In a case where a person who entered into a contract to transfer a right to a resting restaurant that sells coffees, starchs, etc. enters into a franchise store business in the vicinity, and prepares and sells coffees, teas, ices, etc. in addition to breads, the case holding that the case holding that the person cannot prepare and sell coffees, teas, melting teas, etc. which are the same kind of business as the business subject to assignment, or transfer his/her business right to the part thereof.

In a case where a person who has entered into a contract for the transfer of right to a resting restaurant that sells coffee, tea, etc. commences a franchise store business in the vicinity thereof, and prepares and sells coffee, tea, ice, etc. in addition to bread, etc., the case holding that the above contract for the transfer of right constitutes a transfer of business under the Commercial Act, and it is reasonable to view that the above task constitutes a transfer of business, and even though the above task is mainly the bread, the manufacture and sale of beverages in the shop is the same as that of the business subject to transfer under the above contract for the transfer of right, and that it is reasonable to view that the above task is identical to that of the business subject to transfer under the above contract for the transfer of right, and thus, it is impossible to prepare and sell tea, tea, etc., ice cream,

Article 41(1) of the Commercial Act; Article 261 of the Civil Execution Act

Plaintiff (Law Firm Ear excellent, Attorneys Lee Il-soo et al., Counsel for plaintiff-appellant)

Defendant (Attorney Jeong-ju, Counsel for defendant-appellant)

August 25, 2010

1. The defendant shall not prepare or sell coffees, melting teas, etc., ice cream and scream in the first floor store in Gangdong-gu Seoul Metropolitan Government (number 1 omitted) operated by the defendant.

2. The defendant shall not transfer to a third party the above 1. Business rights as stated in the above 1. Paragraph of this Article.

3. If the Defendant did not perform the above 1.1. obligation, it shall pay to the Plaintiff money in proportion to KRW 150,000 per day of violation. If the Plaintiff breached the above 2.1. obligation, it shall pay KRW 20,000,000 to the Plaintiff.

4. The plaintiff's remaining claims are dismissed.

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

Disposition Paragraph 1 and

1. The defendant shall not transfer the business right to a third party of Gangdong-gu Seoul Metropolitan Government Sungdong (number 1 omitted) to a third party.

2. Where the Defendant did not perform the obligation of Paragraph 1 of this Article, it shall pay to the Plaintiff money in proportion to KRW 300,000 per day of the violation day, and where the Plaintiff breached the obligation of Paragraph 1 of this Article, it shall pay KRW 100,000 to the Plaintiff.

1. Basic facts

A. Conclusion of a contract to transfer rights of this case

On February 6, 2010, the Defendant concluded a contract for the transfer of rights (hereinafter “instant contract for the transfer of rights”) with the Plaintiff on the following terms and conditions: (a) on March 8, 2010, the Defendant abolished the existing business (type of food: food: coffee) on March 8, 2010; (b) registered a new business with the same trade name (type of food: food, category of food, and other food; and (c) commenced business with the Plaintiff’s license for the sale of alcoholic beverages).

1. Indication of real estate;

Location: Gangdong-gu Seoul Metropolitan Government (number 2 omitted) No. 101 No. 102 of the first floor of Gangdong-gu (Name omitted)

Trade Name: Macacs

Registration number: (Registration number omitted)

Type of business: Resting restaurants;

3. Details of a contract for transfer of rights;

Article 1 A transferee (Plaintiff, hereinafter the same shall apply) shall pay the amount of transfer of rights to the above indicated real estate as follows:

Transfer Amount of rights (including facility costs), 40,000,000 won (the contract amount of KRW 10,000,000 shall be paid at the time of the contract and the balance of KRW 30,000,000 shall be paid on March 2, 2010)

Article 2 Time of transfer of the above real estate shall be March 15, 2010.

Article 3 (Defendants, hereinafter the same shall apply) shall remove all matters that interfere with the exercise of the right of lease, shall receive the full amount, and shall hand over all facilities including all facilities so that the transferee may conduct the business immediately.

§ 4. The profits and expenses incurred on such immovable property as of the date of delivery shall belong to the transferor and any subsequent property shall belong to the transferee on the date preceding the date of delivery.

Article 5. The intermediate payment (if there is no intermediate payment, the balance) may be cancelled before payment is made, and if the transferor cancels, he/she shall compensate the transferee of the down payment, and if the transferee cancels it, the down payment shall be reverted to the transferor.

Article 6. Brokerage Fees shall be paid by both the transferor and the transferee simultaneously with the conclusion of this Agreement.

[Matters of Special Agreement]

1. Contract under the current condition of the facility;

2.This Agreement shall specify that the lease will be established upon the completion of the contract.

3. The value-added tax shall be separately imposed on the monthly rent;

4. The extent of subsequent increase in rental deposit (an estimate of KRW 10 million) and monthly rent increase (an estimate of KRW 100,000 per month) shall be recognized by the transferee, and if such increase is more than that, the transferor shall cooperate with the transferor on a cycle;

5. The proceeds of the contract for acquisition of rights will be paid on February 9, 2010.

6. The equipment shall be photographing and appended;

7. The transferor shall cooperate in succession to a business; and

B. The Defendant’s commencement of business

Around March 2010, the Defendant started business with the trade name of "influence" on the first floor of the building located in the Sungdong-dong (number 1 omitted) of Gangdong-gu Seoul Metropolitan Government, which is located in the direction of a large angle line adjacent to the said coffee store, and prepares and sells coffees, fruits, bottles, and so on in addition to bread.

[Ground for Recognition: Facts without dispute, Gap evidence 1, 2, 7, Eul evidence 1]

2. The plaintiff's assertion

Since this case’s right transfer contract constitutes a transfer of business under the Commercial Act, the defendant bears the duty not to engage in competitive business pursuant to Article 41(1) of the Commercial Act. Since the defendant’s cooking and selling of coffee, etc. at the store “influort” violates the above duty, the defendant is obligated to suspend the above sale. In addition, even though the provisional disposition case (Seoul Eastern District Court Order 2010Kahap735, Apr. 26, 2010) rendered a decision to prohibit the above sale against the defendant, the defendant continues to sell coffee, etc. in violation of this duty, and the defendant is obliged to pay to the plaintiff the amount of KRW 300,000 per day when he breaches his duty as indirect compulsory payment.

In addition, in accordance with the duty of prohibition of competitive business, the defendant shall not transfer the above "non-performance" store business to a third party, and shall pay to the plaintiff 100,000,000 won as an indirect compulsory payment in case of violation.

3. Determination

A. Whether the business is transferred under the Commercial Act

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 term "functional asset" here refers to a functional asset as an organic combination of tangible and intangible property and facts with economic value, and the functional asset as a source of profit that is an organic combination of these facts functions as a source of profit, and it becomes an object of transaction like one goods. Thus, the issue of whether a business transfer is deemed to have been made shall be determined depending on whether the transferee is deemed to have continued to engage in the same business activity as the transferor performed after the transferee transferred functional asset as an organic source of profit (see Supreme Court Decisions 88Da10128, Dec. 26, 1989; 97Da35085, Nov. 25, 1997; 2007Da8297, Apr. 11, 2008; 209Da9297, Feb. 19, 2009).

In light of the fact that the title transfer contract of this case is the "real estate right transfer contract", ② that it is difficult to view that the object of transfer is limited to facilities such as equipment in light of the statement that the transfer price (including facility cost) is "the transfer price of the right", ③ the special agreement clause provides that the plaintiff cooperates with the owner of the building in the event that the transfer price is increased more than the expected difference when entering into a new lease contract with the owner of the building, ④ the special agreement clause provides that "the transferor shall cooperate with the succession of the business", ⑤ the plaintiff takes over and uses the previous trade name and equipment as it is, and the transaction parties related to the sale of alcoholic beverages take over from the defendant (Evidence No. 8 of this case). ⑥ The defendant discontinued the previous business and newly registered the business, and there was a change in the business items in the process, and it is reasonable to consider that the change in the business items is not identical to the existing business type of alcoholic beverages that the plaintiff had already sold, as a whole, it is reasonable to consider the legal nature of the sales contract of this case as a neighboring store.

(b) Whether it is a same type of business;

According to the records, it is recognized that the circumstances in which “brush” is mainly engaged in the business of manufacturing and selling bread are acknowledged. However, considering the Defendant’s business type, consumers’ general tendency to purchase, substitution possibility of each product, relationship between bread sales and beverage sales, etc., it is reasonable to deem that manufacturing and selling beverages within “brush” is the same kind of business as that subject to transfer under the instant right transfer contract. Furthermore, it is difficult to readily conclude that the specific operational form of the business that the Defendant transferred to the Plaintiff is limited to selling the coffee directly manufactured within the business place, and ② taking into account the drinking sales form in “brush” and the beverage sales form in “cate trees,” it cannot be deemed that the Plaintiff’s claim seeking preparation and prohibition of sale of teas, such as coffee, tea, and tea, exceeds the same kind of business prohibited under Article 41(1) of the Commercial Act.

However, it is clear that the Defendant’s prohibition of transferring the business rights to the entire store “influort” to a third party exceeds the scope stipulated in Article 41(1) of the Commercial Act, and thus, the prohibition of transferring the business rights to a third party is limited to the cooking and selling business of coffee, melting tea, etc. in the “influort” store.

C. Indirect compulsory performance portion

(1) In the instant case, the Defendant’s obligation is an incidental obligation and compulsory execution against it is possible, and normally, after the enforcement title was established in the judgment procedure, it is possible to make a decision of indirect compulsory execution ordering the obligor to compensate for a certain amount at the time of nonperformance through a necessary examination by the obligee’s separate request after the execution title was established. However, in order to ensure effective execution of the judgment ordering the obligation of omission, even if the enforcement title is established in view of the execution title at the time of the closing of argument in the litigation procedure as to the obligation of omission, it is probable that the obligor may violate it within a short period, and in the event that the amount of compensation can be calculated in the said judgment procedure, it is possible for the obligor to make a certain amount of compensation even in the judgment procedure as to the above obligation of omission (see Supreme Court Decision 93Da40614, 40621, Apr. 12, 199

(2) Comprehensively taking account of the overall purport of the arguments as to Gap evidence Nos. 5 and 6 (including paper numbers), even though the Seoul Eastern District Court 2010Kahap735, Apr. 26, 2010 issued a provisional disposition ordering the defendant to prohibit the sale of coffee, etc. at the above "influence" shop, the defendant continued to sell coffee, etc., and there is sufficient probability that the defendant may violate the duty of prohibition of competition within a short period. Therefore, it is reasonable to deem that the defendant is liable to pay compensation to the plaintiff where the defendant violates the duty of prohibition of competition even though the judgment of this case became final and conclusive.

(3) Furthermore, we examine the amount that the defendant is liable for compensation. Since compensation is a psychological compulsory means for the debtor, it is not directly related to the existence of damages and the amount of damages that the creditor is liable for due to default, and can be decided by the court in consideration of the nature of the act and all other circumstances. Considering the nature of compensation, if the defendant violated the prohibition obligation, it is reasonable to pay to the plaintiff the amount calculated at the rate of KRW 150,000 per day of the violation.

In addition, in the case of violation of the duty of prohibition of transfer of the same business sector, if the defendant transfers the same business sector to another person, the plaintiff as the plaintiff would have no right to seek a prohibition of business against the transferee, and thus continuous damage will occur. However, in view of the fact that the plaintiff has a damage claim against the defendant for non-performance of obligation or tort separate from the compensation claim, it is reasonable to determine the compensation amount as KRW 20 million in consideration of the fact that the plaintiff has a damage claim against the defendant.

4. Conclusion

Therefore, the plaintiff's claim is justified 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 Lee Jae-in (Presiding Judge)