2014Gaz. 12303 Claims for the prohibition of competitive business

① Voluntary demotion

Essung simuls

Law Firm Song-sung, Counsel for the defendant-appellant

Attorney Lee Jae-ju

B

Suwon-si

Attorney Kim J-young, Counsel for the plaintiff-appellant

July 24, 2015

September 25, 2015

1. The defendant shall not directly conduct the restaurant business or have a third party conduct the restaurant business by June 10, 2024 in the area of Suwon-si, Suwon-si.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The disposition No. 1 and the defendant shall pay to the plaintiff 35,00,000 won and the amount calculated by the ratio of 20% per annum from the day following the day of service of the application for modification of the claim and the cause of the claim of this case to the day of complete payment.

1. Basic facts

A. Contracts for the transfer of restaurants between the plaintiff and the defendant

(1) From February 2014, the Defendant has operated a restaurant (hereinafter “instant restaurant”) that sells food, such as making soup and making soup, in the name of “○○○○○○○○○○” in Suwon-si, Suwon-si, which was specialized in the name of “○○○○○”.

(2) On June 10, 2014, the Plaintiff agreed to acquire all of the facilities of the instant restaurant from the Defendant for a premium of KRW 10 million (hereinafter “instant contract”) and on the same day, paid KRW 14 million to the Defendant for a premium of KRW 10 million, and received the instant restaurant from the Defendant. The Plaintiff was also transferred the Defendant’s status as a replacement.

( 3 ) 원고는 2014 . 6 . 10 . 부터 이 사건 음식점의 시설 등을 활용하면서 상호와 간판 을 ' □□ □ □□□□□ ' 로 변경하여 꼼장어 , 아나고 , 서대구이 , 생새우탕 , 꽃게찜 등을 판매하는 음식점 영업을 시작하였다 .

(b) The restaurant business of the defendant side;

On August 18, 2014, the Defendant opened a restaurant that sells a soup, making soup, etc., with the name of 55 meters away from the restaurant of this case from the restaurant of this case, “○○○○○○○○○” in the name of the Defendant’s Dong-si around August 18, 2014. On March 23, 2015, the Defendant closed ○○* OOOO.

[Ground for recognition] Unsatisfy, Gap evidence Nos. 1, 2, 5, 6, 10, 11, Eul evidence Nos. 1, 2, 4, 7, 11, and 13, Gap evidence and video Nos. 1, 2, 4, 7, 11, and 13 (including each number number; hereinafter the same shall apply), witness's testimony, and the purport of the whole pleadings

2. Parties’ assertion

A. The plaintiff 1:

Although the contract of this case constitutes a transfer of business under the Commercial Act and the defendant bears the duty of prohibition of competitive business against the plaintiff pursuant to Article 41 (1) of the Commercial Act, the defendant violated this and operated '○○* OOOO' at a place 55 meters away from the restaurant of this case.

① Therefore, the Defendant shall not engage in restaurant business for ten years from June 10, 2014 where the Plaintiff acquired the Defendant’s restaurant business. ② The Defendant is liable to compensate for damages arising from the decline in sales due to the Plaintiff’s breach of the Defendant’s duty of prohibition of competitive business for damages arising from KRW 25 million and for damages arising from emotional distress.

(b) Defendant;

It is not a contract that transfers itself, but not a business transfer under the Commercial Act. '○○* ○○○○○○○' is not a defendant but a her infant, so the defendant does not bear any liability against the plaintiff.

3. Determination as to the claim for prohibition of competition

Article 41 (1) of the Commercial Act provides that "No transferor shall engage in the same kind of business in the same Special Metropolitan City, Metropolitan City, Si, Gun, and neighboring Special Metropolitan City, Metropolitan City, Si, or Gun for 10 years unless otherwise agreed upon in the case of transfer of business." The business stipulated in the above provision refers to a functional property as an organic integration under a certain business purpose. The term "functional property" in this context functions as a source of profit by combining the facts of the type, intangible, and economic value comprising the business in an organic combination with each other. As such, the issue of whether the transfer of business can be deemed to have been done is that the defendant's functional property as a source of profit is the same as that of one goods, and the defendant's transfer of business from the transferee to the same place of profit cannot be deemed to have continued to have been carried out by the transferor (the criteria for determining the transfer of business in this case's transfer of business to the same person cannot be deemed to have been carried out by the defendant's transfer of the same business as that of one goods.

Therefore, pursuant to Article 41 (1) of the Commercial Act, the defendant as the transferor of the business bears the obligation to prohibit the competitive business within a certain area as to the plaintiff who is the transferee, and the plaintiff bears the obligation to prohibit the competitive business.

As the defendant is generated when business activities can be conducted by being transferred from the defendant pursuant to the contract, the defendant shall not have the principal or a third party operate the restaurant business in the area of Suwon-si, as requested by the plaintiff for 10 years from June 10, 2014 to June 10, 2024 when the plaintiff acquired the restaurant of this case.

In addition, the defendant's major mail Newcom in the vicinity of the restaurant of this case constitutes a violation of the duty of prohibition of competitive business. Accordingly, the defendant is running ○○○○○○○○○○, which is registered as a business operator, and the defendant does not have any part in this case, but it is insufficient to determine the fact that he is actually operating ○○○* ○○○○○○○○○○○, by only the descriptions of Nos. 9 and 10 are not sufficient to determine the fact that he is actually operating ○○○, and there is no other evidence to recognize it. Rather, in full view of the purport of the testimony and pleading of ○○○○○○○, as recognized in the above basic facts, it is reasonable to view that the defendant is operating ○○○○○○○○○○○, as it was recognized in the above basic facts. Therefore, the above argument by the defendant is not acceptable.

4. Determination on the claim for damages

A. Determination as to a claim for property damages

The plaintiff asserts that he suffered property loss equivalent to KRW 25 million in the amount of sales reduction due to the defendant's violation of the duty of prohibition of competitive business. However, in light of the size of the restaurant in this case and the user's ability, etc., the sales can be affected by internal factors, such as the operator or employee's ability, and it cannot be concluded that the decrease in sales of the restaurant in this case is caused by the defendant's violation of the duty of prohibition of competitive business. In light of the fact that each of the items of evidence Nos. 7, 8, 9, 12, and 13 alone, it is sufficient to recognize that the plaintiff suffered property loss due to the plaintiff's opening of the business, or that the loss amount reaches KRW 25 million, and there is no other evidence to recognize this otherwise. Therefore, the plaintiff's assertion is without merit.

B. Determination as to claim for mental damage

The plaintiff asserts that the plaintiff suffered mental loss at the level of KRW 10 million due to the defendant's violation of the duty of prohibition of competition.

In general, in cases where property damage was caused by a nonperformance of contractual duties or a tort, the mental suffering that the party suffered is deemed to be recovered by compensating for property damage. As such, there are special circumstances that the compensation for property damage caused an irrecoverable mental suffering, and where the other party has known or could have known such circumstance, the consolation money for mental suffering may be recognized only if the other party was aware of or could have known such circumstance. Furthermore, the probability of property damage should be limited to the amount that would be the victim’s mental suffering due to nonperformance of contractual duties or a tort. Therefore, it is not allowed to seek to compensate for property damage in fact by ordering the party to pay a certain amount uniformly under the pretext of consolation money in cases where property damage can be determined (see Supreme Court Decision 2007Da18959, Dec. 13, 2007). It is more true in cases where proof of the occurrence of property damage is insufficient (see Supreme Court Decision 101Da10857, Jan. 16, 2014).

With respect to this case, it is common to recover the mental distress suffered by the plaintiff due to the defendant's violation of the duty of prohibition of competitive business. On the other hand, it is reasonable to view that the plaintiff can assert and prove the plaintiff's property damage due to the defendant's violation of the duty of prohibition of competitive business in the manner of estimating the plaintiff's profits before and after the commencement of business based on the profits of the plaintiff, or claiming or proving the difference between the plaintiff's operating profits or net profits before and after the commencement of the business. Thus, it is not allowed for the plaintiff to seek the compensation of property damage under the pretext of consolation money unless it proves the above assertion and proof.

Therefore, in order to accept the consolation money for mental suffering suffered by the plaintiff due to the defendant's violation of the duty of prohibition of competition, the compensation for the property damage suffered by the plaintiff cannot be returned to the court, and the other party should be recognized to have known or could have known such circumstance, and there is no evidence to acknowledge it, and therefore, this part of the plaintiff's claim seeking consolation money for mental damage is without merit.

5. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and it is dismissed as it is without merit. It is so decided as per Disposition.

Justices Kim Jong-soo

Judges Kim Jong-sung

Judge Jeon Jae-soo