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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. On November 25, 2013, the Plaintiff asserted that the Defendant entered into a contract between the Plaintiff and the Plaintiff for the transfer of all business of the refined landing points operated by the “G” from the “G” (hereinafter “instant refined landing point”). The Plaintiff paid KRW 45,000,000 to the Defendant instead of receiving the transfer of the facilities and goodwill of the instant refined landing point from the Defendant.
However, around April 2015, the Defendant started the instant commercial building located 500 meters away from the instant temporary landing point with the trade name “H”, and the Plaintiff suffered a big loss due to the Defendant’s act of running the same type of business within the same region.
Therefore, according to the obligation not to engage in competitive business under Article 41(1) of the Commercial Act, the defendant shall not engage in the same kind of business in any area of the Jung-gu government city in which the fixed land point of this case is located for ten years from December 30, 2013 to December 29, 2023, and shall be obliged to discontinue the business in violation of this obligation.
2. Determination
A. Article 41(1) of the Commercial Act applies to cases where a business is transferred. The term "business" in the above provision refers to a functional property as an organic integration organized for a certain business purpose. The term "functional property as an organic combination" in this context refers to the fact-finding relation with tangible and intangible property and economic value, which constitute a business, functions as a source of profit, and the functional property as a source of profit that is systematically combined with the fact-finding relation with the fact-finding function as a source of profit, becomes an object of transaction like one goods. Thus, the issue of whether a business transfer is deemed to have been made should be determined depending on whether the transferee continues to operate the same business as that of the transferor after the transferee transferred the functional property as the source of profit organically organized.
Supreme Court Decision 2008.4. 11.