[1] The case holding that in case where the seller, while selling an apartment commercial building in lots, agrees to allow the buyer to operate the supermarket, and the buyer receives an agreement that the buyer may cancel the sales contract in the case of selling the remaining commercial building to another buyer without running the business overlapping with others, the seller's agreement to guarantee the seller's business does not mean that the seller does not sell the goods overlapping with the goods sold in the buyer's supermarket at other stores of the commercial building, but it does not mean that the seller's sales contract should not be made in the case of selling the remaining stores to the third party, namely, the overlapping type of business in selling the commercial building to the supermarket, and the other buyer's arbitrarily changes the sales contract to the supermarket, the seller should cancel the sales contract so that only the buyer can operate the supermarket exclusively from the commercial building

[2] The meaning of so-called "Samarket", which is the business type where the buyer is promised to operate a monopoly by the seller under the apartment sales contract, and the criteria and method for determining whether the seller's business constitutes it

[3] The case holding that it cannot be deemed that the initial seller fulfilled an agreement guaranteeing that the seller exclusively operates the Smarket business in the commercial building to a specified number of buyers, on the ground that it is the same as the cancellation of the sales contract in fact because the seller's neglecting the Smarket business without taking follow-up measures such as the name of the shop or the request for cancellation of the registration of transfer of ownership, in case where the seller agrees to allow the buyer to operate the Smarket only in the commercial building and the seller has the agreement that the seller may cancel the sales contract in the case of selling the remaining commercial building to another number of buyers without running the business that overlaps with the other person, and the seller can cancel the sales contract in the case of selling the commercial building without running the business that overlaps with the other person, and the seller does not voluntarily change the business type to Smarket and does not take follow-up measures such as requesting cancellation of the sales contract

[1] The case holding that in case where the seller agrees to allow the buyer to sell an apartment commercial building in lots to the buyer, and the buyer receives an agreement that the buyer may cancel the sales contract in the case of selling the remaining commercial building to another buyer without running the business overlapping with others, the seller's agreement to guarantee the seller's business does not mean that the seller does not sell the goods overlapping with the goods sold in the buyer's Smarket at other stores of the commercial building, but it does not mean that the seller's sales contract should not be made in the case of selling the goods overlapping with the goods sold in the buyer's Smarket, i.e., the overlapping type of business in selling the remaining stores to the third party, and if the other buyer arbitrarily changes the sales contract to the Smarket, the seller should cancel the sales contract so that only the buyer can operate the Smarket exclusively from the commercial building.

[2] Under the apartment sales contract, the apartment sales market, which is the business type in which the buyer is promised to operate exclusive stores from the seller, shall sell the miscellaneous goods centered on food according to its original meaning, unless there is a special agreement. However, it shall be determined relatively in consideration of the size of the city and apartment complex where the commercial building is located, the size of the commercial building and the degree of business district formation, and the situation of the neighboring business type.

[3] The case holding that it cannot be deemed that the initial seller has fulfilled an agreement guaranteeing that the seller exclusively operates the Smarket business in the commercial building, on the ground that it is identical in fact to the cancellation of the sales contract, on the ground that the seller's neglecting the Smarket business without taking follow-up measures such as the name of the store or the request for cancellation of the registration of transfer of ownership, in case where the seller agreed to allow the buyer to operate the Smarket only in the commercial building and the seller is allowed to sell the remaining commercial building to another buyer without running the business that overlaps with the other buyer, and the seller can cancel the sales contract if the seller violates the agreement without running the business that overlaps with the other buyer, and that the seller voluntarily changed the business type to Smarket and fails to take follow-up measures such as requesting cancellation of the sales contract.

[1] Articles 105 and 563 of the Civil Act / [2] Articles 105 and 563 of the Civil Act / [3] Articles 105, 390, 543, 548, and 563 of the Civil Act

[1] Supreme Court Order 94Da30867 delivered on September 5, 1995 (Gong1995Ha, 3346) Supreme Court Order 97Ma575 delivered on April 7, 1997 (Gong1997Sang, 1525)

Plaintiff (Counterclaim Defendant) (Attorney Han Han-sung et al., Counsel for the plaintiff-appellant)

Aju Construction Co., Ltd.

Korean Real Estate Trust Co., Ltd. (Attorneys Park Gi-young et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 99Na3678, 3685 delivered on April 6, 2000

The judgment below is reversed and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Summary of the judgment below

A. According to the reasoning of the lower judgment, the lower court recognized the following facts by comprehensively taking account of the evidence adopted in its judgment.

① On November 6, 1997, the Plaintiff concluded a commercial supply contract with the Defendants on a set of KRW 345,825,700 for the sales price, and at the time, the representative director and employees of the Defendant Aju Construction Co., Ltd. (hereinafter referred to as “Defendant Aju Construction”) agreed to the Plaintiff that the Plaintiff would only operate Smarket in the instant commercial building, the Plaintiff would be able to operate Smarket.

② The Plaintiff paid KRW 51,00,000 among the down payment on the date of the above contract, and KRW 18,165,140 on November 14, 1997, and paid KRW 73,00,000 on January 5, 1998, which was after the date of the payment of the intermediate payment, and KRW 15,660,560 on March 5, 1998, as part of each intermediate payment, the Plaintiff opened and operated Schlage in the name of “△△△△△△”, which was handed over the instant store on the same day.

③ On the other hand, Nonparty 1 registered the business in the trade name of "Seong shopping" on March 1, 1998, when Nonparty 1 purchased the commercial building of this case (No. 2 omitted) from the Defendants for the purpose of video lending store and (No. 3 omitted) for the type of business overlap with others, and in the case of violation thereof, he would make preparations for the business in order to carry out daily miscellaneous retail business in the above subparagraph (No. 2 omitted), and waived the preparation for the above business from Defendant Aju Construction around March 15, 1998, but he again registered the business in the name of Nonparty 2, his wife, around September 198.

④ In addition, from July 8, 1998, Nonparty 3, who purchased the instant shopping mall (No. 4 omitted), as an incidental use, began to sell some of the goods that overlap with the part of the goods handled by the Plaintiff in Schlage from around July 8, 1998. The kinds of goods handled by the Plaintiff in Schlage are approximately approximately 2,500, and approximately 50 goods are overlapping with the Plaintiff’s Smarket sales goods in the above non-party 3’s corrosion, and the Plaintiff also sells more than 30 goods, such as rice, vegetable, etc. handled by the above non-party 3’s incidental food stores.

⑤ On the other hand, Defendant Aju Construction issued a warning and demand to the above non-party 1 that the above non-party 1 violated the prohibition of commercial activities under the commercial supply contract, but did not comply therewith. On October 12, 1998, Defendant Aju Construction notified the above non-party 1 that he would cancel the commercial supply contract.

6. Each area of the commercial buildings of this case (No. 2 omitted), (No. 3 omitted), and (No. 4 omitted) is the size of the commercial buildings of this case, which are less than 1/4 of the purchase by the plaintiff (no. 1 omitted).

B. Based on the above facts acknowledged, the court below rejected the plaintiff's defense as follows against the plaintiff's main claim seeking the payment of KRW 30,000,000 for the store facility expenses of this case and KRW 5,00,000 for damages due to non-performance of obligation, and for the plaintiff's main claim seeking the payment of KRW 188,00,000 for the non-payment of the sales price of this case and the non-payment of KRW 188,00,000 for the non-payment of the sales price of this case and the non-party 3 for the counter-payment of the non-party 3 as the plaintiff's exclusive business security agreement to the plaintiff in the commercial building (No. 4 omitted).

First, in the commercial building in this case, the defendants mentioned that the plaintiff only stated that the plaintiff would operate the Smarket in this case. In any case, the defendants promised to guarantee the exclusive status of "sale of goods overlapping with the plaintiff's dailyization sold in Smarket" at another store in the commercial building in this case. The defendants' testimony of the non-party 6, the witness non-party 4, and the non-party 5 of the court of first instance consistent with the plaintiff's argument that they promised to guarantee the exclusive status of "sale of goods in this case." Rather, according to the evidence of the decision, the defendants do not sell the remaining stores among the commercial buildings in this case to the third party for the purpose of Smarket. If the purchaser arbitrarily changed the original designated use to Smarket, it is reasonable to interpret that the plaintiff only agrees to operate Smarket in the commercial building in this case by cancelling the sale contract as stipulated in the commercial supply contract.

① In addition, it is difficult to conclude that the above agreement was not complied with solely on the sole ground that Nonparty 3 sells the goods handled by the Plaintiff in his subsidiary store and part of the goods handled by the Plaintiff in Smarket, in light of the fact that the above non-party 3's subsidiary food stores, the size of the Plaintiff Smarket, the handling items of the Plaintiff's subsidiary food stores, and the Plaintiff's subsidiary food stores dealing with the goods that are thought to be sold normally in Smarket, etc., and that the above agreement was not complied with. ② The above non-party 1 renounced the business of the above non-party 1's subsidiary food store since around September 1998, and started the non-party 1 again in the above Item 3 omitted, it is difficult to conclude that the above non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's sales contract was cancelled on the ground that the above contract was modified for the non-party 2's non-party 1's reasons.

2. Judgment of the Supreme Court

A. As to the guarantee of exclusive goodwill

Examining the relevant evidence in light of the records, the judgment of the court below which held that the above words of defendant Aju Construction does not intend to sell the plaintiff's goods that overlap with the plaintiff's goods sold at the plaintiff's stores in the above commercial building, but it does not sell the remaining stores to the third party, that is, the type of business that overlaps with the plaintiff in selling them to the third party, i.e., the category of business that overlaps with the plaintiff in selling them, and that if the buyer arbitrarily changes the sales contract to the supermarket, only the plaintiff can cancel the sales contract and guarantee that the plaintiff exclusively operates the supermarket business in the above commercial building, and there is no violation of the rules of evidence or misapprehension of legal principles as to the interpretation of the contract, as otherwise alleged in the ground of appeal. The ground of appeal on

B. As to the defendants' failure to comply with the agreement

(1) In the absence of a special agreement, "Smarket", which is the business type in which the plaintiff was promised to operate exclusive stores, shall sell daily miscellaneous goods centered on food in accordance with its original meaning. However, in determining whether a business of a third party constitutes a business of a third party, it shall be based on the diversity of handled items centering on daily miscellaneousization, diversity of handled items centering on food and daily miscellaneousization, the size of the store, whether the sale method adopts the so-called accelerator service method, not on a uniform and absolute basis, but on the basis of 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, and the situation of the neighboring business type.

(2) Part on the business activity of Nonparty 3

Examining the records in accordance with the above determination criteria, the above non-party 3's corrosion store (number 4 omitted) held that the above non-party 3's non-party 3's non-party 3's non-party 3's non-party 3's non-party 3's non-party 3's non-party 3's non-party 1/4 of the supermarket operated by the plaintiff while dealing mainly with grain and subsidiary food and selling limited items. Thus, the above non-party 3's non-party 3's non-party 3's non-party 3's non-party 3's non-party 3's "

(3) Part on the business activity of Nonparty 1

First of all, the court below held that it is difficult to conclude the above non-party 1 as a supermarket business in light of the fact that the non-party 1 renounced the business preparation of miscellaneous retail in the commercial building of this case (No. 2 omitted) around March 1998 and the non-party 1 started the miscellaneous retail business from September 1998 (No. 3 omitted) and the size of the non-party 1 started from the above commercial building (No. 3 omitted) and the size of the non-party 1's store does not amount to 1/4 of the plaintiff's store. However, the

In other words, considering the witness of the first instance court, the witness of the non-party 6, the non-party 5's testimony (record 67, 438), Gap evidence 15-1, 2 (record 420 pages), Gap evidence 19 (record 426 pages), etc., the above non-party 1 can be seen to have operated the daily miscellaneous goods retail business by using the whole of the store as a single store, and the exclusive use area of the plaintiff's store is a half of 179.2 square meters of the plaintiff's exclusive use area. Thus, the court below's determination that the above non-party 1's combination of the above (No. 2 omitted) and the above (No. 3 omitted) did not constitute a single retail store, and it did not constitute the criteria for determining whether the whole non-party 1's use of the store as a single retail store and its size did not meet the criteria for determining whether the plaintiff 1's exclusive use area was within 89.6 square meters of the plaintiff's store.

Meanwhile, the purpose of the cancellation of a store sale contract is to restore the original state to its original state, i.e., the cancellation of the ownership transfer registration in the name of the buyer, and the name of the store. According to the records, the defendant Aju Construction only notified the above non-party 1 to cancel the sale contract for the above commercial building (number 2 omitted), and even until December 1999, the above non-party 1 continues to engage in the above business in the above (number 2 omitted) and (number 3 omitted) until December 1999, and the defendants knew that the above non-party 1 did not take follow-up measures following the cancellation of the contract such as the request for cancellation of the above store name or ownership transfer registration and neglected the above non-party 1. Thus, although the court below did not actually cancel the sale contract, it is difficult to deem that the defendants failed to perform the above contract merely because the defendant Aju Construction notified the above non-party 1 to cancel the sale contract.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)