[1] The validity of a trade restriction agreement on apartment store sales contract (effective)

[2] The case recognizing the exercise of the right to cancel the contract under the sales contract on the ground of the change of the business type of the apartment shopping mall designated at the time of sale

[1] In the event that a business type in the apartment complex intends to be changed while designating a business type in the sale of a commercial building in the apartment complex, prior to the saleroom occupants' prior approval, and after the saleroom occupants' representatives' meeting, the sales contract may be cancelled even after the saleroom occupants' representatives' meeting, such an agreement cannot be deemed as an infringement of the freedom of occupation or property rights guaranteed under the Constitution, or a violation of the public order and good morals, as long as it provides necessary means to promote the convenience of the residents of the apartment complex, to promote the common interest of the merchants, and to achieve the reasonable purpose of maintaining the smooth function of the commercial building. In addition, such an agreement cannot be deemed as simply stimulated or recommended.

[2] The case holding that the exercise of the right of rescission of an agreement by the selling company on the ground of the non-performance of the duty of prohibiting the change of the unauthorized type of business is valid in a case where the buyer who purchased a commercial store under an agreement with the contents of the above / [1] has changed the designated type

[1] Articles 15 and 23 of the Constitution of the Republic of Korea; Article 2(1) of the Civil Act / [2] Articles 2(2) and 543 of the Civil Act

[1] [2] Supreme Court Decision 94Da30867 delivered on September 5, 1995 (Gong1995Ha, 3346)

Plaintiff (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

lot Construction Co., Ltd. and one other

Seoul High Court Decision 94Na40224 delivered on August 1, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of supplementary appeal as stated in the supplemental appellate brief not timely filed are examined together.

1. On the first ground for appeal

A. According to the reasoning of the judgment below, the fact-finding and judgment of the court below are as follows.

The Plaintiff entered into a sales contract with the Defendants on June 3, 1993. The instant store is located on three stories above ground and one story among the first apartment complex (966 households) located in Yangyang-si, where the Defendants jointly constructed and sold, and the first apartment complex (101). The Defendants, prior to the sale of the said apartment complex, set up and publicly announced each category of business in order to promote the convenience of residents living in the apartment complex, promote the common interests of the merchants working in the above apartment complex, and maintain the smooth function of the above commercial building, and concluded a sales contract with the parties who purchased each category of business in the above commercial building, the designated store cannot be converted into another category of business, and the designated type of business in each of the remaining types of business can not be changed into the agreement with the Defendants’ representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' representatives' prior to the alteration of the type of business.

The Plaintiff paid 300 million won of the sales price of the instant store to the Defendants by December 16, 1993, and sold the said store on the same day. From around 28th of the same month, Nonparty 1 (Plaintiff), who was delegated with the management and operation of the instant store, installed only the display stand in the instant store without manufacturing facilities of breab or bread, and operated the instant store. On January 7, 1994, the Plaintiff obtained the permission for real estate brokerage business for the location of the instant store in the name of Nonparty 2 from the competent government office, and the Plaintiff’s notification of the change of the business type of the said store’s business type to the Plaintiff on March 24, 1997, the Plaintiff voluntarily suspended the sale of the said store’s business type without the Plaintiff’s prior approval for the change of the business type of the said store’s ownership from the 3rd Construction Co., Ltd., Ltd. (the same shall apply hereinafter) to the said company’s 4th of the same month.

Accordingly, on July 6 of the same year, the Defendants notified the Plaintiff that the instant sales contract will be rescinded on the ground that the Plaintiff changed the business type of the instant store without obtaining prior approval from the Committee for the Self-Governing Management of Commercial Areas, etc.

Meanwhile, among the stores in the above commercial building, the first floor Nos. 102, 103, and 104 was designated as real estate brokerage business from the time of sale to the date of each recommended business, and each of the above stores operated real estate brokerage business. The Defendants sold the above stores through open bidding, and there was a difference in the sales price offered by the Defendants according to the figure of the recommended business type designated at each shop. However, the sales price at each of the above stores designated as the recommended business type was 12,00,000 won per square year, compared to the fact that the sales price at each of the above stores was 12,00,000 won per square year, the sales price at each of the above stores was 0,000 won per square year, and the sales price at each of the above stores was 0,000 won per square year, and the sales price at each of the above stores was 10,000 won per square year, and 200,000 won per square year.

After recognizing the above facts, the court below determined that the plaintiff was an assistant to perform the plaintiff since the non-party 1 was entrusted with the whole right to manage and operate the store of this case after the plaintiff moved in the store of this case on December 16, 193, and that the non-party 1 was an assistant to perform the contract of this case since he was delegated the whole right to manage and operate the store of this case from the plaintiff on the 28th of the same month, he suspended the operation of the business which was recommended from March 24, 1994, and operated the real estate brokerage business overlapping with the business type of the other store of this case from the end of May of the same year without the prior approval of the commercial autonomy management committee and the council of occupants' representatives, and therefore, the plaintiff violated the duty not to change the business type without the prior approval. Accordingly, the defendants can cancel the contract of this case on the ground of non-party 3's non-performance

B. According to the facts duly admitted by the court below, when entering into a sales contract for the store of this case, the plaintiff and the defendants set the category of business recommended for the store of this case as a store business, and the plaintiff cannot operate the business that overlaps with the business type of the other store of this case. If the plaintiff intends to change the recommended business type, prior written approval of the defendants shall be obtained before the store of this case was set up, after the store of this case, the autonomous management committee of commercial buildings and the council of occupants' representatives shall be approved, and if the plaintiff violated this contract, the defendants may cancel the sales contract of this case. Thus, it cannot be viewed that the contract of this case cannot be cancelled because the plaintiff violated the above contract of this case without permission or the contract of this case for modification of the contract of this case cannot be accepted because it did not comply with the procedure set forth in the sales contract of this case, and it cannot be viewed that the contract of this case did not violate the contract of this case without permission or there is no error in the misapprehension of the contract of this case's duty to cancel the contract of this case.

2. On the second ground for appeal

According to the reasoning of the judgment below, it is difficult to find that the Defendants were able to cancel the instant sales contract even after the Plaintiff paid the sales price to the Plaintiff for the purpose of changing the sales contract and changing the designated type of business without prior approval of the council of occupants' representatives. The Plaintiff’s assertion that the Defendants violated the freedom of choosing occupation and the right to property, etc. under the Constitution, and that the Defendants were able to change the recommended type of business even after the Plaintiff’s purchase and sale of the said apartment and its sales contract, and that the Defendants were able to obtain prior approval on the change of the business type. In light of the above reasoning, it is difficult to view that the Defendants were able to obtain prior approval on the change of the business type of the Plaintiff’s sales contract to the extent that the Defendants were able to obtain prior approval on the change of the business type of the said apartment and the sales contract to the extent that they were able to obtain prior approval on the change of the business type of the sales contract, and that such change of business type cannot be seen as being in violation of the aforementioned policy.

3. On the third ground for appeal

When one of the parties fails to perform his/her obligation, the other party shall notify the other party of the performance within a reasonable period of time, and when the debtor fails to perform his/her obligation within such period, he/she may rescind the contract, or when the debtor expresses his/her intention not to perform his/her obligation in advance, he/she does not require a peremptory notice.

As acknowledged by the court below, although the plaintiff started to operate the recommended store of this case, on January 7, 1994, the non-party 1, who had been permitted to run the real estate brokerage business for the location of the store of this case under the name of non-party 2, had received a warning from the merchants of the above store of this case, and had reported voluntary closure of the real estate brokerage business. After being notified by the defendants that the plaintiff would not change the business type of the store of this case without the prior permission of this case, until the plaintiff's suspicion of intention to change the business type of the store of this case without the prior permission of this case, the above non-party 1, who managed and operated the above store of this case, could not be seen as changing the business type immediately after suspending the business type of the above store of this case without the plaintiff's intention to cancel the sale contract of this case, because it was unreasonable for the defendants to interfere with the business type of the above non-party 1 to cancel the contract of this case, and there was no objective reason to view that the above non-party 1's business type and the above changed business type of business type of the above.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)