2010Da18133 Compensation (as referred to)

○ ○

Kim Jong-si

Attorney Lee In-bok et al.

1. 주식회사 ■■신문

Changwon-si

The representative director omitted

2. Fixed00

Changwon-si

3. Maximum○○.

Changwon-si

4. Meteth Me Co.

Changwon-si

The representative director omitted

Busan High Court Decision 200947892 Decided February 4, 2010

June 28, 2012

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1, where a seller of a commercial building parcels out a specific type of business to a buyer, barring any special circumstance, the duty not to engage in competitive business to the designated type of business applies to the buyer (see, e.g., Supreme Court Order 2006Ma164 and 165, Jul. 4, 2006; Supreme Court Order 2005Da25151, May 29, 2008; etc.). Therefore, if the buyer parcels out the remaining store to a third party, the seller does not sell the same type of business as or similar to the designated type of business, and if the buyer requests the change of the designated type of business, it should not be approved without permission. If the buyer arbitrarily changes the type of business to the designated type of business and the competitive relation, and if the buyer wishes to do so, he/she can demand the buyer to return the existing type of business to the buyer or the seller to the existing type of business, and thus, he/she can be held liable to compensate for damages to the previous seller.

After compiling the adopted evidence, the court below rejected the plaintiff's claim for damages on the ground that it is difficult to conclude that the defendants violated the duty of care to manage and supervise the same type of business as that designated by the plaintiff in selling the building in this case and caused damages as alleged by the plaintiff. In light of the above legal principles and the circumstances of the court below's decision that the defendants cannot be deemed to have neglected to know that the defendants engaged in the PC business like the plaintiff's business in this case, the court below's above conclusion is just. There is no error in the misapprehension of legal principles as to the seller's duty of free evaluation of evidence in violation of logical and empirical rules or in the misapprehension of legal principles as to the seller's duty to manage and supervise the buyer's business in this case.

The Plaintiff’s ground of appeal on this part cannot be accepted.

2. According to the reasoning of the judgment below as to the second ground of appeal, the court below rejected the plaintiff's claim for other work cost on the ground that there is insufficient evidence to acknowledge that there was an agreement to attach other work at the time of entering into the instant sales contract. This part of the ground of appeal is nothing more than disputing the selection of evidence and fact-finding belonging to the court below's exclusive right as a fact-finding court, and it cannot be viewed as a legitimate ground of appeal, and even in light of the records,

The Plaintiff’s ground of appeal on this part cannot be accepted.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan

Justices Noh Jeong-hee

Justices Lee In-bok et al.

Justices Park Byung-hee