(영문) 대구지방법원 김천지원 2018.10.26 2018가합15881

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(영문) 대구지방법원 김천지원 2018.10.26 2018가합15881

회사에 관한 소송

Text

1. The claim of this case is dismissed.

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

Reasons

1. On May 28, 2014, the Plaintiff and the Defendant’s representative C agreed that “if the Plaintiff operates the Defendant’s records business for three years, and pays 10% of the sales amount to the Defendant, the Defendant shall transfer the records business unit to the Plaintiff after three years.”

The Plaintiff operated the Defendant’s records management division for three years thereafter, and paid 10% of the sales to the Defendant.

Therefore, the defendant is obligated to transfer the records business register to the plaintiff, and the transferee of the business shall not engage in the same kind of business in accordance with the duty of prohibition of competition.

2. According to the statement and voice evidence Nos. 1 to 5 of the judgment, the Plaintiff performed the Defendant’s records business division for more than three years, and recognized the fact that the part of the sales belonged to the Defendant.

However, each of the above evidence and evidence Nos. 6 can only be acknowledged as having been in the process of consultation on the transfer of the Defendant’s records business division by the Plaintiff and the Defendant’s representative, and it is insufficient to find that there was a specific agreement on the content of the contract even the transfer of business, such as the time of business transfer, the price and the payment method, etc.

[Additionally, in order for the Defendant to transfer a part of his business, the resolution of the board of directors (Article 393(1) of the Commercial Act) or the resolution of the general meeting of shareholders (Article 374(1) of the Commercial Act) is required. According to each description and voice of the evidence Nos. 4 and 5, it appears that the Defendant did not undergo such procedures and the Plaintiff was aware of such fact. Thus, even if an agreement was reached between the Plaintiff and the Defendant’s representative on the transfer of the records business book, it is difficult to conclude that the Defendant is immediately obligated to transfer the records business book to the Defendant. Therefore,

3. In conclusion, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

참조조문

-상법 제374조 제1항

-상법 제393조 제1항

유사 판례

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-대법원 2015.04.23 2014다218863

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