In a case where Party A entered into an agreement on delegation of business, including the agreement on the prohibition of changing occupation, while operating a English driving school, and Party B established by Party B after his retirement and took over all of the operations of the said English driving school, and Party B’s operation of the English driving school, and Party B’s operation of the English driving school, and Party B’s lecture work for Party B after his retirement, and Party C’s defect, Party C’s violation of the prohibition of changing occupation against Party B, the case holding that the said agreement is null and void as an anti-social legal act under Article 103 of the Civil Act.

In a case where Gap, while operating a English private teaching institute, entered into an agreement on delegation of business affairs including the agreement on the prohibition of changing occupation with Eul and Eul, and Eul established after his retirement and took over all of the above operations of the English private teaching institute, Eul established and operated an English private teaching institute in the divided building, and Byung works for Eul, Eul, working for Eul, and Byung's office after his retirement, Byung asserted the violation of the prohibition of changing occupation against Eul, the case held that the above agreement is null and void as a juristic act contrary to good customs and social order as provided in Article 103 of the Civil Act, on the grounds that the above agreement was imposed only on Eul, Eul, and Byung without any consideration, and Byung could have been difficult to refuse the conclusion of the agreement, and there seems to have been lack of concrete vindication of the company's trade secrets, etc., and the circumstance in which Eul and Byung retired from office do not particularly have any specific distribution, since it excessively limits workers' freedom of choosing occupation, labor rights, etc., as guaranteed by the Constitution, or excessively limits free competition.

Article 103 of the Civil Act

△△ (Law Firm Daegu General Law Office, Attorneys Jeon Dong-cheon, Counsel for the defendant-appellant)

Respondent 1 and one other

1. All applications filed against the respondent are dismissed.

2. The litigation costs shall be borne by the applicant;

The respondent 1 shall not operate the ○○ ○ ○ ○ ○ in the 8th floor of the building listed in the [Attachment] list. The respondent 1 shall not lease or transfer the business rights of the ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ operated by the respondent. If the respondent violates the above order, the respondent shall pay 50,000 won per day of the violation to the applicant. The enforcement officer shall publicly notify

1. Basic facts

In full view of the records and the overall purport of the examination of the case, the following facts are substantiated.

가. 신청외 1은 ‘ △△영어학원’ 교습소를 운영하던 중 2007년경 대구 수성구 범어4동 266-2 세광빌딩에 △△SM영어 학원(본원), 2008년경 같은 구 범어1동 792-2 지상건물에 위 학원의 수성분원, 같은 구 범어2동 171-4 세기빌딩 4층에 위 학원의 범어1관, 2010년경 위 세기빌딩 3층에 범어2관, 2009년경 같은 구 범어2동 221-5 조앤킴빌딩 5층에 위 학원의 텝스·토플관을 각 개설하였다.

B. From February 2008 to October 2008, the respondent 1 served as the principal secretary of △△ English Private Teaching Institutes, from November 2008 to December 2009, and retired from office as the senior secretary of △△ English Private Teaching Institutes. The respondent 2 retired from office from February 2008 to December 2010, respectively.

C. On September 17, 2009, Nonparty 1 entered into each of the instant delegation agreements (hereinafter “each of the instant delegation agreements”) with the respondent, which includes the contract prohibiting the transfer of occupation as follows.

본문내 포함된 표 피신청인 1(소갑 1호증의 1) 피신청인 2(소갑 1호증의 3) 제4조 【계약기간】본 계약의 존속기간은 2009. 9. 1.부터 2012. 8. 30.까지로 한다. 제4조 【계약기간】본 계약의 존속기간은 2009. 8. 1.부터 2010. 8. 1.까지로 한다. 제6조 【학원 정보 업무상 기밀 유지 등 “을(피신청인 1)”이 지켜야 하는 신의】 제6조 【학원 정보 업무상 기밀 유지 등 “을(피신청인 2)”이 지켜야 하는 신의】 2. ‘을’은 ‘갑(신청외 1)’과 업무를 수행함에 있어서 알게 되는 학부모 학생들을 상대로 과외, 혹은 ‘갑’과 업무를 수행하는 학원과 같은 행정구(예: 수성구에서 수업을 할 경우는 수성구)에서는 계약기간 동안 혹은 계약 종결 후 2년이 지날 때까지 본인의 이름으로 혹은 제3자와 협력하여 학원, 교습소, 공부방 등을 차릴 수 없고, ‘갑’의 학원생을 대상으로 타 학원에서 학원수업, 혹은 개인 과외교습을 할 수 없다. 2. ‘을’이 ‘갑(신청외 1)’과 업무를 수행함에 있어서 알게 되는 학부모, 학생들을 상대로 과외, ‘갑’과 업무를 수행하는 학원의 반경 2㎞ 이내에서 계약기간 동안 혹은 계약 종결 후 2년이 지날 때까지 본인의 이름으로 혹은 제3자와 협력하여 학원, 교습소, 공부방 등을 차릴 수 없고, ‘갑’의 학원생을 대상으로 타 학원에서 학원수업, 혹은 개인 과외교습을 할 수 없다. ？ 3. ‘갑’과 업무를 수행하는 학원의 반경 2㎞ 이내의 경쟁학원에 업무 종결 후 6개월 이내에는 취업을 할 수 없다. 제7조 【계약의 해지】 1 내지 15호 생략 제7조 【계약의 해지】 1 내지 15호 생략

D. On November 4, 2010, Nonparty 1 established an applicant company with the purpose of English education institutes business, publishing business, etc. on November 4, 2010, and transferred all business of the above △△ English Private Teaching Institutes to the applicant company.

E. Meanwhile, from January 2012, 2012, the respondent 1 opened and operated the ○○○○ Fishing School (hereinafter “instant fish driving school”) on the 8th floor of the 198-4 high-level fishing building operated by the applicant and the respondent 2 is in charge of lectures while working at the instant fish driving school from around that time.

2. The parties' assertion

A. Applicant's assertion

The Claimant was a transferee of all of the above private teaching institute businesses of the above private teaching institute of the applicant non-party 1 who entered into the delegation contract of this case, and the respondent 1 was working as the vice president of the △△ English Private Teaching Institutes, and applied for a provisional disposition as stated in the purport of the application, on the ground that, after withdrawal, the Respondent 1 sought a private teaching institute opening in the same administrative district as the applicant’s private teaching institute at the time when 2 years have not elapsed since the contract was concluded or the contract was terminated, and the Respondent 2 also was demoted by being employed in the above language teaching institute at the time when 2 years have not elapsed since the contract was terminated.

B. Respondent's assertion

1) Respondent 1's assertion

A) The respondent 1 terminated the contract due to the verbal violence, etc. of the applicant’s representative, other than the applicant’s applicant’s representative, and there is no other payment, other than wages, from the applicant Nonparty 1 or the applicant. Thus, the agreement prohibiting the transfer of a position under the instant delegation agreement is null and void as it is contrary to Article 103 of the Civil Act.

B) In addition, the respondent 1 did not receive the know-how on the operation and teaching of private teaching institutes from the applicant, and instead, was newly established as the middle class clerk around November 2008, and it developed a new operation and teaching law as the chief of the branch.

C) Around 2 years from December 2009, the Respondent 1’s withdrawal date, 2009, the period of the instant contract prohibiting the change of occupation under the instant contract for the delegation of work was already over.

2) Respondent 2's assertion

A) The respondent 2 is a senior officer in charge of the affairs of high school department, and only collected and reported information related to students and classes or easy access to such information, and there is no other price than wages from the applicant 1 or the applicant. Thus, the agreement prohibiting the transfer of a position under the instant delegation agreement is null and void as it is contrary to Article 103 of the Civil Act.

B) Since six months have elapsed from December 31, 2010, the date on which the respondent 2 transferred the business to the successor non-party 2 and the date on which the business was closed, the period of the contract prohibiting transfer under the instant contract for the delegation of business affairs was already over.

3. Determination

A. As to the validity of the contract prohibiting the transfer of this case

Even if there exists a competitive prohibition agreement between an employer and an employee, if such agreement is excessively limited to the freedom of choosing an occupation, the right to work, etc. of an employee guaranteed under the Constitution or excessively limits free competition, it shall be deemed null and void as a juristic act contrary to good morals and other social order as stipulated under Article 103 of the Civil Act. Determination on the validity of such an agreement should comprehensively take into account the interests of the employer, the status of the employee, the period and area of restriction on the competitive business, the occupation of the employee, the existence of remuneration for the employee, the reason why the employee retires, the public interest, and other circumstances (see Supreme Court Decision 2009Da8244, Mar. 11, 2010, etc.).

According to the overall purport of the record and examination of this case, the following facts are explained, namely, ① in order for a contract to force workers to sacrifice only during or before the period of prohibition of transfer to another position, the applicant entered into an agreement prohibiting the transfer of this case that unilaterally imposes on the respondent only an obligation without any consideration. ② The respondent seems to have been difficult to refuse to enter into the above contract as the employee status of the non-applicant 1 at the time, ③ there is no specific explanation on trade secrets or unique knowledge or information that can be deemed to have been delivered to or commenced from the respondent, ④ the respondent 1 appears to have retired as a special relationship with the non-applicant 1 and the respondent 2 appears to have been removed, and the respondent 2 is deemed to have been subject to the exclusion of the special relationship with the non-applicant 1, and the circumstances leading up to his retirement, such as the acceptance of the business to his successor and the withdrawal of the business, etc., are too limited to the freedom of the employment contract of each of the above case and the right to free competition of the workers under the Civil Act.

Therefore, the application of this case against the respondent under the premise that each of the contract prohibiting the transfer of this case is valid is without merit.

B. As to the violation of each of the instant prohibition agreements (the preliminary review of each of the instant prohibition agreements on transfer under the premise that the agreement on the prohibition of transfer is valid under each of the instant delegation agreements)

1) As to the Respondent 1

The Claimant asserts that the Respondent 1 violated an agreement prohibiting the establishment of a private teaching institute in the same administrative district until the expiration of the contract period or two years after the termination of the contract, on the premise that the contract period with the Respondent 1 is not terminated and up to August 30, 2012.

However, in light of the contents of Article 6(2) of the Business Agreement, the context before and after, and after, the termination of the contract under Article 7, etc., the respondent 1 shall be deemed to be unable to establish a private teaching institute, etc. under the Business Delegation Agreement, in an administrative district such as the applicant’s private teaching institute (where the above contract remains in force, for any reason) in which the contract is terminated, with the principal or a third party until two years have passed thereafter. As seen earlier, the respondent 1 retired from the above private teaching institute operated by the applicant non-party 1 at the time of December 2009. As such, even if the respondent 1 established the private teaching institute on January 201, 2012, the respondent cannot be deemed to be a violation of the Business Prohibition Agreement, and there is no other vindication that the respondent 1 did not have violated the above Business Delegation Agreement, such as having provided classes at other private teaching institutes for the applicant at the private teaching institute.

Therefore, despite the withdrawal of the respondent 1, the above argument about the respondent 1 on the premise that the contract term is up to August 30, 2012 is valid.

2) As to the Respondent 2

Article 6 subparagraph 2 of the instant delegation contract prohibits a private teaching institute from establishing a private teaching institute in cooperation with the principal or a third party until two years have passed after the contract period or the contract is terminated. However, as seen earlier, the respondent 2 is merely a person who has not established the private teaching institute, but employed the said private teaching institute. In addition, Article 6 subparagraph 3 of the instant delegation contract prohibits a person who has been employed within six months after the closure of business to the private teaching institute within 2 km from the closure of business. However, as seen earlier, the respondent 2 completed the applicant’s business at the private teaching institute around December 2010 and was employed at the private teaching institute more than six months after the completion of business. As such, the respondent 2 did not have any ground for the above assertion against the respondent 2 that the respondent violated the contract prohibiting the transfer of business under the said delegation contract.

4. Conclusion

Therefore, the application of this case against the respondent is insufficient to vindicate the right to be preserved, and therefore all of the applications are dismissed. It is so decided as per Disposition.

[Attachment] List: omitted

Judges Lee Jong-sung (Presiding Judge)