209 Gaz. 24760 Damages (as referred to)

Park ○ (62-years, Womens)

Suwon-si Suwon-si

Law Firm Sejong (Law Firm Doz., Counsel for defendant-appellant)

Attorney Lee Lee-hoon

Golf Respect Co., Ltd.

Daejeon Yusung-gu

Representative Director Kim

Law Firm Namsan, Counsel for the plaintiff-appellant

[Defendant, Appellant] ○○, EO

May 14, 2010

June 11, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The defendant shall pay to the plaintiff 146, 589, 088 won with 5% interest per annum from June 15, 2009 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

(a) A party relationship;

On April 13, 2009, the Defendant is a company selling screen golf machines, and the Plaintiff runs a business with the trade name "1,000,000, by taking over the right of lease of the first floor screen golf business store underground of the main complex commercial building with an O-dong O-dong in Suwon-si, which is equipped with the Defendant’s screen golf machine from the former operator’s car operator’s car around April 13, 200."

B. Type of business of the plaintiff

In many business places using Defendant Company’s machinery, including the Plaintiff, attracting customers by actively utilizing the fact that Defendant Company’s non-indicted (CI, CI, Cor Rate I) is installed, such as attaching it on the signboard, and installing it at a place inside the place of business, etc., and the Defendant also has a golf-based CI’s image file at the location of the home page so that business owners can utilize it.

In order to use the Defendant Company’s screen golf machine, the Defendant’s golf-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based-based--based-

(c) Reburial of ○○○○ golf;

After the plaintiff started the "OOOO" business, the "OO-dong O-dong O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, 9 through 18, Eul evidence Nos. 5 through 7, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that the defendant's act of allowing the business owner who installed the defendant's machinery to join the defendant's GLM site as a member and operating the store using it constitutes "franchising business" under Article 2 (1) 1 of the Franchise Business Act (hereinafter "Franchising Business Act"), and that the defendant's act of installing the Dong Scke golf, a franchisor, in the place of the plaintiff's business, violates the duty to protect the business area under Article 12 (1) 4 of the Franchise Business Act, and since the plaintiff's daily sales amounting to 100,000 won after commencement of the business, the defendant is responsible for compensating the plaintiff for losses caused by the decrease in sales.

B. The defendant's assertion

The defendant asserts that the defendant's screen golf machine sales business was processed by simple sale of goods, provision of services, etc., and it is not a franchise business under the Franchise Business Act, and it is not a violation of the duty to protect the business area.

C. Determination

1) In order to determine whether the Defendant violated the obligation to protect the Plaintiff’s business area, the relationship between the Plaintiff and the Defendant should be premised on the establishment of a franchise business under the Franchise Business Act, and first, we examine whether the relationship constitutes a franchise business under the Franchise Business Act.

2) The Franchise Business Act defines the franchise business as follows:

Article 2 subparagraph 6 of the Franchise Business Act

The term "franchise" means a continuous business relationship in which a franchiser allows its franchisees to use its own trademark, service mark, trade name, or signboard (hereinafter referred to as "business mark"; hereinafter the same shall apply) and sell goods (including raw materials and supplementary materials; hereinafter the same shall apply) or services in accordance with certain quality standards or a certain business method, and provides them with education and training on the use of the business mark and the support for its management, business activities, etc., and franchisees pay franchise fees to their franchiser in return for education on the use of the business mark and the support for its business activities, etc.

3) Whether the Plaintiff paid the franchise fee to the Defendant

In order to constitute a franchise business, a franchisee pays a franchise fee to a franchisor in return for the support and education of the use, management, business activities, etc. of business marks, and thus, we examine whether the Plaintiff paid a franchise fee to the Defendant.

Franchise Business Act and subordinate statutes define franchise fees as follows:

Article 2 subparagraph 6 of the Franchise Business Act

The term "franchise fee" means any of the following consideration, irrespective of the name or means of payment: Provided, That such consideration specified by Presidential Decree that is not payable to a franchiser shall be excluded herefrom: (a) A. A. A. A. A A franchise store business entity, such as membership fees, franchise expenses, educational expenses, or down payment, permits the use of business marks, etc.

Consideration that shall be paid to a franchiser in order to receive the franchise store operating rights or support and training on business activities;

(d) A franchisee uses business marks licensed under an agreement with the franchiser, business activities, etc.;

payment to the franchiser on a regular or non-regular basis with respect to support education and other matters

the price prescribed by Presidential Decree;

Article 3 (2) of the Enforcement Decree of the Franchise Business Act

"Those prescribed by Presidential Decree" in subparagraph 6 (d) of Article 2 of the Act means any of the following substitute shops:

2. Price of raw materials, subsidiary materials, fixtures, facilities, and raw materials supplied by a chain store operator to the franchiser;

payment to the franchiser on a regular or irregular basis for the rent of a real estate or for the rent of a real estate

more than the reasonable wholesale price among them.

The Plaintiff paid fees for the GLM website’s fee for the use of golf courses, which is the core support of the Defendant. This asserts that Article 2 subparag. 6 (a) of the Franchise Business Act provides that “The price for various expendable goods purchased by the Plaintiff on the GLM website falls under “the price that exceeds the reasonable wholesale price out of the price that is paid to the franchisor for the goods,” and Article 3(2) subparag. 1 of the Enforcement Decree of the Franchise Business Act provides that the Plaintiff paid the price for fixtures, facilities, and goods supplied by the headquarters to start a franchise business under Article 2 subparag. 6 (c) of the Franchise Business Act.

However, it is insufficient to recognize that the fee for the fee for the fee for the program is directly borne by the Plaintiff, not the customer, but the business owner. There is no other evidence to acknowledge it, and even if the Plaintiff bears the fee for the use of the program, according to the facts of recognition of the instant case, whether to use the fee for the program is freely selected by the customer and the Defendant cannot be forced to use it. Thus, it cannot be deemed as a franchise fee paid by the Plaintiff to the Defendant with the amount that the Plaintiff paid to the Defendant as the payment for the overall service of the GLM site due to the friendly circumstance that the customer selected the fee for the program.

Furthermore, there is no evidence to acknowledge that the purchase price of expendable goods is more than the reasonable wholesale price, and it cannot be deemed a franchise fee. The purchase price of screen golf machines is merely paid to the previous business operator according to the recognition office of this case, and it is not paid to the defendant. Thus, it cannot be deemed a franchise fee.

4) Sub-decisions

Ultimately, there is no evidence to acknowledge that the Plaintiff paid a franchise fee to the Defendant. Thus, the relationship between the Plaintiff and the Defendant is not a franchise business under the Franchise Business Act, and thus, the Plaintiff’s claim seeking liability against the Defendant’s business area protection obligation is without merit, on the premise that the Plaintiff is a franchise business.

3. Conclusion

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

Justices Kim Tae-il

Judges Kim Jong-do

Judges Yu Sung-sung