2015Da221903 ( principal office) Instructor fees

2015Da221910 (Counterclaim) Compensation for damages

Plaintiff (Counterclaim Defendant) 1 and 2 others

Smart mining Korea Co., Ltd.

Attorney Kim Chang-hwan, Counsel for the plaintiff-appellant

Suwon District Court Decision 2014Na33328 (Mains) decided May 28, 2015, 2014Na 2014 Ghana

Article 3335 (Judgment on Counterclaim)

October 27, 2016

All appeals are dismissed.

The costs of appeal are assessed against Defendant (Counterclaim Plaintiff).

The grounds of appeal are examined.

1. As to the principal claim

Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) against the Defendant as to the entire part of the lower judgment against the Defendant

An appeal, however, with respect to the part against which the appeal was filed, no appeal or appellate brief shall be filed.

There is no indication in the grounds of appeal.

2. As to the counterclaim

A. As to the claim for damages caused by a tort

According to the reasoning of the judgment below, the court below held that ① Defendant-affiliated Institute (hereinafter referred to as “Defendant-Only Institute”) is a case.

C) Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) who was an instructor and established a separate driving school in the vicinity independently.

(C) Article 41 of the Commercial Act does not apply to the plaintiffs, since they were workers of the defendant's driving school.

Article 4 or by analogy or by analogy, the duty of prohibition of competition cannot be recognized, and 2. Amendment by the plaintiffs

Unfair Competition Prevention and Trade Secret Protection Act (Amended by Act No. 11963, Jul. 30, 2013)

(2) If a separate private teaching institute is established before January 31, 2014 enters into force, the Act shall be amended to the extent that the separate private teaching institute is established.

Since the rate cannot be applied, this constitutes an unfair competitive act under Article 2 subparagraph 1 (j) of the above Act.

(3) The plaintiffs and the students of the defendant's driving school retire from the defendant's driving school; and

Newly established private teaching institutes to induce students to fail to enter into a contract between them and Defendant Private Teaching Institutes.

Inasmuch as it cannot be viewed as having been, Article 23(1)3 of the Monopoly Regulation and Fair Trade Act is applicable.

The "act of inducing customers of competitors to deal with oneself unfairly" was called ‘act of inducing customers of competitors."

(4) In addition, the Plaintiffs, who are instructors of a driving school, have retired from the Defendant’s driving school, and are newly established in the vicinity.

The fact that a private teaching institute was established alone that such an act goes against the good faith principle or is illegal;

The plaintiffs' new establishment of a private teaching institute cannot be viewed as a tort.

The defendant's counterclaim was dismissed.

In light of the relevant legal principles and records, the above judgment of the court below is just and there is a violation of the law.

In so determining, contrary to what is alleged in the grounds of appeal, there were no errors.

B. As to the claim for damages due to nonperformance

(1) As to Plaintiffs 1 and 2

The lower court, in all areas adjacent to the Defendant and the Plaintiff 1 and 2 for two years from the date of the contract.

The defendant's assertion that he/she entered into an agreement that he/she cannot establish a driving school and engage in activities as an instructor.

the defendant's non-performance of obligation against the above plaintiffs, as there is no evidence to acknowledge this.

The claim was dismissed.

The limitation of the principle of free evaluation of evidence is limited to the recognition of facts and the selection of evidence.

As long as it does not deviate from the jurisdiction of the fact-finding court, the lower court’s reasoning is examined in light of records.

In light of the above, the above judgment of the court below is just and there is a violation of the rules of evidence.

There is no error of mistake, such as misconception of facts.

(2) As to Plaintiff 3

(A) The freedom of occupation and the right to work belongs to the fundamental rights of the people, so workers are employers.

after the termination of the employment relationship between the employer and the employer or of the same kind of business

In the event of an agreement not to engage in competitive business, such as non-working, the agreement shall be the employer's operating expenses.

Any benefit of a user who is valuable to be protected by the prohibition of competition, such as smuggling, know-how, customer relationship, etc.

re-period of restriction on competitive business, region and occupation subject to restriction, whether or not to provide remuneration to workers; and

Fully considering the status of the elderly before his/her retirement, the details of his/her retirement, and other relevant circumstances, such as public interest;

be effective only to the extent that it is recognized as reasonable restrictions on freedom and rights of the elderly.

Recognizing the Supreme Court (see, e.g., Supreme Court Decision 2009Da82244, Mar. 11, 2010) . and an agreement prohibiting competition.

such circumstances that can recognize the validity of the Act are responsible for the employer’s assertion and proof.

(B) Review of the reasoning of the lower judgment and the record reveals the following facts.

① Plaintiff 3 and Defendant Private Teaching Institutes: (a) the term of the contract on December 2, 2012 is one year; and (b) the term of the contract is one year;

not later than 2 years from the date of the contract, by making use of the name of the principal or any other person;

In the case of a violation of this Act, any establishment of a private teaching institute and activities of instructors in the case of such a group, inciting the right, or in the case of the class;

The defendant shall be liable for damages (hereinafter referred to as the "agreement on the prohibition of competition of this case")

Preparation of a written contract was made.

② Plaintiff 3, instead of paying a certain amount of instructor fees each month from Defendant 2’s educational institute, refers to Plaintiff 3.

35% for middle and high school students, and 50% for high school students, among the monthly tuition fees for the platform and lecture.

A business registration was made and the business income tax was paid separately from the Defendant’s educational institute.

③ Plaintiff 3, along with other Plaintiffs, is a private teaching institute on the upper floor of the same building as Defendant 3’s private teaching institute.

When the operation is discontinued and the defendant concludes the above lecture contract with the defendant and gives a lecture at the defendant's educational institute;

In addition, it became effective.

④ Plaintiff 3 is demoted at the Defendant’s private teaching institute for about five months, starting from December 2, 2012 to May 31, 2013.

Defendant Private Teaching Institutes delay the payment of lecture fees and properly observe the agreed lecture fee rate;

A conflict arises due to the reason that it is not possible to terminate the defendant's educational institute.

(5) After that, Plaintiff 3 opens a new driving school at a place less than 150 meters away from Defendant 3’s driving school.

In addition, a large number of students who were enrolled in the Defendant Private Teaching Institute from Plaintiff 3 pursuant to the above Plaintiff.

In most cases, the above plaintiff was a student who had been in accordance with the time the defendant's educational institute was transferred, and the victim was a student.

Only two students among students transferred from a high-level teaching institute shall be registered in the course of the above plaintiff's new course at the Defendant Private Teaching Institutes.

One student is a student.

(C) In full view of the above facts, the contract between the Plaintiff 3 and the Defendant’s driving school is a lecture agreement.

Even if the contract period is less than one year, the competitive business of this case is completed with the whole contract period, and even if it retires,

In accordance with the prohibition agreement, one year after such prohibition agreement, shall be subject to the duty of prohibition of competition, which shall be subject to the foregoing contract.

In preparation for the difference, the employee's burden is excessive unless there are other special circumstances.

The remuneration structure for the plaintiff is not paid in relation to the worker subordinate to the employer.

D. A person has a nature of allocating profits to be paid in proportion to the performance of an instructor's lecture ability, etc.

and the creation of such profits has great impact on the customer relationship or credit, etc. inherent in the Defendant Private Teaching Institute.

There is no clear circumstance to see it, and 3. The terms and conditions of the terms and conditions for the payment of remuneration to the above plaintiffs

have significantly more favorable terms and conditions than ordinary terms and conditions of remuneration in the absence of a competitive prohibition agreement.

there are circumstances suggesting that there is a special consideration for a non-competitive agreement

(4) The grounds for resignation of the above plaintiff are entirely attributable to the cancellation of the contract.

5. A private teaching institute newly established by the said Plaintiff

In light of the fact that most of the students transferred to another school by the above plaintiffs have been moved again,

It seems that the operation of Defendant Driving Schools had a significant impact on students' choice.

6. Otherwise, the Plaintiff established and operated the same kind of private teaching institute in the vicinity of the Defendant Private Teaching Institutes.

public interest is infringed on the guarantee of students' right to learn or business order in the relevant industry.

There is no circumstance to see that it would be detrimental.

As above, the agreement between the plaintiff 3 and the defendant on the prohibition of competitive business of this case shall be included;

(b) the circumstances to recognize the validity of the agreement, in particular, engage in competitive business according to the agreement.

The defendant's interest worthy of protection by compelling the prohibition exists, and the above plaintiff's loan

reasonable consideration has been paid for the obligation of the said Plaintiff, and a schedule has been given to the said Plaintiff.

The fact that the public interest may be infringed if the competition is not prohibited in a specific area between the two countries.

Unless recognized, this case’s competition prohibition agreement is null and void.

as long as it is difficult to recognize the validity of the agreement itself as such, the period during which competition is prohibited, etc.

It is no longer necessary to determine whether the scope of restriction is a certain extent.

Therefore, the court below's decision that this case's competition prohibition agreement is null and void for reasons indicated in its holding.

The conclusion is justified and acceptable, and contrary to what is alleged in the grounds of appeal, the prohibition of competitive business is prohibited.

The court below erred by misapprehending the legal principles on the validity of justice and thereby adversely affecting the judgment.

(2).

3. Conclusion

Therefore, all appeals are dismissed by the assent of all participating Justices, and the costs of appeal are assessed against the losing party.

It is so decided as per Disposition by allowing the burden to be borne.

Justices Kwon Soon-il

Justices Park Poe-dae

Justices Park Young-young

Justices Kim Jae-in