201Gaz. 1595 Prohibition of Competitive Business

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30

June 1, 2012

1. All of the plaintiff's claims are dismissed.

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

The defendant can not conduct beauty room business until April 3, 2021 in Seoul Special Metropolitan City area, and Gwangjin-gu Seoul Special Metropolitan City.

1,000 won and its replacement to the Plaintiff, after closing the operation of the Hague-gu in Jung-dong in Jung-dong.

at the rate of 20% per annum from the day following the service date of the copy of the complaint of this case to the day of complete payment.

L. D. Payment of money.

1. Basic facts

가. 원고는 2011. 3. 14. 김△△로부터 서울 광진구 중곡동 소재 건물 2층에서 ' ♤♤ ' 이라는 상호의 미용실 ( 이하 ' 이 사건 미용실 ' 이라 한다 ) 에 관한 상호, 시설 및 집기 일체, 고객리스트를 권리금 3천만 원에 양수한 후 현재까지 영업하고 있다 .

B. On April 2010, the Defendant: (a) operated the beauty art room in the name of “B”; (b) transferred the facilities, equipment, etc. of the beauty art room to the Doz; and (c) on January 25, 2011, the Defendant transferred the name, facility, and collection of the beauty art room, and customer list to the △△△△△△ on January 25, 201.

C. From the end of June 201, the Defendant is running the beauty room business in the name of “Seoul Special Metropolitan City Hague-dong,” which is “Seoul Special Metropolitan City Hague-dong,” on the first floor of building located in Jung-gu, Seoul Special Metropolitan City.

[Ground of recognition] Unstrifed facts, Gap 1 and 5 evidence, fact-finding results to the head of the Sungdong Tax Office of this Court, the purport of the whole pleadings

2. Summary of the parties' arguments;

A. The plaintiff;

The Plaintiff has been running a business by transferring all the facilities of the beauty art room of this case from the Defendant, the Plaintiff, and the Kim △△△△△, and all the management list for the existing customers. The Defendant obstructed the Plaintiff’s business while operating the beauty art room at a place where approximately 200 meters away from the beauty art room of this case after the Plaintiff commenced the business after taking over the beauty art room and starting the business, which is in violation of the duty of no competitive business, and the Defendant is obliged to discontinue the beauty art room’s business operated by the Defendant, and compensate for the Plaintiff’s damage caused by the Defendant’s

B. The defendant merely transferred the physical facilities related to the beauty art room of this case to He, but did not transfer the business of the beauty art room of this case. The defendant is not a party who entered into a direct business transfer contract with the plaintiff, and the defendant does not bear the duty of prohibition of competitive business against the plaintiff.

3. Determination

The term "business" under Article 41 (1) of the Commercial Act refers to a functional asset as an organic integration organized for a certain business purpose, and the term "functional asset as an organic integration" means that the facts with tangible, intangible, and economic value, which form a business, function as a source of profit, functions as a source of profit, and that the functional asset as the source of profit that systematically combines as such, becomes an object of transaction like one goods. Thus, the issue of whether a business transfer is deemed to have been made shall be determined depending on whether the transferee continues to conduct business activities such as the transferor, after the transferee transferred a functional asset as the source of profit organically organized, and the determination of such business transfer is made.

The criteria will be equally applied to small-scale self-employed businesses without employees, know-hows, business partners, etc. (see Supreme Court Order 2009Ma1136, Sept. 14, 2009).

The facts that the Defendant transferred the physical facilities, such as the facilities and the house of the beauty room of this case to △△△△△△, are as seen earlier. However, in addition, as to ① transfer of the management list to the existing customers, ② transfer of the functional property as an organic whole organized by the business purpose due to the circumstances such as the Defendant’s succession to the employees employed, etc., it is not sufficient to acknowledge this only by the entries of the evidence Nos. 5 and 6 (including each number), and there is no other evidence to acknowledge this otherwise, it is difficult to view that the Defendant transferred the business of the beauty room of this case to △△△△△△△△, and the Plaintiff’s assertion on this premise is without merit without any need to further examine.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

Judges Kim Jong-il

Judge Lee Jin-hun

Judges 00 Efficacy