2016 Gohap76271 Compensation, etc. (as a result),

1. Kim ①

2. Kim B.

3. Kim third

[Defendant-Appellant]

[Defendant-Appellant] Plaintiff LLC et al.

Attorney Lee In-bok

1. Kim D.D.

Sungnam-si

2. No. 50 p.n.

Chicago-si

[Defendant-Appellant] Defendant 1

Attorney Lee In-bok

August 18, 2017

September 15, 2017

1. The plaintiffs' claims against the defendants are all dismissed.

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

The Defendants jointly and severally pay to each of the Plaintiffs 10,00,000 won and 15% interest per annum from the day following the delivery date of the duplicate of the instant lawsuit to the day of full payment.

1. Basic facts

A. Status of the party

The plaintiffs are children of Kim ○, who died at around January 2016, and the No. D. D. D., the defendant Kim Jong-si is a person who purchased a 213 store (hereinafter referred to as "store No. 213") of the 2nd floor of the K Sports Center (hereinafter referred to as "the building of this case") in the Geng-si from the owner of the building on June 21, 2001, and the defendant 0 p.m. (hereinafter referred to as "the 213 store") operated a pharmacy from June 201 to March 2017.

B. Conclusion of the instant sales contract

On September 28, 2001, ○○○○ and the first floor of the instant building (referred to as the “store No. 119”) concluded a sales contract (hereinafter referred to as the “sale contract in this case”) with respect to the stores No. 119 on the first floor of the instant building, and around that time, the sales contract was run at the 119 store from around January 201 to around January 201, hereinafter referred to as the “Ma pharmacy” at the 119 store from around 2016. The main contents related to the instant sales contract are as follows.

A person shall be appointed.

A person shall be appointed.

(c) Conclusion of a lease contract;

On March 21, 2016, the Plaintiffs entered into a lease agreement of KRW 18 billion on monthly rent, from March 28, 2016 to March 27, 2019, with respect to the store No. 119, which was operated by Kim○ and Dong Kim○ as a pharmacy, and entered into a lease agreement of KRW 1 billion on monthly rent, from March 28, 2016 to March 27, 2019, and thereafter on the ground of the decrease in operating income due to the establishment of a pharmacy in the point No. 213, May 23, 2016; the lease agreement of KRW 15 million from May 28, 2016 to March 27, 2016; and the lease period of KRW 20,000 from March 24, 2012 to March 26, 2015, respectively.

[Ground of recognition] The facts without dispute, Gap evidence Nos. 1 through 5, and 37 (including a lot number if there are several numbers) and the purport of the whole pleadings

2. Assertion and determination

A. The plaintiffs' assertion

All stores of the building of this case are designated and sold by the category of "use of facilities for convenient use" except where the type of business is specifically set by pharmacies, hospitals, etc.

In high, it is reasonable to view that, at the time of the sale contract in this case, the deceased Kim ○ was sold to the stores No. 119 as the exclusive pharmacy business store of this case. According to the building management rules of this case, the stores can not be sold to the pharmacies except for the stores No. 119. It is reasonable to view that the defendant Kim Jong-ok, the number of the stores No. 213, and the defendant Kim Don who leased the above store No. 213, the above store No. 119, and the defendant 00, the non-party 1, who agreed to grant the duty of mutual implied restriction on the type of business in relation to the shop occupants of the building of this case. Nevertheless, the defendants violated the above type of business restriction agreement, thereby causing considerable damage to the business of the plaintiffs No. 119, and the defendants are obliged to pay damages to the plaintiffs due to the adjustment of the rent that the plaintiffs suffered.

B. Determination

1) Relevant legal principles

It is reasonable to view that the owner of a building, where he/she constructs and sells a commercial building for each shop, the number of stores, the transferee of the position of the shop, or the lessee of the shop, agreed to accept the obligation of restrictions on the type of business agreed in the sale contract, etc. from the mutual relationship between the shop occupants, barring any special reason. Thus, the transferee of the position of the number of stores, and the lessee of the shop violate the agreement on the restriction on the type of business set forth in the sale contract, etc. Therefore, a person whose business interest is likely to be infringed is entitled to claim the prohibition of the same type of business in order to avoid infringement (see, e.g., Supreme Court Decisions 2007Da8044, May 27, 2010; 200, 2009Da6179, Dec. 24, 2009; 200, 300, 190, 290, 290, 205, 200

[Period up to the period] + 27,00,000 won = 13,50,000 won per month ( = 18,00,000 won per month - 4,500 won - 4,500,000 won) x December 28, 2016

February 28, 2017)

Even in cases where only a type of business is designated, the same legal doctrine shall apply to at least the number of buyers of a designated shop or the transferee of his/her position, barring special circumstances (see Supreme Court Decision 2007Da3044, May 27, 2010, etc.). In order to transfer the effect of this agreement to other buyers, etc. than the seller of a commercial building and the buyer whose exclusive operation was guaranteed, the sales contract concluded between the seller of a commercial building and all buyers should be designated as type of business or subject to restriction of type of business, or should be concluded.

2) Determination

In light of the above legal principles, according to the above evidence and Gap evidence and Gap evidence Nos. 6, 13 through 19, 21 through 35 (including a Serial number), the store No. 213 was leased for business other than the pharmacy, such as defendant No. 213 before the pharmacy runs its business. According to Article 8 (4) of the Rules on the Commercial Building Management of this case (Enforcement of January 10, 2004), the whole or part of the whole part of the store was prohibited without prior approval from being used for the designated purpose and for other purposes than the designated type of business, and the cooperation of the request for restriction of saleroom occupants of the same type of business within the building of this case is also prepared. Article 13 (7) of the Rules on the Commercial Building No. 13 of the Commercial Building No. 7 of this case No. 14 of the same type of business can be defined as "the new facility for sale of this case's building No. 1 of this case's 'the new facility for sale of this case'.

In the case of this case, the fact that the specialized department for the sale in this case is specified, and the fact that the contract for sale in this case stated that it cannot be sold to a pharmacy except for the store No. 119 is as mentioned above.

However, the evidence mentioned above, Gap evidence Nos. 8 to 11, Eul evidence Nos. 1 to 3 and 5 (including Serial Nos. 1 to 3 and 5), and the K Sports Center of this Court

In light of the following circumstances as a result of the fact-finding on the witness Lee ○○’s testimony and the overall purport of the pleadings, the fact-finding alone is insufficient to recognize that the owner sold each shop of the building of this case by limiting the category of business by each shop, or that the pharmacy was exclusively guaranteed at the 119 shop, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s claim based on the premise that the Plaintiff’s exclusive business right was infringed upon by the 213 shop is no longer reasonable.

① In cases where a building company constructs and sells a commercial building in units by designating a type of business for each shop or selling in units only for a subordinate shop, and bears the duty of restricting the types of business among the shop occupants, each shop buyer bears the duty not to operate the designated type of business for the other shop buyers at the same time. Therefore, it is general to clarify the contents of the sales contract in the sales contract, etc., but there is no content related to the designation of the type of business for the other stores including the 213 shop outside the 119 shop. Accordingly, the plaintiffs designated the purpose of the provision of the sales contract for each shop of the building of this case as the convenience facilities under the sales contract for the building of this case. However, it is not necessary to designate the type of business for exclusive business rights, but to comprehensively set the use of sports facilities and other facilities other than the sports facilities under the laws and regulations of the government at the time, and it is not necessary to use each designated type of convenience facilities as one of the above facilities for the convenience of all residents.

② Even if this is effective, Article 8 subparag. 4 of the Regulations on the Commercial Building Management (Enforcement of January 10, 2004) prohibits arbitrarily changing the type of business on the premise that there is a designated type of business, and it is no longer applicable to the store of the building of this case. Moreover, even if this is valid, the above provisions on the management rules and the restriction on the types of business of the building of this case were made to be prepared at the right level to cooperate with the public in the same type of business after the contract for the sale in this case was continuously raised by the public members of the same business after the contract for the sale in this case. It is difficult to view that the use of the building of this case was designated in the whole store of this case.

③ Each store of the instant building appears to have been sold because the location, size, timing of sale, etc. of the stores are determined as equivalent to those of the stores, and only at the store No. 119, the sales price is deemed to have been determined.

In light of the fact that the pre-sale contract of this case appears to have written the pre-sale agreement of this case, the pre-sale agreement of this case seems to contain the pre-sale agreement of this case, and that the pre-sale of the pre-sale business store of this case is limited in addition to the pre-sale 119 after the pre-sale contract of this case, it is deemed that the pre-sale of the pre-sale contract of this case or the pre-sale of the pre-sale by the pre-saler was merely because the pre-sale owner did not overlap with each other, or that the pre-saler did not purchase the same type of business

④ Even if only the 119 stores exclusively guarantee the category of pharmacy business, the obligation to restrict the type of business arises from the agreement among the buyers of a commercial building to accept them. Thus, in the process of the sales contract with the entire buyers, the circumstances that there was a designation of a type of business for a certain store or a designation of a type of business for a certain store must be publicly notified to all buyers. The sales contract for the 213 stores was concluded earlier than the two contracts for the 119 stores. In light of the fact that the 119 stores were leased from the building of this case to the 119 stores (No. 118, 208, and 213) and operated the pharmacy business, there is insufficient evidence to acknowledge that the other buyers consented to the restriction on the type of business for the 119 stores.

3. Conclusion

Therefore, all of the plaintiffs' claims against the defendants are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Dong-chul

Judges Kim Jong-du

Judges Shin Young-young