Kim So-young and four others (Law Firm Yusung, Attorney Yoon Sung-il, Counsel for the plaintiff-appellant)

Costbucks and coffee Korea Co., Ltd. and 1 (Law Firm Shump, Attorneys Han-soo et al., Counsel for the plaintiff-appellant)

Seoul Eastern District Court Order 2005Kahap1982, 1991 (Consolidated) dated October 5, 2005

1. Revocation of the part concerning an applicant's application for provisional disposition in the first instance decision;

2. On August 16, 2005, the Seoul East Eastern District Court 2005Kahap1546, the provisional disposition order was revoked by the above court as to the case of provisional disposition for prohibition of business among the applicant and respondent.

3. The applicant's request for provisional disposition of this case is dismissed.

4. The respondent's appeal against the applicant's objection, Kim Young-bak, Lee Dong-ho and Cho Jong-ho is dismissed.

5. Of the total litigation costs, the costs incurred between the applicant, So-young and the respondent shall be borne by the applicant, and the remainder of the costs incurred between the applicant and the respondent shall be borne by the respondent.

Claimants: The Seoul Eastern District Court 2005Kahap1546 decided on August 16, 2005 (hereinafter “instant provisional disposition order”) shall authorize the above court's provisional disposition order on August 16, 2005 (hereinafter “instant provisional disposition order”).

The respondent shall revoke the decision of the first instance court. The decision of the provisional disposition in this case shall be revoked, and all of the applicants shall be dismissed.

1. Determination of provisional disposition of this case

On August 16, 2005, the applicant applied for a provisional injunction against the respondent as Seoul Eastern District Court 2005Kahap1546, the Seoul Eastern District Court 2005Kahap1546, and on which the above court accepted the applicant's application, and on August 16, 2005, the above applicant deposited 50 million won as joint security for the respondent, or submitted a payment guarantee entrustment contract contract document with each of the above amounts as the insurance amount, the respondent corporation, the Respondentbucks Korea shall not perform any act related to the sale of coffee, such as the sale of coffee and coffee, the notice of the mate 21th, 004, Seoul Gwangjin-gu, Seoul Special Metropolitan City, and the execution officer shall not make any permission, lease, transfer or other disposition related to the business rights and activities under the preceding paragraph to the third party, and the execution officer shall make a provisional injunction to the court that the above order should be publicly notified in an adequate way (this case's provisional injunction).

2. Basic facts

According to the records of this case, the results of the examination of this court and the results of on-site inspection, the following facts are substantiated.

A. The building of the 546-4 Gu, Gwangjin-gu, Seoul Special Metropolitan City (hereinafter referred to as the “instant building”) is divided into the 6th underground floor and the 39th floor above the ground, and the 39th floor above the building, and the 10th floor from the 10th floor to the 10th floor (the 10th floor has the 11 screening house), and the 10th floor office is the 1st to 39th floor office.

B. From February 2001, the applicant So-young operated a coffee shop from the 1st floor D010 store underground of the building of this case at the time of the sectional owner, and purchased the above store from the above fambling heat on May 2003, and became the sectional owner of the above store. On February 2005, the applicant agreed to lease (30 million won for lease, five million won for monthly rent, and five years for lease) the above store to the Paris Croat Co., Ltd. (hereinafter referred to as the “ Paris Croat”) (hereinafter referred to as the “Frocco shop”), and now, the lessee operates the coffee shop with the trade name “Pscoo” at the above store (hereinafter referred to as the “Frocco shop”).

C. Around April 1995, the applicant Lee Sung-woo is the sectional owner of the said shop that purchased the 9th floor of the building of this case at the 014th floor of the building of this case, and currently conducts a coffee shop business in the trade name of "Tpan" at the said shop (hereinafter referred to as "Tpan shop").

D. The co-owners of the above stores who purchased the 9th floor of the building of this case around February 1997, the applicant Cho Ho-ho, Kim Young-g, and Lee Dong-young, are currently running a coffee shop in the above stores with the trade name, "Sa home" (hereinafter the above stores referred to as "Sa home store").

E. The so-called “cuba shop, Epha shop, and Costa Home shop” have been sold at each time of sale by setting the designated type of business as “cuba shop,” and according to each sales contract, the designated type of business must be opened to the designated type of business as indicated in this sales contract, and the type of business shall not be arbitrarily changed even after the opening of the contract.”

F. Nos. 003 and 004 of the first floor of the instant building (hereinafter “instant store”) is in fact a store owned and managed by the company other than the filing company of the instant building, which is the sales company of the instant building, and is owned and managed by the company other than the filing company of the instant building (hereinafter “FD industry”), but the HD industry entrusts the instant store to the Korea Asset Trust Co., Ltd. of the respondent (hereinafter “LD”) and the respondent is currently the owner of the instant property trust.

G. On May 4, 2005, the respondent Co., Ltd., Ltd. (hereinafter referred to as the “Lonebucks”) entered into a license agreement with the Lonebucks and coffee Korea (16% of the net sales) with the instant store for five years (from May 29, 2005 to May 28, 2010) to use the instant store for sales business, such as coffee and beverages, and around that time, he entered into a license agreement with the Lonebbucks and opened the instant store with the trade name of Lonebbucks and opened the coffee store around July 10, 205 to sell coffee and beverages, etc., and due to the instant provisional disposition decision, the above business was suspended from August 18, 2005.

H. After the completion of the building in this case, the store in this case owned, managed, and was first used as the exhibition and public relations center for the first time. On August 200 to November 11, 200, the designated type of business of this case changed from the designated type of business of this case to the “scambling, mixing, and guarding.” On April 16, 2001, the 18th regular meeting of the 4th representative management body of the building in this case changed the designated type of business of this case from the 18th regular meeting of the 4th representative management body of the building in this case to the “scambing,” and on December 27, 2004, the 7th representative management body of the 7th representative management body of the building in this case changed the category of business of this case to the “scam shop.”

I. Around April 2001, the off-line industry changed the designated type of business of the instant store to “spawroom,” and leased the instant store to Espaw, and the said Espaw has run the coffee shop business in the instant store. On April 2004, the applicant So-young applied for a provisional injunction against the said Espaw shop to the Seoul East Eastern District Court for a provisional injunction against the instant store, and on August 18, 2004, the said court accepted the applicant’s request for provisional injunction against the said Espaw shop and rendered a provisional disposition (Seoul Eastern District Court 2004Kahap617) to prohibit the sale of the instant shop, such as coffee, at the instant store (Seoul Eastern District Court 2004Kahap617).

(j) According to the management body regulations that consist of sectional owners of the instant building, the Act prohibits “using all or part of the exclusive ownership for the purpose other than the designated purpose and the type of business without prior approval of the representative committee” (Article 11 subparag. 4 of the management body regulations), and stipulates that the resolution of the management body meeting shall be obtained from the relevant sectional owners regarding the matters that affect the right of the specific sectional ownership (Article 27 of the management body regulations).

3. Causes of the formal objection and a summary of the grounds for appeal;

The respondent asserts that the decision of the provisional disposition of this case is revoked due to the following reasons, and that all of the applicants' applications for provisional disposition of this case should be dismissed.

A. As to the preserved right

(1) In light of the contents of the sales contract for the stores in the building of this case and the contents of the regulations on the management body of the building of this case, the buyers of the stores in this case are only obligated to open the stores in this case to their own designated type of business, and there is no provision that they cannot operate the same kind of business as the designated type of business in the building of this case. Therefore, the applicants have exclusive rights to the designated type of business in the building of this case, or the owners or lessees of other stores have the right to prohibit the operation of the coffee shop in another shop, and even if the applicants have the right to claim the prohibition of business in this case against the other stores, such right to claim the prohibition of business in this case is acknowledged between the buyers designated for the category of business and the buyers of this case, and even if the respondent did not own the stores in this case without the fact that the stores were sold in this case, the applicants' right to request the prohibition of the use of the stores in this case and the applicants' right to request the prohibition of the use of the stores in this case can be different from each of the above third parties.

(2) On December 27, 2004, at the representative committee, the executive body within the management body meeting of the building of this case, the designated type of business was legitimately changed to the "dyp shop", and the respondent has a legitimate right to conduct the coffee shop business at the shop of this case. Accordingly, the applicants cannot claim against the respondent the prohibition of coffee shop business at the shop of this case.

(3) The applicants already consented to or approved the coffee shop business in the instant store. As such, the applicants cannot claim against the respondent the prohibition of coffee shop business in the instant store.

B. As to the need for conservation

(1) The respondent's business losses due to the applicant's conduct of coffee shop business at the store of this case are either nonexistent or are limited to the extent that the applicant's business losses are entirely nonexistent, and the damages can be secured by monetary compensation. On the other hand, the respondent's Lonebbbs suffered from enormous damages equivalent to an average of at least three million won per day due to the suspension of the above coffee shop business, while the respondent suffered enormous damages, such as the suspension of the above coffee shop business, and considerable damage to the personnel guidance and public confidence of the Lbuck shop, which is chain store. In light of these circumstances, the application for provisional disposition of this case does not need to be preserved.

(2) In particular, in the case of the applicant- So-young, the applicant leases his store to a third party to obtain rent monthly, and thus, the respondent does not have any damage due to the Respondent's act of the coffee shop at the instant shop. Even if the Respondent suffered damage, there is no need for urgent conservation to the extent that it should prohibit the coffee shop business at the instant shop.

(3) In addition, even before the respondent set up a buckbucks shop in the instant store, the applicants have long been prevented from doing the coffee shop business at the instant store. If so, there is no urgent need to prohibit the instant shop shop business through a provisional disposition setting forth temporary status.

C. Regarding the cancellation of provisional disposition due to special circumstances

As seen earlier, the claimant's damages can be ultimately satisfied with monetary compensation, while the respondent may incur much more damage than ordinary damages due to the decision of provisional disposition of this case. Thus, the decision of provisional disposition of this case exists as a ground for revocation of provisional disposition according to special circumstances stipulated in Article 307 (1) of the Civil Execution Act, and therefore the decision of provisional disposition of this case should be revoked.

4. The judgment of this Court

A. Determination on the preserved right

(1) Generally, a building company and a sales company have constructed and sold a commercial building for each shop after designating the position of the buyer of the shop, barring any special circumstance, a person who takes over the position of the buyer of the shop shall be deemed to have agreed to accept the obligation of restrictions on the type of business agreed upon in the sales contract with each other, barring any special circumstance. Thus, a person whose business profit is infringed by the violation of the business sector restriction agreement has the right to claim the prohibition of business of the same type of business to exclude infringement. The reason why the seller of the commercial building set a specific business to the buyer of the commercial building is to activate the sale by guaranteeing that the buyer exclusively operates the specific type of business, and the buyer of the commercial building entered into a contract with the sales company on the premise that the sale price is guaranteed by the designated item. Thus, the duty of prohibition of competitive business to the designated type of business is not applied only to the buyer (see, e.g., Supreme Court Decisions 203Ma482, Aug. 19, 2005; 2014>

In the case of this case, even if the above legal principles and the records of this case (including the results of examination and on-site verification; hereinafter the same shall apply) are explained by the applicant's stores in the building of this case, the contents of the sales contract at the time of the sale, the status of the management body of the building of this case, the status of the Respondent and the Respondent Korea Asset Trust in the building of this case, the status of the applicant's business consent in the building of this case, the location of the store of this case, the type of business and the business situation of the Respondent's store of this case, and other various circumstances, etc., even if the Respondent's store of this case was not sold and the Respondent's sales contract of this case was trusted to the Respondent's asset trust without holding it, the Respondent's right to request the Respondent's business profit from the Respondent's sales and the Respondent's sales contract of this case to the Respondent's sales company of this case and the Respondent's investment trust and the Respondent's store of this case.

In addition, such a claim for prohibition of the same kind of business can be asserted against all stores located within the same building unless otherwise stipulated in the sale contract, the management body agreement, etc., or there are other special circumstances. Thus, the respondent's claim that the applicant has no right to claim the cessation of the coffee shop business against the other stores within the building of this case, at least the respondent has no right to claim the prohibition of business against the respondent, or that the applicant has no right to claim the prohibition of business, or that the applicant has no business profit infringed.

(2) According to the records of this case, the representative committee, which is the executive body within the managing body's meeting of the building of this case, changed the designated type of business to the "cer shop" on December 27, 2004. However, in light of the purport of Article 29 of the Act on the Ownership and Management of Aggregate Buildings or the purport of the provisions of the management body's regulations as seen earlier, etc., the designation or change of the designated type of business of this case to the "cer shop" was already affected by the rights of the applicants, who are the specific sectional owners to whom the store of this case was sold in lots or to whom the status of the buyer was taken over, and as such, there was no evidence supporting that the applicants consented to the designation or change of the designated type of business of this case to the "cer shop" as above, the designation or change of the designated type of business of this case's store of this case has no effect on the applicants, and therefore, the respondent's assertion on this part is rejected.

(3) In addition, even if the respondent’s whole data submitted at the first instance trial and the trial, it is insufficient to vindicate that the applicant already consented or consented to the establishment of a coffee shop at the instant shop (the mere fact that the applicant is conducting sales business, such as coffee, with the consent or implied consent of the applicant at some other stores within the instant building does not necessarily mean that the applicant consented to or impliedly consented to the coffee shop at the instant shop). Thus, the respondent’s above assertion is not accepted.

B. Determination on the necessity of preservation

In all false preservative measures, it is necessary to vindicate the existence of the right to be preserved and the necessity for preservation. This two requirements are separate requirements, regardless of the trade name. Thus, even in the case of the application for provisional injunction seeking the prohibition of the same kind of business, the necessity of preservation should not be clearly explained, and it is necessary to independently examine the necessity of preservation. Furthermore, the provisional injunction seeking the prohibition of the same kind of business as this case is a kind of provisional injunction determining the temporary position as stipulated in Article 300(2) of the Civil Execution Act. In particular, such provisional injunction is allowed as an urgent and provisional disposition only when the disputed relation is determined by the lawsuit on the merits and there are other necessary reasons to prevent the present significant damage or imminent danger, and it can be deemed that there is a significant damage to the debtor, so the recognition of such necessity should be careful (see Supreme Court Order 203Ma483, Aug. 28, 2005, etc.).

In this regard, this paper examines whether the need to preserve the application for provisional disposition of this case is sufficiently substantiated.

(1) As to the applicant’s application for provisional disposition

In the case of the petitioner's So-young, the existence of the right to preserve the claim for provisional disposition of this case is clearly explained. On the other hand, the applicant's So-young is entitled to lease 5 million won per month from the Paris cream from around February 2005 to the Paris cream, and it receives rent 5 million won per month from the time of the lease from the Paris cream. Thus, even if it is assumed that the respondent's sales at the store of this case reduces in the Paris cubbox because the respondent's sales at the coffee store of coffee cubs, regardless of such circumstances, it seems that the applicant's So-young will still obtain fixed rent 5 million won per month regardless of such circumstances (the respondent's necessity of business act at the store of this case to terminate the above lease contract with the Paris cub, or there is no possibility that the respondent may reduce the above lease contract with the Paris cub because of the respondent's necessity of business act of this case, and there is no possibility that the respondent's remaining in the first instance court's decision and other data are presented.

(2) As to the applicant's application for provisional disposition of Lee Sung-woo, Kim Young-ju, Lee Dong-ho, Cho Young-ho

In light of the current status of the store's consent in the building of this case, the location, types of business and circumstances of the store and the store's business in this case, the Respondent's business operation type and operation situation operated by the Respondentbbbbs in the store of this case, the authorization guidance of the Respondentbs chain operated by the Respondentbs, and other circumstances, etc., when the Respondent continues to operate the coffee shop with the trade name of the Respondentbbbs in this case, it seems that the Respondent will continue to cause significant decrease in sales and fixed customers' escape, and the Respondent's personal guidance of the Respondent shop and the store's dumbs shop of this case's building of this case's building of this case's case's building of this case's building of this case's building of this case's building of this case's building of this case's building of this case's building of this case's case's building of this case's building of this case's case's case's case's case's building of this case's trade of this case.

In addition, even when considering all the data submitted by the respondent at the first instance trial and the trial, it is insufficient to vindicate that the applicant has been able to play a coffee shop business for a long time at the store of this case (the respondent's assertion that there is no other evidence to prove that the applicant has been neglecting the coffee shop business at the store of this case on the sole basis of the fact that some other stores within the building of this case are conducting sales business, such as coffee with the consent or implied consent of the applicant). Thus, the respondent's argument that there is no need to preserve the application for provisional disposition of this case on this premise is rejected.

C. Whether provisional disposition is revoked due to special circumstances

As seen earlier, if the respondent continues to operate the coffee shop in the store of this case, it cannot be concluded that the respondent has not been able to suffer losses due to the suspension of the coffee shop business at the store of this case, or that the respondent can obtain all monetary compensation after the suspension of the coffee shop business at the store of this case. In addition, even when the respondent takes full account of all the materials submitted at the court of first instance and the trial, it is insufficient to prove that the respondent has a circumstance much more than ordinary damages due to the decision of provisional disposition of this case, and there is no other evidence to prove it. Accordingly, the decision of provisional disposition of this case does not exist the grounds for revocation of provisional disposition due to special circumstances stipulated in Article 307 (1) of the Civil Execution Act, and therefore, the respondent's above assertion is rejected.

5. Conclusion

Therefore, since the applicant's application for provisional disposition of this case is insufficient to prove the necessity of the preservation, the part concerning the applicant's So-young among the decision of provisional disposition of this case is revoked and the above applicant's application for provisional disposition of this case is dismissed, and since the application for provisional disposition of this case of this case is well-grounded, the applicant's objection, Kim Young-gm, Lee Jong-young and Cho Jong-kon are sufficient to explain the right to be preserved and the necessity of preservation, the part concerning the above applicant among the decision of provisional disposition of this case of this case of this case of this case of this case of this case of this case of which conclusion is different, the respondent

Therefore, among the first instance court's decision, the part concerning the application for provisional disposition of the applicant's So-young is revoked, and the application for provisional disposition of the applicant's So-young is dismissed, and the respondent's appeal against the applicant's Lee Sung-woo, Kim Young-g, Lee Dong-g and Cho Jong-k is dismissed. It is so decided as per

Judges Jeon Soo-ahn (Presiding Judge)