1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The first instance court.

1. Basic facts

A. On May 201, the Plaintiff acquired a restaurant operated by the Defendant with the trade name “D” in the Gu-U.S. Si C, and paid KRW 15 million to the Defendant, and was transferred from the Defendant the above D (hereinafter “instant restaurant”).

B. After that, from July 16, 2013 to March 29, 2014, the Defendant operated a restaurant in the name of “F” in the name of “F,” and from April 14, 2014 to “H” in the name of “H,” the Defendant changed the name to “I”.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 5, Eul evidence Nos. 1 and 2, as a result of an order to submit taxation information to the head of the previous U.S. Tax Office of the first instance court, the purport of the whole pleadings

2. Determination as to the cause of action

A. The Plaintiff’s assertion: (a) the Defendant transferred the instant restaurant’s business to the Plaintiff; and (b) the Defendant paid KRW 15 million to the Plaintiff for the premium; (c) the Defendant’s operation of the same kind of business in the same or similar name in the vicinity of the instant restaurant violates the duty of prohibition of competitive business under Article 41 of the Commercial Act; (d) the Defendant is obligated to return the said premium to the Plaintiff. If the Defendant asserts, as argued, the amount of KRW 15 million paid at the time of the transfer of business is not the premium but the price for the interior, the remainder of KRW 14 million, excluding KRW 1 million, which is the real value of the interior, is unjust enrichment; and (e) the Defendant must return the said premium to the Plaintiff.

Since the defendant violated the duty of prohibition of competitive business under Article 41 of the Commercial Code, the defendant must compensate for the plaintiff's losses incurred thereby.

(2) On the third day for pleading of the first instance court, the Plaintiff stated that the instant claim does not claim damages due to violation of the duty of prohibition of competition. However, in light of the purport of the entire pleadings, the Plaintiff is also seeking compensation for business losses.

Judgment

1. The term "business" in Article 41 (1) of the Commercial Act as to whether a business is transferred or not means a functional property as an organic integration organized for a certain business purpose.