[1] Whether the articles of association or bylaws of the Governing Commercial Building have effect on the members of the whole stores of the commercial building in which a large number of stores are gathered

[2] The validity of a commercial autonomy agreement in cases where the sales company consented to all the regulations applicable to the sales company before the establishment of the commercial autonomy committee to the sales company before entering into the sales contract

[1] The regulations governing collective legal relations, such as organization and activities, as the articles of association or regulations of the organization, are legal norms which have a direct binding force on the organization members or organizations. Thus, in the case of a large number of stores, which are subject to the application of market management, etc. under the Do and Retail Trade Promotion Act, the articles of association or regulations of the Do and Retail Trade Promotion Committee, which are market managers, has effect on the whole store members managed by the Do and Retail Trade Promotion Committee, unless there are special circumstances.

[2] [1] Even before the establishment of the commercial autonomy committee under paragraph (1) is established, if the sales company prepared the regulations applicable to the relationship between the shop buyers after the shop buyers located in the future and approved each time the shop buyers entered into a contract for the sale of each shop, it is reasonable to deem that the shop buyers established the regulations applicable to the mutual relationship between all the shop buyers through the sales company under the condition that the shop occupants are suspended. The contents of the regulations also have a direct effect on the entire shop members as a municipal law.

Articles 7(5) and 29 of the former Wholesale and Retail Trade Promotion Act (amended by Act No. 4889 of Jan. 5, 1995)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

Seoul High Court Decision 200Na14488 decided May 1, 200

Song-spe et al. (Attorney Park Jae-soo, Counsel for the defendant-appellant)

Daejeon District Court Decision 94Kahap1052 delivered on August 31, 1994

1. Each appeal filed by the respondent is dismissed.

2. The costs of appeal shall be borne by the respondent.

The provisional disposition decision made on June 3, 1994 between the Daejeon District Court and the Respondent (hereinafter referred to as the Respondent, hereinafter referred to as the Respondent, hereinafter referred to as the Respondent) and the Respondent (hereinafter referred to as the Respondent, hereinafter referred to as the Respondent) shall be approved in relation to the above case of provisional disposition for non-business prohibition.

The part against the respondent in the original judgment shall be revoked.The Daejeon District Court revoked the part of the provisional disposition order in relation to the provisional disposition case No. 94Kahap972 of the above court on June 3, 1994 and dismissed the applicant's application for provisional disposition corresponding to the above revoked part.

1. Basic facts

On June 3, 1994, the Daejeon District Court rendered a provisional disposition of this case that "the respondent shall not engage in beauty art business at the stores of No. 307 of the third floor above the ground in the building site of the 284 lux and the 4th floor above the ground-based 284 lux, Seo-gu, Daejeon District Court decided that "the applicants shall not engage in beauty art business at the stores of No. 307 of the third floor above the ground in the building of the 284 lux site development project area of the Seo-gu, Seo-gu, Daejeon."

The commercial building of this case is a large-scale comprehensive shop consisting of 136 stores in a building with an exclusive area of 4,500 meters or more on the ground, which is composed of 136 stores within 1,500m or more, and is established with the permission of market establishment and market management as prescribed by the Do and Retail Trade Promotion Act from the head of Seo-gu, Daejeon Metropolitan City around March 1994 to the sale of the building. The building of this case is a new building, which is established with the permission of market establishment under the above Act from the head of Seo-gu, Seo-gu, Daejeon Metropolitan City.

From the time of the public announcement of the sale of the above commercial building, the sales company was designated in advance from the time of the public announcement of the sale of the above commercial building to the category of business that can run the next in the above commercial building. The sales price of each shop was set differently the unit price per floor in consideration of the designated type of business and the floor (story), location, and size of the store. At the time of the sale of the above commercial building, the designated type of business of 47.780m2 (hereinafter referred to as the "applicant shop") on the 3rd floor No. 308 of the above commercial building was beauty business and the designated type of business of 307th 3rd 307 m2 (hereinafter referred to as the "applicant shop") adjacent to the above applicant shop was a beauty business.

On December 16, 1992, the applicant has sold the above applicant's store in 107,915,00 won as beauty business of the designated type of business by the above selling company, and has been engaged in beauty and beauty business in the name of yellow beauty room from the end of February 1994, and the respondent has been engaged in beauty and beauty business from the end of February 1994. On October 1993, the respondent's interference with the above respondent's store in the same area as the applicant's store was sold in 10,792,00 won or less than the applicant's store (500,000 won per annum) or 97,123,000 won per annum, and thereafter, from May 10, 1994 to the respondent's rejection, the applicant has engaged in beauty and beauty business from the 23th of the same month, and has engaged in beauty and beauty business from the point of February 3 of the same month.

In order to avoid a competitive relationship between the store buyers in the commercial building of this case subject to the application of the Do and Retail Trade Promotion Act, the sales company of this case agreed individually with the applicant and the respondent to enter into the sales contract, and the shop buyers cannot open the sales contract to any other type of business than the designated type of business as mentioned in the above paragraph, and the sales company of this case decided not to infringe upon the designated type of business of the other store buyers at the same time with the protection of the designated type of business by complying with each designated type of business, such as complying with the pre-designated type of business and complying with the case where the sales contract is leased to another place of business. If the sales company is moved to another type of business outside the designated type of business, the sales company can unilaterally cancel the contract from the side of the sales company, while the above sales company bears the responsibility to protect the above designated type of business for the above store buyers, but there is no evidence that the respondent and the sales company of this case should be limited to only the sales company until the time of the sales.

Furthermore, the above sales company, along with the agreement of the above paragraph, agrees with all of the above store buyers individually to the management and operation of the whole store after the rent, and the above store buyers autonomously form a market manager under the Do and Retail Promotion Act, which is a corporation to be in charge of the management and operation of the whole commercial building of this case as a market manager under the Do and Retail Promotion Act (hereinafter referred to as the "self-Governing Committee"), and forced them to join the autonomous committee, and requires the permission for market establishment under the relevant Acts and subordinate statutes, such as the Do and Retail Promotion Act. In addition, the above sales company complies with all the matters stipulated by the articles of association and the management rules of the autonomous committee, and cannot raise an objection to the sanctions against the autonomous committee in the event of the violation, it is possible to obtain a certificate of occupancy after joining the autonomous committee.

Then, 136 members and 108 members and more than 2/3 of the total number of 136 members and more of the total number of 136 members and 136 members and more of the Do and Retail Trade Promotion Act were established, and the above prosperity was able to carry out the business of establishing commercial order, protecting consumers and promoting interests, and other matters deemed necessary to maintain and manage the market in the entire commercial buildings of this case pursuant to the above Acts. The articles of association of the above prosperity made it possible to carry out the business of establishing the order of commercial transactions, protecting consumers and promoting interests, and protecting the market. The articles of association of the above prosperity stipulated that the members shall comply with the designation of the business as at the time of sale, and to change the designated business in order to meet the requirements of the market manager under the Do and Retail Trade Promotion Act (the above provisions of the articles of association shall be amended to the name of the stores at issue at the time of the change of the designation of the business type at the time of sale.

On the other hand, from February 19, 194 to the above store buyers, the sales company sent a notice to the effect that they will register the transfer of ownership with respect to the above sales stores only to the persons who submit a letter to comply with the next designated type of business in accordance with the agreement under the above paragraph. On February 25, 1994, the sales company again notified the shop buyers of the fact that they will take legal measures with regard to the cancellation of the contract when they sell or sell or lease the designated type of business in violation of the designated type of business, or sell or lease it to any other type of business, and the above prosperity conference organized as mentioned in the above paragraph also notified its members of the observance of the designated type of business on April 29 and May 7, 1994 in accordance with the purport of the articles of incorporation, and again, after the resolution of the management committee on May 26, 1994, they should observe the designated type of business to the members, and if they change the type of business, they should comply with the procedures prescribed in the articles of incorporation.

The respondent agreed with the above sales company at the time when the respondent's store was sold in lots from the above sales company, but the above respondent or its wife did not join the above prosperity meeting organized as stated in the above paragraph, and the above respondent or its wife did not consent to the above prosperity meeting's articles of association or the rules, and the above prosperity meeting's articles of association or the rules on the change of the designated type of business did not follow the procedures prescribed in the above prosperity meeting's articles of association or the rules, and operated beauty and beauty business which is the designated type of business of the applicant without the consent of the applicant.

【Premium】

In the absence of dispute, the facts that there is no dispute, evidence Nos. 1 and 2 (For the sale of Soloco A), evidence Nos. 3 (For the Location Map), evidence Nos. 4 (For the Yellow Cocoa Articles of Incorporation and Management Regulations), evidence Nos. 5-1, 2 (Contents Certificate), evidence Nos. 10 (for the sake of the protection of designated business type), evidence Nos. 6 (Guidance following the Protection of the Designated Business Type), evidence Nos. 7-1, 2 ( within the scope of the Yellowcococoa), evidence Nos. 11, 12 (for the sake of the sale of Soloco A), evidence Nos. 13 (for the sake of the sale of Solococo), evidence Nos. 14-1 through 108 (for the sake of the resolution of witnesses and testimony of the court below, evidence Nos. 10-1, 1, 1, and testimony of the testimony before the oral proceedings of the court below.

2. Claims of applicants and respondents

A. Applicant's assertion

The Respondent asserts that the Respondent has the right to preserve the application of the provisional disposition of this case because the Respondent has a duty to prohibit cosmetics from operating at their stores, and that the Respondent's above business activities may cause irreparable damage to the Respondent. Thus, the Respondent's application of the provisional disposition of this case also needs to preserve it.

B. Respondent's assertion

The respondent argues that (1) the content of the agreement on the observance of the designated type of business as claimed by the applicant at the time of the sales contract or the provisions of the articles of association of the above conference to the same purport cannot be effective against the respondent. Thus, even if the agreement or regulations alone are effective against the respondent, the above agreement or regulations are invalid as they violate the freedom of business under the Fair Trade Act or the Constitution prohibiting monopoly and monopoly, and thus, (2) the agreement or regulations are invalid as they violate the freedom of business under the Constitution. (3) The Housing Construction Promotion Act and the regulations on the standards for housing construction, etc. provide that welfare facilities shall be divided into purchase facilities and living facilities, and the living facilities shall not be divided into each type of business, and it is impossible to register the same living facilities more subdivided than the living facilities in the building management ledger or the building registration ledger, etc., but it is impossible for the respondent to divide the business type of the living facilities into the beauty room and the skin, so it is possible for the applicant to freely use the beauty business in the beauty business without permission of the administrative agency.

3. Judgment on the argument

(a) the existence of preserved rights;

(1) First, we examine whether the agreement at the time of the sale in lots of the commercial building of this case and the clause prohibiting alteration of the designated type of business stipulated in the articles of association of the above conference can be the preserved right in the applicant’s application for provisional disposition of this case.

(2) The provisions governing collective legal relations, such as organization and activities, as stipulated in the articles of association or regulations of the organization, are legal norms which have a direct binding force on the organization members or agencies (self-governing laws). In the case of commercial buildings in which a large number of stores are gathered and subject to the application of market management under the Do and Retail Trade Promotion Act, the articles of association or regulations of the Do and Retail Trade Promotion Committee, which are market managers under the above Acts, shall have the effect on the members of the entire stores of the Do and Retail Trade Management Committee managed by the said committee, unless there are special circumstances.

(3) In addition, even before the establishment of a commercial autonomy management committee, if the sales company prepared the rules applicable to the relationship between the shop buyers after the shop buyers entered into the sales contract with the shop buyer, and obtained the consent of the shop buyers in order from the shop buyers each time of the sales contract with the shop buyers, it is reasonable to view that the shop buyers established the above rules through the above sales company as the rules applicable to the mutual relationship between the shop buyers by setting the shop buyers as the condition of suspending the shop occupants, and the contents of the rules are also directly effective to the members of the shop of the entire commercial building (However, it is possible to modify them by a resolution of the next commercial autonomy committee).

(4) According to the above facts, in order to avoid the competition between the tenant and the tenant's stores at the time of the above sales contract, all of the store buyers of the commercial building of this case including the applicant and respondent agreed not to infringe upon the designated type of business at the same time by complying with each designated type of business for the store buyers at the time of the above sales contract, and agreed not to infringe upon the designated type of business for the store buyers at the same time. Moreover, in the articles of association and regulations of the above prosperity conference organized by the whole store of this case pursuant to the above Acts, the above agreement was made by all of the store buyers at the time of the above sales contract and the articles of association or regulations of the above prosperity conference which are organized by the store buyers at the time of the above sales contract shall not change the designated type of business unless it is in accordance with the procedure stipulated by the above prosperity conference, and it is reasonable to view that the above agreement and the articles of association or regulations of the above prosperity association as to the prohibition of voluntary change of the designated type of business at the time of the above sales contract as to all the shop buyers of this case.

(5) In addition, according to the above facts, the respondent can be seen to have operated a beauty business which is the designated type of business of the applicant without undergoing the procedures prescribed by the articles of association or rules of the above prosperity or without the consent of the applicant, and this is in violation of the agreement of all the shop buyers and the articles of association or regulations of the above prosperity conference, which is a kind of municipal ordinances and rules, so this is not only the prosperity conference, which is the entire manager of the commercial buildings of this case, but also the applicant entitled to protection of the designated type of business under the above municipal ordinances and rules, as well as the applicant entitled to protection of the designated type of business under the above municipal ordinances and rules, has the right to be preserved

(6) However, at the time of the above sales contract, the applicant's store as the designated type of beauty art business and the respondent's store as the designated type of beauty art business, and the fact that the respondent has sold in lots is as seen above. The Public Health Act stipulates beauty art business as a type of business where only a person who has a beauty artist's license is able to engage in the appearance of the customer by referring to 's face, hair, skin, skin, etc.', and it is apparent in the text of the law that only a person who has a beauty artist's license for beauty art business is able to engage in the beauty art business, and the skin beauty art business is only a part of the above beauty art business. In full view of the above facts, it is reasonable to view that the respondent purchased only one part of the beauty art business as the designated type of business, and the applicant was sold in lots as only the designated type of beauty art business except for the skin beauty business, and therefore, the respondent's designation of beauty art business in the shop can not be designated as the applicant's right of beauty art business.

B. Determination of each respondent's assertion

(1) First, the respondent asserts that the content of the agreement on the prohibition of changing the designated type of business at the time of the above sales contract or the provisions of the articles of association of the prosperity to the same purport cannot be effective as the respondent, but this is without merit as set forth in the above A.

(2) The respondent asserts that the above agreement on the prohibition of changing the designated type of business or the above prosperity rules are invalid because they violate the Fair Trade Act that prohibits monopoly and monopoly, or the freedom of business under the Constitution.

According to the Do and Retail Trade Promotion Act, the Minister of Trade, Industry and Energy may determine the detailed standards necessary for the permission for the establishment of a market or the performance of market management duties under the above Act, and it is recognized that the above detailed standards can be included in the restriction on competition in advance after consultation with the Fair Trade Commission (Article 7(5) of the Enforcement Decree of the above Act). According to the whole purport of the evidence and arguments mentioned above, the head of Daejeon Special Metropolitan City and the head of Seo-gu pursuant to the above Act shall review all the matters such as the articles of association of the above prosperity pursuant to the detailed standards for the establishment and management of the market and the prohibition of change of the above designated type of business in accordance with the above detailed standards set by the Minister of Trade, Industry and Energy. Thus, since the above provision on the prohibition of change of the designated type of business is legitimate, the freedom of business operation, which is the basic right of private persons, is also applicable to the freedom of private persons, and the above provision on the establishment of a commercial complex and the restriction on the establishment of the business type within the scope of the above regulation.

(3) The respondent argues that the beauty art room and the skin room are merely the same living facilities as stipulated in the Housing Construction Promotion Act and the Regulations on Standards for Housing Construction, etc., and that it is not possible to register them after subdividing them into the building management ledger or the register, and that it is not binding, and that it is not necessary to permit the change of the type of business of the living facilities, so the respondent can freely change the category of business from the skin room. However, in the Housing Construction Promotion Act, the classification of living facilities such as living facilities is merely a regulation on the housing administration for the construction standards or management of buildings such as housing, etc., but such regulation or registration of the building management ledger or the building register does not affect the agreement or regulations on the restriction of the change of business type within the same facility classification established between private persons. Therefore, the respondent's assertion on this premise is without merit.

(4) Since the respondent is not allowed to conduct a business specialized in the beauty business under the Public Health Act, even if he purchased a designated type of business as a beauty business, it is argued that the above designated type of business is not a violation of the above designated type of business. As seen earlier, the skin use under the above law is only one part of the beauty business, not a separate category of business, and the license for the qualification is only limited to the license for beauty business without the license for the beauty artist, and only the license for the beauty business is limited to the license for the beauty business, and the license for the beauty business is not stipulated, but only the license for the beauty business is not stipulated. However, even under the above law, it is clear that the above law does not prohibit or restrict the business of the skin use, which is a part of the beauty business after obtaining the license for the beauty business under the above law. Therefore, the respondent's assertion on this premise is without merit.

C. Necessity of conservation

As seen earlier, the respondent is running a beauty business identical to the applicant's designated type of business at the store immediately adjacent to the applicant's store which is a designated type of business as well as the size and location of the commercial building of this case, the location and size of each shop of this case, and the circumstances leading to the application of this case in light of the respondent's argument, even if 2,00 households located in the yellow apartment complex and 2,00 households intend to use the beauty room in the applicant's store, and approximately 1,000 households located in the applicant's store use the beauty room outside the complex, the respondent's above act may cause irreparable damage to the applicant's business. Thus, the applicant is also required to preserve the respondent to seek the prohibition of the above beauty business.

4. Conclusion

Therefore, the respondent has the duty not to engage in the beauty and beauty business except for the skin use at the stores of the respondent, and the applicant has the right to file a lawsuit against the respondent. Therefore, the applicant's application for provisional disposition of this case has the right to be preserved within the above scope, and further there is a need to preserve it. Therefore, the provisional disposition decision of this case shall approve the portion of beauty and beauty business except the skin beauty and beauty business, and the remaining portion of the part of the Respondent beauty and beauty business shall be revoked, and the applicant's application for provisional disposition of this case shall be dismissed.

Therefore, the original judgment with the same conclusion is justified, and all appeals by the respondent are dismissed, and it is so decided as per Disposition.

Judges Kim Jae-jin (Presiding Judge)