The case holding that the transferor is obligated not to engage in competitive business by regarding the transfer of a small beauty room where there is no employee, know-how, customer, etc. to whom the transferor is responsible for the transfer of business.

In a case where a person who transfers all the trade names and facilities of a small beauty art room and operates a new beauty art room at a place less than 70 meters away from the beauty art room and the transferee applied for a provisional injunction, the case reversing the order of the court below rejecting the application for provisional injunction on the ground that the transferee acquired the business of the above beauty art room on the ground that the transferee succeeded to the lessee's status while taking over the beauty art room, received all the trade name, signboard, telephone number, fixtures, etc. used by the transferor by paying additional money, and operated the beauty room without changing them, although the beauty room was not received because there was no employee, know-how, customer, etc. who will take over it, the transferee continued the same business as the transferor after taking over the functional property as the source of profit organicly organized from the transferor, and therefore the transferee took over the business of the above beauty art room.

Article 41 (1) of the Commercial Act

Claimant (Attorney Lee Dong-gu, Counsel for plaintiff-appellant)

The debtor

Busan High Court Order 2008Ra245 dated June 19, 2009

The order of the court below is reversed, and the case is remanded to Busan High Court.

The grounds of reappeal are examined.

Article 41(1) of the Commercial Act refers to a functional asset as an organic integration organized for a certain business purpose. The term "functional asset as an organic integration" refers to a functional asset as an organic combination of tangible and intangible property and facts with economic value, and the functional asset as an source of profit which is an organic combination of these facts, becomes an object of transaction like one goods. Thus, whether a transfer of business is deemed to have been made should be determined depending on whether the transferee is deemed to have continued the same business activity as the transferor had been engaged in the transfer of functional property as an organicly organized source of profit (see Supreme Court Decisions 88Da10128, Dec. 26, 1989; 97Da35085, Nov. 25, 1997; 2007Da8297, Apr. 11, 2008; 2007Da8297, Feb. 29, 2008).

According to the records, the obligor, from around 197 to 100, succeeded to the lessee's status under the cosmetic shop lease agreement of this case, and additionally succeeded to the obligor's trade name (for example, 00,000 won) of the obligor's cosmetic and cosmetic 200,000 won in the name of "OOOOOOOOOO" (hereinafter "OOOOOOO" design"), and reported advertisement on December 8, 2007, seeking to take over the cosmetic room as of December 8, 200, while operating the cosmetic 200,000 won in the name of "OOOOOOOO" (hereinafter the above 7,000,000 won in the name of the obligee and 60,000 won in the name of the obligee, and there is no room to view the above 6,000,000 won in the name of the obligee or witness's 60,000 won in the name of the No.

The court below determined that the obligee merely received the physical facilities of the beauty room from the obligor, but did not receive the business of the beauty room of this case, on the ground that there was no agreement on the facts (business secret, customer connection, purchase line relation) having economic value for the beauty room business of this case, in the case of a small beauty room operated by one person like the beauty room of this case, the success of the business depends on the operator's beauty and credibility with the operator rather than the mutual authorization or location, and it is appropriate to view the obligee as the price for the purchase of facilities and fixtures as the price for the goods. The court below rejected the application for provisional disposition of this case on the premise that the transfer contract of this case was a business transfer, and rejected the application of this case on the premise that the transfer contract of this case is a transfer of business.

However, in light of the legal principles as seen earlier and the above circumstances indicated in the record, particularly the obligee succeeded to the lessee's status while taking over the beauty art room in this case from the obligor, and the obligor took over the trade name (○○○ beauty room), signboards, telephone numbers, and fixtures, and used them as they are without any modification, and operated the beauty art room in this case. Even if there is no employee, know-how, customer, etc. who will take over and take over the beauty art room in this case, even if the beauty art room in this case did not have any employees, know-how, and customer, the obligee continued to conduct the same business as that of the obligor taking over the functional property as the source of profit organized organically from the obligor, and thus, it is determined that the obligee took over the

Nevertheless, the judgment of the court below that the obligee merely received physical facilities and did not take over the business is erroneous in the misunderstanding of legal principles as to the transfer of business, which affected the conclusion of the judgment.

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)