2015 Gohap34826 Compensation (as stated)

○ ○

Seoul Mapo-gu World Cup 36 Street

Attorney Han-chul et al., Counsel for the defendant

1. Lighting ○;

2. Round;

Defendants’ Address, Mapo-gu Seoul Mapo-gu World Cup 235, 200

Si Young Apartment)

September 8, 2016

October 13, 2016

1. The plaintiff's claims against the defendants are all dismissed.

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

The defendants are engaged in cosmetic business or third parties until October 31, 2024 in Seoul Special Metropolitan City area.

No license shall be allowed to run the cosmetic business. The Defendants shall each of the Plaintiff KRW 77,00,000 and KRW 000.

For this, 5% per annum from January 4, 2015 to the service date of a copy of the complaint in this case, and from the following day:

C. By the day of full payment, 20% interest per annum shall be paid.

1. Basic facts

A. From July 2010 to October 30, 2014, the Defendants, both married and married, operated the cosmetic room with the trade name of “○○○○○○○○” (hereinafter “instant cosmetic room”).

B. On September 4, 2014, in order to operate the cosmetic of this case at the instant store, the Plaintiff: (a) transferred all the facilities, such as the equipment of the cosmetic of this case, to KRW 77,00,000,000,000 on the day of the contract; (b) paid KRW 8,000,000 on October 9, 2014; and (c) agreed that the payment date of the remaining amount of rights may be extended by October 30, 2014 (hereinafter “instant contract”).

C. On October 28, 2014, the Plaintiff entered into a lease agreement between Ma○○ and Ma○○ with respect to the instant store with a rental deposit of KRW 33 million, monthly rent of KRW 1.65 million, and period of lease from November 1, 2014 to November 1, 2016. At that time, the Plaintiff, instead of directly paying the said rental deposit of KRW 33 million to the pre-existing lessee, was to pay KRW 33 million to the pre-existing lessee instead of paying the said deposit.

D. After that, on October 30, 2014, Defendant No. ○○, representing the Plaintiff and the Defendants, concluded a transfer contract with the purchase price of KRW 110 million, including the above KRW 30 million in total, which the Plaintiff paid to the Defendants instead of direct payment to the lessor ○○○, and KRW 70 million in total, as stated in the above paragraph (b) (hereinafter “instant transfer contract”). Accordingly, the transfer contract of this case was concluded (hereinafter “instant transfer contract”).

around that time, the Plaintiff paid the said KRW 10 million to the Defendants, and continued to use the trade name “○○○○○○○○○” at the instant store after reporting the change of the business operator from October 31, 2014, and operated the beauty room.

E. On the other hand, around January 4, 2015, the Defendants opened a beauty room in the name of approximately 390 meters away from the beauty room of this case, "Seongsan 2-dong, Mapo-gu, Seoul."

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 4, Gap evidence Nos. 2, 5 and 10, and the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

As the transfer of the cosmetic constitutes a business transfer under the Commercial Act, the Defendants are obliged not to engage in competitive business in Seoul where the cosmetic is located under Article 41(1) of the Commercial Act. Nevertheless, the Defendants are obliged to pay KRW 70 million in total, including KRW 50,700,000,000 for the Plaintiff’s operating loss of business due to breach of the duty to prohibit competitive business, and KRW 77,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won.

B. Whether the business is transferred under the Commercial Act

1) Article 41(1) of the Commercial Act provides, “In the event 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, Guns, and Sis, Guns for ten years.” The business stipulated in the above provision refers to a functional property as an organic integration organized for a certain business purpose, and the term “functional property as an organic integration” refers to a functional property as an organic integration organized for a certain business purpose. The term “functional property as an organic integration” functions as a source of profit by systematically combining facts with tangible and intangible property constituting the

As seen above, it means that the functional property as the source of revenue that is an organic combination becomes the object of transaction like one goods. Thus, whether a transfer of business is deemed to have been made can be deemed to have continued the same business activity as the transferor had been done by the transferee upon the transfer of functional property as the source of revenue that is organicized.

Determination of the criteria for such a transfer of business should be made. The same applies to a small-scale self-employed business in which there is no employee who takes over or takes over the business (see Supreme Court Decisions 2007Da17123, 17130, Jan. 15, 2009; 2009Ma1136, Sept. 14, 2009, etc.).

2) According to the health table, Gap evidence Nos. 3, 6, 9, and Gap evidence Nos. 8-1 through 4-4 as to the instant case, according to the instant transfer agreement, the Plaintiff is operating the beauty art room of this case after acquiring all the existing names, signboards, telephone numbers, customer list, fixtures, and facilities from the Defendants under the instant beauty art contract, and making a report of the modification of the business operator. The Plaintiff used the expressions that Defendant Cho○○ transferred the business of the beauty art room of this case to the Plaintiff around February 3, 2015, and then sent a certificate of intent to take over the advertisement of the ATM device installed for the promotion of the beauty art room of this case.

However, considering the following circumstances, the evidence No. 14-3, cosmetic No. 14-3, cosmetic No. 3, and cosmetic No. 13-1, 2, Na No. 3, 9, and 13-1 and 2’s overall purport of each of the above cosmetic No. 14-2 and oral argument that it is difficult for the Defendants to take over the above cosmetic No. 70-2 to view the above cosmetic No. 14 as an employee of the above cosmetic No. 14-2 to take over the above cosmetic No. 3 and cosmetic No. 14-2, and that it is difficult for the Defendants to take over the above cosmetic No. 3 and cosmetic No. 14-2 to view the above cosmetic No. 7 as an employee of the above cosmetic No. 30000,000,000 won and the remaining cosmetic No. 300,000,000 won were paid by the Plaintiff to the Defendants.

Therefore, the Plaintiff’s above assertion against the Defendants on the premise that the Plaintiff transferred the business of the beauty art room of this case from the Defendants is without merit.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed as it is without merit. It is so decided as per Disposition.

Justices Kim Jong-soo

Judges Kim Jae-hee

Regular Category of Judges