2014Gaz. 11174 Prohibition of Competitive Business

New 00

Incheon

Maximum 00

Incheon

December 23, 2014

January 27, 2015

1. The plaintiff's claim is dismissed.

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

The defendant shall not engage in beauty room business in Gyeyang-gu, Incheon Metropolitan City. The defendant shall not engage in beauty room business. If the defendant does not perform the above obligation, he shall pay the plaintiff the money calculated by the ratio of 100,000 won per day of the violation day to 100,000 won. The defendant shall pay to the plaintiff 9 million won and the amount calculated by the ratio of 20% per annum from the day after the day of delivery of a copy of the complaint to the day of complete payment.

1. Basic facts

A. The Defendant was running the beauty room business in the trade name of "00,000 Hague" (hereinafter referred to as "cosmetic room in this case") from Kim 00 in Gyeyang-gu, Incheon, and "00,000,000,000,000, but received eight million won from the Plaintiff on May 2, 2014 and transferred the facilities of this case to the Plaintiff. The Plaintiff was running the beauty room business by continuously using the trade name "Seb" in the beauty room in this case after concluding a lease contract with Kim 00 and 8 million won on May 7, 2014, and thereafter.

B. around June 13, 2014, approximately one month after the relocation of the instant beauty room to the Plaintiff, the Defendant commenced the business of a large chain beauty room with the trade name of 00,000, and 000 Ga-dong, Incheon Gyeyang-gu, the neighboring beauty room of the instant beauty room, in the name of 00,000, and 00 Ga-dong (Y-dong).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The transfer of the cosmetic constitutes a transfer of business under the Commercial Act, and the defendant is obligated not to engage in the same kind of business in the Special Metropolitan City, Metropolitan Cities, Sis, and Guns identical to the location of the cosmetic for 10 years pursuant to Article 41 of the Commercial Act. Even if the transfer of the cosmetic does not fall under the transfer of business under the Commercial Act, the defendant agreed not to engage in the same competitive business.

However, as the Defendant violated the duty of prohibition of competitive business, the Defendant is obligated to pay the Plaintiff an amount calculated by applying the ratio of KRW 100,000 per day of the violation to the indirect compulsory performance to KRW 100,000,000 per day of the violation, and ③ as compensation for the Plaintiff’s damages already incurred, the Plaintiff is obliged to pay KRW 9 million, which is the amount equivalent to the Plaintiff’s actual operating income between three months before the filing of the instant lawsuit, and its delay damages.

B. The defendant's assertion

The transfer of the cosmetic constitutes the transfer of a facility, not a transfer of business, and eight million won paid by the Defendant from the Plaintiff was paid as the price for the transfer of the facility, such as a house, and the premium. In addition, at the time of concluding the contract with the Plaintiff for the transfer of the cosmetic, the Defendant notified the Plaintiff of the completion of the lease contract with the Plaintiff on a new cosmetic in the vicinity of the U.S., on several occasions, and the transfer payment was adjusted down to the lower end due to these circumstances. Accordingly, the Defendant did not bear any obligation not to engage in competitive business against the Plaintiff, and the Plaintiff’s assertion based on this premise is without merit.

3. Determination

(a) Whether the business is transferred under the Commercial Act;

The transfer of business under the Commercial Act means the transfer of a company organized for a certain business purpose, i.e. a human and physical organization, as a whole while maintaining its identity, and whether the transfer of business has been made is determined by what kind of business property has been transferred to any extent.

Inasmuch as the previous business organization is maintained and its organization can function as a whole or an important part, even if the business facility is transferred without reserving the part of the business property, it shall be deemed as a transfer of business in view of the concept of society where the previous organization is maintained even if the transferred part of the business facility without reserving the part of the business property, but on the other hand, it shall not be deemed as a transfer of business if the business was dissolved and transferred even if the entire business property was transferred (see Supreme Court Decision 2002Da23826, May 30, 2003, etc.). In addition, to recognize the transfer of business as above, there should be an express or implied contract between the parties to the business transfer (see Supreme Court Decision 96Da2644, Jun. 24, 1997, etc.).

As seen earlier, the Plaintiff continued to use the cosmetic prior to the cosmetic transfer. The Plaintiff’s assertion that the cosmetic transfer business of this case was 00,000 won as seen earlier, and that the Plaintiff’s cosmetic transfer business was transferred to the Plaintiff, such as shampoo, shampoo, shampoo, shampoo, rollls, computer-sized TV, signboards, etc., do not conflict between the parties. However, as well as ① the agreement on the transfer of the cosmetic transfer between the Plaintiff and the Defendant, it is insufficient to recognize that the Plaintiff’s human and material organization of the cosmetic transfer should have been transferred to the Plaintiff as a whole while maintaining its identity. ② According to the Plaintiff’s evidence No. 1, it is recognized that the Plaintiff’s obligation to transfer the cosmetic transfer money of this case to the Plaintiff and the lessee for 00,000 won, which is 0,000 won or more, and that the Plaintiff paid to the Plaintiff for 10,000,000 won, more than 0,000.

B. Whether an agreement prohibiting competitive business is reached

The Plaintiff agreed that the Plaintiff would not run a competitive business in the vicinity of the cosmetic of this case. However, there is no other evidence to acknowledge the Plaintiff solely on the written evidence No. 3-1, No. 7, and No. 8, and there is no other evidence to acknowledge it. Rather, in full view of the overall purport of the pleading in the testimony of No. 2 and witness 00, the Plaintiff notified the Plaintiff of the fact that the Defendant would start a new cosmetic in the vicinity of the cosmetic of this case, and due to these circumstances, it is recognized that the first premium No. 25 million won was adjusted down to eight million won and the final agreement was reached. Accordingly, the Plaintiff’s assertion on this part cannot be accepted.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

Judge Lee Jong-soo

Judges Ro-lined Judge Ro-line

Judges Authorized-type Judge