2010 Gohap2803 Compensation (as referred to in this paragraph)

Article 60 (Prisoners, Males)

Essung simuls

Law Firm Jung-tae, Attorney Jung-soo

Attorney Lee Lee-hoon

1. Clerks ○○ (OO on October 29, 1970)

2. Maximum ○○ (the life of 1964, 12, 31.)

Defendant 1, 2’s address acceptance-si district

3. Maap○○

Essung simuls

4. ZO (48 years old, male);

Gangseo-gu Seoul Metropolitan Government

5. Audit by ○○ (55 years old, male);

Guang-si

6. Former ○○ (65 years old, male)

Gangnam-gu Seoul

7. Former suspender (60 years old, male);

Ansan-gu

Defendant 4 through 7’s Attorney Ha-○, Counsel for the defendant-appellant

July 13, 2010

August 24, 2010

1. The plaintiff's claim against the defendant SO), MaO, and Man○ is dismissed, respectively.

2. The delivery of real estate stated in the separate sheet from the Plaintiff, on the part of Defendant Gangnam ○○, a strong type, a pre-use, and a pre-use.

at the same time, each plaintiff shall be paid KRW 975, 100,000.

3. The plaintiff's remaining claims against defendant Kang-O, Gangnam-type, Jeon Soo-○, and Jeon Soo-tae are dismissed, respectively.

4. Of the costs of lawsuit, the part arising between the Plaintiff, Defendant UOO, the largest ○○, and leap○○ is the Plaintiff, and the Plaintiff

Section 1/2 of the parts arising between Defendant Gangnam-○, ○, ○○, ○○, and ○○○, and the remainder

Defendant Gangwon-do, ○○, Do○, Do○, and Do○ Constitution are each borne by each of them.

5. Paragraph 2 can be provisionally executed.

The purport of the claim against the primary defendant SOO, the largest ○○, and leap○: Defendant SOO, the largest ○○, and the leap○○ may not establish a pharmacy in accordance with No. 000 of the fifth floor of the building listed in the attached Table, or let a third party establish a pharmacy on the above water. The above Defendants jointly and severally pay to the Plaintiff the amount calculated by the ratio of KRW 10,00,000 per month from October 1, 2009 to the suspension of the pharmacy business in the above building.

Preliminary Defendant Gangwon-do, Gangwon-do, JeonOO, and Jeon Soo-tae claim: Defendant Gangwon-do, ○○, Gangwon-do, Jeon Soo-do, and Jeon-do, Jeon Soo-do shall jointly and severally pay to the Plaintiff 1,015, 100, 000 won, and the amount equivalent to 20% per annum from the day following the day of service of a copy of the complaint of this case to the day of full payment.

1. Basic facts

A. On October 13, 2006, Park Jong-chul entered into a contract with the defendant Gangnam-gu, Gangnam-gu, Jeondae-gu, Jeon Soo-dong, and Jeon-dong (hereinafter referred to as the "Defendant seller"), designating No. 000 as a pharmacy type of business, and "other stores except for No. 000 of the first floor of the commercial building of this case shall not be repeatedly sold or leased to a pharmacy, and at the time of the violation, the amount of the deposit shall be refunded to the pharmacy (hereinafter referred to as the "the special agreement of this case"). On October 31, 2006, the plaintiff acquired the status of the seller of this case and the seller of this real estate (hereinafter referred to as "No. 00 Ra"), and on October 31, 2006, the plaintiff acquired the status of the seller of this case from the above seller of this case on October 10, 207.

B. The Plaintiff and the head of the above Park ○-dong purchased No. 000, and thereafter, they have established and operated a pharmacy in the above store until now.

C. Meanwhile, on November 27, 2006, Defendant SOOO and ○○○○ entered into a sales contract with Defendant buyers on the building No. 000 of reinforced concrete structure No. 97 2mi (hereinafter “No. 000”) listed in the attached Table No. 5 floor No. 000. 2mi (hereinafter “No. 000”) and the above No. 000 had the lessee operate the Baduk by leasing the above products through Defendant buyers until May 2009, and around September 2009, Defendant Pap○○ established and operated a pharmacy by leasing the above No. 000 on around September 27, 2009. 【Grounds for recognition】 There is no dispute over the facts that Defendants A. 1, 2, and 4(a) and No. 1, 1, and 1.

The purport of the whole

2. The parties' assertion

① At least 00,00,00 commercial buildings, excluding 00,000 commercial buildings of this case, were sold around 00 to 0,00 won by Defendant buyers, and at least 10,00 commercial buildings were sold to 0,00,000, respectively. Defendant ScC and MaO is prohibited from opening a pharmacy or allowing a third party to set up the above building. Defendant ○○ is also obligated to comply with the agreement on the restriction of the above type of business. Thus, the above Defendants should not establish a pharmacy from 00 to 00, or have a third party set up a pharmacy from the above building, and they should not pay 00,000,000 won to the Plaintiff until the suspension of the establishment of the pharmacy, and the Plaintiff may enter into a preparatory special agreement with Defendant 0 and 100,000,000,000 won, which are losses to the Plaintiff’s exclusive buyers and 10,000,000 won.

In this regard, Defendant SOO, ○○○, and Maap○ claimed that the sales contract for No. 000 does not include the content of the restriction on the type of business and the prohibition of competitive business. As such, Defendant SOO, the largest CO is a sale of a commercial building without the agreement of the restriction on type of business, and that the agreement between the Plaintiff and the seller of the Defendant cannot have any effect on the above Defendants. Thus, the Plaintiff’s primary claim is without merit.

Meanwhile, unlike the general category of business restriction agreement, the Defendant seller bears only passive obligations between the Plaintiff and the Defendant seller to sell or rent the instant commercial building for the purpose of pharmacy use. Thus, the Defendant seller does not have a duty to actively ensure that he does not operate the instant commercial building with respect to other stores of the instant commercial building for the purpose of pharmacy use. The Defendant seller was delegated the right to lease most of the instant commercial building to the buyer for the purpose of pharmacy use. Thus, the Plaintiff could be able to ensure that he actually opens the instant commercial building for the purpose of 00 by not leasing other stores of the instant commercial building for the purpose of pharmacy use. In accordance with the instant special agreement, the Plaintiff could operate a pharmacy exclusively from the instant commercial building up to the pre-registration fee for the pre-registration fee for the ownership of No. 00 in the instant commercial building, and the Plaintiff could not be able to perform the duty to notify the sale of the instant commercial building to Defendant POOO and POOOOOO and the Plaintiff at the time of the sale.

3. Determination as to the claim against the primary defendant O, the largest ○○, and leap○

Inasmuch as it is reasonable to view that the owner of a commercial building constructed a commercial building, and then purchased the status of both parties after setting the types of business for each shop and selling it in lots, or the lessee of the shop agreed to accept the obligation of restrictions on the type of business under mutual impliedly agreed in the sales contract in relation to the shop occupants, barring any special circumstance, it shall be deemed that there is a duty to comply with the mutual agreement on restrictions on the type of business under mutual agreement. Therefore, in cases where the transferee of the status of the shop buyer, lessee, etc. violates the agreement on restrictions on the type of business set forth in the sales contract, etc., any person whose business interest is infringed on by this reason shall claim for the

There is right (see Supreme Court Decision 2004Da20081 decided September 24, 2004, Supreme Court Decision 2004Da20081 decided July 4, 2006, Supreme Court Order 2006Ma164 decided July 4, 2006, etc.).

In light of the above legal principles, the fact that the special agreement of this case was entered into between the Plaintiff and the seller of this case was examined in the above facts. However, in order for the Plaintiff to seek the prohibition of opening and operating a pharmacy from Defendant Seo-gu, ○, ○○, and Ma○○, the Plaintiff should include the agreement on the designation of the type of business or restriction of the type of business at the time of selling the store from the Defendant, including: (a) there was an agreement on the restriction of the type of business between the shop occupants of this case, including the agreement on the restriction of the type of business; and (b) there was an agreement on the restriction of the type of sales contract between the shop occupants of this case, including the agreement on the restriction of the type of business at the time of selling the store in this case by selling the store in this case; and (c) there was an agreement on the restriction of the type of business at least 00 of the sales contract.

The testimony to ○○, which is a documentary evidence consistent with the fact that ○○○, at the time of entering into a sales contract with Defendant 1 and the above stores, agreed not to establish a pharmacy with Defendant 1 at the time of entering into the sales contract, is without any provision on the designation of the type of business or the designation of the type of business or the prohibition of competitive business in the sales contract with Defendant 00 (Evidence 1). According to the management rules of the shopping district in this case, Eul’s statement that there is no provision on the restriction of the type of business as to the store in this case, it is difficult to believe that there is no provision on the restriction of the type of business as to the store in this case under the management rules of the shopping district in this case, in light of the statement in the evidence 2-2, and only evidence 1, 2 and 3 of evidence 1-1, 3 alone.

(2) However, it is sufficient to acknowledge that there was an agreement with the Defendant seller at the time of entering into a sales contract with respect to No. 000 on the content that a pharmacy cannot be established with respect to the above store, and there is no evidence to acknowledge that the sales contract under the above No. 000 includes the promotion of designation of type of business, restriction on category of business, agreement on prohibition of competitive business, etc.

Therefore, solely based on the fact that the Plaintiff received 000 units from the Defendant seller and concluded the instant special agreement, it cannot be said that the Plaintiff had the right to seek the prohibition of opening and operating a pharmacy at the Defendant Seo-○○, the lowest○), and leap○○’s stores at the 000 stores. Therefore, the Plaintiff’s claim against the Plaintiff’s primary Defendants on the premise that the Plaintiff can exclusively establish a pharmacy only at the 000 stores and 000 stores of this case, without any need to further examine the remainder of the claim against the Plaintiff’s primary Defendants.

4. Determination as to the claim on the ancillary Defendant Gangnam, ○○, Gangwon-gu, Jeon Soo-○, and Jeon-tae

A. Judgment on the cancellation of the sales contract

The plaintiff asserts that the defendant-seller will cancel the sale contract for the commercial building No. 000 for this reason, so it is possible for the plaintiff to designate the type of business and make exclusive use of the commercial building of this case prior to the conclusion of the sale contract for the commercial building No. 000, and entered into the special agreement of this case separately from the contract for the commercial building of this case. The above special agreement provides that the defendant-seller will not sell or lease other stores for the purpose of the commercial building of this case to exclusively operate the commercial building No. 000 only from the commercial building of this case and the plaintiff's sale contract for the commercial building of this case. Thus, since the contract for the sale of the commercial building of this case constitutes an agreement for the type of business designation, the defendant-seller merely concludes the contract for the sale of the commercial building of this case to cancel the sale contract for the purpose of the commercial building of this case without notifying the buyer of the sale contract to any other business type different from the existing store of this case's sales contract of this case.

The defendant's duty to make every effort to substantially protect the business rights of the merchants of the existing store by taking measures such as the above shall be deemed to have been borne by the duty to do so (Supreme Court Decision 94Da30867 delivered on September 5, 1995). It is reasonable to view that the defendant's duty not to do so is the main obligation to do so to the extent that it is deemed that the contract was not concluded because the purpose of the contract for sale has not been achieved unless the contract is fulfilled (see Supreme Court Decision 2004Da67011 delivered on July 14, 2005, etc.).

As seen earlier, it is difficult for the Plaintiff to assert the prohibition of the operation of the above store as to this case by selling it to Defendant Seo-gu, ○○, ○○○, and ○○○ in a condition without any restriction as to the operation of the above store, such as the offer of a type of business No. 000 or the prohibition of competitive business. As such, the Plaintiff violated the duty of the prohibition of competitive business, which is the principal obligation between the Plaintiff and the seller of the sales in lots as to No. 000. Thus, the Plaintiff may cancel the sales in lots as set forth in No. 00 on this ground, and the Plaintiff expressed its intention to cancel the sales in lots as set forth in No. 000 with the Defendant buyer at the complaint of this case. Thus, the sales in lots as set forth in No. 000 by the Defendant buyer was cancelled by being served with the copy of the complaint of this case.

B. Determination as to the assertion by the Defendant seller

Unlike the general business sector restriction agreement, the Defendant seller bears only the passive obligation between the Plaintiff and the Defendant’s branch buyers to not sell or lease the other shop of the instant commercial building for the purpose of the pharmacy use. The time of the existence of the obligation is until the time of the transfer of the Plaintiff’s ownership registration under No. 000, and the Defendant buyer actually guaranteed the Plaintiff’s exclusive operation of the Plaintiff’s pharmacy by obtaining the delegation of the authority from the buyer of the instant commercial building and leasing it only for the purpose of the pharmacy for the purpose of use other than the pharmacy, and thus, it does not violate the instant special agreement.

I asserts that it is called.

In light of the following facts: (a) considering the process of concluding the sales contract under subparagraph 00; and (b) the provisions of the special agreement of this case, if the sales contract under subparagraph 00 is not particularly high compared to the other stores of the first floor of this case, it appears that the Defendant seller cannot interpret that the special agreement of this case bears only the obligation not to sell or rent other stores for the purpose of the pharmacy for the purpose of the pharmacy; and (b) it is reasonable to view that the obligation not to sell a commercial building itself is to manage an aggregate building by itself by establishing the joint management rules in accordance with due process; (c) it is difficult to see that the Plaintiff’s duty not to sell the commercial building under subparagraph 0 is not to extinguish the duty not to do so by itself, and that the Plaintiff’s duty not to sell the commercial building under subparagraph 9, which is the first floor of this case, is not to be fulfilled by the seller of this case, and that the Plaintiff’s duty not to sell the commercial building under subparagraph 2, which is the first floor after July 14, 2005.

Therefore, all the states that the defendant's seller did not violate the duty of prohibition of competition under the special agreement of this case are without merit.

Meanwhile, the defendant's seller asserts that the duty to return the purchase price of the defendant's seller and the duty to order the plaintiff's 000 and the business that the plaintiff's 000 and the above 000 operate as a pharmacy business are in a simultaneous performance relationship. Thus, it is clear that the duty to return the purchase price to the plaintiff by the defendant's buyer is in a simultaneous performance relationship with the plaintiff's duty to return the purchase price to the plaintiff's seller. However, although it is clear that the duty to return the purchase price to the plaintiff is in a simultaneous performance relationship with the plaintiff's duty to return the purchase price of the plaintiff's 00, there is no legal ground to view that the duty to return the purchase price to the plaintiff is in a simultaneous performance relationship with the plaintiff's duty to return the purchase price of the plaintiff's 00, and there is no reason to believe that the simultaneous performance change of the defendant's buyer is in a simultaneous performance relationship with the duty to return the purchase price of the plaintiff.

C. Judgment on the plaintiff's claim for damages

The plaintiff asserts that since from September 2009, the pharmacy was established from around 000 to around 00, the damage amounting to KRW 10,00,00 per month was incurred, the defendant seller is obligated to pay KRW 40,00,000 to the plaintiff as a loss as a part of the loss from October 1, 2009 to January 31, 2010. Thus, as alleged by the plaintiff, the plaintiff did not have any evidence to acknowledge that the plaintiff suffered damage amounting to KRW 10,00,00 per month from October 1, 2009 to October 31, 2010.

D. Sub-committee

Therefore, Defendant buyers who jointly sold Nos. 000 are obligated to pay to each Plaintiff KRW 975, 100,000 for the sales price of No. 000 at the same time as the delivery of No. 000 from the Plaintiff.

5. Conclusion

Thus, the name of the plaintiff's primary defendant O), the last defendant 1, and the leap ○ is dismissed for the reason that they are without merit. The plaintiff's primary defendant 1's primary defendant 1, the second defendant 1, and the preceding (00 and the preceding (00 and the preceding) are justified within the scope of the above recognition, and the remaining claims are dismissed for the reason that they are without merit. It is so decided as per Disposition.

Judges Kim Jong-ho

Judges Immination

Judge Park Jae-hoon