(영문) 서울고등법원 2018.4.11. 선고 2017나2056736 판결

1) ① From July 14, 2016 to 28,00,027 won, to 9,944,663 won, to 28,00,027 won, to 26,927,824 won, from May 10, 2016 to 27,62,80 won, to 25,56,982 from June 9, 2016, to 30, to 30,500 won, to 30,50,505, and 926 won, from 205, to 29,000 won, to 20,000 won, from 25,000 won, to 18,000 won per annum from 20,50,000 won, to 25,000 won per annum from 29,84,039,758 won, respectively, to 131,2016.

2) 15% per annum for KRW 326,282,110 from December 1, 2016, KRW 41,137,754 from December 8, 2016 to the date of full payment; and

3) As regards KRW 106,274,728, 5% per annum from February 9, 2017 to September 6, 2017, and 15% per annum from the next day to the day of full payment;

4) ① 5% per annum from July 11, 2017 to September 6, 2017; ② 71,440,280 won per annum from July 11, 2017 to September 6, 2017; ② 5% per annum from July 11, 2017 to April 11, 2018; and 15% per annum from the following day to the date of full payment.

The payment of each proportion of money shall be made.

B. The plaintiff (Counterclaim defendant)'s remaining monetary payment claims are dismissed.

2. The Defendant-Counterclaim Plaintiff’s appeal is dismissed.

3. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Defendant (Counterclaim Plaintiff).

4. Paragraph 1(a) of this Article may be provisionally executed.

Purport of claim and appeal

1. Purport of claim

(a) Main claim;

The Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”) against the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”);

1) From July 14, 2016 for KRW 1,369,458,776 and KRW 1,944,663 among them:

(3) With respect to 28,00,027 won, 26,927,824 won shall be paid at the rate of 1.5% per annum from April 8, 2016 to May 10, 2016 to 27, 27,62,80 won per annum from June 9, 2016 to 30, 30,505,926 won per annum from August 6, 2016 to 30, 29, 27.5% per annum from the day following the date of request to repay, 30% per annum from September 8, 2016 to 3.5, 27% per annum from the day of request to 3.5% per annum, 16% per annum from the day of request to 3.5% per annum, 20,039,758 won per annum, and 16.18% per annum from the day of request to 25% per annum:

2) Transfer of real estate listed in the separate sheet.

(b) Counterclaim;

The plaintiff shall pay to the defendant 60 million won with 15% interest per annum from the service date of the copy of the counterclaim of this case to the day of complete payment.

2. Purport of appeal

A. The plaintiff

The part of the judgment of the court of first instance against the plaintiff falling under the following order to pay shall be revoked. The defendant shall pay to the plaintiff 578,04,183 won and 426,575,065 won among them, 151,429,118 won with 15% interest per annum from February 9, 2017 to the date of full payment.

B. Defendant

The part of the judgment of the court of first instance against the defendant regarding the claim for monetary payment shall be revoked, and the plaintiff's claim corresponding to the revocation part shall be dismissed.

Reasons

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff’s claim for the payment of money and the claim for delivery of a building are combined, and the Defendant filed a counterclaim for the payment of money. The first instance court accepted part of the claim for payment of money and accepted a claim for delivery of a building, and dismissed the remainder of the claim for payment of money and the counterclaim in the principal lawsuit. As to the part against the Plaintiff regarding the claim for payment of money in the principal lawsuit of the first instance court, the Defendant appealed against the part against the Defendant regarding the claim for payment of money in the principal lawsuit of the first instance court, and thus, the subject of judgment in this court is limited to the part concerning the claim for payment

2. cite the judgment of the court of first instance

The reasoning of the judgment of this court is as follows. The individual parts of the judgment of the court of first instance shall be used as follows. The parts of the judgment of the court of first instance from 7th to 24th 6th eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth g eth e

3. Parts to be dried;

A. The written judgment of the court of first instance (hereinafter referred to as the "written judgment of the court of first instance") was written on December 5, 2016, '201.' from December 4, 2016.

B. On March 31, 2016, "No. 31, 2016" of the 9th 1st e.g., " March 31, 2017" shall be applied.

In addition to the purport of the entire argument of the evidence mentioned above, the defendant can be found to have delayed payment of the sub-lease fee under the sub-lease contract of this case as shown in the following table. Thus, the defendant is obligated to pay to the plaintiff the interest of the sub-lease fee of this case and the interest of arrears or delay damages from the 5th day of next month from the 5th day of next payment.

A person shall be appointed.

Therefore, the defendant shall set off against the plaintiff 1,758,416 won remaining after deducting the aggregate of 18,241,58,584 won of interest accrued from 367,419,964 won to 30 November 30, 2016 by the method of deducting from the amount of three months of the principal of the sub-lease charges which is the aggregate of 379,178,380 won, and one of the above 326,282,210 won (which shall be the aggregate of principal of the sub-lease charges appropriated as the above set-off and the remaining amount from March 1, 2016 to October 10), it is reasonable to view that the agreement is different from the annual interest rate of 11,758,416 won from the date following the date of settlement of interest to the date of claim for late 27,201.

However, among the judgment of the court of first instance, the Plaintiff did not object to this part of the claim on the merits, and only the Defendant appealed, so this part of the judgment of first instance cannot be modified disadvantageously to the Defendant under the principle of prohibition of disadvantageous alteration.

Ultimately, this part of the judgment of the first instance is to be maintained as it is. The defendant is obligated to pay to the plaintiff 367,419,864 won and damages for delay calculated at the rate of 15% per annum, which is the rate of 15% per annum, from December 1, 2016, which is the day following the date of the settlement of interest in arrears, for the amount of 326,282,110 won to the plaintiff, and from December 1, 2016, ② from December 8, 2016 to February 7, 2017, which is the date of delivery of an application for change of the purport of the claim and cause of the claim, and from February 8, 2017, the amount of interest calculated at the rate of 367,419,864 won per annum from the next day to the date of full payment.

(d) The 17th 5th 5th 6th 6th 2015 " November 30, 2015" was added to " November 30, 2016".

(e)take 17th 19th 17th sonies into 'burine'.

f. The 18th 11th 11th son was written by inserting 'the defendant'.

G. The 20th 16th 20th 16th 2016.2.7th 2016. The 17th 17th 2016th 201 and the 17th 2016th 9th 2017, respectively.

(h) 21 '0,014%' in the calculation of advertising costs for the following three occasions shall be '4.2435%'.

(i) 22. 31 March 2016, 2016, "31 March 31, 2017."

(j) On March 31, 2017, 2017, the 3rd parallel of 23 pages " March 31, 2016" shall be applied.

(k)for the 5th to 6th parallel 23th parallel 1, the parallel 16th parallel 23th parallel 2:

The Defendant asserted that the amount of rent was unjustly gained by occupying, using, and making profits from the instant store for four months from December 1, 2016 to March 31, 2017 without any legal cause. As to the same amount of damages, the Defendant sought a return of unjust enrichment against the Defendant separately from the claim for damages arising from illegal acts. However, according to the aforementioned factual basis, it is recognized that the Defendant carried on business at the instant store only three days from December 1, 2016 to December 3, 2016. As such, it is difficult to recognize that the Defendant unduly unjust enrichment equivalent to the rent by occupying, using, and making profits from, the instant store for the remaining period during which the Plaintiff did not carry on business. Furthermore, it is difficult to accept the Plaintiff’s claim for restitution of unjust enrichment by taking account of the following: (a) the Defendant’s specific assertion and proof regarding the amount of profit actually acquired by using, and making profits from, the instant store for the three days period; and (b) the Plaintiff’s claim for restitution of unjust enrichment is recognized separately from the Defendant’s liability for damages for four months.

(l) 2,315,2650 won, "2,315,2650 won" for 2,315,260 won shall be applied.

(m) 58,3679,234 won per 27 pages shall be hereinafter referred to as "58,379,234 won".

(n) 28 Does 28 - 28 - 28 - 1 - 1 -2 -

(o) it has been written by putting 28 pages 13 in ‘Ma' (hereinafter referred to as 'Ma') (in addition to '5.0' below).

4. Parts modified.

A. Part of the judgment of the court of first instance between the 7rd and the 24th 6th eth eth ethic

The above parts shall be modified as follows:

[C] Limitation on Liability

However, the amount claimed by the Plaintiff is equivalent to 14% of the total sales that the lessee would have paid to the Plaintiff when the Defendant, who is the lessee, normally engaged in the business for the four months above. The above amount seems to include not only the amount arising from the occupation and use of the store of this case but also the amount that the Defendant would have engaged in the business of selling the Plaintiff’s products using the Plaintiff’s trade name, etc. under the franchise agreement of this case. ② The period of the Defendant’s business operation without permission is three days, and ③ even if the contract of this case was terminated by the termination of the contract of this case, the Defendant has the right to the facilities and assets within the store of this case that the Plaintiff acquired from the Plaintiff, and the procedure was planned to determine whether to purchase the facilities or assets or to take out them by the Plaintiff, and thus, it is difficult to conclude that the business was normally conducted for the period of the above four months even if the store of this case was delivered at the time, 2016 + 16% of the average damages amount of the Plaintiff’s 467% per 167% of the amount of sub-lease.

Therefore, the Defendant has an obligation to provide the Plaintiff with regard to the instant store from December 1, 2016 to December 3, 2016, and from December 1, 2016 to March 31, 2017, 107,160,420 won for damages caused by illegal acts, and ① the part cited in the first instance judgment, 35,720,140 won, which is the part cited in the first instance judgment, 35,720,140 won, the following day after the date of delivery of the application for change of the purport of the claim and the cause of the claim, 10% of the annual interest rate from July 11, 2017 to December 3, 2016, to KRW 5% of the annual interest rate from December 1, 2016 to March 31, 2017, to KRW 105,714,700 per annum, 2015% of the Plaintiff’s claim and the remainder of this case.

B. Parts of the 28th parallel 14 to 29th parallel

The above parts shall be modified as follows:

5) Sub-committees 5)

따라서 피고는 원고에게 합계 862,894,873원(= 9,944,663원 + 28,000,027원 + 26,927,824원 + 27,662,800원 + 25,556,982원 + 30,505,926원 + 29,849,638원 + 44,039,758원 + 31,343,277원 + 28,208,966원 + 326,282,110원 + 41,137,754원 + 106,274,728원 + 107,160,420원) 및 그 중 ① 9,944,663원에 대하여는 2016. 7. 14.부터, 28,000,027원에 대하여는 2016. 4. 8.부터, 26,927,824원에 대하여는 2016. 5. 10.부터, 27,662,800원에 대하여는 2016. 6. 9.부터, 25,556,982원에 대하여는 2016. 7. 8.부터, 30,505,926원에 대하여는 2016. 8. 6.부터, 29,849,638원에 대하여는 2016. 9. 8.부터, 44,039,758원에 대하여는 2016. 10. 11.부터, 31,343,277원에 대하여는 2016. 11. 8.부터 각 2016. 121.까지 연 11.25%의, 그 다음날부터 다 갚는 날까지 연 15%의, 28,208,966원에 대하여는 2016. 12. 8.부터 2017. 2. 8.까지 연 11.25%의, 그 다음날부터 다 갚는 날까지 연 15%의 각 비율로 계산한 지연손해금을, ② 326,282,110원에 대하여는 2016. 12. 1.부터, 41,137,754원에 대하여는 2016. 12. 8.부터 각 다 갚는 날까지 연 15%의 비율로 계산한 지연이자 또는 지연손해금을, ③ 106,274,728원에 대하여는 2017. 2. 9.부터 2017. 9. 6.까지 연 5%의, 그 다음날부터 다 갚는 날까지 연 15%의 각 비율로 계산한 지연손해금을, ④ 35,720,140원에 대하여는 2017. 7. 11.부터 2017. 9. 6.까지 연 5%의, 그 다음날부터 다 갚는 날까지 연 15%의, 71,440,280원에 대하여는 2017. 7. 11.부터 2018. 4. 11.까지 연 5%의, 그 다음날부터 다 갚는 날까지 연 15%의 각 비율로 계산한 지연손해금을 지급할 의무가 있다.』

5. Additional parts

As to the defendant's new argument in this court, the following is added to the defendant's new argument at the court of first instance No. 28, 12.

“D) In addition, the Defendant asserts that the damage compensation amounting to KRW 70 million, which is part of the corresponding damage compensation, should be offset against the Plaintiff’s claim, since the Plaintiff did not include the matters concerning the establishment of a business area in a franchise agreement pursuant to Article 11(2) of the former Franchise Business Act, and did not infringe upon the Plaintiff’s right of business by deceiving the Defendant and forcing the coordination of a franchise service area.

In full view of the above facts, Gap evidence Nos. 1 and 24 (including branch numbers; hereinafter the same shall apply), and Eul evidence Nos. 3 and the whole purport of the arguments, the plaintiff's conclusion of the instant franchise agreement with the defendant does not include in the original contract the delivery service area in the delivery service area. Since the plaintiff's E points open, the plaintiff's adjustment of the delivery service area was made by presenting the mediation plan for the delivery service area to the defendant, and further, it is difficult for the defendant, the franchisor, to refuse the plaintiff's mediation plan for the delivery service area.

However, the following circumstances are acknowledged by the facts as seen earlier and the purport of Gap's Nos. 1, 21, 29, and 31 certificates, namely, ① It was difficult for the plaintiff to determine the plan to operate Eul points because of the progress of construction work and the time of construction work between the plaintiff and the defendant. In fact, E points seems to have been opened on September 28, 2012. ② Article 31 (c) of the franchise agreement of this case provides that "the defendant's exclusive right to protection" and other territorial rights are not granted or proposed to the defendant, and that the defendant's exclusive right is not established or proposed to change its establishment or adjustment in the area where the plaintiff's affiliated company or its affiliated company's exclusive right is not established for the purpose of enhancing the market share of the connection chain, and that it is difficult for the defendant to consider that the defendant's exclusive right to establish and adjust the area or its affiliated company or its affiliated company's exclusive right to use the same or similar terms and conditions as that of the plaintiff's new Eran area without any restriction.

6. Conclusion

Therefore, the plaintiff's claim for the payment of money among the principal lawsuit of this case shall be accepted within the scope of the above recognition, and the remaining claim for the payment of money shall be dismissed as it is without merit. Since the part concerning the claim for payment of money among the principal lawsuit of the court of first instance is partially unfair with the conclusion, the part concerning the claim for payment of money among the principal lawsuit of the court of first instance shall be partially accepted, and the part concerning the claim for payment of money among the principal lawsuit