영업양도인의 경업금지의무 - 대법원 2015. 9. 10. 선고 2014다80440 판결에 대한 평석

Abstract

Business transfer is a process involving the transfer of business from one party to another, whilst maintaining business identity. The Commercial Act provides for the duty of non-competition when a person has transferred his/her business, unless otherwise agreed upon (Article 41). There have been cases where the lower courts’ interpretation of the aforementioned Article went beyond the contextual scope. But in 2015, the Supreme Court rendered a decision which appeared to have disregarded the Article’s language from a teleological interpretative standpoint. Accordingly, this paper reviews Supreme Court Decision 2014Da80440 Decided September 10, 2015, which is the first ruling that prescribed the criteria for setting the geographic scope of non-compete among businesses identical in nature. In the above case, the Supreme Court held that “businesses identical in nature subject to a non-compete restriction pursuant to Article 41(1) of the Commercial Act refers to a business that is likely to compete with a transferred business,” and that “the geographic scope of non-compete should be determined based on the area where a transferor usually conducted business activities.” However, such interpretation goes beyond the Article’s linguistic meaning. That being said, the broad application of a business transferor’s duty of non-competition may appear as if the Supreme Court put more emphasis on the protection of a business transferee. If a business transferor’s duty of non-competition is viewed as a requirement to be included into a business transfer contract, the applicable scope of such duty should be treated carefully in terms of equivalence between contractual parties. As seen in the aforementioned case, broader application of the duty of non-competition is likely to increase the benefits in transferring a business while reducing the benefits in return for accepting a business. In short, it may generate losses on the part of a business transferee rather than protect the transferee (which the Supreme Court intended through the ruling). Accordingly, this paper suggests that the Supreme Court, while continuing to apply the duty of non-competition in accordance with the provisions under the Commercial Act, shift its position by letting the contractual parties draw up separate agreements in cases of broadly applying the scope of duty.