(영문) 서울중앙지방법원 2013.11.6.선고 2012가단345318 판결

The defendant shall pay to the plaintiff 46,00,000 won with 20% interest per annum from the day following the day of service of the copy of the claim and the modification of the cause of the claim in this case to the day of complete payment.

Reasons

1. Basic facts

A. The plaintiff is a person running the beauty art room (hereinafter referred to as "cosmetic") with the trade name "D (E)" on the second floor of the building of Overcheon-si, A, and the defendant has worked as a beauty artist from around December 8, 2009 to December 8, 2009.

B. On December 8, 2009, the Plaintiff and the Defendant drafted “The Hague Employment Income Contract”, and the said contract contains the following contents (hereinafter referred to as “the instant contract”). The following, “A” is the Defendant.

Article 1 (Purpose of Contract)

The purpose of this Agreement is to determine, through agreement, all the rules related to the distribution between "A" and "B" of income arising from beauty service provided by "A" to "B".

Article 2 (Status and Roles of Contracting Parties)

"A" and "B" respectively are independent and equal business entities, and "B" provide beauty service to "A" and "B" provide brands, places, and ancillary facilities necessary for providing beauty service to "B".

Article 3 (Contract Terms and Recontracts)

Paragraph 1: The duration of this Agreement shall be determined by agreement between A and B as follows:

From December 8, 2009 to December 7, 2011

Paragraph 2: If either party to a contract fails to make a written declaration of intent to terminate the contract one month prior to the termination of the contract, this contract shall be extended for a period of six months. Even thereafter, if either party to the contract does not notify in writing the other party of its intention to terminate the contract, this contract shall continue to be extended on a six-month basis: Provided, That if it is extended, "A" may require "B" to conclude a new contract with a new content, and "B" shall not refuse to conclude the contract without reasonable grounds.

Article 4 (Ratio of Allocation of Income of Hagued Persons)

Paragraph 1 (Definition of Income Distribution Rate by Hague-dr): The rate of income allocation by Hague-drr means the rate (%) of the amount paid to Hague-dr out of the revenue (VAT included standard) generated from the beauty art service of 'B'.

Paragraph 2 (Distribution of Income of Hedr)

(1) From the first day of each month to the last day of each month, "A" and "B" shall be based on the income distribution rate agreed upon at the time of a contract between "A" and "A" in the total amount of sales records (other than VT) that the person himself/herself bought through the Hague treatment service.

Paragraph 3 (Income Distribution Ratio): Unless there are particular circumstances, the rate of income allocation between "A" and "B" is agreed to be allocated between the minimum of 25% up to the maximum of 30% on the basis of the income allocation rate table. It is sufficiently understood that the above income allocation rate can be changed by the judgment of "A" in the case of automatic renewal in accordance with Paragraph 2 of Article III of this Agreement.

Article 5 (Income Settlement and Withholding by Free Job Income Earners)

Paragraph 1 (Income Settlement) of this Article: After determining the amount of income received from the provision of 'B' to the last day of each month through the provision of cosmetic service, the income shall be settled not later than the fifth day of the following month based on the income distribution rate table under Paragraph 3 of Article 4, and 'B' shall be confirmed after confirming the details of the settlement, and in the absence of objection, the income shall be determined not later than five days.

Paragraph 2 (Methods of Payment): A shall deposit the income confirmed pursuant to paragraph 1 into the bank account of "B" by the fifth day of each month.

Paragraph 3 (Free Job Income Earner Withholding): A shall, under Article 127 of the Income Tax Act, be paid after deducting 3.3% (including resident tax) from withholding at the time of the payment of income to B, and "A" shall be subject to a withholding return by the 10th of each following month.

Article 6 (Other)

Paragraph 1 of Paragraph 1: 'B' may not provide beauty service at other hedges, other individuals or corporations that may compete with 'B' during the term of this contract in order to observe the good faith of the contract: Provided, That this shall not apply where the written consent of 'B' exists.

Paragraph 2 (Personal brand) of this Article: “B” may choose the name of an individual during the term of the contract to use the name of the individual during the term of the contract for the blater (personal name) designated within the “A” store.

Paragraph 3 (Prohibition of Competitive Business): A cannot be transferred to another company of the same industry (referring to the same Gu or Dong) at least one year after the termination of the contract with A, and a opening (including a person who actually participates in management and operation even in his/her name, opening, or another person's name) may not be made within 4 km from the radius of "A" store. Even after the expiration of the date, a personal brand used by him/her under Paragraph 2 may not be absolutely used.

Paragraph 4 (Provision of Unused Services): 'B' may provide customers with counseling, treatment, and other services at the expense of an individual at the place (store) provided by 'A': Provided, That in order to promote sales through continuous visits by customers, opening points and closing hours may be set, and many 'B' shall be maintained in the order of priority between 'A' and 'B'. Other rules related to detailed services may be separately set by consultation between A and 'B'.

Article 7 (Violation and Termination of Contracts)

Paragraph 2 (Reasons for Termination of Contract): A contract may be terminated between both parties where any of the following grounds arises, and the contract may be terminated immediately regardless of the period for declaration of intention to terminate the contract under Article 3 (2):

(2) Where 'B' has a serious impact on the sales of 'A' repeatedly due to a serious problem in customer services.

3. Where it is no longer difficult to maintain the contractual relationship due to the management circumstances of "A".

(5) When the standard sales set forth in the salesroom cannot be continuously maintained for at least three months.

(7) Where "B" interferes with another person's business or intentionally disregards the legitimate principles and recommendations of "A".

Paragraph 3 (Penalties): Where one of the "A" and "B" terminates the contract during the contract period without any grounds for termination of the contract under the above paragraph, the other party may claim a penalty against either party.

1. If "B" causes property loss to "B" due to any cause attributable to "B", "B" shall be liable for such loss.

(1) Calculation method

The calculation of the average monthly income distribution shall be based on 12 months before termination of the contract, but if it is shorter than the period of beauty service, it shall be based on the total hours of beauty service.

(2) Criteria for compensation.

(1) Compensation standards may be determined as the amount of x 12 months of the amount of income distribution under paragraph (1), and claimed for damages.

C. On June 2012, the Defendant was settled on July 5, 2012 after the closure of the cosmetic of this case from office to June 2012.

D. From September 2012, the Defendant is running a beauty room with the trade name of 'F' at a store away from 600 to 700 meters away from the instant beauty room (on a vertical election, within 300 meters).

[Ground of recognition] A without dispute, Gap evidence 1 through 6, Eul evidence 2, evidence 4 through 7 (including each number), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff;

The purpose of Article 6(3) of the Contract of this case is to prevent damage to a participatory customer arising from the departure from employment of a beauty artist who is in the position of his partner as an equal business operator. Since the defendant violated the contract of this case after the termination of the contract of this case, it is obliged to compensate the plaintiff for mental damage caused by such violation.

B. Defendant

The Defendant constitutes a worker as prescribed by the Labor Standards Act, and the instant agreement prohibiting competitive business constitutes a juristic act contrary to good morals and other social order by excessively restricting workers’ freedom of choice of occupation and right to work guaranteed by the Constitution or by excessively restricting free competition.

3. Determination

A. Whether the defendant is an employee under the Labor Standards Act

(1) Relevant legal principles

The issue of whether a contract constitutes a worker under the Labor Standards Act is a contract for employment or a contract for work, and whether a worker has a subordinate relationship with an employer for the purpose of wages at a business or workplace is determined depending on whether the employer provided the worker with the work. Whether the aforementioned subordinate relationship exists is determined by the employer and the employer is subject to the rules of employment or the rules of service, etc. of the employer, whether the employer designates working hours and working place and is bound by the employer, whether the worker is able to operate his/her business on his/her own account, such as whether the worker was able to own equipment, raw materials, work tools, etc. or have a third party employ and act on behalf of the employer, and whether the risks such as the creation of profit and loss through the provision of labor are the nature of the work itself, whether the basic salary or fixed wage was determined, and whether the wage tax was withheld from the wage income tax, and whether the continuousness and degree of the relationship to provide the worker, and whether the status of the worker was recognized as an employee under the social security system or not.

(2) Facts of recognition

The following facts may be acknowledged in full view of the evidence Nos. 9 through 15, each of the statements and images (including each number), the witness G’s testimony and the witness H’s partial testimony. Contrary to this, the statements of No. 9 and No. 10, and the witness H’s testimony are not believed.

(A) The beauty art room of this case served as a president, a vice president, a chief of a department, a chief of a department, and a beauty artist including the defendant, and a beauty artist including the defendant. The defendant et al. had been organized and worked as a part of a morning and a p.m., and the beauty artist et al. received education from a beauty artist while assisting the beauty artist and a team employed in the beauty art room of this case.

(B) The director examined the state of education, etc. of uniforms, working attitudes, and spons, etc. for beauty artists, such as the Pyeongtaek Defendant, etc., and finally determined this by participating in the composition of the beauty artist and the spons or the organization of the beauty artist’s employees.

(C) The hours of attendance at the beauty art room of this case were set at 09:30 without any exception to the Defendant’s beauty artists, and the inquiry was made at around 09:50, and the time of retirement was set uniformly.

(D) The Defendant, etc., beauty artists applied for monthly vehicles and obtained permission. At the time of absence or absence, they submitted a certificate of medical examination and treatment or documents indicating the reason therefor, etc. In the event of violation, they were subject to a fine of KRW 5,000 for five minutes in the case of dismissal by being disadvantaged by the sequence in which new customers are distributed, and the permission was required even in the case of early retirement or outing.

(E) The Defendant, etc., beauty artist, etc. used a paper, brooms, etc. to be owned by an individual, but used high-priced work tools, such as soft heat treatment machinery, to be supplied by the Plaintiff, and did not pay the price for use to the Plaintiff.

(F) The Defendant, etc., beauty artists, and saves possessed electricity within the beauty art room of this case, and informed the status of their service or received instructions related to their duties.

(3) Determination

In light of the above legal principles, although the following circumstances revealed by the facts of recognition as seen earlier were used the phrase such as "independent and equal business entity" in the contract of this case, and the defendant did not set the basic salary in the defendant's remuneration, and the defendant paid the business income tax and used part of the cosmetic as his own property, it is reasonable to view that the defendant constitutes a worker under the Labor Standards Act who provided labor in subordinate relationship for the purpose of receiving wages to the plaintiff.

① The Defendant and other beauty artists seem to have been subject to management and control over commuting, working hours and forms, job attitude and method, etc.

② It is difficult to view that the Defendant, etc. and beauty artists engaged in beauty and beauty business exclusively to the Plaintiff and actually engaged in such business, and the third party has the authority to have the business performed by proxy, and the term of the contract is also renewed automatically and continuously.

③ The Defendant, etc. and beauty artists received not only a place of business but also an employee in charge of the high-priced beauty art operation and assistive business, and it does not seem that the Defendant, etc. and beauty artists were able to use other tools or employees.

④ The grounds for termination of the instant contract include the part corresponding to the grounds for dismissal or dismissal.

B. Effect of the agreement prohibiting the competition of this case

(1) Even if an agreement exists between an employer and an employee on the prohibition of competitive business, if such agreement excessively limits the freedom of occupation, the right to work, etc. of an employee guaranteed under the Constitution, or excessively limits free competition, it shall be deemed null and void as a juristic act contrary to good morals and other social order under Article 103 of the Civil Act. The validity of such agreement on the prohibition of competitive business shall be determined by comprehensively taking into account the interests of the employer who is worth protecting, the status of the employee before his/her retirement, the period, area, and occupation of the restriction on competitive business, the existence of remuneration for workers, the reason why the employee retires, the public interest, and other circumstances. The "profit of the employer" in this context refers to not only the "trade secret" as defined in Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act, but also the knowledge or information that the employer has only owned, but not disclosed to a third party, or the maintenance of customer relations and the maintenance of business credit (see Supreme Court Decision 209Da8244, Mar. 11, 2010).

(2) In the instant case, comprehensively taking account of the foregoing evidence and the following circumstances revealed by the facts acknowledged, it is reasonable to view that the instant agreement prohibiting competition is null and void as a juristic act contrary to good morals and other social order under Article 103 of the Civil Act, because it excessively limits the Defendant’s freedom of occupation and the right to work, etc., which is an employee, or excessively limits free competition.

① The Defendant does not seem to have learned of trade secrets by taking a special beauty art transfer while working in the beauty art room of this case.

(2) A beauty artist’s departure from employment may cause a business loss by leaving his string customer. However, unlike the general beauty room, there is room to see mutual recognition, facilities, etc. as an important element of customer smoking personnel unlike the general beauty room, while trust between a beauty artist and a customer is strong in terms of natural learning in the course of performing his/her duties. Therefore, such personal relationship is difficult to be deemed worth protecting under the agreement prohibiting competitive business, or is relatively small in its protection value.

③ Although the Defendant did not receive any special consideration under the instant non-commercial agreement, it cannot transfer to a certain area for a period of one year, and cannot be opened in the vicinity of the beauty art room of this case. Although the said agreement limits the period and place, the said agreement may result in the Defendant’s living threatened to the Defendant, which is difficult to deem that there exists any particular skills or knowledge to transfer to another occupation.

④ Even if there is a public interest to achieve an agreement prohibiting competition in the instant case, it does not exceed the profit that the Defendant gains by infringing on the Defendant’s freedom to choose occupation.

C. Sub-committee

Therefore, the plaintiff's claim based on the premise that the agreement on the prohibition of competition in this case is valid is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed, and it is so decided as per Disposition.