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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. On July 18, 2015, the Plaintiff, on the premise, took over “D” located on the Seo-gu C and the first floor from the Defendant on a conditional basis (hereinafter “instant franchise store”).
The defendant filed a lawsuit against the plaintiff for the claim for the agreed amount under the above underwriting contract (this court 2015da35963), and the court of first instance rendered a judgment on May 26, 2016 that "the defendant (A) shall pay the plaintiff (B) KRW 183,550,000 to the plaintiff."
On March 14, 2017, the Daejeon High Court (2016Na781), which appealed against the judgment of the first instance, dismissed the Plaintiff’s appeal on April 21, 2017, and did not file an appeal by the Plaintiff, which became final and conclusive around that time.
[Reasons for Recognition: Facts without dispute, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings]
2. Determination on the claim
A. The gist of the Plaintiff’s assertion that “The above final judgment was based on the premise that the Defendant transferred the instant franchise store to the Plaintiff.” Since the Defendant operated a dental franchise store using the trade name named “E” from June 2017 where the instant franchise store was located, the Defendant is prohibited from transferring the instant franchise store under an underwriting agreement to the Plaintiff. Moreover, the instant franchise store is unable to be transferred to the Plaintiff without permission of F Co., Ltd. (hereinafter “the headquarters”). Since the Defendant did not have obtained prior approval on the transfer from the head office, and as the Defendant attempted to transfer the instant franchise store to the Plaintiff even though the Plaintiff could not transfer the instant franchise store to the Plaintiff, it constitutes nonperformance of performance. As such, the Defendant sought compulsory execution, such as continuing to file a claim for implementation solely on the ground that the final judgment existed, and this constitutes abuse of rights under the final judgment, thereby seeking the exclusion of enforcement by filing a claim objection.
B. Contrary to the Plaintiff’s assertion.