In a case where Company A prepared a contract for sale in lots stating that “A shall not sell or lease a store to a pharmacy other than the above store at the time of initial sale in lots,” while selling the store to Company B by restricting its business type, and Party B is currently operating the above store from Party B, and Party B prepared a contract for sale without stating the contents of restriction on business type; to the extent that Party B sells the above store to Party B; and to the extent that Party B’s contract was made without stating the contents of restriction on business type; Party B’s operation without a contract for lease without stating the contents of restriction on business type; and Party B requested Party B’s operation of the pharmacy; Party B’s operation with Party B’s main purpose; Party B sought damages from Party B’s violation of the contract for restriction on business type; in light of all the overall circumstances, Party B’s claim against Party B cannot be deemed as having concluded a contract for restriction on business type with Party B, but it cannot be deemed as having violated Party B’s duty to guarantee Party B’s main business type, and thus, Party C and Party C concluded with Party C without specific reasons.

A Co., Ltd. prepared a sales contract stating that “A shall not sell or lease it to a pharmacy other than the above store at the time of initial rent-out” while selling a store located on the first floor of a newly-built commercial building to B, which includes “B shall not sell or lease it to the pharmacy.” After which C currently leased the above store from B, C prepared a sales contract where the details of the restriction on the type of business are not immediately stated, sold to the fixed party, prepared a lease contract where the contents of the restriction on the type of business are not stated, and leased the above store to B without delay, thereby seeking a prohibition of business against B and B, and sought compensation for damages due to the breach of the business sector restriction agreement against B.

The case holding that the company Gap's sales contract or lease contract of one floor other than Eul's own store was not effective, but it can be presumed that Gap's sales contract or lease contract is not effective, and since Eul's own business rights are designated for common interests between Eul and Byung and Eul's own store, it can be presumed that there is an implied agreement with Gap's own business rights to restrict the category of business for which change of different types of business is restricted, or even if it does not designate the category of business, there is no explicit or implied agreement with Eul's own business rights to restrict the category of business at the time of signing a sales contract or lease contract. Thus, since Gap's sales contract or lease contract of one floor is not effective, it cannot be viewed that Gap's own business rights cannot be determined for the reason that Gap's sales contract or lease contract cannot be seen as being effective as Gap's own business rights to restrict the category of business, and thus Gap's sales contract or lease contract cannot be seen as having been concluded with Byung's own business rights to the other party.

Articles 105 and 390 of the Civil Act

Plaintiff 1 and one other (Law Firm LLC, Attorneys Kang Don-won, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney So-young et al., Counsel for the defendant-appellant)

[Defendant-Appellee] Defendant 1 and 3 others

June 13, 2019

1. The plaintiffs' claim against the main defendant 1 and 2 and the plaintiff's claim against the main defendant 1 and the conjunctive defendant 1 are all dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

○ Plaintiffs’ claim against Defendant 1 and Defendant 2: ① the primary Defendant 1 and Defendant 2 are prohibited from running, or having a third party run, a pharmacy at the first floor of ○○○ Building △△△△△△△ in Jeonju-si. ② The primary Defendant 1 and Defendant 2 jointly pay to Plaintiff 2 50,000,000 and the amount calculated at the rate of 15% per annum from the day following the day of delivery of a copy of the instant complaint to the day of full payment.

○○ Plaintiff 1’s claim against Preliminary Defendant Cancer Co., Ltd.: The Preliminary Defendant Cancer Co., Ltd. shall pay to Plaintiff 1 50,000,000 and 15% interest per annum from the day following the day of delivery of a copy of the instant complaint to the day of full payment.

1. Facts of recognition;

A. The relationship between the parties to the commercial building of this case

1) Defendant Rock Co., Ltd. (hereinafter “Defendant Rock”) newly constructed ○○ Building (hereinafter “instant commercial building”) with the first underground floor and the fourth floor above the ground in Jeonju-si, and completed registration of initial ownership by classifying it by store on July 25, 2012.

2) The Plaintiff 1 is the buyer and the owner of △△ branch, and the Plaintiff 2 is the lessee who operates the pharmacy at △△ branch. Defendant 1 is the buyer and the owner of the △ branch, and Defendant 2 is the lessee who operates the pharmacy at △ branch.

B. Conclusion of the contract or lease agreement for the sale of store in △ Magsung; and

1) On August 1, 2012, Plaintiff 1: (a) sold the instant shopping mall name (hereinafter “Plaintiff’s store”) and the store at the location of the instant shopping mall (hereinafter “Plaintiff’s store”); and (b) completed the registration of ownership transfer on August 14, 2012.

2) The sales contract for the Plaintiff’s store and the branch of the Defendant Amtex, prepared by the Plaintiff 1 and the Defendant Amtex, include the following contents in relation to restrictions on business types

(2) If the use of a commercial building by Plaintiff 1 overlaps with the use of another commercial building in the main text, the consultation and coordination with the entire commercial building shall not be hindered, and the consultation and coordination on the use of the commercial building shall be held under the responsibility of Plaintiff 1. (3) If Plaintiff 1 wishes to change the use after the sale of the commercial building, he/she shall consult with the Defendant Cancer. (4) On the first lease date, Article 12 (Special Agreement) 4, the sale and lease of the commercial building to a pharmacy shall not be made in addition to the Plaintiff shop.

3) On November 30, 2012, Plaintiff 1: (a) designated Plaintiff 2’s store as KRW 100 million; (b) monthly rent of KRW 180 million (2.1 million increased on November 30, 2016); and (c) leased Plaintiff 1’s store for the purpose of the pharmacy; and (d) thereafter, Plaintiff 2 runs Plaintiff 2’s business in the name of “Si/Gun/autonomous Gu pharmacy” in the Plaintiff’s store until then.

C. Conclusion, etc. of a sales contract or a lease contract for Defendant 1 and Defendant 2’s store;

1) On August 27, 2012, Defendant Rock entered into a lease agreement with Nonparty 1, etc., setting the lease period of the instant shopping district, KRW 100 million, and KRW 4 million from October 8, 2012 to October 8, 2014. Nonparty 1, etc. operated the mobile phone agency at the said store.

2) On February 28, 2013, Defendant 1 purchased a △△△△ shop located immediately adjacent to the Plaintiff’s store (hereinafter “Defendant shop”) from the Defendant Amtex for KRW 400 million, and concluded a sales contract and completed the registration of ownership transfer under the terms and conditions of the said lease. Defendant 1 did not stipulate the terms and conditions of the said sales contract as to the restriction on business sector.

3) On August 28, 2017, Defendant 1: (a) leased Defendant 1’s store to Defendant 2 from November 1, 2017 to October 31, 2019; (b) the deposit amount of KRW 50 million; and (c) the monthly rent of KRW 1450,000; and (d) Defendant 2, from November 14, 2017, runs the pharmacy business in the name of “culpum pharmacy” from November 14, 2017 to the date. The agreement on the said lease does not stipulate the restriction on the type of business.

[Ground of recognition] Facts without dispute, Gap's evidence 1 through 4, 8, 9, 10, Eul's evidence 1, 2, 7, Eul's evidence 6 (including branch numbers; hereinafter the same shall apply) or video, the purport of the whole pleadings

2. Determination as to the plaintiffs' claims against the main defendants 1 and 2

A. Summary of the parties' arguments

1) The plaintiffs' assertion

The Defendant Amex, including Plaintiff 1 and Defendant 1, directly notified the buyers or lessees of the instant store of the type of business, and that there was a duty to restrict the type of business. As such, there exists an agreement to restrict the type of business in the instant commercial building, and Defendant 1 and Defendant 2, who leased the Defendant store unsold from the Defendant Amex, agreed to grant implied consent, barring special circumstances. Therefore, Defendant 1 and Defendant 2 are obligated not to operate a pharmacy at the Defendant store in accordance with the business sector restriction agreement. In addition, the said Defendants, in violation of the business sector restriction agreement, have caused business loss to Plaintiff 2, who operated the Plaintiff store by operating the pharmacy at the Plaintiff store in violation of the Plaintiff store, thereby incurring loss of sales reduction. Accordingly, Defendant 1 and Defendant 2 are jointly obligated to pay the Plaintiff 2 KRW 50 million as part of the loss.

2) Defendant 1 and Defendant 2’s assertion

Defendant 1 did not designate a type of business at the time of purchasing the Defendant shop from the Defendant Amex, and there is no fact that Defendant 1 and Defendant 2 agree not to operate a pharmacy at the Defendant shop at the time of purchase or lease of the Defendant shop.

B. Determination

1) In a case where a building company constructed a commercial building and sold it in lots by designating a type of business for each shop, the buyer or transferee of the position of the buyer or transferee of the shop shall be deemed to have consented, barring any special circumstance, to the mutual agreement between the parties to the sales contract and to accept the restrictions on the type of business agreed upon in the sales contract explicitly or implicitly in relation to the occupant of the shop. Thus, the agreement on the restriction on the type of business between the parties is obligated to be complied with. In addition, even if only a part of the whole shop is designated as a type of business, barring special circumstances, the same legal principle shall be applied even between the buyer or transferee of the designated shop (see Supreme Court Decision 2007Da8044, May 27, 2010, etc.).

2) In light of the above legal principles, in order to put the validity of the agreement on the restriction of business type regarding the Plaintiff store entered into between the Plaintiff 1 and the Defendant 1 to Defendant 2, not the buyer of the Defendant shop, but to the buyer of the Defendant shop, or the lessee of the Defendant shop, the sales right of the Plaintiff’s own designated type of business for mutual benefit between the Plaintiffs and the Defendants is guaranteed, and thus, the Plaintiff’s sales right to the Plaintiff’s own designated type of business for mutual benefit can be presumed to have an implied agreement to assume the duty of restricting business type that is restricted to change into another type of business. However, even if the Defendant shop does not have any business type designated, it is reasonable to deem that the explicit or implied agreement between Defendant 1 and the Defendant 2 to allow the agreement on the restriction of business type regarding the Plaintiff store at the time of entering into a sales contract or lease contract.

3) However, in light of the following circumstances acknowledged by Gap evidence revealed in the above evidence, Gap evidence Nos. 5, 6, 11, 12, 13, Eul evidence Nos. 9, Eul evidence Nos. 1 through 5, Eul evidence Nos. 1 through 4, and Eul evidence Nos. 1 through 4, the evidence submitted by the plaintiffs alone is insufficient to acknowledge that the defendant 1 purchased the defendant's shop from the defendant defendant defendant defendant 1 by designating the type of business, or that defendant 1 and defendant 2 concluded an agreement with the defendant 1 and defendant 2 to authorize the defendant 1 to restrict the type of business at the time of purchasing or leasing the defendant's store. Since there is no other evidence to acknowledge this otherwise, the agreement between the plaintiff 1 and the defendant 2 does not extend to the defendant 1 and defendant 2, not the contracting party to the contract on the restriction of type of business between the defendant 1 and the defendant 2. Accordingly, the plaintiffs' claim against the defendant 1 and defendant 2

A) In general, it is common to specify that the change in the type of business and the type of business designated in the contract is restricted in cases where a seller of a commercial building wishes to sell a store by designating the type of business or to bear the duty of restricting the type of business. However, among the 10 stores located on the first floor of the commercial building of this case, it cannot be confirmed that the sales contract or lease contract of the remaining stores other than the Plaintiff shop is limited by designating the type of business or the business of the Plaintiff shop except

B) In the presence of a licensed real estate agent, Defendant 1 entered the sales contract on the Defendant shop in detail the important matters of the contract, such as cancellation of the establishment registration of the neighboring establishment, succession of the existing lease agreement, and the burden of value-added tax, as the special agreement. In addition, prior to the conclusion of the sales contract on the Defendant shop, prior to the conclusion of the sales contract on the Defendant shop, there are explicitly stated the content of the contract on the restriction of type of business in the sales contract. Considering the above facts, if Defendant 1 and Defendant 1 entered into the sales contract on the part of designating the type of business and selling and selling the Defendant shop and the agreement on restriction of type of business, Defendant 1 and Defendant 1 and the real estate agent are clearly stated in the sales contract. Nonparty 2, a licensed real estate agent that arranged the above sales contract, was requested by Nonparty 3, who is the representative director of Defendant 1ex, but did not receive the statement that the establishment of a pharmacy in the Defendant shop would be restricted, or there was no related data provided.

다) 원고 1은 피고 암텍으로부터 원고 점포의 약국 독점영업권을 명시적으로 보장받은 반면, 피고 1을 비롯한 나머지 점포의 매수인들은 특정 업종의 독점영업권을 보장받지 못한 상황이었다. 따라서 만약 피고 1을 비롯한 나머지 점포의 매수인들이 피고 암텍으로부터 점포를 매수할 때 특정 업종의 독점영업권은 보장받지 못하면서 약국 영업은 제한된다는 업종제한 의무만을 수인하기로 동의하였다면, 특별한 사정이 없는 한 원고 점포의 분양가보다 낮은 가격으로 매매계약을 체결하려고 하였을 것이다. 그러나 원고는 전용면적 59.8㎡인 원고 점포를 4억 원(= 약 669만 원/㎡)에 분양받은 반면, 피고 1은 전용면적 52㎡인 피고 점포를 4억 원(약 770만 원/㎡)에, 소외 4는 전용면적 54.6㎡인 ▽▽▽호 점포를 4억 1,800만 원(약 765만 원/㎡)에, 소외 5는 전용면적 58.88㎡인 ◁◁◁호 점포를 4억 6,000만 원(약 781만 원/㎡)에, 소외 6은 전용면적 60.8㎡인 ▷▷▷호 점포를 4억 4,600만 원(약 734만 원/㎡)에 매수하였다. 피고 1을 비롯한 다른 점포 매수인들은 오히려 원고 점포보다 더 비싼 가격에 점포를 매수하였는바, 원고들 주장과 같이 피고 1을 비롯한 점포 매수인들이 이 사건 상가 점포를 매수하면서 업종제한 의무를 수인하기로 동의한 것인지 의문이 든다.

D) In particular, Defendant 2, a pharmacist, requested Nonparty 7 to mediate a shop suitable for a pharmacy. After Nonparty 7’s lease from Defendant 1 through Nonparty 7, Defendant 2 opened a pharmacy at Defendant 2 by purchasing equipment and fixtures with the cost of KRW 40 million. Although Defendant 2 knew that Defendant 2 was unable to operate his/her pharmacy at Defendant 2’s shop, it is difficult to view that Defendant 2 opened and operated a pharmacy at Defendant 2’s shop by investing considerable expenses when taking risk.

E) Meanwhile, the sales advertising site of this case (A No. 11) specifies the category of business of some stores, and the Plaintiff's store is a pharmacy, and the Defendant's store is deemed to be a mobile phone agency, but there is no content that only the designated type of business is allowed to run in the sales advertising site. In light of the fact that "the confirmation of salesroom occupants' stores" is written in the sales advertising site, in order to sell unsold stores, it is deemed that the salesroom manufactured the advertising site and indicated the recommended type of business of the shop which became final and conclusive in order to sell unsold stores, and therefore, it is not sufficient to recognize that the above sales advertising site alone designated the type of business for each shop of this case by designating the type of business, and there is no evidence to prove otherwise.

F) As shown in the Plaintiffs’ assertion, Nonparty 3, the representative director of Defendant C, was aware of the fact that he sold the Plaintiff’s store to Defendant 1’s agent and licensed real estate agent Nonparty 2 at the time of selling the Defendant’s store, and notified that he had an obligation to restrict business type whenever selling or leasing another store. (1) as seen in the above paragraph (b), Nonparty 2, unlike Nonparty 3’s statement, prepared and submitted a confirmation document stating that “the Plaintiff’s store was designated as a pharmacy at the time of mediating the sale and purchase of the Defendant store, and there was no notification that the Plaintiff’s store was sold to Nonparty 3.” Unlike Nonparty 3’s statement, it is difficult to find reasonable grounds not stated in the sales contract even if Defendant 1 and Defendant C entered into an agreement on restricting business type; ③ Even if Nonparty 3 did not perform his duty to provide the Plaintiff’s exclusive right to use the pharmacy, it is difficult to find out the fact that Nonparty 1 and Nonparty 3 did not have any other duty to provide any fact-finding or any other confirmation document.

사) 한편 이 사건 상가의 일부 점포의 입점자들이 ‘분양, 입주 당시 원고 점포에 독점적인 약국 영업을 보장하는 약정이 체결된 사실을 알고 있었다’는 내용의 확인서(갑 제6호증)를 제출한 사실은 인정된다. 그러나 ▷▷▷호 점포 수분양자인 소외 6은 피고 1과의 통화과정에서 “▷▷▷호 점포를 분양받을 당시에 원고 점포에 약국 독점영업권이 보장되어 있다는 사실을 알지 못하였고, 나중에서야 그러한 사실을 들어서 알게 되었다.”라고 진술하여 확인서 내용과 상이한 진술을 하는 등 점포 입점자들이 원고들과 이해관계가 대립되지 않는 상황에서 이미 인쇄되어 있는 확인서의 내용을 확인하지 않은 채 서명·날인을 한 것으로 볼 여지가 높아 그 내용을 그대로 믿기 어려울 뿐만 아니라, 위 확인서 기재만으로 점포 입점자들이 당시 그 법률적 의미를 명확히 이해하고 업종제한 의무를 수인하기로 동의하였다고 보기 어렵다.

3. Determination as to the plaintiff 1's claim against the conjunctive defendant rocks

A. Determination on the main defense of this case

1) The argument of the defendant rocks

The non-party 8, who is the husband of the plaintiff 1, agreed with the non-party 3, who is the representative director of the defendant cancer, not to hold the defendant cancer liable for the violation of the business sector restriction agreement. Thus, the plaintiff 1's claim against the defendant cancer is unlawful as it was filed against the above sub-committee agreement.

2) Determination

According to the evidence evidence No. 4, the non-party 8, who is the husband of the plaintiff 1, called "the President (non-party 3) to the non-party 3 in the process of sending the case to his mobile phone conversations with the non-party 3, although it is recognized that the non-party 8 was merely a statement made in order to understand the non-party 3 in the process of confirming the fact that the business sector restriction agreement was entered into on the store of this case and seeking cooperation. The time when the communication was made is around March 5, 2018, after the lawsuit of this case was brought, and the non-party 8 did not make a statement to withdraw the lawsuit of this case at the time of the lawsuit of this case. In this circumstance, it is insufficient to recognize that the non-party 8's phone statement on the above phone alone concluded the sub-agreement agreement between the plaintiff 1 and the defendant 1, and there is no other evidence to recognize it. Thus, there is no reason to deem the defendant Dak's main text of this case.

B. Judgment on the merits

1) Plaintiff 1’s assertion

Even if Defendant 1 and Defendant 2 did not bear the duty of business restriction, Defendant 1, a selling company, had the duty to guarantee Plaintiff 1’s exclusive operation of Plaintiff 1’s pharmacy pursuant to the sales contract, but Defendant 2’s failure to perform the duty to guarantee the exclusive operation of Plaintiff 1’s pharmacy at Defendant 2’s shop. Accordingly, Plaintiff 1 suffered property loss incurred by Plaintiff 2, a lessee, from failing to conduct exclusive operation of the pharmacy. Defendant 1 was liable to pay KRW 50 million to Plaintiff 1 as part of the damage.

2) Determination

A) Determination as to whether Defendant C&T violated an industry-related restriction agreement

As seen earlier, in selling the Plaintiff’s store by designating the type of business to the Plaintiff 1 as a pharmacy and selling the Plaintiff’s shop, the Defendant Cancer entered into a trade restriction agreement by providing that “where the Plaintiff 1 intends to change the purpose of use after the Plaintiff’s shop was occupied in the Plaintiff shop, it shall consult with the Defendant Cancer, and the Defendant Cancer shall not sell or rent it to the Plaintiff shop except for the Plaintiff shop at the time of initial rent-out.” The Defendant Cancer clearly notified that it should comply with the duty of trade restriction when selling or renting another shop in order to substantially protect Plaintiff 1’s exclusive business right in accordance with the industry restriction agreement, and bears contractual obligations to take appropriate measures, such as rescission of the contract. However, as seen in Article 2-B(b) of the above, it is reasonable to deem that the Defendant Cancer did not enter into an agreement with the Plaintiff 1 and the Defendant 2 on the restriction of type of business, even if it was operated in the Defendant shop, and thus, it cannot be concluded that it violated the duty of trade restriction agreement with the Plaintiff 1.

As to this, inasmuch as Article 12(4) of the sales contract for the Plaintiff’s store sets the time limit during which the agreement on the restriction of type of business becomes invalid by setting the time when the agreement on the restriction of type of business becomes invalid except for the Plaintiff’s store, the Defendant Company bears the duty to restrict the business of the Plaintiff and the buyer who first entered into the sales contract with the Defendant Company, and the Defendant Company first leased the Defendant Company’s store to the mobile phone sales agency, so even if the Defendant Company did not enter into the contract on the restriction of type of business when selling the Defendant store to the Defendant Company, it cannot be deemed that the Plaintiff Company breached the duty of business restriction pursuant to the agreement on the restriction of type of business. However, according to the language of the above provision, it is reasonable to view that the Plaintiff Company’s daily sales of the instant store even in the case of resale or lease of the store, taking into account the circumstances where it is difficult for the Plaintiff Company to ascertain the fact that the Plaintiff Company’s sales contract and the lessee would be subject to the restriction of type of business.

B) Determination as to whether the Plaintiff 1 suffered property damage

On the other hand, as seen earlier, it is difficult to recognize that Plaintiff 1 and Plaintiff 2 were unable to guarantee the exclusive business right of the Plaintiff 1 and Plaintiff 2, a lessee, on the chain of a violation of the occupational restriction agreement, and there is no evidence to acknowledge that the value of Plaintiff 1’s shop was reduced, or that Plaintiff 1 was liable to compensate Plaintiff 2 for damages caused by the breach of the occupational restriction agreement. As alleged by Plaintiff 1, it is difficult to recognize that Plaintiff 2 actually suffered property damage to Plaintiff 1, and there is no other evidence to acknowledge that there was no other evidence to acknowledge that Plaintiff 1’s claim against Plaintiff 1 for the conjunctive Defendant 1 is without merit.

4. Conclusion

Therefore, the plaintiffs' claims against the main defendant 1 and 2 and the plaintiff 1's claims against the main defendant defendant 1 are dismissed as it is without merit. It is so decided as per Disposition.

Justices Kang Jae-soo (Presiding Justice)