Plaintiff (Law Firm, Kim & Lee, Attorneys Yoon Sung-chul et al., Counsel for the plaintiff-appellant)

DPK Co., Ltd. (Law Firm KCEL, Attorneys Ansan-sik et al., Counsel for the defendant-appellant)

February 25, 2010

Seoul Central District Court Decision 2008Gahap85654 Decided July 17, 2009

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 1,866,57,398 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows: (a) of the first instance court's judgment No. 2, No. 2, No. 2, 1. A, the Defendant changed "the brand "the Dominian" to "the respondent who is the Dominianian" and his related products"; (c) add A No. 8, 9, and 12 to the third [the ground for recognition]; and (d) add the following judgments as to the plaintiff's argument at the trial of the court of the first instance, it is identical to the entry of the grounds for the judgment of the first instance in accordance with Article 420 of the Civil Procedure Act.

2. Additional determination

A. The part concerning the illegal reversal of the contract

Even if the plaintiff's right to request renewal is not recognized to be justified, in order to recognize the legitimacy of the termination of the franchise agreement by the defendant, the ground for rejection of renewal must be recognized, and the plaintiff's request for acceptance of the franchise store also includes the transferor's intent to maintain the contract for a considerable period of time, and thus, the defendant's right to request renewal of the contract is also included. However, there is no ground to deem that the right to request renewal of the contract is restricted as alleged by the plaintiff, and the renewal of the contract is based

B. Part on the assertion of unfair trade practices regarding the purchase of raw and secondary materials

Although the items of the raw and secondary materials to be purchased from the defendant are not recognized as goods objectively necessary to maintain the identity of the product, it constitutes an unfair trade practice and it is illegal to force the purchase of them. The defendant asserts that the plaintiff suffered damage by forcing the plaintiff to purchase the goods that are not necessary to maintain the identity of the product. However, the statement of No. 50 through No. 52 (including the number of pages) and the testimony of Non-Party 2 of the witness of the trial court, each of No. 13, No. 1, No. 25, No. 27 (including the number of pages), and Non-Party 3's testimony of the witness of the trial court of the first instance, it is insufficient to recognize the plaintiff's above assertion, and there is no other evidence to acknowledge it, and the above assertion is not reasonable.

C. The part on the assertion of unfair coercion against advertising expenses

The plaintiff asserts that the Fair Trade Commission ordered the defendant to take corrective measures on the portion of advertising expenses in the franchise agreement, and that the defendant did not share advertising expenses at the same rate as the owner of the franchise business.

According to the statement in Gap evidence No. 49, in the process of examining the terms and conditions of the Fair Trade Commission around September 2009, the defendant voluntarily revised the part of the defendant's franchise agreement that " Eul shall pay 3.5% (excluding VAT) of the royalty sales to Gap (the defendant) in the form of NAF (National Advertising Fund) in the form of NAF. However, the defendant's franchise agreement that "A and Eul shall create 3.5% (excluding VAT) of the royalty sales in the form of NAF (National Advertising Fund)," but the plaintiff and the defendant agreed to share the advertising expenses planned by the defendant in the advertising expenses agreement in this case. The defendant changed the advertising expenses ratio from time to time, and the plaintiff's written consent was made. Thus, even if the defendant voluntarily revised the franchise agreement was included in the franchise agreement in the existing franchise agreement concluded between the plaintiff and the defendant, it is difficult to view the part of the advertising expenses in excess of the amount of the advertising expenses paid to the plaintiff's revenue and loss statement management account.

D. Plaintiff’s assertion regarding consent to advertising expenses, etc.

The plaintiff alleged that the plaintiff, a franchise business owner, could not refuse the defendant's request because it could be disadvantaged if the plaintiff did not comply with the defendant's request for the increase of advertising fees, etc., but the testimony of the non-party 2 of the witness at the trial alone is insufficient to recognize the plaintiff's above assertion. The plaintiff's assertion on this part is without merit because there is no evidence

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Chang-chul (Presiding Justice)