2016Gaz. 110459(main office) Action

2017Gaz. 100817 (Counterclaim) Action

1. A;

2. B

C

D

November 10, 2017

January 12, 2018

1. The Defendant (Counterclaim Plaintiff) C shall not allow a third party to engage in real estate brokerage business of E-House 1017, Dong 102, Dong 1017, and Dong 102.

2. The plaintiff (Counterclaim defendant)'s main claim against the defendant D and the defendant (Counterclaim plaintiff)'s counterclaim against the plaintiff C are dismissed, respectively.

2. Of the costs of lawsuit, the part incurred between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) C is all borne by the same Defendant by aggregating the principal lawsuit and the counterclaim, and the part incurred between the Plaintiff (Counterclaim Defendant) and the Defendant D is borne by the Plaintiff (Counterclaim Defendant).

Main Office: Judgment as described in Paragraph (1) above

Counterclaim: Plaintiff (Counterclaim Defendant; hereinafter referred to as the "Commission") shall not allow a third party to engage in real estate brokerage business by means of real estate brokerage, lease, transfer, etc. from 1017, Dong 1017, Dong 104, Gwangjin-gu, Seoul to conduct real estate brokerage business.

The principal lawsuit and counterclaim shall be judged together.

1. Basic facts

A. From October 1999, the F-Regional Housing Association (hereinafter referred to as the “instant association”) sold a commercial building located on the first floor and the second floor of 1016 Dong-dong and 1017 Dong-dong and 1017 Dong-dong and 104 Dong-dong and 104 (hereinafter referred to as the “instant commercial building”) among them. On August 18, 2000, G sold it in lots and completed the registration of ownership transfer on May 10, 2001, and on September 16, 2017, H and I sold it in lots and completed the registration of ownership transfer on October 31, 200.

B. The Plaintiffs purchased a pre-sale store on September 1, 2013 and completed the registration of ownership transfer on October 1, 2003, respectively, at the said store, and thereafter, operate a real estate brokerage establishment.

C. The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) purchased a pre-sale store on August 13, 201, and completed the registration of ownership transfer on September 23, 201. Around June 2016, Defendant D leased the pre-sale store to Defendant D, and Defendant D operated the real estate brokerage office at the said store from July 2016.

[Ground of recognition] Facts without dispute, Gap 1, 13, entry in Eul 3, and 6 (including provisional number; hereinafter the same shall apply), the purport of the whole pleadings

2. The judgment of this Court

A. The parties' assertion

1) The plaintiffs' assertion

From the time of sale in lots or on November 15, 200, at the ordinary meeting of the Commercial Building Autonomy Management Committee (hereinafter referred to as the "Commercial Building Autonomy Committee"), the store No. 104 was designated as the "real estate brokerage business", and the store No. 102 was transferred to the plaintiffs and the defendant C, respectively. Accordingly, even though the plaintiff and the defendant were obligated to comply with the above designated business, since the defendant D operated the real estate brokerage business by leasing the store No. 102 from the defendant C, the plaintiffs seek against the defendants the prohibition of running the real estate brokerage business at the 102 shop.

2) The defendants' assertion

The commercial building of this case was sold by dividing it into two categories of "living convenience facilities" and "medical facilities". Among them, 104 stores were sold to "medical facilities", and there was no designated type of business as "real estate brokerage business". The implementation note and the list of business performance seal prepared at the general meeting of the above general meeting of the commercial autonomy committee cannot be effective as the designation or alteration of the type of business can not be achieved because the quorum as the management rules are not fully satisfied. Thus, the 104 store is not allowed to operate real estate brokerage business. On the other hand, the 102 store was sold in lots as active convenience facilities, and the 102 store was included in the living convenience facilities, so real estate brokerage business may be operated at the contact of 102 contact. In addition, Defendant D closed the real estate brokerage business operated at the 102 shop and moved to another place.

Therefore, the defendants do not have the duty to respond to the plaintiffs' claims, and the defendant C, as a counterclaim, seeks to prohibit the plaintiffs from running real estate brokerage business at the store No. 104.

(b) Designated business type of 104 stores;

1) The following facts are either not disputed between the parties, or acknowledged by adding the whole purport of the pleadings to the statements in Gap 2, 3, 6, 7, 9, and Eul 1 and 2.

A) On August 18, 200, G, the first buyer of the store No. 104, stated that the management contract for aggregate buildings prepared and issued by G, the first buyer of the store No. 104, immediately after the conclusion of the sales contract on August 18, 200, the management contract for aggregate buildings (hereinafter “management contract”), the record of the ordinary meeting of the commercial autonomous committee set up on November 15, 200, and the record of the agreement by type of business set up on November 29, 200 and completed notarial as of November 29, 200, all the 104 designated type of business of the store is “real estate.”

B) The minutes of the above general meeting include the fact that the store Nos. 106 and 1017-dong store No. 107, 1016, 1016, and 107, were changed to the type of business different from the type of business designated at the time of the sale contract, and there is also a change of business type prepared by the number of buyers of the above stores, but there is no

C) The building drawings of the instant commercial building include the 104 store’s use as “medical facility (pharmacy).” While the building ledger is registered as the use of the 104 store from “medical facility” at the time of initial registration on September 7, 2000 to “real estate brokerage facility” on February 9, 2007, the building ledger is registered as the change from “medical facility at the time of initial registration on September 7, 200,” it cannot be confirmed that the building drawings indicate the intended use at the time of construction and were actually sold for the same purpose. In the case of the building ledger, it is not confirmed that the building ledger was registered as it was in accordance with the approved contents, and that it was also made for the same purpose even at the time of actual sale.

D) A 104 shop was used as a real estate brokerage office for about 17 years from the date of the first sale to the date of the closing of argument in the instant case, and the Plaintiffs filed an application for the injunction against real estate brokerage business with the owner and lessee of the 1017 dong 1017 103 shop (hereinafter “104 shop”) and the lessee, and the decision of acceptance was made on February 3, 2004.

2) Comprehensively taking account of the above facts, it is recognized that the store owned by the Plaintiffs was designated and sold as “real estate brokerage business” from the beginning.

(c) Designated business types of stores with 102 units;

1) The following facts are either not disputed between the parties, or acknowledged by adding the whole purport of the pleadings to the statements in Gap 2, 4, 6, 7, 9, Eul 3, 4, and 5.

A) At the time of selling the instant commercial building in lots, the sales contract prepared by H and I at the time of entering into a sales contract on September 16, 2009 only states that “the purpose of the facility use of the store is divided into active convenience facilities and two medical facilities,” and 22 in the case of living convenience facilities, and 8 in the case of medical facilities, respectively. The sales contract prepared by H and I at the time of entering into the sales contract on September 16, 2009 only states “living convenience facilities for the authorized type of business,” and the detailed type of business is not specified in the item of management contract prepared and issued by H and I to the shopping autonomy committee upon entering into the sales contract, and it is not determined by the comprehensive type of business, “after the approval of the autonomous committee, the store’s store becomes final and conclusive” in the item of management contract prepared and issued by H and I to the shopping autonomy committee.

B) In addition, the public notice of sale stated that "the date of the application for sale from October 18, 199 to October 19, 1999; the date of the tender and the date of conclusion of the contract; October 20, 199; the date of the contract; and the date of the non-tender or the date of the contract; the association shall sell at will without retender." However, in the case of the store 102, the date of conclusion of the contract for sale is the date of September 16, 200, and therefore, it is presumed that the association of this case was sold at will.

C) On November 15, 200, the minutes of the general meeting of the shopping district autonomy committee opened on November 15, 200, the number of stores with 1017 1st and 2nd, and the number of stores with 2nd and second floor living facilities with 104st and second floor living facilities with 104th and designated type of business in the implementation list of the instant case are stated as “real estate.”

D) The store No. 102 was operated as a sales store immediately after the first sale, and Defendant C asserted that the designated type of business of the store No. 102 at the time of filing a lawsuit seeking confirmation of invalidity of the bylaws of the management body against the Plaintiffs, etc. in 2014, “the designated type of business of the store”

E) Around 201, H, the first buyer of the store No. 102, H, and I tried to operate the “Smarket” included in the snow at the store No. 102 around 102, but at the time, they sold 1016 dong No. 109, etc. for the purpose of Smarket, which had been sold to H and I for the purpose of Smarket was ordered to file an application for a provisional disposition citing H and I into H and I.

F) In the building ledger, as of September 7, 200, the use of the 102 store was registered as the 'living convenience facility' in the 'living convenience facility' as of January 21, 2009 and as of January 21, 2009, it is not confirmed that in the building ledger the use of the 102 store was registered as the 'living convenience facility' in the 'living convenience facility' as of January 21, 200, and in the case of the building building construction, it was registered as it is according

G) The phrase “sale contracts used by the instant association in the process of parcelling-out shall be opened only for the purposes indicated in the sales contract, and if a change of the type of business is needed for other purposes, it shall be opened with the approval of the association (Article 9).” The seller shall be a member by forming a commercial autonomy committee (Article 10(1) of the sales contract), and in the case of a store, it shall not be opened for other purposes than those indicated in the contract and without the consent of the association, and the change of the use of the sales contract after the sale shall be in accordance with the approval of the change of the use of the commercial autonomy committee and the relevant laws and regulations (Article 15(2)).”

H) The management contract prepared and delivered by the shopping district autonomous committee from the buyer also states that the designated type of business cannot be arbitrarily changed, and if it is intended to change to another type of business, it must obtain approval from all members of the shopping district autonomous committee (Articles 5(3) and 6(1)1 and 11).

2) Comprehensively taking account of the above facts, it is recognized that the store No. 102 owned by the Defendant C was designated and sold as “the task from the beginning,” and there is no ground to view that the legally designated business type was changed with the approval of the shopping district autonomy committee.

D. Determination as to the plaintiffs' principal lawsuit and defendant C's counterclaim

1) In a case where the owner of a building constructs a commercial building and sells it in lots, the buyer of the shop, the transferee of the position of the buyer, or the lessee of the shop, shall be deemed to have consented to the seller of the shop to accept the obligation of restrictions on the type of business agreed upon in the sales contract, etc., by mutual agreement in relation to the purchaser of the shop, barring any special circumstance. Therefore, the transferee of the position of the buyer of the shop, the lessee, and the lessee, etc. are entitled to claim the prohibition of the same type of business to exclude infringement (see, e.g., Supreme Court Decision 2011Da79258, Nov. 29, 2012).

2) Therefore, the plaintiffs, who are the owners of 104 stores whose designated type of business is "real estate brokerage business", asserted that the 102 shop's designated type of business is "real estate brokerage business" and asserted that it is "real estate brokerage business", and that the 102 shop's designated type of business is "real estate brokerage business" and the defendant C, the owner of the 102 shop, who is the owner of the 102 shop, requested the prohibition of the act of allowing the third party to run real estate brokerage business, and the defendant C has a duty to comply with this. On the contrary, the defendant C's claim against the plaintiffs of 104 shop against the defendant C for the prohibition of real estate brokerage

3) Meanwhile, if the statement of Eul evidence No. 6 added the purport of the entire pleadings, it is recognized that defendant D discontinued the real estate brokerage business operated by the store No. 102 on November 2, 2016 and moved to another place. Thus, the above defendant's business interest cannot be deemed as being infringed, and there is no evidence to find otherwise that the above defendant has a possibility of infringing the business interest of the plaintiffs, and thus, the plaintiffs' claim against the above defendant cannot be accepted.

3. Conclusion

The plaintiffs' main claim against the defendant C is justified, and the plaintiffs' main claim against the defendant D and the counterclaim against the defendant C are dismissed for each reason.

Judges Song-Gyeong-dae

Judges Kim Jae-in

Judge Lee Lee-hoon