2012 Gohap102705 Penalty

G

Seoul

Law Firm Jin- Training, Counsel for defendant-appellant

[Defendant-Appellee]

Kim 00 (68 – 1)

Seoul

Attorney Lee Jae-hoon, Counsel for the defendant-appellant

March 15, 2013

April 12, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant 702, 671, 622 won to the plaintiff and a copy of the complaint of this case from April 18, 2012 to the plaintiff

Until service date, 6% per annum and 20% per annum from the next day to the day of complete payment.

L. D. Payment of money.

1. Basic facts

A. On April 26, 201, the Plaintiff entered into a contract with the Defendant and Yellow 00 (hereinafter “Defendant et al.”) under which the Defendant et al. purchased the facilities and goodwill of the 00 apartment store underground 101 located in Seoul Special Metropolitan City, Nowon-gu, for a purchase of KRW 490 million (including value-added tax) and KRW 500,000 (hereinafter “instant sales contract”) and paid the Defendant KRW 495,000,000 to the Defendant.

B. Article 8(9) of the instant sales contract provides that “A (referring to the Defendant, etc.; hereinafter the same shall apply) shall bear the penalty (the total amount of the premium paid under the B’s investment cost and the sales contract) as the amount of damages, in the event that a new exit is made within 1km from the operating shop of B (referring to the Plaintiff; hereinafter the same shall apply) located across the country after entering into the instant sales contract for the facilities and the premium of this case (referring to the Plaintiff; hereinafter the same shall apply).

C. On April 18, 2012, the Defendant opened a supermarket with the trade name of “Wart” in the Gambae-si Suwon-si District. The above “Wart” is located within 1 km from the Camba-si, operated by the Plaintiff in the Gamba-si District.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 6, 7-2 and 3, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

The defendant violated the agreement for penalty of this case by opening the Smar in the name of "Wmat" in the place located 100 meters away from the Cmar's marum store operated by the plaintiff. Therefore, the defendant is obligated to pay to the plaintiff a penalty for delay after April 18, 2012, where the defendant opened the "Wmat" to the plaintiff. Therefore, the defendant is obligated to pay a penalty for delay to the plaintiff 702, 672, 622 won ( = KRW 490,500,000 for the premium paid by the plaintiff + KRW 207,671,662 for the facility investment paid by the plaintiff to the Smar market that the plaintiff acquired from the defendant.

B. Defendant 1) The instant penalty agreement is (i) the agreement imposing an excessive duty of prohibition of competition than the duty of prohibition of competition under Article 41(1) of the Commercial Act, which is a mandatory provision, and is null and void in violation of the same Article, or (ii) the agreement that loses fairness by violating the principle of good faith, such as unfairly imposing excessive liability on the Defendant for damages, and (iii) the Regulation of Standardized Contracts Act (hereinafter “Standard Contract Regulation Act”).

Even if the agreement on the penalty of this case is valid pursuant to Article 103 of the Civil Act, it is null and void pursuant to Articles 8 and 6-2 (3) of the same Act, or an agreement contrary to good morals and social order by excessively restricting the freedom of occupation or the right to property, and thus, is null and void pursuant to Article 103 of the Civil Act. 2) Even if the agreement on the penalty of this case is valid, the Plaintiff did not explain to the Defendant at the time of entering into the contract of this case the terms and conditions of the agreement on the penalty of this case, and thus, the Plaintiff cannot claim to the Defendant as the content

3. Determination

A. Whether the Act on the Regulation of Terms and Conditions applies to the agreement on the penalty in this case

1) The terms and conditions subject to the Act on the Regulation of Terms and Conditions refer to the terms and conditions that one party to a contract prepared in advance in order to enter into a contract with several other parties, regardless of their names, forms or scope (Article 2 subparagraph 1 of the Act on the Regulation of Terms and Conditions

According to the results of the fact-finding on the Fair Trade Commission of this Court, the contract of this case was concluded with the Plaintiff and the Defendant’s signature and seal on the contract stating the phrase prepared by the Plaintiff, and the Plaintiff from August 26, 201 to September 2011, 201.

28. It can be acknowledged that the 29 collective contract was included in the 29 collective contract between the 29 collective contract and the 19 collective contract between December 20, 201 and October 2012, which was concluded between the 19 collective contract and the 19 collective contract between the 29 collective contract and the 19 collective contract between the 200 collective contract and the 19 collective contract between the 200 collective contract and the 19 collective contract between the 200 collective contract and the 29 collective contract between the 29 collective contract and the 19 collective contract between the 20 collective contract and the 19 collective contract between the 19 collective contract and the 19 collective contract between the 19 collective contract and the 19 collective contract between the 29 collective contract and the 19 collective contract between the 19 collective contract and the 19 collective contract between the 19 collective contract and the 2 collective contract between the parties.

However, if a specific agreement has been reached between the parties regarding the matters included in the terms and conditions, even if they were to be included in the terms and conditions, the so-called "individual agreement or individual agreement" should be proved by the business owner claiming the agreement (Supreme Court Decision 2001Da83319 Decided March 14, 2003).

However, it is not sufficient to acknowledge that there was an individual and specific agreement on the content of the instant penalty agreement between the Plaintiff and the Defendant, etc. solely with the descriptions of evidence Nos. 10 through 12 (including branch numbers), and there is no other evidence to acknowledge it. Thus, the Plaintiff’s above assertion is without merit.

B. Article 6(1) of the Act on the Regulation of Terms and Conditions provides that "any clause which has lost fairness against the principle of trust and good faith shall be null and void." Article 6(2) provides that "if a clause falls under any of the following subparagraphs, it shall be presumed that the clause in question has lost fairness." Article 8 provides that "any clause that is unreasonably unfavorable to a customer" and Article 8 provides that "any clause that imposes an unfair excessive liability on a customer for late payment damages shall be null and void." Thus, a clause that imposes an unfair excessive liability on a customer or a clause that imposes an excessive penalty on a customer shall be presumed to be unfair and unfair against the principle of trust and good faith and shall be deemed null and void (see Supreme Court Decision 2009Da20475, 20482, Aug. 20, 2009).

① The instant penalty agreement provides for the sum of the proceeds of the instant sales contract and the facility expenses invested by the Plaintiff in the store subject to the instant sales contract as a penalty for breach of the Defendant’s duty not to engage in competitive business. The amount of facility expenses invested by the Plaintiff in the store may exceed the amount stipulated in the sales contract, depending on the case where the amount of the facility expenses invested in the store may be much larger than the amount stipulated in the sales contract, and the Defendant cannot anticipate such amount, and the maximum amount is not set. Therefore, the instant penalty agreement constitutes a clause that imposes an unreasonably excessive liability on the Defendant.

② The Plaintiff, based on June 2012, operated a 244 supermarket store across the country, and the Defendant, pursuant to the instant penalty agreement, bears the duty to prohibit competitive business with respect to the Plaintiff within a certain scope throughout the country. Furthermore, the instant penalty agreement does not restrict the period during which the Defendant bears the duty of prohibition of competitive business, and the Defendant, without any time limit, permanently assumes the duty of prohibition of competitive business with respect to the Plaintiff.

③ Not only can the Defendant be deemed to have been subject to the obligation not to engage in competitive business in accordance with Article 41 of the Commercial Act, but also the agreement on the penalty of breach of contract in this case imposes an excessive obligation not to engage in competitive business in comparison with Article 41 of the Commercial Act. In other words, Article 1 provides that "the subject matter of the contract in this case is not a comprehensive business takeover, but a separate facility, etc. as provided in Article 1." Article 8 (4) provides that "B does not take over employees among the existing employees, and the transfer of facilities and goodwill pursuant to the contract in this case does not fall under the transfer of business as a whole while maintaining its identity, and thus, the Defendant cannot be deemed to bear the duty not to engage in the same kind of business as that of the Seoul metropolitan area in this case, even if the Defendant does not have any additional obligation to engage in the same kind of business in the same manner as that of the Seoul metropolitan area in this case, the Defendant cannot be deemed to bear the duty not to engage in competitive business in accordance with Article 41 of the Commercial Act.

Based on this point, the Plaintiff’s assertion that the instant penalty agreement is valid if it is interpreted as imposing time limit of 20 years under Article 41 of the Commercial Act is valid.

C. Sub-decision

Ultimately, the Plaintiff’s assertion that the contract for penalty of this case is valid is without merit.

4. Conclusion

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

Justices Kim Sung-soo

Judges Dominium

Judges, Senior Superintendent-General

1) [Commercial Act]

Article 41 (Prohibition of Competitive Business of Transferor)

(1) Where business is transferred, unless otherwise agreed upon, the transferor shall be the same Special Metropolitan City, Metropolitan Cities, Sis, Guns, and neighboring Special Metropolitan Cities, Metropolitan Cities, Sis, Guns for ten years.

of the same kind of business.

(2) If the transferor has agreed not to engage in the same kind of business, it shall be limited to the same Special Metropolitan City, Metropolitan Cities, Sis, Guns and the Special Metropolitan City, Metropolitan Cities, Sis, Guns adjacent thereto.

for a period not exceeding 20 years.

2) [Standard Contract Terms Regulation Act]

Article 6 (General Principles)

① The terms and conditions which lose fairness in violation of the principle of good faith are null and void.

(2) Any of the following clauses in terms and conditions shall be presumed to be unfair:

1. A clause which is unreasonably unfavorable to customers;

2. A clause which customers are difficult to anticipate in light of all the circumstances, such as the type of transaction under the contract;

3. A clause which is so restrictive of essential rights under a contract that the purpose of the contract may not be achieved.

Article 8 (Predetermined Amount of Damages) Any clause of a standardized contract which imposes an obligation to compensate for delayed damages, etc. which are unreasonably excessive on customers, shall be null and void.

(c)

3) [Standard Contract Terms Regulation Act]

Article 3 (Preparation of Terms and Conditions, Obligation to Explain, etc.)

(3) An entrepreneur shall explain the important particulars of a standardized contract so that customers can understand them: Provided, That such explanation shall be given in light of the nature of the contract.

(1) If it is substantially difficult to do so, this shall not apply.

(4) Where a business operator concludes a contract in violation of paragraphs (2) and (3), he/she shall not claim the terms and conditions of the contract.