2017 Ghana 53436 damages (ar)

1. Ma○○;

Daegu

2. Kim○-○

Daegu

[Defendant-Appellant] Plaintiff 1

Attorney Jeon Dong-cheon

A Acting Merchants' Council

Daegu

The Chairperson of the Representative

Law Firm Han-ro, Counsel for defendant-appellant

Attorney Kim Jong-ho

Attorney Kim Jae-chul

October 17, 2018

December 19, 2018

1. The defendant shall pay to the plaintiffs 249,00 won with 5% interest per annum from October 19, 2017 to December 19, 2018, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiffs' remaining claims against the defendant are all dismissed.

3. Of the costs of lawsuit, 90% is assessed against the Plaintiffs, and the remainder is assessed against the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to each of the plaintiffs 2,498,00 won and each of them 15% interest per annum from the day following the day of service of a copy of the application for modification of the purport and the cause of the claim of this case to the day of complete payment.

1. Basic facts

A. Status of the parties

The plaintiffs, as proxy driving engineers, are those who provide information on proxy driving call provided by the defendant, and conduct the proxy driving service.

The defendant entered into a contract with a substitute driver in Daegu including the plaintiffs for a program and a substitute driving information service contract (hereinafter referred to as the "contract in this case"), and then is an association which is not a legal entity that provides substitute driving information (franchising customer information) and receives a fixed brokerage commission (franchising service commission) and uses a course of "A" as an association of substitute driving companies in Daegu area.

B. Details of the instant contract

제2조(업무)"갑"(피고를 말한다, 이하 같다)은 대리운전을 요청하는 고객정보를 "을"(원고들을 말한다, 이하 같다)에게 제공하고, "을"은 그 정보를 제공받아 본래의 목적을 성실히 수행한다.제4조(책임)3. "을"은 대리운전자업무규정 및 ★별 표를 준수하여야 하며 그렇지 못할 경우 징계할수 있다.★별 표★

(c) Cut customer information;

The Defendant suspended the provision of customer information for five days to Plaintiff ○ from December 20, 2016 to December 24, 2016, and for five years from December 29, 2016 to January 2, 2017 to Plaintiff ○○ from Plaintiff Kim○, on the ground that the Plaintiffs joined DDDB and run the proxy driving business. [Grounds for recognition] Party 1 to 4, Party 1 to Party 2 (including serial numbers; hereinafter the same shall apply), Party 1 to Party 2, and Party 2 (including serial numbers; hereinafter the same shall apply) respectively, and the purport of the entire pleadings.

2. The parties' assertion

A. The plaintiffs' assertion

As a proxy driving engineer, the plaintiffs have been performing the duties of proxy driving with customer information provided by the defendant. As the plaintiffs used DDB, which is the defendant's competitor, the defendant prevented customer information of proxy driving for five days. This constitutes unfair trade practices under the Monopoly Regulation and Fair Trade Act, and thus, the defendant is responsible for compensating the plaintiffs for damages equivalent to the lost profit and consolation money suffered by the plaintiffs due to the act of blocking customer information of proxy driving.

B. Defendant’s assertion

The defendant is a council of vicarious driving companies established to jointly perform duties such as recruitment of vicarious driving engineers, operation of vicarious driving vehicles, etc., and operates a substitute driving vehicle by bearing expenses jointly with another vicarious driving company council located in the Daegu area.

However, it is reasonable to impose sanctions against the plaintiffs who act as an agent by using the proxy driving program which is not recognized by the defendant, as it is unjust enrichment between the plaintiffs and the divers. Thus, it is reasonable to impose sanctions against the plaintiffs who act as an agent by using the proxy driving program which is not recognized by the defendant, and it is not unlawful.

3. Occurrence of liability for damages;

(a) Facts of recognition;

The following facts may be acknowledged in full view of the evidence mentioned above, Gap evidence mentioned in subparagraphs 5 through 7, and the purport of the whole pleadings:

(i) the structure and status of the substitute driving market;

A) Summary of proxy driving business

The term "agent driving" refers to driving a vehicle of a customer on behalf of the customer at the customer's request (hereinafter referred to as "col") to the destination desired by the customer and receiving the cost of driving on behalf of the customer, and the main customer is the victim who must operate the vehicle after drinking. The substitute driving business is a free business without legal regulation, and it is easy to enter the market because it is possible to operate the substitute driving business only when it is registered at the competent tax office.

B) The proxy driving business of the agency driving business is divided into the type of the business in which the agency driving engineer directly employs as a worker in accordance with the relationship with the agency driving engineer(s) and the type of business in which it concludes an information use contract with the agency driving engineer(s).

The direct management method is a type of business in which a vicarious driving company has formed alcoholic beverages in the current agency driving industry, which is a method of paying call fees to a vicarious driving company, when it notifies a vicarious driving engineer of detailed information about call (customer telephone number, departure point, arrival point, charges, etc.) after receiving call as follows, and a vicarious driving broker is a form of business in which a vicarious driving company is forming alcoholic beverages in the current agency driving industry after receiving call fees from a customer in return for call performance.

(4) Payment of substitute driving fees.

2) The current status of the substitute driving market in Daegu and the defendant's business structure

A) The representative driving companies in Daegu area in the current status of the substitute driving market in Daegu area are engaged in the business by organizing a federation of proxy driving businesses sharing call information and substitute driving engineers among those using the same brokerage program. As of the end of 2015, three alliances, including Defendant, B, and C driving Council (hereinafter referred to as “C”), as shown below, are in the Daegu area as of the end of 2015. The Defendant operates the Daegu Call Center 2), Eul, and C as its main axis, and they are in the operation of each federation. They are engaged in the recruitment and management of substitute driving engineers and the purchase and management of insurance as proxy driving engineers.

Status of Representative Driving Union in Daegu (based on the end of 2015)

A person shall be appointed.

On the other hand, each member store 3) who belongs to the Union is engaged in the agency driving business by being entrusted with the right of call of a branch by making the phone number of the branch to a call center or a specific call center which is located in his/her own phone number after being recruited by itself in the form of "4)".

B) The Defendant’s business structure and the method of allocating call fees

Since 62 member stores (including about 62 members) and 400 member stores (including about 400 members) voluntarily recruited by the defendant's member stores are each independent operators, their call telephone numbers are independently and autonomously provided by various methods, such as paper, restaurant, name box, leaflet, media leaflet, advertisement, etc., so that a large number of call numbers can be received through their own telephone numbers.In the case of a branch office, a member store and a branch office are paying a fee (general 500 won per call) to the member store (general 500 won per call) instead of entering into a contract with the member store and putting their telephone numbers on the call center of the member store.In the case of a member store or a branch office, if a proxy driver requests a call call and performs the relevant call, the fee for the relevant call shall be the principal revenue source.

The call service is a structure in which the customer requests a call using a specific substitute driving phone number, after receiving the call at the call center where the relevant telephone number is located, the call information is publicly announced as a substitute driving program and the substitute driving engineer 6) is conducted by the customer. In the case of call fee under the call fee, the defendant operates the call fee settlement among the member stores on behalf of the member stores, and each member store distributes profits through the procedure of settling the call fee which has been settled with the branch office.

Specifically, a substitute driver shall carry out a call and pay 3,700 won to the Daegu A Call Center (F) upon receiving a commission from a customer (the basic charge shall be 12,000 won, and the additional charge shall be incurred on the street). The method of distributing 3,700 won received from a substitute driver shall be adjusted to 1,050 won for the Daegu Call Center (F) management fee, 150 won for circular vehicles, and 2,500 won for circular vehicles, and the franchise store shall pay a certain amount (ordinary 2,00 won) to the branch office in accordance with the terms and conditions of the contract with the affiliated branch.

3) On May 31, 2016, DNA Co., Ltd. started a vicarious driving service in the name of "DDR" on May 31, 2016. DDR provides that it is a method (020) so that customers can directly connect with a vicarious driving engineer through smartphone display without going through a vicarious driving company. DDR service provides a direct call information on the basis of the distance from the customer without going through a program company to a vicarious driving engineer registered on Ddraber App (AP). On the other hand, the agency driving fee, in principle, is set through a metal method that reflects the distance and time of the basic fee, 20% of the agency driving fee as a fee, and that it does not receive any insurance premium, service fee, and any other fee.

4) After the Defendant’s open competitive business operator who is an open competitive business operator against the Plaintiffs, the Defendant sent a message to proxy driving engineers, including the Plaintiffs, to inform the Plaintiffs of the measures to suspend business operations and to refuse to conclude a sub-contract, in the event of acting driving services using the call information of other proxy driving business operators on two occasions as follows. After that, the Plaintiffs were registered on the DDB App and run a proxy driving business, and subsequently suspended the provision of customer information on behalf of the Plaintiffs as seen earlier. On November 28, 2016, the notice was given to a proxy driving engineer on behalf of the Plaintiffs.

The Daegu A Acting Drivers will refuse to renew the contract with the following contents, as it is not recognized as a member of A, in consideration of the opinion of the Korea Labor-gu Branch of the Daegu-si Branch as an agency for the articles that assist the unfair activities of other companies, sharing and pursuing the interests and welfare of the articles.1.

4. Paragraph 9 of the Act on the Use of Information by Proxy (based on the use of designated equipment and program) on December 1, 2016

2. An act threatening news welfare (Reduction and Abolition of Recycled Vehicle) 3. An act threatening the survival of the article and the enterprise; 4. An act of threatening the survival of the article and the enterprise; see paragraph 9 of the Act on the Use of Information by Proxy (Act on the Use of Designated Equipment and Programs). In the event of detection of the same enterprise and call, it would give rise to any disadvantage to the business by referring to the apex of the content of the program that will not immediately suspend the business or recontract.* Professor Professor Professor Professor Professor Professor Professor Professor

B. Relevant legal regulations and legal principles

1) The Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”)

Article 23 (Prohibition of Unfair Trade) (1) No enterpriser shall engage in any act which falls under any of the following subparagraphs, and which is likely to impede fair trade (hereinafter referred to as "unfair trade practices"), or cause its affiliated company or other enterprisers to engage in such act;

Enforcement Decree of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Enforcement Decree of the Fair Trade Act").

Article 36 (Designation of Unfair Trade Practices) (1) Types of, or criteria for, unfair trade practices under Article 23 (Prohibition of Unfair Trade Practices) (3) of the Act are as shown in attached Table 1-2. [Attachment Table 1-2] types of unfair trade practices and criteria7. The term “act of trading on the condition that business activities of the other party to the transaction are unfairly restricted” in the former part of Article 23 (1) 5 of the Conditional Trade Act (Prohibition of Unfair Trade Practices) means the act falling under any of the following items:

2) Legal principles

Article 23(1)5 (former part) of the Fair Trade Act and Article 36(1) [Attachment 1-2] 7 (a) of the Enforcement Decree of the Fair Trade Act, in order for a business entity to constitute an act of conditional transaction among conditional transactions that are defined as one type of unfair trade practices under Article 23(1)5 (former part) and Article 36(1) [Attachment 1-2] of the Enforcement Decree, it shall

The term “competitive or affiliated business entity” includes not only a business entity in the current competition but also a potential competitor, and “any condition that does not deal” includes not only the prohibition or restriction of the transaction with the business entity directly, but also the prohibition or restriction of dealing with the competitive items supplied by the business entity. The illegality of the exclusive dealing is assessed based on whether the exclusive dealing in question is likely to exclude or exclude one’s own or its affiliated company or potential competitors through the prohibition of the purchase or distribution route of goods and the restriction of the means of competition, etc. In addition, the determination of whether the exclusive dealing in question is likely to undermine or interfere with free decision-making due to the restriction of the freedom of business entity’s choice due to the exclusive dealing in question (see, e.g., Supreme Court Decision 2010Du25909, Apr. 25, 2013). In addition, in determining whether the exclusive dealing in question is unfair, the transaction partner’s entry of the alternative goods or distribution channel, the purpose and priority of the exclusive dealing in the contract and the means of competition at the other business entity.

1) Whether the Fair Trade Act is violated

Considering the following circumstances, the Defendant’s act of blocking customer information on behalf of the Plaintiffs constitutes a violation of Article 23(1)5 of the Fair Trade Act.

First, a proxy driver is not a worker under the Labor Standards Act in relation with a proxy driver, but is a kind of individual driver's status.

Second, it is common to join multiple acting driving companies that ordinarily use different programs in order to receive multiple call information, because substitute driving companies are provided with call information received by proxy driving companies through program companies' allocation program program.

Third, the defendant did not put any specific restrictions on the use of substitute driving information by proxy driving officers of other alliances or other companies in Daegu regions, but with respect to the substitute driving officers who join the new competitor's program, the act of blocking the provision of substitute driving customer information based on the contents of attached Table 9 of the contract of this case.Fourth, proxy driving customer information (one call information) is the most important item or transaction object in the transaction with the substitute driving company, and the act of blocking the customer information of proxy driving with the plaintiffs who are the proxy driving officers using the DDB app to prevent the entry of the new competitor's market.

Fifth, the defendant is a federation with the largest number of substitute drivers in Daegu area and almost 50% market share (based on monthly average call number). As a result, the defendant imposed the above sanctions on substitute drivers who have joined DDDB App, it is inevitable to use only the distribution program provided by the defendant, except for DDB App, or the distribution program of other alliances or companies in Daegu areas other than DDDB App, or to operate the substitute driving business by purchasing DDB app only.

Sixth, considering the status and status of the defendant in the market for the vicarious driving business in Daegu, the market share rate, the intent or purpose of the defendant's blocking customer information of vicarious driving business, etc., the defendant's act of blocking customer information of vicarious driving business by blocking customer information of vicarious driving business is restricted in the freedom of proxy driving business or choice of customers, and due to this, DDber's act of blocking the provision of customer information of vicarious driving business to the plaintiffs under attached Table 9 of the contract of this case is unfair.

Sixth, the defendant asserts that the act of blocking customer information on behalf of the plaintiffs, including the plaintiffs, is aimed at preventing the use of the defendant's transport vehicle after performing such DNA duties. However, this problem can be solved by permitting or restricting the use of the transport vehicle or changing the method of excessive payment of the cost of the transport vehicle by confirming whether the substitute driver in Daegu area, including the defendant, performed the call duty provided by the defendant, etc.

2) Recognition of liability

The defendant's act of blocking customer information on behalf of the plaintiffs constitutes an unfair trade practices falling under Article 23 (1) 5 of the Fair Trade Act and an act of unfairly restricting or restricting the plaintiffs' proxy driving business, which is the opposite party to the transaction, and thus, the defendant is liable for compensating the plaintiffs

4. Scope of liability for damages

(a) The amount equivalent to the lost profit;

1) Calculation of damages under Article 202-2 of the Civil Procedure Act

In principle, the amount of damages suffered by the plaintiffs by blocking the provision of customer information on behalf of the plaintiffs for five days can be calculated by deducting the call fees to be paid by the plaintiffs in return for receiving customer information on behalf of the plaintiffs from the amount equivalent to the operating income that the plaintiffs could have gained when they conducted a proxy driving business after being provided customer information by the defendant during the pertinent period.

However, considering the characteristics of the substitute driving business, it is deemed practically impossible to accurately calculate the operating profit because the operating income varies depending on the time (day, weekend, holiday, and the end of year) without specifying the income. Therefore, it is deemed appropriate to set the reasonable amount as the amount of damages to be paid by the defendant to the plaintiffs by considering the overall purport of the pleadings and all the circumstances recognized by the result of examination of evidence in accordance with the purport of Article 20

2) Calculation of lost earnings;

A) In full view of the following facts: (a) the average rate for the substitute driving in Daegu area per time of vicarious driving is 12,000 does not have any particular dispute between the parties; and (b) the evidence and the overall purport of the statements and arguments stated in subparagraph (c) above, Plaintiff ○○○ is an average of 3.45 times per day from the Defendant around December 2015 (the total number of 69 operating days in December): (c) Plaintiff ○○ is an average of 3.45 times per day from the Defendant (the total number of 69 operating days in December); and (d) Plaintiff ○○ is an agent with customer information provided at 4.21 times per day from the Defendant during the same period (the total number of 118 working days in December); (b) Plaintiff ○○ is maximum seven times per day from the Defendant around December 2015; and (d) Plaintiff ○○ was an agent with the maximum amount of customer information provided from the Defendant on behalf of the Defendant during the same period of time; and (v) the average number of local driving reports conducted by the Defendant 201.

B) However, the time when the Defendant’s act of blocking customer information was conducted on or around the end of December 2016 or around January 2017 is likely to increase the demand for vicarious driving due to the annual event, etc. However, it is difficult to readily conclude that the daily average number of vicarious driving employees conducted by the Ministry of Land, Infrastructure and Transport as statistics based on the investigation of 39 vicarious driving officers in Daegu and North Korea region. Furthermore, it is general to conclude that proxy driving officers including the Plaintiffs, etc., who ordinarily join multiple vicarious driving companies using different programs in order to obtain multiple call information, and thus, it is difficult to conclude that the Defendant could not themselves receive the vicarious driving customer information for the pertinent period because they were not provided with different programs from the Defendant. In full view of all the circumstances indicated in the above recognition and record, it is reasonable to deem that the Defendant could not conduct the vicarious driving business at least six times a day average of the Plaintiffs by blocking the customer’s customer information.

C) On the other hand, the plaintiffs should deduct 3,700 won per call of proxy driving service, which the plaintiffs should pay after receiving customer information from the defendant as proxy driving service.

D) Therefore, the amount of damages suffered by the Plaintiffs due to the Defendant’s act of blocking customer information on behalf of the Defendant is reasonable to be determined as KRW 249,00 (average rate of KRW 8,300 (average rate of KRW 12,00 - call fee of KRW 3,700) x 6 timesx 5).

B. Whether to recognize consolation money

Furthermore, although the plaintiffs sought compensation for consolation money due to the defendant's act of blocking customer information, in general, where property damage occurred due to non-performance of contractual duties or illegal acts, it shall be deemed that the party's mental suffering is recovered from compensation for property damage. Thus, there are special circumstances that compensation for property damage has suffered irrecoverable mental suffering, and where the other party knew or could have known such circumstance, consolation money for mental suffering may be recognized (see, e.g., Supreme Court Decision 2005Da213, Mar. 24, 2005).

In the case of this case, the evidence submitted by the plaintiffs alone that the defendant's act of blocking customer information on behalf of the plaintiffs constitutes property damage by restricting or obstructing the representative driving business of the plaintiffs, or it is insufficient to recognize special circumstances that the plaintiffs suffered from irrecoverable mental suffering due to compensation for property damage, and there is no other evidence to recognize it. Thus, the plaintiffs' claim for consolation money is without merit.

Therefore, the defendant is obligated to pay to the plaintiffs 249,00 won and to pay damages for delay calculated at the rate of 5% per annum under the Civil Act until December 19, 2018, which is the date of this decision, which is the date of this decision, and 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the following day until the date of full payment.

5. Conclusion

Therefore, the plaintiffs' claims are justified within the scope of the above recognition, and all of the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges Hwang Sung-sung

1) Each proxy driving company that uses the same proxy driving brokerage program to form a "representative driving federation" shall share programs with each other.

agency (or federation) belonging to each agency (or federation) shall be deemed to be a company that shares their customer call information, and a proxy driver belonging to each agency (or federation)

to carry out the call of a shared enterprise, i.e., to carry out a lot of calls promptly and to increase operating profits;

It means sharing call information between different operators and proxy driving engineer.

2) Although the business was commenced as the first substitute driver, at present, the substitute driver belonging to the defendant did not act as the broker in the trade name of "F", but as the substitute driver belonging to the defendant.

It is carrying out the management of the substitute driving program and the settlement of call costs.

3) The defendant Do refers to a substitute driver who is a member of C and a substitute driver who is recruited by E, and the Fair Transactions in Franchise Business Act A.

a franchise store. A franchise store may operate a direct call center, and a franchise store may share a call center of another franchise store.

Do.

4) The branch is a small-scale business operator who is engaged in the proxy driving business under an agreement with the defendant's member shop. The branch is a member company of the defendant.

In light of the fact that the defendant does not pay the membership fee to the defendant and does not attend the meeting of the defendant, it is difficult to view the defendant as a constituent business operator.

5) It is presumed that the representative drivers belonging to the above three federations are performing not less than 90 per cent of the Daegu District Headquarters, and registered with the three federations.

At least 2,00 telephone numbers are about 2,00 persons.

6) Since 2015, since the Defendant entered into and managed a contract with a substitute driver, the substitute driver belonging to the franchise store does not actually operate.

7) It is the amount paid to a business operator who operates and manages a vehicle used by an acting driver while in motion.