2010Gaz. 16968 Prohibition of Competitive Business

CHAPTER 00

Ansan 00

on 18, 2011

1. The defendant:

(a) Until July 21, 2020, in Gwangjin-gu Seoul Special Metropolitan City, not operate hot spring sales business;

B. From 00 Seoul Gwangjin-gu, Seoul to close the Mebre business â……………‘.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The defendant shall pay to the plaintiff 1 and 2 million won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

The following facts may be admitted if there is no dispute between the parties, or if the parties do not dispute, or if the whole purport of the pleadings is added to the statements or images of Gap evidence Nos. 3 through 8, Eul evidence Nos. 2 and 3 (including the branch numbers, if any).

A. On April 2010, the Defendant leased one floor (the first floor was used as a house in the first place; hereinafter referred to as the “instant store”) of the building on the ground of the Gwangjin-gu Seoul Special Metropolitan City, Seoul Special Metropolitan City, from around Kim 00, and operated a restaurant that sells a universal bath, etc. in the instant store ***** Ma MaMaMaMaMaMaMa house’s trade name (hereinafter referred to as the “cafeteria of this case”).

B. On July 22, 2010, the Defendant: (a) transferred the restaurant to the Plaintiff on July 1, 201; and (b) agreed that the Plaintiff shall pay KRW 12 million to the Defendant in the name of facility costs, etc. (hereinafter “instant transfer agreement”).

C. Accordingly, the Plaintiff paid KRW 12 million to the Defendant at that time, and received the trade name, telephone number, and fixtures from the Defendant on July 22, 2010, and received the transfer from the Defendant for about five (5) days, including the celebry cooking Act. In addition, the Plaintiff entered into a lease agreement with each of the following terms from July 24, 2010 to July 23, 2012, and paid KRW 7 million to the Defendant for the instant store.

D. On August 4, 2010, the Plaintiff registered its business in its trade name **** Ma Ma MaMa, and paid KRW 18,00,00 as to the succession to the restaurant business from the Defendant on August 1, 201.

Around that time, I started the business of selling universal sugar in the restaurant No. 1. of this case.

E. However, around July 29, 2010, the Defendant opened and operated a restaurant that sells a universal bath in the name of 'MaMaMaMaMaMaMaMaMaMaMaMaMaMaMaMaMaMa-so,' from among the Seoul Gwangjin-gu's ground buildings located at approximately 540 meters located in a straight line from the restaurant No. 1 of the instant case (hereinafter referred to as the "cafeteria"), which was located at approximately 540 meters away from the restaurant No. 1 of the instant case (hereinafter referred to as the "cafeteria No. 2 of the instant case").

F. On August 17, 2010, the Plaintiff sent to the Defendant a certificate of content that the Plaintiff sought suspension of the restaurant’s business, which is the same kind of restaurant as the restaurant’s restaurant’s No. 1. 2. The Defendant, on October 14, 2010, changed the name of the business operator in the name of “in the name of 00,” Ma Ma Ma Ma Ma Me Me Me me me me me. As such, the Plaintiff continues to sell a universal bath in the restaurant’s 2. Me me.

2. The plaintiff's assertion

A. Since the Defendant transferred to the Plaintiff the restaurant business No. 1 of this case, which is one of the restaurant business, to the Plaintiff, the Defendant had the obligation to prohibit the competitive business pursuant to Article 41(1) of the Commercial Act, the Defendant is running the restaurant business of this case No. 1 of this case, which is the same kind as the restaurant business of this case No. 1 of this case, at a place less than 540 meters away in direct election from the restaurant No. 1 of this case, and therefore, until July 21, 2020, until July 21, 2020, the Defendant sought the prohibition of the universal bath business in Gwangjin-gu and the discontinuance of the restaurant business of this case No. 2 of this case, which is the administrative district identical to the restaurant location, respectively.

B. As a result of the Defendant’s violation of the duty of prohibition of competitive business, the Plaintiff suffered losses from the Defendant’s loss of its business profit as much as the Defendant induced the Defendant to restaurant No. 2 of this case. Accordingly, the Defendant is liable to pay the Plaintiff with compensation for damages, which the Plaintiff paid to the Defendant pursuant to the instant transfer agreement, KRW 12 million, and delay damages.

3. Determination

A. Whether the business is transferred under the Commercial Act;

1) The term "business" under Article 41 (1) of the Commercial Act refers to a functional asset as an organic integration organized for a certain business purpose. The functional asset as an organic integration here means that the factual relations with tangible and intangible property and economic value function as a source of profit, and that the functional asset as the source of profit that systematically combines the same as the source of profit becomes an object of transaction like one goods. Thus, the issue of whether the business transfer is deemed to have been made shall be determined depending on whether the transferee continues to operate the same business as the transferor after the transferee transferred the functional asset as the source of profit systematically organized. The criteria for determining the business transfer shall apply to a small-scale self-employed business in which the transferee and the transferee does not exist (see Supreme Court Order 2009Ma136, Sept. 14, 2009; Supreme Court Order 2009Ma136, Oct. 38, 2010).

2) In light of the above legal principles, the plaintiff succeeded to the status of the lessee of the building located in the restaurant No. 1 of this case while taking over the restaurant No. 1 of this case. 1 of this case. The plaintiff received the name, telephone number, equipment, etc. of the restaurant No. 1 of this case from the defendant while paying the defendant KRW 12 million in the name of facility costs, etc., and received the celebry cooking Law, and received the celebry cooking Law. The plaintiff received the restaurant No. 1 of this case from the defendant without changing the type of business, type of business, business behavior, etc. after acquiring it from the defendant, and used the business name and telephone number of the restaurant No. 1 of this case. 1 of this case, it is reasonable to view that the defendant transferred the food business of this case No. 1 of this case, which is a functional property as a source of revenue organized systematically, to the plaintiff.

B. Determination on the claim for prohibition of competition

1) Article 41(1) of the Commercial Act provides that in the case of transfer of business, unless otherwise agreed, the transferor shall not engage in the same kind of business in the same Special Metropolitan City, Metropolitan Cities, Sis, Guns, and neighboring Special Metropolitan Cities, Metropolitan Cities, Sis, and Guns for a period of ten years. This obligation prohibits the transferor from engaging in the same kind of business on his/her own or on the ground of a third party. Thus, if the transferor creates a business in violation of the duty of omission, if he/she creates a business in violation of the duty of omission, it is required to discontinue the business to resolve the status of the breach of duty, and even if the business is leased or transferred to another party, the breach of duty does not cease (see Supreme Court Decision 96Da37985 delivered on December 23, 196).

2) In light of the above legal principles, the Defendant, the business transferor of the restaurant No. 1 of the instant case, is prohibited from running a hot spring sales business within Gwangjin-gu in Seoul Special Metropolitan City, where the Plaintiff seeks from July 22, 2010 to July 21, 2020, which is the ten-year period stipulated in Article 41(1) of the Commercial Act, which is the date of the business transfer, unless there are other special circumstances. The Defendant is obligated to discontinue the restaurant business of the instant case 2.

3) On this ground, the Defendant alleged that the Defendant did not violate the duty of prohibition of competition since the Plaintiff opened and operated the restaurant No. 2 of the instant case without the intent of infringing on the Plaintiff’s restaurant business. However, it is unnecessary to view that the Defendant violated the duty of prohibition of competition pursuant to Article 41(1) of the Commercial Act. Thus, the Defendant’s assertion on a different premise is without merit.

In addition, the defendant alleged that the defendant transferred the restaurant No. 2. 2 to 00 and moved as a kitchen, and therefore, the defendant did not have an obligation to discontinue the food business on No. 2. 2. Then, the defendant leased the restaurant under 00 name in opening the restaurant on No. 2. 2. 2. In light of the fact that the title holder of the restaurant changed from the defendant to 00 and the defendant works as the defendant's assertion even after its trade name changed from the defendant to 00, the defendant changed only the name of the business operator to 00 in order to avoid the plaintiff's assertion of violation of the duty of prohibition of competition, and it seems that the defendant changed the name of the business operator to 00 in the form to O in order to avoid the plaintiff's assertion of violation of the duty of prohibition of competition and the defendant actually transferred the restaurant No. 2. 2.

C. Determination as to the claim for damages

On the other hand, the plaintiff suffered business loss due to the defendant's violation of the duty of prohibition of competitive business, and there is no evidence to see that the plaintiff suffered business loss. Thus, this part of the plaintiff's assertion cannot be accepted.

4. Conclusion

Therefore, the part of the plaintiff's claim for prohibition of competitive business among the claims of this case is justified, and the claim for damages is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-soo

Judges Lee Jae-young

Judges Lee Dong-sik