207 Gohap645 Damages (as stated)

authorized 00 (00000 - 000000)

Mayang-si

Law Firm Chungcheong, Counsel for the plaintiff-appellant

Attorney Kim Dong-dong, Counsel for the defendant-appellant

1. Class 00 (0000 - 00000)

Seoul

Seoul Place of Service

2.00 (0000 - 000000)

Seoul

Seoul Place of Service

[Judgment of the court below]

[Judgment of the court below]

April 4, 2008

April 25, 2008

1. The plaintiff shall pay 30,00,000 won, 20,000 won to the defendant, and 20,000 won to the plaintiff, 5% per annum from March 26, 2008 to April 25, 2008, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. 3/5 of the costs of lawsuit is assessed against the Plaintiff, and the remainder is assessed against the Defendants.

4. Paragraph 1 can be provisionally executed.

Defendant 150,000,000, Defendant 100, and each of the above amounts to the Plaintiff. Defendant 100,000,000,000, and each of the above amounts

at least 20% per annum from the day following the delivery date of the application for amendment of the claim of this case to the day of complete payment.

each payment of the money under this subsection.

1. Basic facts

A. The apartment sales industry of 000 building type-type-type-sale company, 000 (hereinafter referred to as "00 industry") newly constructed a sales contract with 437 - 1 and 416 - 64 of the Guro-gu Seoul Metropolitan Government (hereinafter referred to as " 000") to sell each shop of 0000 each by using a sales contract agreement containing the following business sector-type-type-sale agreement (hereinafter referred to as "the instant agreement on the restriction on the business type of this case"), and if not, to the buyers who want to be designated as the business type, specified the type of business and sold it to the buyers who want to be designated as the business type, without designating a specific business type, entered "lease" and "investment" into the column of the sales contract type without designating it as "lease" and "investment".

Article 3 (Types of Business): (1) Item 1 of Article 3: Items of business for multiple buyers' stores shall be, in principle, types of business at the time of sale not in conflict with the Housing Construction Promotion Act, the same type of business shall not be kept (no change of the type of business in the supply contract shall be made at the discretion of the buyer), and if it is intended to change the type of business due to unavoidable reasons of the buyer, prior approval shall be obtained from the buyer, and if it is violated, all civil and criminal liabilities arising therefrom shall be entirely borne by the buyer.

Paragraph 2: Where the ownership of the above indicated real estate is transferred to a third party, the lease contract shall be concluded in compliance with the provisions of the preceding paragraph, and if so, all civil and criminal responsibilities arising therefrom shall be entirely held by the buyer. Paragraph 3: If the type of business in the supply contract is not specified, the buyer shall open the contract after obtaining permission from the seller through consultation with the seller, and if it is not violated, he/she shall also have the civil and criminal responsibilities arising therefrom.

B. After the completion of 000, 000 units and use status (1) of each of the instant stores, 000 units and 00 units of pharmacy around 00, 200 units of pharmacy (2.00 units of pharmacy) were sold in lots from 00 units of pharmacy to 000 units of pharmacy (2.00 units of pharmacy). After the completion of 000 units of pharmacy, 00 units of pharmacy (3 units of pharmacy from 00 units of pharmacy to 000 units of pharmacy, 00 units of pharmacy were 00 units of pharmacy, 00 units of pharmacy and 00 units of pharmacy from 0.0 units of pharmacy, 00 units of pharmacy from 00 units of pharmacy and 00 units of pharmacy from 0.0 units of pharmacy from 00 units of pharmacy to 05 units of pharmacy, and 00 units of pharmacy from 00 units of pharmacy from 00 to 20.05 units of pharmacy, as seen below.

(3) On February 10, 2004, Defendant 000, Defendant 100, decided that the type of business from around 00 to around 10, 2004 was "investment" and purchased at around 000,000 (hereinafter " 000"). On February 24, 2004, the above board of directors demanded to change the type of business from around 00 to a pharmacy, and received a notification from the above board of directors that the change of the type of business cannot be approved, despite the fact that the above board of directors received notification that the change of the type of business was not approved, the above board of directors operated a pharmacy with the trade name "from around 000" from around 2, 2004.

(4) Around February 14, 2005, 0000 had already been set as the type of business from the industry of 00 on June 20, 2003, and sold it to Defendant 00 on or around February 14, 2005. After Defendant 00 demanded the above board of directors to change the type of business of 000 from the above board of directors on or around March 21, 2005, Defendant 00 had been notified that the change of the type of business from April 12, 2005 to the above board of directors could not be approved, but it had been operated as a pharmacy from April 12, 2005 to 00.

[Grounds for Recognition] Each entry in Gap evidence Nos. 1, 2, 5, 7, and 15 (including the number number for each item) and the purport of the whole pleading

2. Determination.

A. The plaintiff's assertion

The plaintiff asserts that the defendants are liable to compensate the plaintiff for damages caused by the violation of the occupational limitation agreement between the seller or transferee of each pharmacy business of the defendants.

B. The occurrence of damages liability (1) violates the Defendants’ agreement

Generally, it is reasonable to view that a building company, etc. constructed a commercial building and sold it in lots after designating a type of business for each shop and then acquiring the status of a buyer or buyer for a shop, barring any special circumstance, agreed to assume the duty of restrictions on the type of business agreed upon at the sales contract, etc., by mutual agreement in relation to the shop occupants, barring any special circumstance (see Supreme Court Decision 2004Da20081, Sept. 24, 2004, etc.).

However, as seen in the above facts, it is reasonable to view that the defendant 00 who purchased 00 units of 000 units by transfer from the buyer of 100 units with the type of business designated as hospital (burinology department) without designating the defendant 1, who purchased 00 units of 00 units from the buyer of 1,000 units without designating the type of business, consented to the buyer of 00 units of 1,000 units to be bound by the restrictions on the type of business set forth in the sales contract of this case as impliedly in relation to the owner and lessee of 1,00 units of 1,00 units of 1,00 units of 1,00 units of 1,00 units of 1,00 units of 1,00 units of 1,00 units of 1,00 units of 1,00 units of 1,00 units of 1,000 units of 1,000 units of 1,000 units of 2.

The Defendants asserted that the number of buyers No. 000 operated ASk ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck cl ck ck ck ck ck ck ck cl ck ck ck ck cl ck ck ck ck ck cl ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck ck. The Defendants’ lawsuit of this case was filed late at the latest, and when the buyer changed the type of business at his discretion, he cannot be viewed as the Defendants' grounds for the Defendants' assertion to the above.

B) Violation of the principle of good faith

In addition, the Defendants asserts that the Defendants’ claim for damages of this case against the Defendants is in violation of the principle of trust and good faith when the Defendants did not take any particular measure at the time of commencement of the pharmacy business, and thereafter, the Plaintiff asserted that the Plaintiff’s exclusive pharmacy business right against the Defendants was in violation of the principle of trust and good faith. However, there is no evidence to deem that the Defendants’ exclusive pharmacy business right was permitted, or implied or neglected. Rather, the Defendants requested the board of directors of the 000 Steering Committee to approve the change of the type of business as a pharmacy. Even if the Defendants were refused, the Defendants were forced to operate the pharmacy, and the Plaintiff leased 00 or 000 rentals for the pharmacy business from the exclusive pharmacy business right holder, the Plaintiff cannot be deemed to have violated the principle of trust and good faith. Therefore, the Defendants’ claim for damages of this case against the Defendants is groundless.

C) Defendant 00 asserts that Defendant 100’s pharmacy business operator, without designating a specific type of business, entered 00 units as “investment” in the “type of business” column for the sales contract, and thus did not receive any restriction on the type of business, and that there is no problem in the opening of the pharmacy from 00 industry, and thus, he does not bear any duty of restriction on the type of business. However, Article 3(3) of the sales contract of this case provides that the buyer who did not designate the type of business shall start the sales after obtaining permission from the seller through consultation with the seller. Thus, it cannot be deemed that the buyer does not bear any duty of restriction on the type of business solely on the ground that the buyer was sold in lots by stating it as “investment” in the type of business as “investment”, and there is no other evidence to acknowledge that Defendant 100 obtained permission of the pharmacy business from the industry of 00 with respect to 000, the above assertion by the above Defendant 100 is without merit.

D) Intentional or negligence of the Defendants

The Defendants asserted that their pharmacy businesses are not liable for damages due to no intention or negligence with respect to the violation of the instant business restriction agreement. The Defendants’ assertion is without merit, since the Defendants’ assertion that the intent of violation of the said business restriction agreement is sufficient with the awareness of the Defendants’ act of business, and that the pertinent business act is in violation of the said business restriction agreement.

B. Scope of liability for damages (1) Plaintiff’s assertion

The Plaintiff asserts that the Plaintiff’s exclusive pharmacy business rights were infringed by the Plaintiff’s violation of the instant business sector restriction agreement, and the Plaintiff’s exclusive pharmacy business losses were paid as consolation money of KRW 150,00,00, and KRW 100,00, and KRW 300,000. (A) On September 23, 2005, the Plaintiff filed a lawsuit against the Defendants for the prohibition of the Defendants’ business operation pursuant to the instant business sector restriction agreement of KRW 2005, KRW 1599, and KRW 30,000, KRW 30,000, KRW 70, KRW 406, KRW 70, KRW 706, KRW 70, KRW 70, KRW 706, KRW 70, KRW 706, KRW 70, and KRW 76, KRW 70, KRW 706, KRW 306, which, based on the Plaintiff’s total sales losses of the Plaintiff’s pharmacy.

[Reasons for recognition, Gap evidence Nos. 3 and 4, Gap evidence Nos. 11-1, Gap evidence Nos. 12 and 16, Gap evidence Nos. 18-2, fact-finding conducted by the National Health Insurance Corporation, and the overall purport of oral argument (2). (A) The defendants operated a pharmacy in violation of the instant industry restriction agreement, thereby causing four pharmacies within 000, and thereby resulting in significant decrease in the sales of hospital drugs and over-the-counter drugs. However, considering the following circumstances revealed in the above facts, since it is difficult for the defendants to start their pharmacy business, the plaintiff's sales amount of 30 times the total sales amount of the plaintiff's medical care benefits under the Plaintiff's industry restriction agreement Nos. 12 and 18-2, and the court's fact-finding results in a difference of 00 and 00-70 times the total sales amount of the plaintiff's medical care benefits to 300 times the total sales amount of the plaintiff's medical care benefits to 3000.

However, if the plaintiff is not compensated for its loss, it would be extremely unfair. Thus, it would be reasonable to compensate the plaintiff's loss by paying consolation money to the defendants. (b) Furthermore, considering the health care benefit amount of the National Health Insurance Corporation in 2006 as 273, 931, 720, and 00 won as 145, 075, and 440 won, the sales benefit amount of the plaintiff's pharmacy from 00,000 won to 00,000 won, 63, 368, and 031 = 05,00 won, and the sales benefit amount of the above medical care benefit amount of the plaintiff's pharmacy from 00,000 won to 00,000 won, 200,000 won, and 30,000 won, more than 30,000 won, and 40,000 won, 25,000 won, etc., of the above sales benefit amount of the plaintiff's.

3. Conclusion

Therefore, the plaintiff is obligated to pay damages for delay at the rate of 30,00 won for consolation money, 20,000 won for consolation money, 00,000 won for consolation money, and 20,00 won for consolation money, as requested by the plaintiff, from March 26, 2008 on the day following the day when the application for amendment of the purport of the claim of this case was served on the defendants as requested by the plaintiff, to April 25, 2008, 5% per annum under the Civil Act until April 25, 2008, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the next day to the day of full payment. Thus, the plaintiff's claim against the defendants of this case against the defendants is justified within the scope of the above recognition, and the remainder of the claim is dismissed as it is so decided as per Disposition.

Judges Choi Jong-soo

Judges Ho Sung-ho

Judges Maximum Senior Superintendent;