209Gahap22900 Business Prohibition, etc.

YellowA (57 years old, women)

Attorney Yu-ju, Counsel for the plaintiff-appellant

1. KimB (51 year old, female);

2. grandchildren 1 (58 years old, 58 years old, 100); and

[Judgment of the court below]

April 7, 2010

April 21, 2010

1. All of the plaintiff's claims are dismissed.

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

청 구취 지피고들은, 1. 부산에서 2008. 12. 16.부터 10년간 음식점 영업을 하여서는 아니되고, 2. 부산 동구 좌천동 에서 경영하는 (◆)의 영업을 폐지하며, 3. 연대하여 원고에게 금 19,000,000원 및 이에 대하여 이 사건 소장 부본 송달 다음날부터 완제일까지 연 20%의 비율에 의한 금원을 지급하라.

1. Facts of recognition;

A. Defendant KimB was engaged in the restaurant business that sells cream, swine cream, etc. in the store located in the Dongcheon-dong, Busan. On December 15, 2008, the Plaintiff agreed to take over the above restaurant's facilities and equipment at KRW 19 million from the above Defendant on December 15, 2008 (hereinafter "the transfer/acquisition agreement of this case") after paying the above price (hereinafter "the Plaintiff restaurant") and then operates the restaurant in the same trade name (hereinafter "the Plaintiff restaurant").

B. In the Plaintiff restaurant’s 200 meters away from the Plaintiff restaurant, the Defendant restaurant sold duckss, spawns, and pigss, etc. from September 2009. However, since around September 2009, the Plaintiff’s Babn, Defendant KimB’s Bab, the Plaintiff’s Babn and the Defendant’s Babn, the Defendant’s Babn.

[Ground for Recognition: Facts without dispute, Gap evidence 1, 2, 4, Eul evidence 1 through 7, and Eul evidence 9 (including a branch number if there is no separate proof; hereinafter the same shall apply) and the purport of the whole pleadings]

2. Judgment on the plaintiff's assertion

(a) Contents of the assertion;

(1) Defendant KimB has lent the name of Defendant KimB1 to operate the same kind of Defendant restaurant as that of the Plaintiff’s restaurant, and Defendant KimB1, the name of Defendant KimB and the name of business registration, shall not engage in the restaurant business of the same kind as that of the Plaintiff restaurant in Busan, which is the same Metropolitan City for ten years from the date of the above business transfer pursuant to Article 41 of the Commercial Act, and shall discontinue Defendant KimB’s restaurant business. The above obligation to pay the consolation money for mental suffering of the Plaintiff due to the violation of the obligation to stop the business.

(2) In addition, Defendant KimB, at the time of the instant transfer and acquisition agreement, came to be the business of the Plaintiff restaurant, and he was reappointed in mass, and thus, he was found to have no intention to engage in restaurant business in the vicinity of the Plaintiff restaurant. However, after the instant transfer and acquisition agreement, he borrowed the name of Defendant BaB1, or operated the Defendant restaurant in the same manner as Defendant BaB1 and Defendant BaB1. Since the instant transfer and acquisition agreement was concluded by the said deception or the Plaintiff’s mistake, the Plaintiff revoked it, the Defendants are obligated to return KRW 19 million to the original state.

B. Determination

(1) ① Even according to the Plaintiff’s assertion, Defendant DamageB1 does not have a duty to refuse the Plaintiff’s assertion unless the transferor of the transfer agreement of this case is not the transferor of the transfer agreement of this case. ② The functional property as an organic whole organized for the business purpose is transferred en bloc with the maintenance of identity. The transfer agreement of this case is insufficient to recognize the transfer and takeover agreement of this case as the transfer and takeover agreement of this case, and there is no other evidence to acknowledge it. In addition, as seen in the Plaintiff’s assertion that Defendant KimB operated the same kind of Defendant restaurant as that of the Plaintiff’s restaurant, it is difficult to believe that the entry of the Plaintiff’s evidence No. 6 is difficult, and it is insufficient to acknowledge it only with the descriptions and images of the evidence No. 3, 5, 7, and 9, and there is no other evidence to acknowledge it. The Plaintiff’s assertion of

(2) In addition, this part of the Plaintiff’s assertion against Defendant BaB1, who is not the transferor of the transfer agreement of this case, concerning the claim for the return of the price due to deception or mistake, is without merit, and there is no evidence to acknowledge the deception or mistake of the Plaintiff’s assertion, and this part of the assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

Judges of the presiding judge, Kim Dong-ho

Judges Senior Byung-in

Judges Kim Gin-man