[1] Whether a person who takes over the position of the buyer of a shop in a shopping mall which has sold the store by setting a type of business has the right to claim the prohibition of business of the same type of business in case where the transferee of the shop violates the agreement on the restriction of type of business as stipulated in the sales contract (affirmative)

[2] Whether the duty of prohibition of competitive business as to the designated type of business in a commercial sales contract applies to the selling company (affirmative)

[3] The case holding that the consent of the sectional owner should be obtained on the ground that the contents of resolution by the managing body's meeting which is composed of the sectional owners of a building provide that the consent of the sectional owner should be obtained as to the matters which affect the right of the specific sectional ownership, and the designation or change of the type of business has an influence on the right of the specific sectional ownership in the category

[4] The scope of a store that can claim the prohibition of the same kind of business on the ground of the violation of a trade restriction agreement

[5] Criteria for determining the necessity of preservation in a provisional disposition demanding the prohibition of the same kind of business

[6] Requirements for revocation of provisional disposition due to special circumstances under Article 307 (1) of the Civil Execution Act

[7] The case holding that even if the owner of a store with a designated type of business gains a fixed lease profit by leasing the store to a third party, it is necessary to seek a provisional injunction against the same kind of store that violates the trade restriction agreement

[1] It is reasonable to view that a building company constructed a commercial building to set a type of business and parcel out the position of the buyer of the shop, or the lessee of the shop agreed to accept the obligation of restrictions on the type of business agreed upon by mutual agreement in the sales contract in the mutual relation to the shop occupants, barring any special circumstance. Therefore, in a case where the transferee of the position of the buyer of the shop violates the agreement on the restriction on the type of business set forth in the sales contract, etc., the transferee of the position of the buyer of the shop has the right to claim the prohibition of business of the same type of business in order to eliminate infringement.

[2] The reason why a commercial sales company set forth and sold a specific business to multiple buyers is to activate sales by guaranteeing that the buyers exclusively operate the specific business type, and the buyers have entered into a contract with the selling company on the condition that the designated items are guaranteed. Thus, the obligation to prohibit competitive business as to the designated type of business does not apply only to the buyers, but also to the selling company.

[3] The case holding that the consent of the sectional owner should be obtained on the ground that the contents of resolution by the managing body's meeting which consists of the sectional owners of a building provide that the consent of the sectional owner should be obtained as to the matters which affect the right of the specific sectional ownership, and the designation or change of the type of business affects the right of the specific sectional ownership regarding the category of business in question

[4] The right to claim the same kind of business prohibition on the ground of the violation of the business sector restriction agreement can be asserted against all commercial stores located within the same building that forms the same business district unless there are special provisions in the sale contract or the management organization agreement, or there are other special circumstances.

[5] The provisional disposition seeking the prohibition of the same kind of business is a kind of provisional disposition to determine a temporary position as stipulated in Article 300 (2) of the Civil Execution Act. Such provisional disposition is allowed only when there is an urgent and provisional disposition in order to avoid significant damage to the person having the right to a provisional disposition or prevent an imminent danger before the disputed legal relation becomes final and conclusive by the lawsuit on the merits, or there is any other necessary reason. Thus, even in a case where the creditor is satisfied before the judgment on the merits, the debtor's suffering is significant, and therefore, it shall be careful in recognizing the necessity.

[6] "Where there are special circumstances" under Article 307 (1) of the Civil Execution Act that allows the debtor to provide security and the revocation of a provisional disposition refers to the case where a monetary compensation is provided for the right preserved by a provisional disposition that achieves the purpose of the subordinate country or where the debtor suffers a substantial loss due to the execution of a provisional disposition. Whether monetary compensation is possible or not is determined objectively according to ordinary social norms by taking into account all the circumstances such as the contents of the claim in the lawsuit on the merits in the future and the purpose of the provisional disposition. Whether there is any circumstance that the debtor would suffer a significant loss should be determined by taking into account all the circumstances, such as the type and contents of the provisional disposition, and the maintenance of the provisional disposition is more likely to inflict a loss on the debtor than expected at the time of the provisional disposition.

[7] The case holding that even if the owner of a store with a designated type of business gains a fixed lease profit by leasing the store to a third party, there is a need to seek a provisional injunction against the same kind of store in violation of the trade restriction agreement

[1] Article 105 of the Civil Act, Article 300 of the Civil Execution Act / [2] Article 105 of the Civil Act / [3] Article 105 of the Civil Act / [4] Article 105 of the Civil Act, Article 300 of the Civil Execution Act / [5] Article 300 (2) of the Civil Execution Act / [6] Article 307 (1) of the Civil Execution Act / [7] Article 300

[1] [5] Supreme Court Order 2003Ma482 Decided August 19, 2005 (Gong2005Ha, 1548) / [1] Supreme Court Decision 97Da42540 Decided December 26, 1997 (Gong198Sang, 501) Supreme Court Decision 2001Da4604 Decided August 23, 2002 (Gong2002Ha, 2191), Supreme Court Decision 2002Da45284 Decided December 27, 2002 (Gong203Sang, 506) / [309Du9794 Decided September 24, 2004] Supreme Court Order 97Da20081 decided Sep. 24, 2004

Applicant and Re-Appellant (Law Firm Il, Attorney Yoon Sung-chul, Counsel for the plaintiff-appellant)

Applicant and Other 1 and 3 others (Law Firm Ulil, Attorneys Yoon Sung-sung et al., Counsel for the plaintiff-appellant)

Costbucks and coffee Korea Co., Ltd. and one other (Law Firm Roices, Attorneys Lee Yong-woo et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 2005Ra832, 833 dated February 1, 2006

The part of the order of the court below against the applicant and the re-appellant is reversed, and that part of the case is remanded to Seoul High Court. All reappeals by the respondent are dismissed.

The grounds of reappeal are examined.

1. The measure of the court below

The lower court: (a) it appears that the first floor D10 stores of the Seoul coffee building (name omitted); (b) the lessee, who purchased the said store from the buyers, had the lessee conduct the coffee shop business under the trade name “○○○○; (c) the applicant and the sectional owners who purchased the said shop 14 stores and 35 units on the ground of the instant building; (d) the applicant and the other party 1, the applicant and the other party 2, the applicant and the other party 3, and the other party 4 (hereinafter referred to as the “party 1, etc.”) violated the provisional disposition on the said store 1 and the Plaintiff’s right to request the injunction on the instant case’s sales of the said store 1 and the other party 1 to the instant case’s sales of the instant building (hereinafter referred to as “the other party 1”) to whom the Plaintiff’s right to request the injunction on the temporary disposition of the said store 1 and the other party 4 (hereinafter referred to as “the other party 1”) acquired the instant building’s ownership of the instant building 13 and the Plaintiff’s property.

2. As to the grounds for reappeal by the respondent

A. As to the preserved right

It is reasonable to view that a building company constructed a commercial building to set a type of business and sell the shop by units, and then the transferee or lessee of the shop agreed to accept the obligation of restrictions on the type of business agreed upon in the sales contract with each other in relation to the shop occupants, barring any special circumstance. Therefore, in case where the transferee or transferee of the shop's position violates the agreement on restrictions on the type of business set forth in the sales contract, a person whose business profit is likely to be infringed is entitled to claim the prohibition of the same type of business (see Supreme Court Decisions 2004Da20081, Sept. 24, 2004; 2003Ma482, Aug. 19, 2005; 2003Ma482, Aug. 19, 2005). Thus, it is also applicable to the sales company's duty to prohibit the sale of the shop to the purchaser by guaranteeing the buyer's exclusive operation of the specific type of business, and thus, it can be applied to the sales company's designated 2014.

Examining the record based on the above legal principles, even though the court below did not sell the instant store, and even if the sales company, a sales company, still owned it and trusted the instant store to the Korea Asset Trust, the court below held that the respondent's right to request the prohibition of the same kind of business from the respondent to the sales company and the Korea Investment Trust, the owner of the instant store, and the respondent who leased the instant store, has a duty not to directly operate the coffee shop or to allow a third party to do so at the instant store, and the respondent and the respondent 1, etc. designated the designated type of business as the "cer shop" as the "cer shop" as to their own store in this case, are at the location where the respondent would directly operate the coffee shop in this case or let the third party do so, thereby infringing on the business interest of the above applicant, and therefore, the above applicant has no right to request the same kind of business as the respondent's right to request the prohibition of the same kind of business in order to exclude the infringement of the business interest, and there is no error in the misapprehension of legal principles as to the purport of the business agreement and its purport.

The respondent argues to the effect that the store of this case is not sold in lots, but the store of this case was owned by the Respondent without designating or limiting the category of business from the beginning, and that the establishment of the coffee shop of this case was based on the type of business rather than the violation of the restriction on the category of business. According to the records, the store of this case is not sold in lots, but it is recognized that the Respondent continued to be trusted to the Korea Assets Trust. However, the Respondent's store of this case can not be seen as a store that can carry on all types of business without restricting the category of business from the beginning just because the store of this case is owned by the Respondent, and the Respondent's 1st floor of this case where the Respondent store of this case belongs to the Respondent's store of this case can not be seen as the Respondent's 10th day after the completion of the building of this case and the Respondent's 2th day after changing its business type to the Respondent's ordinary meeting of this case and the 14th day after changing its business type of this case's 20.

Furthermore, although the store of this case was finally changed to the "cat shop" through the approval of the representative committee of the management body on December 27, 2004, prior to commencing the coffee shop business, the category of business was finally changed to the "cat shop". However, according to the regulations of the management body composed of the sectional owners of the building of this case, the contents of the resolution by the management body meeting of this case must obtain the consent of the sectional owners (Article 27 of the management body rules) regarding matters that affect the right to the specific sectional ownership (Article 27 of the management body rules), and matters concerning the designation or change of the category of business are matters that affect the right to the specific sectional ownership on the category of business, so the consent of the relevant sectional owners should be obtained in relation to the designation or change of the category of business. This prohibition prohibits "the use of all or part of the exclusive ownership for the designated purpose and purpose other than the designated type of business without the prior approval of the management body committee." Thus, even if there is a change in the category of business if the representative committee approved, the change to the category of business should still obtain the approval.

In addition, the claim for prohibition of the same kind of business on the ground of the violation of the business sector restriction agreement can be asserted against all commercial stores located within the same building that forms the same business district, except as otherwise stipulated in the sale contract or the management organization agreement, or in exceptional circumstances. Therefore, it is not acceptable to re-appeal the purport that the respondent cannot file a claim for prohibition of business against the respondent because the store of this case, such as the applicant and the other party 1, are located on a different floor, and the customer floor and the type of business are located in the same building.

On the other hand, according to the records, the court below's rejection of the respondent's assertion that the applicant and the other party 1 et al. already consented to or approved the coffee shop business at the instant store, and there is no other evidence to prove it. Thus, the court below's rejection of the respondent's assertion that the applicant and the other party 1 et al. impliedly consented to or approved the coffee shop business cannot accept the reappeal's reappeal.

B. As to the need for conservation

The provisional disposition seeking the prohibition of the same kind of business is a kind of provisional disposition which determines the temporary status as stipulated in Article 300(2) of the Civil Execution Act. In particular, such provisional disposition is allowed as an urgent and provisional disposition only when the person having the right to the provisional disposition has a significant damage or imminent danger, or there are other necessary reasons, between the disputed legal relation and the confirmation of the dispute by the lawsuit on the merits. Thus, even if the creditor is satisfied before the judgment on the merits, it may be deemed that there is a significant damage to the debtor. Thus, the recognition of the necessity thereof should be careful (see Supreme Court Order 97Ma1473, Oct. 14, 1997; Supreme Court Order 2003Ma482, Aug. 19, 2005, etc.).

In light of the reasoning of the judgment below and the records, the current status of the commercial zone in the building of this case, the location of the "△△△△" store operated by the applicant and other party 1, and the type of business and the sales situation of the "△△△△△" store of this case, and the types of coffee shop operated by the respondent in the store of this case, the authorization of the coffee shop operated by the respondent bucks, and other circumstances, etc., the court below held that the respondent bucks continued to operate the coffee shop with the trade name "Suckbbs" in the store of this case, where the respondent bucks continues to operate the coffee shop of this case, the "△△△△" store and the "△△△△" store of this case can be deemed to have sustained specific and immediate damages, such as considerable decrease in sales, the escape of fixed customers, and the decrease in personal guidance. Thus, it is sufficient that the respondent bucks need not be concluded that the respondent's losses incurred by the suspension of business in this case's store of this case, or the risk of monetary compensation can be accepted.

C. As to the revocation of provisional disposition by special circumstances

The term "where there are special circumstances" under Article 307 (1) of the Civil Execution Act, which can provide a security and revoke a provisional disposition, means a case where the right to be compensated by the provisional disposition may reach the objective of the subordinate country by monetary compensation, or where the debtor is particularly suffering a serious loss due to the execution of the provisional disposition. Here, whether monetary compensation is possible or not shall be objectively determined in accordance with social norms by taking into account all the circumstances such as the contents of the claim in the principal lawsuit in the future and the purpose of the provisional disposition. Whether the debtor is particularly suffering a significant loss should be determined in accordance with social norms by comprehensively taking into account all the circumstances such as the type and contents of the provisional disposition, etc., and whether maintaining the provisional disposition is harsh and fair to the debtor as it is likely to suffer a loss much more than that anticipated at the time of the provisional disposition (see Supreme Court Decisions 91Da31210, Apr. 14, 1992; 9Da21818, Mar. 14, 1997, etc.).

Based on the above legal principles, the court below is just in rejecting the respondent's assertion on the ground that the materials submitted by the respondent alone cannot be deemed to exist due to the special circumstances in the provisional disposition decision of this case, and there is no error in the rules of evidence as to the existence of the special circumstances required for the grounds for reappeal or in the misapprehension of legal principles as to the provisional disposition disposition due to special circumstances.

3. As to the ground for reappeal by the applicant and the re-appellant

A. It cannot be deemed that the same claim against the other party in violation of the business sector restriction agreement has the nature as a quasi-property right beyond the creditor's right to claim the prohibition of business. In addition, in a preservative measure, the requirement of preservation right and the necessity of preservation is separate from the independent requirement, so it is necessary to separately consider whether the requirement is met in the case of a provisional disposition seeking the prohibition of business based on the same kind of business prohibition right. In the case of the above provisional disposition, unless there are special circumstances where the preserved right is acknowledged, the necessity of preservation is not recognized. Therefore, the appeal against the judgment of the court below on the different premise is not acceptable.

B. However, the order of the court below that revoked on the ground that there is no vindication as to the necessity of preserving the provisional disposition order against the above applicant is difficult to accept.

According to the records, the applicant and the re-appellant operated the coffee shop at the stores on the first floor of the underground level, and around February 2005, he leased the above store to the Paris Croat Co., Ltd. (hereinafter “ Paris Croat”), with the lease deposit of KRW 300,000 won, monthly rent of KRW 500,000,000, and the lease period of five years, and the Paris Croat runs the coffee shop business at the above store. Thus, even though the respondentbucks run the coffee shop business, the respondent's sales of the "○○○○○" store has decreased and the sales of the "O○○○" store has decreased and the business revenue on the Paris Croas has decreased, regardless of such circumstances, the applicant and the re-appellant seems to have obtained the fixed lease profit of KRW 5,00,000 per month for a long period.

However, if the applicant and the re-appellant cannot seek measures to suspend the business of the coffee shop in violation of the business sector restriction agreement within the same commercial building because he/she was the owner of the store "○○○○○○" shop, and thus, he/she could not seek prompt measures to suspend the business of the coffee shop, the location of the store or the recognition as the coffee shop, which appears to be superior to the store "○○○○○○" shop leased by the above applicant in terms of the location of the store and the recognition as the coffee shop, is not limited to losses such as the lessee's decline in sales, the request for change of the terms and conditions of the lease, the cancellation of the lease contract, such as the reduction of the tenant's monthly rent to the above applicant, and the request for compensation for damages in the event of the lessor's failure to take appropriate measures as the lessor's owner, and such losses are more likely to increase and deepen the time required for the principal lawsuit. In addition, it is clear that the respondent's losses are likely that both the respondent and the above respondent's losses can be determined to continue the business of this case.

Nevertheless, the court below decided otherwise on the ground that there is a lack of vindication of the necessity for preserving the applicant and the re-appellant, and revoked the decision of the court of first instance and the decision of provisional disposition against the above applicant, and dismissed the above applicant's application for provisional disposition. Such decision of the court below is erroneous in the misapprehension of the legal principles as to the violation of the rules of evidence or the necessity for preservation, and thus, it cannot be exempted from reversal of this part. The appeal

4. Conclusion

Therefore, among the judgment of the court below, the part against the applicant and the re-appellant is reversed, and that part of the case is remanded to the court below for a new trial and determination. All reappeals by the respondent are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)