the settlement of obligations of its franchisees. (4) Each franchiser shall prepare for the settlement of obligations of its franchisees within the fixed period of seven (0) days from the date on which the franchiser executes the Agreement for the first settlement of obligations of its franchisees. (5) Each franchiser shall present the Agreement for the settlement of obligations of its franchisees within the fixed period of seven (7) days from the date on which it executes the Agreement for the settlement of obligations of its franchisees. (3) Each franchiser shall present the Agreement for the settlement of obligations of its franchisees within the latest.

C. On June 27, 2012, in accordance with the instant contract, Plaintiff 2 entered into a mortgage agreement with the obligee and the mortgagee of the right to collateral security regarding the size of 982 square meters, which is the husband, in order to secure the performance of all the obligations arising in the future pursuant to the said contract and the agreement related thereto, with the obligee and the mortgagee of the right to collateral security, who are the husband, for the purpose of securing the performance of all the obligations arising in the future, and entered into the mortgage agreement with the Defendant, the debtor, the obligor, the Plaintiff 2, and the mortgagee of the right to collateral security at KRW 50 million. On June 28, 2012, the registration of the establishment of the right to collateral security was completed by the Busan District Court No

D. However, the instant store was a building that constitutes a site for industrial facilities within the ○○ Industrial Complex, and thus, was unable to operate and profit from the sales facility including outside persons who are not the premises of employees pursuant to Article 2 Subparag. 7 of the Enforcement Rule of the Industrial Cluster Development and Factory Establishment Act and Article 12 of the occupancy contract (sale in lots). Accordingly, on July 31, 2012, Ulsan Metropolitan City notified the lessor of the corrective order to the effect that the instant store will be subject to measures, such as compulsory removal of the object, report on completion of factory construction, postponement of transfer of ownership, redemption, etc., if the said store is not implemented by August 31, 2012.

E. Around August 2012, Plaintiff 2 continued operating a CU signboard and continued to operate the business. However, Plaintiff 2’s business was suspended on December 29, 2013, when Plaintiff 2 had filed a civil petition with the competent agency on the ground that the civil petition was filed with the competent agency and obstructed external entrance and exit.

F. From December 31, 2013 to several times, the Defendant sent a certificate of content to urge Plaintiff 2 to return to the place of business and implement the franchise agreement normally. However, Plaintiff 2 notified Plaintiff 2 that the instant contract will be terminated as of July 31, 2014, and demanded reimbursement of KRW 39,025,565 as the final settlement amount.

G. Meanwhile, on January 20, 2014, Plaintiff 2 sent to the Defendant a certificate of content that the instant contract was terminated on the ground that the instant contract was not fulfilled due to the Defendant’s fault.

[Ground of recognition] Facts without dispute; Gap evidence Nos. 1 through 6, 12 (including branch numbers in case of additional numbers; hereinafter the same shall apply); Eul evidence Nos. 1 through 7, and 9; the court of first instance's inquiry into the Ulsan Metropolitan City Mayor at the court of first instance; the purport of the whole pleadings;

2. The parties' assertion

A. The plaintiffs' assertion

Since Nonparty 1, an employee of the Defendant, did not have any legal defects in the establishment of the instant store after investigating and examining the legal issues necessary for the establishment of the instant store, Plaintiff 2 entered into a lease agreement with the seaman industry and operated the instant store. Since the said establishment place is a place where the operation of sales facilities for outside persons is not permitted under the law, Plaintiff 2 inevitably closed the instant store without any choice to avoid administrative sanctions in Ulsan Metropolitan City. Plaintiff 2 notified the Defendant on January 20, 2014 on the ground that the purpose of the instant contract could not be achieved due to the Defendant’s fault, and accordingly, the instant contract and the instant mortgage contract were terminated. Plaintiff 2 was suspended from business due to the Defendant’s erroneous selection of location, and for 60 months during the instant contract period, Plaintiff 2 did not carry on business for 18 months during the instant contract period, and the remainder of 42 months during the instant contract period, the Defendant was obligated to recover KRW 150 million from the Plaintiff’s account and 75 million out of 7.5 million.

In addition, the mortgage contract of this case was terminated as above, and there was no debt secured by the mortgage of this case, so the defendant is obligated to cancel the registration of establishment of the mortgage of this case to Plaintiff 1.

B. Defendant’s assertion

Since the contract of this case was terminated due to the suspension of business without any justifiable reason by Plaintiff 2, the Defendant did not have any liability for damages against Plaintiff 2. Rather, Plaintiff 2 has no liability for damages against the Defendant. Rather, Plaintiff 39,025,565 won [3,075,60 won for the removal and repair of office fixtures + KRW 550,000 won + KRW 29,267,142 won + KRW 29,266,264 + KRW 1,156,264 for monthly sales profit + KRW 1,56,264 for the remainder of office fixtures + KRW 10,567,711 for the settlement account - KRW 5,591,152 returned to Plaintiff 2], and as to the mortgage of this case, the claim of the Plaintiffs is remaining on different premise, all of which are without merit.

3. Determination

A. First, we examine whether the instant contract has been terminated due to reasons attributable to the Defendant.

The case holding that Article 4 of the contract of this case provides that the franchisor and the franchisee shall operate the store at their own responsibility and charge and settle disputes with the customer at their own expense, and Article 12 provides that the franchisee shall acquire the qualifications, authorization, etc. under the law, such as opening stores and business registration and designation of tobacco retailers, and that in principle, the liability for the examination and selection of the store location is clearly made to the Plaintiff 2, who is the franchisee. ② The store of this case was newly constructed under the contract of this case, and that the defendant proposed the establishment of the store within the industrial complex of this case, and that it is difficult for the plaintiff 2 to find that it is difficult for the plaintiff 2 to establish the store within the industrial complex of this case because it is difficult for the plaintiff 2 to find that there is no other duty to inform the plaintiff 2 of the establishment of the establishment of the store of this case by constructing the building of this case and supplying it to the plaintiff 2 within the industrial complex of this case.

Therefore, Plaintiff 2’s assertion based on the premise that the Defendant intentionally or negligently violated the duty under the instant contract is without merit.

B. Plaintiff 2 violated the obligation to cooperate with the Defendant in verifying the propriety of the commercial zone and location in the process of determining the store of this case and prior consultation therefor, and did not provide information disclosure statement, the current status of neighboring member shops, and information on future expected profit-making situations in violation of the Fair Transactions in Franchise Business Act. Thus, Plaintiff 2 is also liable for damages arising from nonperformance or tort. However, the evidence submitted by Plaintiff 2 alone is insufficient to recognize that the Defendant breached the obligation as alleged by Plaintiff 2, or incurred damages as alleged by the Plaintiff 2, as alleged by the Plaintiff 2, and there is no other evidence to acknowledge it. Thus, Plaintiff 2’s aforementioned assertion is without merit.

C. Meanwhile, the instant right to collateral security has secured the Defendant’s obligation under the instant contract. As long as it is difficult to recognize that the instant contract was terminated due to the Defendant’s nonperformance as alleged by the Plaintiffs, Plaintiff 1’s claim premised on the fact that there was no secured obligation under the instant right to collateral security, is without merit without further examining.

4. Conclusion

Therefore, the plaintiffs' claims shall be dismissed in its entirety due to the lack of reasonable grounds. Since the part against the defendant in the judgment of the court of first instance is unfair with different conclusions, the part against the defendant in the judgment of the court of first instance which accepted the defendant's appeal and revoked the part against the defendant in the judgment of the court of first instance, and all of the plaintiffs' claims against the cancellation part shall be dismissed, and it

Judges higher than judges (Presiding Judge) Kim Dong-dong et al.