2018Na23935 Undue gains

A

C

Attorney Kim Jong-sik, Counsel for the defendant-appellant

Seoul Eastern District Court Decision 2016Da145885 Decided April 11, 2018

March 6, 2019

March 20, 2019

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below is revoked, and the plaintiff's claim corresponding to the revocation part

The defendant shall pay to the plaintiff 450,000 won with 5% interest per annum from April 12, 2018 to March 20, 2019, and 15% interest per annum from the next day to the day of full payment. The defendant's remaining appeal is dismissed.

3. Of the total litigation costs, 90% is borne by the Plaintiff, and the remainder is borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 24,730,00 won with 15% interest per annum from the day after the judgment of the first instance to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On March 23, 2016, the Plaintiff entered into a contract with the Defendant to take over all tangible and intangible property value of KRW 50 million, such as business facilities, equipment, customers, credit, business know-how, and business interest on the location of a commercial building (hereinafter referred to as “instant transfer contract”) with the Defendant, and paid the above price in full to the Defendant by May 3, 2016. (B) The Plaintiff and the Defendant prepared a contract at the time of the conclusion of the instant transfer contract, but did not specify business facilities or equipment for the purpose of transfer. Meanwhile, at the time of operating the instant transfer contract, the Defendant purchased the instant goods from a foreign country to sell the goods to the foreign country (hereinafter referred to as “FF”) in lieu of the Defendant’s purchase of the goods from the Internet (hereinafter referred to as “sale goods”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 47, 48, Eul evidence Nos. 1, 2, 3, 7, 8, 9 (including each number), the purport of the whole pleadings

2. Determination on the cause of the claim

A. Summary of the plaintiff's assertion

The Plaintiff failed to take over the articles listed in the sequence 1 to 8 of the following table among the business debt of the instant car page from the Defendant. Since the Plaintiff was not notified of defects regarding the articles listed in the No.9, the Defendant is obligated to pay to the Plaintiff the sum of the values of each article 2,473,00 won as unjust enrichment or damages.

A person shall be appointed.

B. Determination

1) As recognized earlier, the Defendant has operated the instant carpet as well as the business chain F, which is separate from the instant carpet, and as long as there was no express agreement between the Plaintiff and the Defendant on the transfer of F’s operating secret, the equipment which is the object of the instant transfer contract is limited to those related to the instant carpet, and is not related to F’s business.

2) Specific determination

A) The written evidence Nos. 2 and 49 is insufficient to acknowledge that 3 Mastoy existed at the time of the conclusion of the instant transfer contract, and there is no other evidence to acknowledge otherwise. Accordingly, the Plaintiff’s assertion as to the above goods is without merit.

B) In light of the fact that a multi-party cleaning machine was kept in the instant car page 2, there is no dispute between the parties, and it appears that the use of cleaning machine is essential to clean the instant car page up to 50 square meters. The Defendant merely stated that the aforementioned multi-party cleaning machine was not used for cleaning the instant car page, but it does not seem that the Defendant transferred other cleaning machine with the instant car page’s operating equipment, such as the Plaintiff’s certificate No. 49, and the Defendant stated that the multi-party cleaning machine was made. In light of such fact, it is reasonable to deem that the multi-party cleaning machine was an object of the instant transfer contract, which was a business expense of the instant car page. However, since the Defendant did not deliver the aforementioned multi-party cleaning machine to the Plaintiff, the Defendant should pay the amount equivalent to its value as damages due to nonperformance.

Furthermore, it is reasonable to view that the value at the time of the instant transfer contract for the cleaning machine is 4,50,000 won when considering the new property price of the multi-user cleaning machine model that was launched at the time of the conclusion of the instant transfer contract and the period used by the Defendant up to the time of the conclusion of the instant transfer contract, considering the following as to the value of the Dason cleaning machine model that was launched at the time of the conclusion of the instant transfer contract. The value at the time of the instant transfer contract for the cleaning machine at the time of the conclusion of the instant transfer contract is 4,00 won.

As acknowledged earlier, in light of the fact that the Defendant operated the business chain F, separate from the instant car page, and the above goods claimed by the Plaintiff are ordinarily not goods necessary for the business of the KIKO, and thus, it can be sufficiently known that the goods alleged by the Plaintiff were goods for sale. Thus, it cannot be deemed that the said goods claimed by the Plaintiff were the goods for sale of the instant car page. Accordingly, the Plaintiff’s assertion based on the premise that the said goods are the goods subject to the instant transfer contract is without merit.

D) 3 computers and one composite (No. 7)

As acknowledged earlier, in light of the fact that the Defendant used the said goods claimed by the Plaintiff while running the instant Kaba in a separate business chain F, and that the combination with computers is not ordinarily necessary for the business of Kaba, it cannot be deemed that the said goods claimed by the Plaintiff were the business goods of the instant Kaba. Accordingly, the Plaintiff’s assertion premised on the premise that the said goods are the object of the instant transfer contract is without merit.

E) Comprehensively taking account of the contents of CCTV and skacker’s evidence Nos. 5 and the purport of the entire pleadings, the Defendant: (a) leased and used CCTV and skacker’s free lease in order to operate the instant car page; (b) as the Plaintiff did not succeed to the skacker’s lease contract; (c) the Defendant terminated the skacker lease contract and returned CCTV and skacker’s return while returning the said device. In light of these circumstances, it is difficult to view CCTV and skacker as the object of the instant transfer contract as the Defendant’s ownership, and there is no other evidence to acknowledge it otherwise.

The plaintiff's assertion premised on this is without merit.

F) It is recognized that the Plaintiff paid 158,000 won of the repair cost to repair TV installed in the instant car page on September 10, 2016. However, in light of the fact that the time when the Plaintiff received the instant car page from the Defendant was 4 months or passed from May 2016, the evidence alone submitted by the Plaintiff is insufficient to acknowledge that there was a defect in the said television at the time of the instant transfer contract, and there is no other evidence to acknowledge this otherwise. Accordingly, the Plaintiff’s assertion on this part is without merit.

C. Sub-committee

Therefore, as the Defendant seeks from April 12, 2018, the following day after the judgment of the court of first instance, which was the date following the decision of the court of first instance, for damages for nonperformance of obligation, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 5% per annum under the Civil Act from March 20, 2019, which is the date when the Defendant rendered the decision of this case, to March 20, 2019, and 15% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the date when

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since the part against the defendant who ordered payment in excess of the above recognition amount among the judgment of the court of first instance which partly different conclusions is improper, it is revoked and the plaintiff's claim corresponding to the revoked part is dismissed. The defendant's remaining

The presiding judge, judges and judges;

Judges Kim Gin-jin

Judges, real leaves