(영문) 대전고등법원 2018.5.25. 선고 2016나16816 판결

3) If the Plaintiff does not perform the obligation described in paragraph 1. A. (1), the Plaintiff shall pay to the Plaintiff an amount equivalent to KRW 500,000 per day from the day following the day on which this judgment became final and conclusive to the day on which the violation is committed.

B. Defendant Jinjin Co., Ltd.:

1) No third party shall allow the use of the store described in subparagraph 1. (a) (i) for the purpose of pharmacy business purposes.

2) In the event that the obligation described in paragraph 1.b. (1) is not fulfilled, the Plaintiff shall pay to the Plaintiff an amount equivalent to KRW 500,000 per day from the day following the day when this judgment became final and conclusive to the end of the violation.

C. The Defendants jointly pay to the Plaintiff 220,792,566 won with 5% interest per annum from November 14, 2017 to May 25, 2018, and 15% interest per annum from the next day to the day of full payment.

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

2. 30% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

3. Paragraph 1.c. the provisional execution may be effected.

Purport of claim and appeal

【Claim 1】

1. The defendant A:

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

(b) He/she shall not transfer to a third party the goodwill of a pharmacy as described in subparagraph 1. (a).

2. The defendant Jin-jin, a stock company, shall not allow a third party to use subparagraph 1. (a) of Article 1.1, subparagraph 105 of Sejong Special Self-Governing City;

3. The Defendants jointly pay to the Plaintiff the amount calculated at the rate of KRW 1,00,000 per day from the day following the day when this judgment became final and conclusive to the end of the violation, if Defendant A fails to perform the duty set forth in Section 1. A.

4. The defendant Jinjin Co., Ltd. shall pay to the plaintiff the amount calculated at the rate of KRW 1,00,000 per day from the day following the day when this decision became final and conclusive to the day when the violation is committed.

5. The Defendants jointly pay to the Plaintiff 308,212,91 won and 15% interest per annum from the day following the delivery of a copy of the claim and the purport of the appeal as of November 10, 2017 to the day of complete payment.

【Purpose of Appeal】

1. The plaintiff;

The judgment of the first instance is modified as follows. The judgment as stated in the purport of the claim is sought (the plaintiff has reduced the purport of the appeal by reducing the purport of the claim as above).

2. The defendants

The part against the Defendants in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the revocation part is dismissed in entirety.

Reasons

1. Basic facts

The reasoning for this part of the judgment of the court of first instance is as stated in the relevant part of the judgment of the court of first instance, except for the modification of the written text of the judgment of the court of first instance as follows. Thus, this part is cited in accordance with

00,000,000 won, monthly, shall be 4,950,000 won.

On November 11, 2016, the first instance court, which had been in charge of the lawsuit claiming the return of sale price (hereinafter referred to as "related lawsuit"), etc., of Daejeon District Court 2015Kahap107681, the first instance court (hereinafter referred to as "the plaintiff of this case"), rendered a final judgment as to the above case, "the defendant (the plaintiff of this case)", as to the ownership transfer registration completed as of October 1, 2015 by the Daejeon District Court Sejong District Court 67283, which was received as of October 1, 2015, and as of October 1, 2015, with the same registry office 67284, which was completed as of October 1, 201, "the above 1,321,746,360 won, and 253,444,000 won from the final judgment as of June 27, 2014 to 205, 2014 to 2014.

○ 7 pages 5 7 [Reasons for Recognition] add “each entry of Evidence A Nos. 12 and 18.”

2. Determination on the claim for prohibition of business

A. The parties' assertion

1) Plaintiff

Since 115 heading 115 is designated within the commercial building of this case as a pharmacy, a pharmacy business can exclusively run only 115 heading, and a pharmacy business cannot run in any other store (hereinafter referred to as "the instant trade restriction agreement"). The Defendants knew the existence of the instant trade restriction agreement between the Plaintiff and the buyer and the buyer, and agreed to do so, while Defendant Company purchased 104,105,202 heading from the commercial building of this case and Defendant A leased 105 heading from Defendant Company, Defendant A shall not run the pharmacy business in 105 heading, and Defendant Company shall not transfer the pharmacy business right to a third party, and Defendant Company shall not allow a third party to use the pharmacy business in any name, such as lease, lease, loan for use, etc. for the purpose of pharmacy business in 105.

2) The Defendants

The Defendants did not know the existence of the instant industry restriction agreement at the time of sale or lease as to 104, 105, 202, and did not have been notified. In the column for indication of the object of sale in the sales contract regarding 105, the Plaintiff did not state any indication as to the type of business. The Plaintiff concluded a sales contract with the Plaintiff on 105, etc., and concluded a sales contract with the Defendants on 105, and concluded a lease contract with the Defendants on 105, the Defendants knew that the Defendants could not operate a pharmacy business.

B. Relevant legal principles

1) 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, and what scope of business should be absolutely prohibited, or whether to allow alteration within a certain scope can be freely determined by the parties in accordance with the principle of private autonomy. The permission, scope, procedure, etc. of the change of type of business should be determined through the reasonable interpretation of the contract for sale in lots. However, even in this case, the meaning that the sale company basically sets and sells a specific type of business to multiple buyers is to ensure that the seller exclusively operates such type of business (see, e.g., Supreme Court Decision 2003Da45496, Nov. 10

2) The reason why a commercial sales company set up and sold a specific business to multiple buyers is to activate sales by guaranteeing that the buyers exclusively operate the specific type of business, and the buyers have entered into a contract with the selling company under the premise that the designated items are guaranteed. Thus, the obligation to prohibit competition with the designated type of business does not apply only to the buyers, but also to the selling company (see Supreme Court Decision 2004Da67011, Jul. 14, 2005).

3) It is reasonable to deem 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 consented to the duty of restrictions on the type of business agreed upon in the sales contract to the mutual relation between the shop occupants, barring any special circumstance. Thus, it shall be deemed that there is a duty to comply with the mutual agreement on restrictions on the type of business between the parties (see, e.g., Supreme Court Decision 2009Da61179, Dec. 24, 2009). Therefore, in cases where the transferee of the position of the buyer of the shop, lessee, etc. violates the agreement on restrictions on the type of business set forth in the sales contract, not only the person who is at risk of infringing on the business interest, but also the commercial sales company has the right to claim the prohibition of the

(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 evidence 7 through 9, Eul evidence 17, Eul evidence 2, Eul evidence 2, witness E of the court of first instance as a whole, and the following facts and circumstances were revealed, Eul guaranteed the exclusive interest of the plaintiff 15 in the drug type according to the sales contract for 115, including the agreement on the restriction of the business type of this case. On the other hand, the defendant company entered into a sales contract for 105, etc. with the knowledge of the agreement on the restriction of the business type of this case which is included implicitly in the sales contract at the time of entering into the sales contract for 105 with the plaintiff 105, and the defendant company agreed that the defendant company may not lease 105 of the commercial building of this case to the defendant company so that the plaintiff 1 and the defendant 1, the seller of this case, and the defendant 1, the seller of this case, and the defendant 5, the seller of this case, shall not be allowed to lease the sales agreement to the plaintiff 1 and the defendant 3.

A) On July 16, 2014, the Defendant Company entered into the instant sales contract with the Plaintiff at the same time with respect to each of the stores, with a view to operating 104 units (47.8m2), 105 units (50.54m2), and 202 units (197.28m2) within the instant commercial building as a single coffee shop.

B) At the time of the conclusion of the instant sales contract, E was demanded by the Plaintiff to modify the design of 202 for the building office, a corporation which is the design and supervision company of the instant commercial building. Since the first floor sale price is high, the Defendant Company extended the exclusive use area of 202m2, which was the first 146.59m2 to the Plaintiff in order to operate the coffee shop of a double-story structure connecting the first floor and the second floor, and demanded the Plaintiff to extend the exclusive use area of 202m2, which was the first 146.59m2, and to change the construction into the window instead of the building planned to be installed at the center of the building. The Plaintiff accepted this demand, and the Plaintiff demanded chip to the construction office. Since the instant sales contract was a pre-sale contract, it was possible to change the design of the building, the design and alteration of the structure was conducted in accordance with the aforementioned demand by the Defendant Company.

C) However, the Defendant Company concluded a lease agreement with Defendant A on September 14, 2015, on which it did not conduct a coffee shop business regarding 104, 105, 202, and 105 after concluding the instant sales contract.

D) The Plaintiff entered into a sales contract with C on June 27, 2014, which was prior to the conclusion of the instant sales contract. The Plaintiff entered into a sales contract with C on June 27, 2014. The term "mark of the object of sale" and "type of business" as "designation of a pharmacy." However, Article 9 of the sales contract between the Plaintiff and other buyers including the instant sales contract on 105 et al. is limited to the category of business subject to consultation in principle, but if the Plaintiff wishes to change the type of business into another type, the buyer shall enter into an agreement with the autonomous management committee after the formation of the autonomous management committee. However, all responsibilities arising from the change of type of business shall be borne by the buyer. The meaning of Article 9 of the instant sales contract appears to be a typical phrase used in the sales contract of commercial building as a restriction on type of business. Therefore, it is reasonable to interpret that it overlaps with the agreement between the Plaintiff and the seller of the previous type of business (the Plaintiff’s autonomous management committee) and the previous type of business.

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

F) In reality, it is reasonable to view that the sales contract for a commercial building, which is an aggregate building, is customized almost without limitation and is ordinarily aware of such circumstances in general delivery.

G) On September 14, 2015, immediately after the Defendants entered into a lease agreement for the purpose of pharmacy business with respect to subparagraph 105 on or around September 14, 2015, the Plaintiff raised an objection to the Defendants to the effect that the Defendants cannot commence the pharmacy business on or around September 25, 2015, but Defendant A applied for a pharmacy establishment permit to Sejong Special Self-Governing City and carried out the pharmacy business under subparagraph 105.

D. Determination as to the Defendants’ assertion

1) Regarding the subject of the business prohibition claim

The Defendants asserts that even if the existence and validity of the instant agreement on the restriction of the type of business is recognized, the right to claim the prohibition of business and the right to claim the damages under the said agreement are only recognized to the buyer, and that the Plaintiff, the seller,

However, as seen earlier, the Defendants agreed to allow the prohibition of competition pursuant to the instant business sector restriction agreement in relation to the Plaintiff, which is a selling company. Therefore, this part of the Defendants’ assertion on a different premise is without merit, without further review.

2) As to C’s cancellation of sales contract

The Defendants asserts that C’s contract for the sale of goods 115 was retroactively invalidated in the instant commercial building by rescinding the sale contract with the Plaintiff Company.

Even if the sales contract as to No. 115 was rescinded between the Plaintiff and the Plaintiff, such circumstance alone alone does not lead to the invalidation of the agreement between the Plaintiff and the Defendants on the restriction of the instant business sector, which entered into and consented to the fact that the sales contract as to No. 115 cannot be run at the rest of the store except for No. 115.

3) As to the violation of the Regulation of Standardized Contracts Act

A) Summary of the assertion

① The instant contract for sale in lots constitutes a standardized contract under the Regulation of Standardized Contracts Act (hereinafter “Terms and Conditions Act”). An entrepreneur under the Terms and Conditions Act must explain important terms and conditions so that customers can understand them, and if a contract is concluded in violation of these provisions, the pertinent terms and conditions cannot be asserted as the content of the contract (Article 3(3) main text and (4) of the Terms and Conditions Act). However, the instant contract for sale in lots does not stipulate the instant contract for sale in lots, and the Plaintiff did not separately explain to the Defendant Company. Accordingly, the Plaintiff cannot assert the terms and conditions of the instant contract for restriction on the type of business.

② As can be seen, the Defendant Company did not know of the instant trade restriction agreement at the time of entering into the instant sales contract. Nevertheless, if the Plaintiff, who is the selling company, unilaterally notifies the Defendant Company of the restriction on the type of business after entering into the instant sales contract, such agreement constitutes a standardized contract which loses fairness as “a clause unreasonably unfavorable to the customer” under Article 6(2)1 of the Terms and Conditions Act, and is null and void under Article 6(1) of the same Act.

B) Determination

On the other hand, the defendant company concluded the sales contract of this case with the knowledge of the business type restriction agreement of this case which was originally included in the sales contract at the time of entering into the sales contract of this case as to the plaintiff No. 105, etc.

3. Determination as to the claim for indirect compulsory performance

A. Relevant legal principles

In principle, compulsory execution against a non-performance obligation, which is an incidental obligation, may be conducted only indirectly, and the decision of indirect compulsory performance is based on the principle that an order shall be given to compensate for a certain amount of damages when a debtor fails to perform his/her obligation through a necessary examination by an obligee upon a separate request after the enforcement title has been established in the judgment procedure. Therefore, in the judgment procedure for the establishment of enforcement title with respect to a non-performance obligation, indirect compulsory execution should be made in preparation for a case where a debtor fails to perform his/her obligation, even if the enforcement title ordering a non-performance is established at the time of the closing of argument in the litigation procedure concerning a non-performance obligation, it is probable that the debtor may violate it within a short period, and in addition, in the said judgment procedure, the pertinent amount of damages ordered under Article 261 of the Civil Execution Act can be calculated (see Supreme Court Decision 201

B. Determination

1) As to the Defendants’ claim for indirect compulsory performance due to the Defendants’ respective nonperformance obligations

Since the Defendant Company leased 105 to Defendant A, in light of the existence of the instant occupational restriction agreement and its validity, the Defendants continue to operate a pharmacy until the date following the conclusion of the pleadings, and the contents of the instant agreement on 105 between the Defendants, etc., even if the enforcement title ordering the Defendants to prohibit the operation of a pharmacy directly or through a third party is established, it is highly probable that the Defendants may violate it. Furthermore, in the instant judgment procedure, it is possible to calculate an appropriate amount of compensation ordered to the Defendants pursuant to Article 261(1) of the Civil Execution Act on indirect compulsory performance. Thus, if Defendant A’s pharmacy is in violation of the duty of prohibition of operation and the Defendant Company is allowed to use 105 for a pharmacy business purpose, it is reasonable to order the Plaintiff to pay compensation at the rate of KRW 150 million per day from the day following the date of each judgment, as requested by the Plaintiff, to the end of the offense. Therefore, the Plaintiff’s indirect compulsory performance against the Defendants is reasonable within the scope of recognition.

2) As to Defendant A’s claim for indirect compulsory performance against the Defendant Company regarding Defendant A’s breach of the duty of omission

The Plaintiff also sought indirect enforcement against the Defendant Company in collaboration with the Defendant Company in the event that the Defendant Company violated the obligation of prohibition of pharmacy business. However, the obligation of prohibition of pharmacy business under 105 is merely an omission of the Defendant Company A, and is not a content of the Defendant Company’s omission obligation seeking against the Defendant Company. Therefore, without having to further examine other issues, the Plaintiff’s claim against the Defendant Company for this part of the claim against the Defendant Company is without merit.

4. Determination as to the claim for damages

A. The plaintiff's assertion

As a result of the final and conclusive judgment between C and the Plaintiff, C accepted C’s claim for the cancellation of the sales contract with respect to subparagraph 115, and the Plaintiff shall compensate C for the total amount of KRW 1,267,220,00 as well as KRW 166,266,20 after each payment date for the down payment, intermediate payment, and remainder of the sales price, and KRW 54,526,536,566, including expenses for the transfer of ownership in the Republic of Korea, and KRW 220,792,566,566, as of September 15, 2017.

Pursuant to the provisional attachment of 106, 107, 703, and 704, among the commercial buildings in this case owned by the Plaintiff, the Plaintiff was unable to sell each of the above stores, and the Plaintiff suffered damages of 3,262,220,00 won per annum from December 28, 2015 to September 15, 2017, which is the amount equivalent to 1.56% per annum of 87,420,345 won per annum from December 28, 2015, which is the date of provisional attachment registration (the average rate of one-year fixed deposit in the Si bank).

Therefore, the Defendants are jointly obligated to pay to the Plaintiff 308,212,911 won (=220,792,566 won +87,420,345 won) and damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Litigation Promotion Act”).

B. Determination

1) Relevant legal principles

The damages to be compensated due to nonperformance are definite damages that have actually arisen, so if an obligee is liable to a third party due to nonperformance, the obligee is obligated to pay the same amount as the amount of debt to the third party in order to claim damages for the same amount as the amount of debt to the third party. However, the issue of whether the burden of the debt is realistic and conclusive, and so it is necessary to determine whether it is actual and reasonable in light of social norms (see, e.g., Supreme Court Decision 2001Da22833, Jul. 13, 2001).

2) Review of the instant case

A) In a related lawsuit, “Plaintiff” is simultaneously subject to C’s registration for the transfer of ownership as to KRW 115 among the commercial buildings in this case as of October 1, 2015, which was completed by the Sejong District Court Sejong District Court Sejong District Court Sejong District Court Sejong District Court Sejong District Court No. 67283, Oct. 1, 2015; and for the cancellation of registration for the establishment of a neighboring mortgage completed by the receipt of No. 67284, Oct. 1, 2015; for KRW 1,321,746,360; for KRW 253,44,000, for KRW 253,44,000 from June 27, 2014; for KRW 253,44,000 from July 5, 2014; for KRW 253,44,000 from the date of completion; for KRW 16,301,000 per annum 16,2015.

B) Examining these circumstances in light of the legal principles as seen earlier, following the Defendants’ violation of the instant industry restriction agreement between the Plaintiff and the Defendants, the Plaintiff also violated the instant industry restriction agreement that exclusively guaranteed the Plaintiff’s pharmacy business rights to C, and the Plaintiff’s related final and conclusive judgment was finalized upon the Plaintiff’s filing of a lawsuit related to the claim, such as the refund of the sale price, etc., and thus, the Plaintiff’s damages equivalent to the amount of the said obligation, regardless of whether the Plaintiff actually suffered the same amount of the Plaintiff’s debt, as the Plaintiff seeks from September 15, 2017, from the payment date of the down payment, intermediate payment and remainder of the purchase price under 115 to September 15, 2017, among the obligations arising from the relevant final and conclusive judgment with respect to C, as the Plaintiff seeks from each payment date of the down payment, intermediate payment and remainder of the purchase price under 16,266,206 won, and the cost equivalent to the ownership transfer registration expense, etc. under the relevant final and conclusive judgment.

With regard to this, the Defendants asserted that the term "the term "the term" is a legal interest that the Plaintiff should return to C as a matter of course pursuant to the Civil Act, and that it cannot be deemed "damage of the Plaintiff." The term "the term "the above legal interest" falls within the scope of the duty to restore due to the rescission of the contract, and the term "the above legal interest" falls within the scope of the duty to restore due to the rescission of the contract, and is not compensation for losses arising from delay in the duty to return (see Supreme Court Decision 2001Da76298, Jul. 22, 2003). However, the defendants' occurrence of the term of the above termination of the contract and the duty to return the legal interest and the duty to return are in violation of the business type restriction agreement in this case, and the above legal interest and the duty to return between the Plaintiff and the Defendants are deemed to be "damage 3

C) Furthermore, the Plaintiff sought compensation for damages equivalent to the accrued interest at the time of the scheduled sale price at a store which becomes impossible due to the provisional attachment of B, but this constitutes special damages, and thus, is recognized only when the Defendants knew or could have known. However, the evidence submitted by the Plaintiff alone is insufficient to acknowledge that the Defendants knew or could have known that the Defendants suffered the above damages, and there is no other evidence to acknowledge this otherwise, and therefore, the Plaintiff’s claim for this part is groundless.

D) Therefore, the Defendants jointly have the obligation to jointly pay the Plaintiff KRW 220,792,566, including the statutory interest 16,266,206 upon cancellation of the sales contract from September 15, 2017 to September 15, 2017, and KRW 54,526,360, including expenses for the registration of ownership transfer to the Republic of Korea, as sought by the Plaintiff, as sought by the Plaintiff, for the totaling KRW 220,792,566, and for the foregoing, from November 10, 2017 to November 14, 2017 after the delivery of a copy of the application for modification of the purport of the claim and appeal filed by the Defendants from November 14, 2017 to May 25, 2018.

5. Conclusion

Therefore, the Plaintiff’s claim against the Defendants shall be accepted within the scope of the above recognition, and the remainder of the claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair with different conclusions, each of the claims extended and reduced in the trial and the Plaintiff’s appeal shall be partially accepted, and the judgment of the court of first instance shall be modified as above (the lawsuit against the Defendant A’s indirect compulsory performance of violation of the duty of prohibition of transfer of business rights was withdrawn from the trial, and the judgment of the court of first instance was invalidated).

Judges

The presiding judge shall admonish judges of merit;

Judges Lee Sung-sung

Judges Kim Sung-hwan

Note tin

1) 원고는 당심에서 ① 피고 A에 대하여는, '영업권 양도금지' 위반에 관한 간접강제청구를 취하하여 청구를 감축하였고, ② 피고 주식회사 현진에 대하여, ㉠ 세종특별자치시 B건물 104호, 202호에 관한 부작위청구와 ㉡ 위 상가 104호, 202호에 관한 부작위의무 관련 간접강제청구는 각 취하하여 청구를 감축하고, ㉢ 피고 A의 '약국 영업금지' 위반에 관한 간접강제청구는 추가하였으며, ㉣ 위 상가 105호에 관한 부작위의무 관련 간접강제청구는 '위반건당 1억 원'에서 위반일당 100만 원'으로 감축하였고, ③ 피고들에 대한 손해배상청구는 확장하였다.

2) 40,828,786 won (the legal interest of 5% per annum from June 27, 2014 to September 15, 2017) + 40,551,040 won (the legal interest of 5% per annum from June 27, 2014 to September 25, 2017 for the first intermediate payment of KRW 253,44,000) + 35,239,131 won (the legal interest of 5% per annum from May 7, 2014 to 9, 15, 2017) + 35,239,131 won (the second intermediate payment of KRW 253,44,000 per annum from December 5, 2014 to September 15, 2017) + the legal interest of 5% per annum from September 15, 2014 to 40,497,508.

3) If C actually used after delivery of No. 115, C also returns to the Plaintiff the profit of use equivalent to the rent due to restitution from the cancellation of the sales contract, but C does not reflect in the relevant final and conclusive judgment as to the return of the profit of use due to the sales contract or the failure to use the sales contract. In full view of the overall purport of the pleadings as seen earlier, it is recognized that C’s failure to sell it directly or through a third party until the cancellation of the sales contract was in violation of the instant industry restriction agreement, and therefore, damage equivalent to the above statutory interest that was returned only by the Plaintiff is reasonable causal relation with the Defendants’ nonperformance.

심급 사건

-대전지방법원 2016.11.11.선고 2016가합101567

대전고등법원 2018.5.25.선고 2016나16816

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