[1] The meaning of the type of business under the apartment sales agreement and the consideration to determine the scope of the business under the apartment sales agreement

[2] The case holding that it was in violation of an agreement on the restriction of business type to substantially engage in a door-line sales business at a designated store

[1] Article 105 of the Civil Act / [2] Article 105 of the Civil Act

Plaintiff (Attorney Lee Jong-chul et al., Counsel for plaintiff-appellee)

Defendant (Attorney Yoon Young-young, Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na97929 decided August 30, 2006

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

Although there is an agreement on the restriction on the type of business under the apartment sale contract, if there is no separate provision on the meaning and scope of the category of business, all of the prior meaning of the category of business, the business contents of the category of business generally implemented, and the classification standards of the Korean Standard Industrial Classification Table shall be determined by comprehensively taking into account, but rather, it shall be determined by taking into account the size of the city and apartment complex in which the commercial building is located, the size of the commercial building and the degree of commercial zone formation, the situation

“Sp-line sales business” as stated by the court below is a “sp-line sales business” and mainly sells p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p-p

2. Regarding ground of appeal No. 2

The parties concerned are either clear or incomplete arguments or statements and have the rights and obligations to clarify or complete the defendant's statement. According to the records, the plaintiff first instance court's complaint of this case filed a claim against the defendant for the prohibition of "free sale", but stated that the purport of the claim was to prohibit "free sale" on the first day for pleading of the first instance court, and it is apparent in the records that the defendant did not state any objection. Thus, it is just that the court below viewed the plaintiff as seeking the prohibition of the act of sale against the defendant, and there is no violation of the principle of pleading or the right of disposition, such as the assertion of the grounds for appeal.

3. As to the third ground for appeal

In light of the record, the term “kin sales business”, which is the designated type of business of the Defendant shop, shall be “a type of business selling alcoholic beverages, such as drinking water and beer, in a relatively small size of entertainment facilities and cooking facilities,” and shall be “a type of business selling alcoholic beverages, such as drinking water and beer, according to the Korean Standard Industrial Classification.” Meanwhile, the Nonparty, who leased the Defendant’s store, was equipped with beer sales facilities, such as beer (a device to maintain the beer at a certain temperature and pressure, and to follow containers of Byung, etc.) and actually provided with beer sales facilities, such as beer sales facilities, and the Nonparty, even after the closure of the above business, recognized the fact that the Defendant had an intention to engage in the same business. This is a type of business that is commonly accompanied by beer sales, which is the type of business designated at the Defendant’s store, and the Plaintiff, who owns the designated store, shall be deemed to exceed the extent that the Plaintiff would normally have been able to engage in the business.

In the same purport, the decision of the court of first instance that affirmed the decision of the court of first instance that ordered the defendant to prohibit a trade-related business, etc. by judging that the defendant violated his/her duty to comply with the agreement on trade-related restrictions is just and acceptable, and there is no error in the misapprehension of legal principles as to the grounds for appeal, omission of judgment, or restriction on trade-related

4. As to the fourth ground for appeal

According to the reasoning of the judgment of the court below, in selling a commercial building, a corporation which constructed the instant mar apartment complex (hereinafter “the development of a shop”) has established and sold the designated type of business or recommended type of business for each shop. The "sale contract" prepared at the time of conclusion of the sale contract for each shop includes designation and designation of the type of business, and must follow the regulations on the self-governing management of the store after consulting with the tenant and after the tenant's sale contract. The "detailed statement of succession of the right and duty" prepared at the time of transfer and acquisition of the right after the contract for sale of the apartment complex is bound by the regulations on the sale of the store and the management rules for the sale of the apartment complex, and the defendant's agreement to freely succeed to the rights and duties under the regulations on the sale of the store and the management rules for the sale of the apartment complex, which are signed and sealed by the tenant, shall be deemed to have been prepared and announced by the majority of the tenant's establishment and management rules for the sale of the store, regardless of the purpose of the sale contract's agreement.

In this regard, the court below's rejection of the defendant's assertion that the business can be freely changed according to the management rules of the business community support center is just, and there is no error in the misapprehension of legal principles as to the validity of the business autonomy management rules which affected the conclusion of the judgment or the restriction on the business sector in the contract for sale in lots. The grounds for appeal

5. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)