(영문) 서울고등법원 2014.11.14. 선고 2014누42713 판결

The Defendant’s corrective order stated in the attached Table No. 2014-008, which was issued by the second sub-committee Resolution No. 2014, is revoked.

Reasons

1. Details of the disposition;

A. Status, general status, etc. of the plaintiff

The Plaintiff requires a franchisee to run a cosmetic sales store using his/her own business mark, provide support, education, and control for the management, business activities, etc. related thereto, and receive franchise fees in return, and thus constitutes a franchisor as provided for in Article 2 subparagraph 2 of the Fair Transactions in Franchise Business Act (hereinafter referred to as the “Act”), since the Plaintiff is a business entity that grants franchisees a franchise license in relation to the franchise business, it constitutes a franchisor as provided for in Article 2 subparagraph 2 of the “Fair Transactions in Franchise Business Act” (hereinafter referred to as the “Act”). The general status (unit: KRW 00,000,

A person shall be appointed.

During the period from January 1, 2012 to December 3, 2012, the order of priority is as follows:

A person shall be appointed.

B. The defendant's disposition

The defendant, as a resolution of January 8, 2014, ① the Plaintiff’s two-time suspension of the supply of goods to B, a franchisee, constitutes “an act of unreasonably suspending the supply of goods necessary for franchise business during the trading period” under Article 12(1)1 of the Act, Article 13(1) [Attachment 2] 1(a) of the Enforcement Decree of the Act, and ② the act of opening a new franchise store near approximately 100 meters within the same commercial zone with A constitutes “an act of unfairly unfavorable to franchisees by taking advantage of the trading status” under Article 12(1)3 of the Act, Article 13(1) [Attachment 2] 3(f) of the Enforcement Decree of the Act, and thus, issued a corrective order (hereinafter “instant disposition”).

[Judgment of the court below] The ground for recognition is without merit, Gap evidence No. 1, and the ground for appeal

2. Whether the instant disposition is lawful

(a) Whether an unfair act was committed to discontinue supply of goods;

1) The plaintiff's assertion

A) The existence of justifiable grounds

The act of A points to issue a false mileage card to customers by illegally using customer information, or to acquire property profits by issuing various mileage cards to the same customer, and by falsely accumulating mileages from sales constitutes fraud under the Criminal Act as well as the act of abusing the mileage system in violation of Article 40 of the franchise agreement of this case, which constitutes a serious reason for making it difficult for the Plaintiff to continue continuous trade, and thus, there was a justifiable reason for suspending the supply of goods to the Plaintiff.

B) No illegality exists

Although the Plaintiff did not comply with the procedure for termination of the contract under Article 14 of the Act and thus, the termination of the contract did not take effect, at the time of the suspension of the supply of goods, the termination of the contract is believed valid and the supply of goods was suspended without knowledge of such procedural violation, so there was no intention on the illegality.

C) There is no illegality

A Points did not recognize the responsibility for the abusive act of abuse of the mileage system and caused damage to the plaintiff's image and business by filing an application for dispute mediation with the Korea Fair Trade Mediation Agency or posting a letter to the effect that the plaintiff slanders the plaintiff on the Internet bulletin, and such circumstance constitutes "where it is difficult to continue the franchise business transaction relationship due to the reasons attributable to the franchisee, such as the violation of the contract by the franchisee" under the proviso of Article 13 (1) [Attachment 2] of the Enforcement Decree of the Act, and thus, the suspension of supply of the plaintiff's goods is dismissed in accordance with the proviso.

2) Facts of recognition

On March 23, 2010, the Plaintiff entered into a franchise agreement with B on March 23, 2010 with a franchise fee of two years, and with a franchise fee of one million won. Around April 2012, the period of the contract expires, the Plaintiff entered into a renewal agreement with two years, and the franchise fee of five hundred and half million won.

The Plaintiff notified twice the termination of the franchise agreement between June 2012 and July 7, 2012 on the ground that the Plaintiff violated Article 40 (Relation to Issuance and Use of Madage) of the franchise agreement, and suspended the supply of goods ordered by A throughout the period of the franchise agreement on September 2, 2012 and September 6, 2012.

B Around October 11, 2012 in the course of disputing the termination of the instant franchise agreement with the Plaintiff, the Plaintiff posted a complaint on the Internet bulletin as “I complaining against the termination of the Saturdays franchise agreement,” and the Plaintiff filed a complaint as to B on suspicion of violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Defamation). On the other hand, the Plaintiff filed a complaint as to confirmation of the termination of the franchise agreement and damages for tort on the ground that the Plaintiff’s honor was damaged and damaged by the notice of appeal, but the Plaintiff filed a complaint as to the cancellation of the franchise agreement and damages for tort. However, around February 26, 2013, the prosecutor was subject to a non-prosecution disposition as to the intention of suspicion, and the civil claim was confirmed to have been dismissed [Seoul Central District Court Decision 2012Da80120 (principal claim), 2013Ma513627 (Counterclaim), Seoul High Court Decision 2014Da2361538, May 21, 20194).

【Unsatisfy-based satch-based satisfy-based satisfy-based satch-based satisfy-based satisfy-based satisfy-based satisfy-based satisfy-based satch-

3) Determination

(A) the existence of justifiable reasons

In light of the characteristics of franchise business, in order for a franchiser to constitute a refusal to suspend or refuse the provision of goods or services or business support to a franchisee as an unfair trade practice, it is necessary to deprive the franchisee of opportunities for continuous trading of franchise business so as to make it difficult to conduct such business activities or to secure effectiveness in order to achieve the objectives of unfair control over the franchisee, unless there are serious circumstances that make it difficult for the franchiser to continue the trading relationship due to reasons attributable to the franchisee, such as breach of the contract by the franchisee, etc. (see Supreme Court Decisions 2003Du7484, Jun. 9, 2005; 2002Du332, Mar. 10, 2006).

In light of the above legal principles, it is insufficient to recognize that A has abused the mileage system as alleged by the Plaintiff, and there is no other evidence to acknowledge it, in light of the following circumstances: (a) it is possible for the same person to obtain a number of mileage cards and set aside mileage cards by obtaining consent from customers; and (b) in the case of customers who do not want to disclose personal information such as real names or resident registration numbers, he/she issued a mileage card in the name without permission; and (c) the Plaintiff appears to have provided specific education or not demanded corrective measures; and (b) it is insufficient to recognize that A has abused the mileage system as alleged by the Plaintiff; and (c) in light of the fact that there is no other evidence to acknowledge it, the Plaintiff did not have any other reason to deem that the Plaintiff has no justifiable reason to deem that A has deprived of opportunities for continuous trading of franchisees because it was difficult to continue to engage in franchise business transactions due to reasons attributable to the Plaintiff, and thus, the Plaintiff did not have any justifiable reason to deem that the Plaintiff has suspended the supply of goods to the Plaintiff.

B) The existence of illegality

The plaintiff asserts that the termination of the contract is valid at the time of the suspension of the supply of goods to A through legal advice of the lawyer without knowing the violation of the procedure for the termination of the contract and the suspension of the supply of goods, and thus there was no intention on the illegality. However, although it is not recognized that A abused the mileage system as seen above, the plaintiff has judged otherwise. In addition, in order for the termination of the contract to be lawful, the plaintiff must specify the violation of the contract with a grace period of more than two months and notify the franchisee of the fact that the contract is terminated without correction at least twice in writing (see, e.g., Supreme Court Decision 2009Da32560, Sept. 24, 2009). Thus, it cannot be said that the plaintiff did not have any intention on the ground that the plaintiff merely believed the validity of the termination of the contract. Therefore, the plaintiff's assertion is without merit.

C) Existence of illegality

In light of the following circumstances, which can be seen by comprehensively considering the purport of the entire arguments and the following facts, i.e., (i) the Plaintiff filed a complaint against B as a violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Defamation) with respect to the act in which B posted a written appeal on the Internet bulletin board, but B was subject to a disposition of no suspicion by the prosecutor around February 26, 2013; (ii) the Plaintiff and B did the aforementioned act in the process of disputing the termination of the instant franchise agreement; (iii) immediately deleted a written appeal from the Plaintiff on October 24, 2012 after receiving a request to delete the written appeal from the Plaintiff on the Internet bulletin board; and (iii) even if there are somewhat exaggerated parts or expressions in the written appeal, such act falls under the personal expression of opinions of B or at least based on the fact that B came to be aware (as seen above, it is difficult to view that the Plaintiff’s appeal against B’s tort caused by the Plaintiff’s damage to the Plaintiff’s image and caused considerable loss to the Plaintiff’s business.

(b) Giving disadvantage;

1) The plaintiff's assertion

A) The existence and scope of damage is unclear

In order to determine whether to provide disadvantage, the content of disadvantage suffered to the opposite contractual party should be clearly determined objectively, and where disadvantage is monetary damage, the existence of damage as well as the scope thereof should be clearly determined. The defendant asserted only the fact that sales volume of A has decreased after the establishment of a new franchise store, and the defendant did not prove the causal relationship between the reduction of sales volume and the establishment of a new franchise store. Even if there exists a causal relationship, the amount of damage was not specified, so the requirements for establishing the act of providing disadvantage have not been satisfied.

B) there is no disadvantage;

The Plaintiff did not set up an exclusive and exclusive business area and a B on a franchise agreement and an information disclosure statement for a franchisee. Therefore, even if a franchise store is established in the vicinity of an existing franchisee, it does not constitute a violation of the business area under law, and accordingly, the Plaintiff’s establishment of a new franchise store does not constitute a disadvantageous

C) The absence of illegality and illegality

Since the Plaintiff did not intentionally establish a new franchise store in order to force termination of the contract with the Plaintiff, the Plaintiff did not have intention to be improper. Even if the Plaintiff’s establishment of a new franchise store is unfair, the Plaintiff’s illegality is dismissed in accordance with the proviso of Article 13(1) [Attachment 2] of the Enforcement Decree of the Act, since the Plaintiff’s submission of an opinion to the Korea Fair Trade Mediation Agency was made without recognizing the Plaintiff’s cause attributable to the Plaintiff, or a notice to the effect that the Plaintiff slanders the Plaintiff on the Internet bulletin board, thereby damaging the Plaintiff’s image

2) Facts of recognition

D Si where A points are located is about 291,909 population as of March 31, 2013, and the commercial zone is not large or large compared to the needs of large cities or traffic, and it is not a place where there is a large-scale development or there is a large-scale population, and only the franchise store in this case has been established and operated from March 23, 2010 to October 16, 2012 after the first franchise agreement with respect to A was concluded.

Article 5(1) of the franchise agreement of this case provides that "a franchisor may divide a business area for the convenience of franchisees by comprehensively taking into account the population, administrative district, distance, and business district, and a franchisee may choose a business area within its standard." Article 5(2) of the franchise agreement provides that "a franchisor may establish a new franchise store or direct sales store in cases of a franchisee's sales area with a change in the development of the business area or conditions, a change in business district, a change in customer preference, a competitive brand, a competitive brand, a department store, a department store, a large franchise store, or a large franchise store."

On October 11, 2012, the Plaintiff entered into a franchise agreement with a new franchisee under the same name, which is approximately KRW 100 mnife A in a straight line ( approximately 200m in the walking distance) adjacent to the same commercial area, without any prior consultation with A, and F opens a new franchise store from October 16, 2012 to operate the new franchise store.

Unlike 50% of the test cost at the time of opening A, the Plaintiff subsidized 100% of the test cost to the new franchise store, and the new franchise store sold 30% discount of the items from October 16, 2012 to June 6, 2012.

The relevant civil judgment ordered the Plaintiff to pay 61,57,957 won and damages for delay as damages to the Plaintiff, considering that the Plaintiff’s new franchise store was established and the sales revenue was reduced due to the return and the decline of sales.

【Unsatisfied Facts, Gap’s 1 through 3, 8, 13, 23 evidence, Eul’s 1 through 13 (including those with additional numbers), the purport of the whole pleadings

3) Determination

A) Whether the existence and scope of the damage are clear

As seen above, the relevant civil judgment is deemed to have suffered monetary loss due to B’s return and decline in sales due to the establishment of a new franchise store by the Plaintiff, and ordered the Plaintiff to pay damages to B, 61,57,957 won, and damages for delay. As such, the existence of damages as well as the scope thereof has been clearly determined, the Plaintiff’s assertion is without merit.

B) Whether to provide disadvantage

In order to constitute a disadvantage in an act of offering disadvantages, the mere fact that the content of the act is somewhat unfavorable to the other party is insufficient. It is recognized that one party established or modified the terms and conditions of transaction by unfairly using his/her transaction position to the same extent as compulsory purchase, coercion of offering profits, enforcement of sales target, etc. Furthermore, whether an act of offering disadvantages to the other party by unfairly using his/her transaction position is an act of offering disadvantages to the other party should be determined depending on whether the act goes beyond normal transaction practices and is likely to impede fair trade (see, e.g., Supreme Court Decisions 2003Du7859, Sept. 8, 2006; 2002Du3322, Mar. 10, 2006).

In light of the above legal principles, the following circumstances are revealed by comprehensively considering the facts acknowledged as above and the purport of the entire arguments, namely, (i) the number of population is approximately 291,90 as of March 31, 2013; (ii) the commercial zone is developed in a large scale or is not a place with a large population compared to the needs of large cities or traffic; (iii) the new store is located as a straight line within the same commercial zone as A, and approximately 100 meters (up to approximately 200 meters), (iv) the Plaintiff established a new franchise store at the end of its termination with the intention to determine that the termination of the contract is reasonable, and (iv) Article 5(2) of the franchise agreement provides that the Plaintiff may establish a new franchise store after consultation with the franchisee, but the Plaintiff did not intend to establish a new franchise store without any prior consultation with the franchisee; and therefore, (v) the Plaintiff’s exclusive act of opening the new franchise store and its exclusive act of exercising the Plaintiff’s trading rights, as seen above, is unreasonable.

C) The existence of illegality and illegality

As seen above, the plaintiff's decision was justified and opened a new franchise store with the intention to substitute B as a substitute for the plaintiff's termination of the contract, and thus, it cannot be said that there is no intention of illegality. In addition, it is difficult to see that B applied for dispute mediation to the Korea Fair Trade Mediation Agency or posted an appeal on the Internet bulletin board has damaged the plaintiff's image and caused considerable business damage. Thus, the plaintiff's above assertion is also without merit.

3. Tonnage;

Thus, the plaintiff's claim of this case is dismissed as it is without merit.