2016 Ghana 517972 Damage (as defined)

Dog Dog

[Judgment of the court below]

A person shall be appointed.

소송대리인 변호사 ◆◆◆

소송복대리인 변호사 ◆◆◆

March 30, 2017

June 1, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff KRW 30,000,000 as well as full payment from the day after the delivery of the complaint of this case.

By the day, 15% interest per annum shall be paid.

1. Facts of recognition;

가. 피고는 2015. 4. 1. 첨단지구 내인 광주 광산구 월계동 * * * - * 에서 ' ◆ ◆◆◆◆ ◆ ◆◆ ◆◆◆ 영어학원 ' ( 이하 ' 원고 학원 ' 이라 한다 ) 을 운영하는 원고와 사이에 다음 내용이 포함된 강사계약서를 작성하였다 .

Article 2 (Term of Contract)

The contract term of the plaintiff and the defendant shall be one year from the date of this contract.

Article 12 (Confidentiality)

7. (Prohibition of Change of Position) The defendant shall not engage in the same field of business or establish a same company for 12 months after the termination of the employment contract relationship with the plaintiff due to resignation, dismissal, or any other reason: Provided, That this shall not apply to an area outside 5 km radius from the plaintiff's

Article 13 (Compensation for Damages)

The party who has breached or breached this contract shall compensate the other party for the "the amount equivalent to three times the amount of damages caused by it or the amount of damages consulted below, whichever is greater," and the case of Articles 7, 8, 10(3) and (4), and 12 shall also be applicable, and the damages not designated in the contract shall be determined in accordance with the general commercial transaction.

3. In the case of violation of Article 12 above, 5,00,000 won per student shall be paid as damages to the Plaintiff. If the Defendant actively committed activities for attracting students (such as wired or wireless telephone, SNS, Kakakao Similar Program, and correspondence) and violated Article 12, the Defendant shall be deemed to be “ intentional violation”, and KRW 10,000,000 per student shall be paid as damages to the Plaintiff. Whether the above intentional violation has the burden of proof for the Defendant.

나. 피고는, 2016. 2. 3. 위 영어학원에서 퇴직한 후, 같은 해 3. 1. 원고 학원으로부터 영산강을 건너 직선거리로 약 2. 2km 떨어진 첨단2지구 내의 광주 북구 신용동 * * *에 ' & & & 영어학원 ' ( 이하 ' 피고 학원 ' 이라 한다 ) 을 설립한 후 이를 운영해 왔다. 피고의 위 퇴직 무렵 원고 학원을 다녔던 임★★, 김★★, 강★★, 강, 이★★, 조★★ 학생 등은 피고 학원으로 옮겨 갔다 .

【Uncontentious facts, Gap 1, 3-1-5, Eul 1-9, 13-1-13-15, 15, 3, and the purport of the entire pleadings

2. The assertion and judgment

A. The parties' assertion

The Plaintiff: (a) the Defendant sought to open the Defendant’s private teaching institute and transferred six students from the Plaintiff’s private teaching institute to the Defendant’s private teaching institute; (b) the Defendant, pursuant to Article 12 subparag. 7 and Article 13 subparag. 3

30,000,000 won ( = 5,00,000 x 6) asserts that there is a duty to pay the contract, and the defendant asserts that it is null and void because it is a juristic act contrary to good morals and other social order under Article 103 of the Civil Act to set the amount of damages for each student of the contract and the violation of the contract.

(b) Markets:

Since the freedom of choice of occupation belongs to the fundamental rights of citizens, in cases where an agreement for prohibition of competitive business is made after the termination of a labor relationship or other similar contractual relationship, such as trade or trade belonging to the same kind of business as the business owner or non-business, the agreement is deemed valid only to the extent that it is recognized as reasonable restriction on freedom of choice of occupation (see Supreme Court Decisions 2015Da221903, Oct. 27, 2016; 2015Da221910, Mar. 11, 2010; 2009Da82424, Mar. 24, 2010).

With respect to this case, even if the contract period of the Plaintiff and the Defendant’s lecture contract is more than one year, the Plaintiff is obligated to prohibit competitive business for one year thereafter under the agreement on prohibition of competitive business under Article 12 subparag. 7 of the above agreement. This is excessive to the Defendant’s burden, barring any special circumstances, in comparison with the above contract period. ② The evidence presented by the Plaintiff alone is more favorable than the ordinary remuneration condition in the case where the agreement on prohibition of competitive business is not entered into, and it is difficult to recognize that there is a special consideration in the agreement on prohibition of competitive business. ③ The operation of Plaintiff’s private teaching institute does not seem to have any influence on the choice of students, and it is difficult to view that there is a benefit of the Plaintiff, which is worth protecting by forcing the students to engage in competitive business. ④ In addition, the Defendant’s establishment and operation of a private teaching institute at a place that is not located in the Plaintiff’s private teaching institute, thereby infringing the Plaintiff’s right to academic participation or public business order, and thus, it is difficult to view the part of the above agreement No. 27 subparag. 17.

3. Conclusion

Therefore, the plaintiff's claim of this case is without merit.

Judicial Residence Support