2016T 101567 Business Prohibition, etc.

Meban Construction Co., Ltd.

1. A;

2. Sickjin Co., Ltd.;

October 7, 2016

November 11, 2016

1. The defendant A:

(a) No pharmacy business shall be conducted in Sejong Special Self-Governing City under subparagraph 105 of this Article;

(b) The sales right mentioned in the paragraph (1) shall not be transferred to a third party.

2. The head of Si/Gun/Gu shall not allow a third party to use subparagraph 105 of Sejong Special Self-Governing City for the purpose of conducting the business described in paragraph 1 (a);

3. In the event that the Defendants fail to perform their obligations as stated in the above paragraphs 1 and 2, the Plaintiff shall pay to the Plaintiff 300,000 won per day of the violation from the day following the day when the judgment of this case became final to the day after the violation is committed.

4. The plaintiff's remaining claims against the defendants are dismissed.

5. Of the costs of lawsuit, 1/2 is assessed against the Plaintiff, and the remainder is assessed against the Defendants.

Disposition Paragraph 1 and

1. In the event that Defendant A fails to perform the obligation described in Paragraph A of the Disposition No. 1, the amount calculated at the rate of KRW 1,000,000 per day following the day when the judgment of this case became final and conclusive shall be paid to the Plaintiff, and in the event that Defendant A breached the obligation described in Paragraph (b) of the Disposition No. 1, 10,000 won to the Plaintiff.

2. The defendant Jinjin Co., Ltd.:

(a) No Sejong Special Self-Governing City shall allow a third party to use, regardless of the pretext, such as lease, lease on a deposit basis, or loan for use, for the purpose of carrying out business referred to in paragraph (1) with respect to subparagraph B of Article 1, regarding subparagraph 104, 105, or 202

B. In the event that the obligation described in the above paragraph (a) is not fulfilled, KRW 100,000 shall be paid to the Plaintiff.

3. The Defendants jointly pay to the Plaintiff 200,000,000 won with 15% interest per annum from the day following the delivery of a copy of the complaint to the day of complete payment.

1. Basic facts

A. Conclusion of a sales contract with the plaintiff's presentjin Co., Ltd.

1) On July 16, 2014, the Plaintiff entered into a sales contract (hereinafter referred to as the “sale contract in this case”) with the Defendant Co., Ltd. (hereinafter referred to as the “Defendant Co., Ltd.”) on each of the instant stores (hereinafter referred to as the “instant stores”) with regard to the sales contract (hereinafter referred to as the “sale contract in this case”) as the executor of the sales business in Sejong Special Self-Governing City B (hereinafter referred to as the “instant commercial building”). In relation to the restriction on the type of business, Article 9 of the sales contract in this case is written as follows:

In principle, the use of a store under this sales contract shall be limited to the category of business subject to consultation, but if it is intended to change to another type of business, the defendant company must have reached an agreement with the plaintiff before the organization of the autonomous management committee, and after the organization of the autonomous management committee, it shall have reached an agreement with the autonomous management committee after the formation of the autonomous management committee. Provided, That

2) The unit plan of the instant shopping mall (No. 2) was written in the sales ledger of the instant shopping mall, and the details thereof are as follows.

A person shall be appointed.

B. Conclusion of sales contract with the Plaintiff C

Before entering into the instant sales contract, the Plaintiff entered into a sales contract on June 27, 2014 with C and 115, and entered the type of business in the column to indicate the object of sale in the said sales contract as "designation of a pharmacy" separately.

C. Conclusion of a lease agreement between the defendant company and the defendant A

Around September 14, 2015, Defendant A and 105 entered into a lease agreement with the term of KRW 100 million, KRW 49.5 million, and the term of lease from November 2, 2015 to November 2, 2020. Defendant A obtained permission for the establishment of a pharmacy under subparagraph 105 on the trade name, “D pharmacy” on February 11, 2016, and started the operation of a pharmacy from around that time. Of the terms of the said lease agreement, the matters related to the instant case are as follows.

3.All procedures and permissions required for a pharmacy shall be deemed leased, while the lessor shall actively cooperate, provided that this Agreement is null and void if, due to defects, no permission for the establishment of a pharmacy is granted due to a defect.4.3rd or upper level of a pharmacy shall be null and void.

D. Plaintiff’s objection against the Defendants

On September 25, 2015, the Plaintiff and the Plaintiff sent to the buyers of the instant commercial building a notice to the effect that they are unable to open a pharmacy in the instant commercial building except subparagraph 115, and on October 12, 2015, the Plaintiff issued a certificate of content that 115 were designated as a pharmacy in the instant commercial building.

E. C’s filing of a lawsuit against the Plaintiff

C When Defendant A was unable to operate exclusive pharmacy business within the instant commercial building, Defendant A filed a lawsuit against the Plaintiff on December 21, 2015 ( Daejeon District Court 2015Gahap107681) claiming the return of the selling price.

【Fact-finding without a dispute over the ground for recognition; Gap evidence 1 through 6 (including each number, if any; hereinafter the same shall apply), Eul evidence 1; Eul evidence 1; Sejong Special Self-Governing City's response results with an order to submit documents to the director of Sejong Special Self-Governing City's public health center;

2. Determination as to the claim for prohibition of business and indirect compulsory performance

A. The parties' assertion

1) Plaintiff

Since 115 heading 115 is designated within the commercial building of this case as a pharmacy, no pharmacy business may be operated except for 115 heading under the Agreement on the Restrictions on Business Activities in the commercial building of this case. The Defendants knew the existence of the Agreement on the Restrictions on Business Activities in the commercial building of this case and agreed to sell or lease 104, 105, 202 heading, 105 heading 105 heading, Defendant A is prohibited from running a pharmacy business in 105 heading 105 heading and transferring a pharmacy business right to a third party. Defendant Company shall not allow the third party to use 104, 105, 202 heading 104, 105 and 202 for the purpose of the pharmacy

2) The Defendants

The Defendants did not know at all as to the existence of a business sector restriction agreement in the shopping district of this case at the time of sale or lease of 104, 105 and 202, and there was no notification as to this. There was no indication as to the type of business as to the column for indication of the object of sale in the sales contract. The Plaintiff was merely aware that the Defendants concluded the sales contract of this case and concluded the lease contract, and only 105 days after the conclusion of the lease contract.

(b) Relevant legal principles;

In the case of the establishment of a provision on the restriction on the type of business in the contract for sale in lots, what scope of business should be restricted, whether the change of the type of business should be absolutely prohibited, or allowed within a certain scope can be freely determined by the parties in accordance with the principle of private autonomy, and the permission, scope, and procedure of the change of the type of business should be determined through the reasonable interpretation of the contract for sale in lots. However, even in this case, it is meaningful to ensure that the seller can exclusively operate the type of business.

Meanwhile, it is reasonable to view that the owner of a building constructed a commercial building and then purchased the status of the buyer of a shop after setting the type of business for each shop and selling it in lots, or the lessee of the shop agreed to accept the obligation of restrictions on the type of business agreed upon in the sales contract, etc., by mutual agreement in the relationship between the shop occupants, barring any special circumstance. Therefore, in a case where the transferee of the position of the buyer of the shop, lessee, etc. violates the agreement on the restriction on the type of business set forth in the sales contract, etc., a person whose business interest is infringed upon by such agreement has the right to claim the prohibition of business of the same type of business to exclude infringement (see, e.g., Supreme Court Decision 2009Da61179, Dec. 24, 2009).

(c)the existence and validity of an occupational limitation agreement;

1) In full view of the following facts and circumstances, which can be acknowledged by the purport of Gap's evidence 7 through 9, Eul's evidence 2, Eul's testimony and pleading as a witness E, it is reasonable to view that the defendant company and its tenant, the buyer of the defendant company and the tenant of the commercial building of this case, consented to the buyer's exclusive interest in the category of business from the plaintiff according to the sales contract. On the other hand, it is reasonable to view that the defendant company and its tenant agreed to allow the buyer to have the obligation of restrictions on the category of business agreed implicitly in the sales contract between the plaintiff and the tenant of the commercial building of this case. Therefore, since the defendants violated the restriction on the category of business under the sales contract of this case, they are prohibited from running their pharmacy business in 105, and they shall not transfer their pharmacy business rights to a third party, and the defendant company shall not allow the third party to use the pharmacy business for the purpose of

A) The Plaintiff and the Defendant Company entered into a sales contract at the same time with respect to 104 square meters (47.88 square meters), 105 square meters (50.54 square meters), and 202 square meters (197.28 square meters) in the instant commercial building.

B) At the time of the conclusion of the instant sales contract, E was demanded by the Plaintiff to modify the design of 202 regarding the building office, which is the design and supervision company of the instant commercial building. This is because the Defendant Company extended the exclusive use area of 202m2, originally 146.59m2 to the Plaintiff in order to operate a tea shop of the dunes structure connecting the 1st floor and the 2nd floor, and demanded the Plaintiff to change the construction into the window instead of the building that was planned to be installed at the center of the building. Since the instant sales contract was a pre-sale contract, it was possible to change the design of the instant building, the design of the instant sales contract was made at the request of the Defendant Company.

C) After the conclusion of the instant sales contract, the Defendant Company did not proceed with the coffee shop business as to 104, 105, and 202 after entering into the instant sales contract. Around September 14, 2015, the Defendant Company entered into a lease agreement with Defendant A only on 105. There is no evidence that the Defendant Company uses the remainder of 104 and 202.

D) According to Article 9 of the instant parcelling-out contract, the use of a store under the instant parcelling-out contract is, in principle, limited to the category of business subject to consultation, and if a change is intended to another type of business, the Defendant Company must reach an agreement with the autonomous management committee prior to the formation of the autonomous management committee, and after the formation of the autonomous management committee. In addition, it seems that the instant parcelling-out contract was uniformly used in the first process of parcelling-out of the instant commercial building, and the said provision is a typical phrase used for the agreement on restriction on the type of business in the sales contract of the commercial building. Therefore, the meaning of the above provision is reasonable to interpret the meaning that all types of business can engage in any type of business within the extent that it does not overlap with the previous tenant, and in the case of selecting or overlapping the type of business within the extent that the recommended type of business

E) The instant shopping mall was designated by each floor as specified in the car slopingg. Moreover, since many members expected to occupy the instant shopping mall and promising the establishment of a pharmacy, in particular, the establishment of a pharmacy in the shopping mall could have been consulted with the seller, but the Defendant Company did not have completed the consultation with the Plaintiff before entering into a lease agreement with the Defendant as to whether the type of business can be changed or whether the pharmacy business can be operated in the coffee shop originally planned.

F) In reality, it is reasonable to view that in concluding a sales contract for a commercial building, which is an aggregate building, it is customary and has been well aware of such circumstances as ordinary delivery.

G) The Defendants received the provision that the Plaintiff cannot commence the pharmacy business in 105 after concluding a lease agreement with respect to 105 for the purpose of pharmacy business, but applied for permission to establish a pharmacy in Sejong Special Self-Governing City and obtained permission on February 11, 2016.

2) The Plaintiff filed a claim against the Defendant Company to the effect that it should not allow the Defendant Company to use any name, such as lease, lease, loan for use, etc. for the purpose of the pharmacy business as set forth in subparagraphs 104 and 202. However, the evidence submitted by the Plaintiff alone cannot be deemed as having been intended to run a pharmacy business in violation of the business sector restriction agreement even under Articles 104 and 202, and thus, the claim for this part of the claim is rejected.

D. Indirect compulsory performance

1) For the purpose of ensuring the effective enforcement of the judgment ordering an obligation of omission, where, even if the enforcement title is established by deeming it at the time of the closing of argument in the litigation proceedings as to the obligation of omission, it is probable that the obligor may violate it within a short period, and where the judgment proceedings are capable of calculating the reasonable amount of compensation ordered under Article 261 of the Civil Execution Act, the judgment proceedings as to the obligation of omission may also be ordered to make certain compensation in cases where the primary debtor fails to perform his/her obligation

2) In light of the fact that the Defendants dispute the existence and validity of the business sector restriction agreement of the commercial building of this case and continue to operate a pharmacy in 105 until the date of the conclusion of the pleadings of this case, even if the enforcement title ordering the Defendants to prohibit the business operation of the pharmacy is established, the Defendant is highly likely to violate it, and the judgment procedure of this case also can calculate an appropriate amount of compensation to the Defendants pursuant to Article 261(1) of the Civil Execution Act regarding indirect compulsory performance. Thus, if the Defendants fail to perform their business prohibition obligation, it is reasonable to order the Plaintiff to pay compensation in proportion to KRW 300,000 per day from the day following the date of the final decision of this case as requested by the Plaintiff.

3. As to the claim for damages

A. The plaintiff's assertion

Due to the defendants' violation of the prohibition of competition, the defendants are obligated to compensate the plaintiff for damages because some of their rooms in the commercial building of this case were provisionally seized.

B. Determination

The plaintiff is presumed to have caused damage to the plaintiff due to the defendants' violation of the prohibition of competitive business, and the plaintiff is not specifically asserted and proved. The evidence submitted by the plaintiff is insufficient to recognize the fact that the plaintiff suffered damage due to the defendants' violation of the prohibition of competitive business, and there is no other evidence to acknowledge it. The plaintiff's assertion in this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Byung-sik

Judges Cho Jong-chul

Judges Bo Han-han