2012 Gohap7161 Claims for Business Prohibition, etc.

Gangwon 00

Busan Seo-gu

Law Firm Gyeong, Attorney Lee Jin-soo, Counsel for the plaintiff-appellant-appellant

Gangwon ○

Busan Seo-gu

Attorney Go-sung et al., Counsel for the defendant-appellant

November 15, 2012

December 13, 2012

1. Until January 18, 2020, the defendant shall not continue to conduct 000 business on the ground buildings of 000-10 Odong-gu Busan Metropolitan City by January 18, 202.

2. The defendant shall not lease, transfer, or take other measures of the business as stated in the text of paragraph (1) of this Article.

3. If the Defendant breached the obligation of Paragraph 1 of this Article, it shall pay to the Plaintiff the amount calculated at the rate of KRW 300,000 per day. If the Plaintiff breached the obligation of Paragraph 2 of this Article, it shall pay KRW 30,000,000 to the Plaintiff.

4. The plaintiff's remaining claims are dismissed.

5. The costs of lawsuit are four-minutes, and one shall be borne by the plaintiff, and the remaining three by the defendant, respectively.

Listening to the Listening to the Gu;

If the defendant violates the obligation of Paragraph (1) of this Article and Paragraph (2) of this Article, he shall pay to the plaintiff 1,035,000 won per day. If the defendant violates the obligation of Paragraph (2) of this Article, he shall pay 100,000 won to the plaintiff.

1. Basic facts

The following facts do not conflict between the parties, or where Gap evidence Nos. 1, 2, 3, and 10 (if any),

In full view of the overall purport of the pleadings, each statement of No. 1, No. 1, and No. 1, it can be recognized.

A. On January 19, 2010, the Plaintiff acquired the entire facilities (including a restaurant) of “○○○○○○○○○○○○, operated by the Defendant on the ground of ○○○○-5, Busan-dong, Busan, from KRW 85 million including lease deposit, facility cost, premium, etc., and succeeded to the said trade name until now.

B. On December 7, 2011, the Defendant opened the ○○○ (including a restaurant; hereinafter referred to as “○○○○”) with the name of “○○○○○○○” from around 23 meters away from ○○○○○○○○○, a ○○○○○, a building on the ground of approximately 23 meters away from ○○○○○○○○.

C. The name of the business registration of the instant ○○○ was first the Defendant, and was changed to Kim○ on December 22, 2011, and the name of the business registration of the instant ○○○○○○○○ was the Defendant’s Ha○○○○.

2. Determination on the claim for prohibition of business

(a) Whether the business is transferred under Article 41 of the Commercial Act;

Article 41 (1) of the Commercial Act provides that "if a business is transferred, the transferor shall not engage in the same kind of business for ten years in the same Special Metropolitan City, Metropolitan City, Si, Gun, and adjacent Special Metropolitan City, Metropolitan Cities, Sis, Guns."

Article 41(1) of the Commercial Act refers to a functional asset as an organic integration organized for a certain business purpose. The term "functional asset as an organic integration" refers to a functional asset which serves as the source of profit by systematically combining tangible and intangible property and factual relations with economic value, and as the source of profit organically combined, it refers to the source of profit, and as such, the functional asset as the source of profit becomes the object of transaction like one goods. Thus, whether it can be deemed that the transferee has been engaged in the business transfer should be determined depending on whether the transferee can be deemed to have continued the business activity such as the transferor has been engaged in the business operation as the source of profit systematically organized, and the criteria for determining such transfer of business are equally applied to a small-scale self-employed business without employees, know-how, or customer (see, e.g., Supreme Court Decisions 2007Da89722, Apr. 11, 2008; 2009Ma136, Sept. 14, 2009).

In light of the above legal principles, the above facts and the arguments of this case revealed as follows: ① the trade name of the Plaintiff’s “○○○○○○○,” which was used by the Defendant at the time of acquisition by transfer of 000, and the Plaintiff succeeded to the lessee’s status; ② the Plaintiff paid KRW 85 million in compensation for lease deposit, facility cost, premium, etc.; ② the Plaintiff received 000 from the Defendant, and subsequently complements the existing facilities without changing the type of business or business behavior, and operates them as it is. In full view of the following circumstances, it is reasonable to view that the Plaintiff continued to operate the same business as the Defendant’s business after receiving functional properties as the source of profits which are systematically organized by the Defendant. Thus, it is reasonable to deem that the Defendant’s transfer of 00 million to the Plaintiff is the business transfer under Article 41 of the Commercial Act.

(b) Whether competition prohibition obligations are recognized and the scope thereof;

(1) The parties' assertion

The plaintiff asserts that since the actual operator of ○○○ in this case is the defendant, the defendant bears the duty of prohibition of competitive business under Article 41 of the Commercial Act.

On the contrary, the defendant asserts that, after borrowing KRW 65 million from Kim○○, the defendant transferred the business of this case 00 to Kim○○, which was not repaid interest, and the restaurant within 000 also operated by the defendant's wife. Thus, the defendant is currently not operating 00, or the defendant operated 00 with the plaintiff's consent.

(2) In light of the following circumstances, the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ and the overall purport of the pleadings at each of the above ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○ ○○○○ ○○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 2.

(3) Whether the plaintiff's consent is accepted

On the other hand, the defendant's assertion on this part is without merit, since there is no evidence to prove that the plaintiff consented to the business of this case to the defendant as alleged by the defendant.

(4) Scope of duty not to engage in competitive business

In accordance with Article 41 of the Commercial Act, the obligation not to engage in the same kind of business or the same business on the ground of a third party. If a transferor creates a business in violation of his/her duty of omission, it is required to discontinue the business in order to eliminate the violation of his/her duty of non-performance. Even if the business is leased or transferred to another person, insofar as the substance of the business remains, the obligation not to engage in the non-performance of the duty of non-performance of the obligation, it is also possible to prohibit the lease, transfer, or other disposition of the business against a third party in addition to prohibiting the business of the transferor, by force of non-performance of the obligation not to engage in the non-performance of the obligation (see Supreme Court Decision 96Da37985, Dec. 23, 1996).

According to the above facts, the defendant is a business transferor of 0000, and the defendant shall not engage in the business of ○○○ of the building on January 18, 2020, belonging to the same Si, from January 19, 2010 to January 18, 2020, belonging to the same Si, from January 19, 200, and shall not be subject to the business lease, transfer, or other disposition of 00 business of this case as a compulsory performance of the prohibition of competitive business.

C. Sub-committee

Therefore, the part of the Plaintiff’s claim for prohibition of business is with merit.

3. Determination on indirect compulsory performance

A. Legal doctrine

The obligation is an incidental obligation and compulsory execution against it is possible, and normally, after the enforcement title has been established in the judgment procedure, it is possible to make a decision of indirect compulsory execution ordering compensation for a non-performance of obligation through a necessary examination of the debtor upon a separate request from the creditor. However, in order to guarantee effective execution of the judgment ordering the obligation of non-performance of obligation, even if the enforcement title is established in view of it at the time of the closing of argument in the litigation procedure concerning the obligation of non-performance of obligation, it is probable that the debtor may violate it within a short period of time, and in the event that the pertinent amount of compensation can be calculated in the said judgment procedure, even in the adjudication procedure concerning the above obligation of non-performance of obligation, where the debtor is liable for the non-performance of obligation (see, e.g., Supreme Court Decision 93Da40614, 40621, Apr

B. Determination

On the other hand, the above defendant's omission obligation is an incidental obligation. Even if the judgment of this case became final and conclusive, the defendant is likely to violate the duty of prohibition of competition within a short period. Thus, if the defendant violates the above duty even though the judgment became final and conclusive, the defendant is ordered to pay compensation to the plaintiff.

Furthermore, with respect to the amount of compensation that the Defendant is liable for, as a psychological enforcement means against the Defendant, it is not directly related to whether or not the Plaintiff suffered damage due to the Defendant’s nonperformance, and can be decided by the court in consideration of the nature of the act and all other circumstances. In light of all the circumstances shown in the argument of this case, if the Defendant violated the obligation not to continue the instant 00 business on January 18, 2020, the amount calculated at the rate of KRW 300,000 per day for each violation shall be paid to the Plaintiff, and if the Defendant violated the obligation not to continue the instant 00 business on the ground of OO-dong 00-10, Busan, the amount of compensation shall be paid to the Plaintiff at the rate of KRW 30,000 per day for each violation.

4. Conclusion

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

Judge of the presiding judge;

Judge Lee Young-American

Judges Kim Gin-han