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

The reasoning of the court's reasoning concerning this case is as follows: (a) the "Korea-Japan Consortium" of the first instance judgment No. 16, 12 shall be amended to "Korea-Japan Consortium"; and (b) the " Jun. 18, 2008" of the 19th 19th 19th 19th 19th 19th 19th 209 to " Jun. 18, 2009"; and (c) the plaintiff's argument and judgment on the case are the same as the corresponding part of the first instance judgment, except for addition or supplement as stated in the second 2. and 3th

2. Claim that there exists “justifiable cause” in the request for change of transaction terms and conditions and the failure to conclude a final contract.

A. The plaintiff's assertion

As in the instant case, the acquisition procedure of the so-called "work-out company" where restructuring is conducted by creditor financial institutions is different from the acquisition procedure of the rehabilitation company by each seller to the creditor financial institutions and the receiver of the rehabilitation company. The sale method differs from that of the creditor financial institutions, and the former differs from the sale of old shares and new shares. While the former is highly likely to cause contingent debts, the latter is less likely to cause contingent debts because the unreported rehabilitation claim is forfeited through the rehabilitation procedure. Although the acquisition of the work-out company is not different from the general acquisition procedure, the acquisition procedure imitates the rehabilitation acquisition procedure to the effect that the scope of the adjustment of the acquisition price is narrow and significant negative changes, and imposes unfair regulations on the buyer by abusing the superior position of creditor financial institutions, such as the seller's statement and guarantee clause of the assets of the target company.

For the above reasons, although the acquisition of a company from the workout company has an important meaning, the provisions that conclude a final contract until December 29, 2008, even if the verification room is not completed due to the coercion of the defendant Industrial Bank, and the provisions that confiscate performance guarantee, which is a simple area, only the buyer when the violation of the above provisions is committed. In principle, in light of the fact that it is a provision on the MOU without legal binding force, and that the contents of the contract impose a significant responsibility on the other party, the provisions on the forfeiture of performance guarantee should be interpreted in accordance with strict standards.

The requirements for forfeiture of performance guarantee under Article 12 (2) 4 of the MOU of this case are insufficient only to the effect that “the buyer makes a reply contrary to the contents notified in writing to the seller as the final position of the buyer on the present bid proposal, this MOU, and the terms of this transaction.” The requirement that the final contract should not be concluded until December 29, 2008 without justifiable grounds, and that there is no justifiable reason should be proved by the Defendants as one of the requirements for forfeiture of performance guarantee.

However, ① as a surplus of the global economic crisis in 2008, derivatives trading losses of the target company were more than 1.5 times the previous cumulative derivatives trading losses amounting to 2,31.4 billion won, and around December 2008, net cash assets amounting to 1.5 billion won or more than the end of June 2008, and the Defendants were expected to suffer a shortage of funds amounting to 2.30 billion won in the target company in 2009 due to the depression of the shipbuilding industry, such as the suspension of new orders and cancellation of existing orders. Therefore, in light of the above principles of trust and good faith, the Defendants were required to enter into negotiations before and after the conclusion of the agreement on the increase of the target company's shares, which were inevitably calculated by the agreement on the increase of the target company's assets amounting to 2.3 billion won in consideration of the fact that the Defendants had an obligation to provide additional funds amounting to 300 billion won in consideration of the increase of the target company's assets amounting to 200 billion won.

B. Determination as to the meaning and unfairness of the MOU of this case

In general, prior to the final conclusion of the contract, a document that prepares the contents or the framework of the agreement between the parties with respect to the negotiations or the contents of the agreement was concluded in a non-legal binding form. However, if the possibility of the occurrence of contingent obligations is relatively low as a result of restructuring or rehabilitation procedures, such as the acquisition of a company or a rehabilitation company in Korea, while a large-scale public fund is required as a sale procedure of an enterprise with a large-scale public fund, and the necessity of compelling the conclusion of a contract to a preferred bidder selected through competitive bidding from a large number of applicants for acquisition is important, it is common to enter into a written understanding that is legally binding prior to the conclusion of the final contract. Such understanding is possible to have a variety of spectrum prior to the conclusion of the contract. If it is equal to the economic status, capacity, negotiating power, and legal issues of the parties, it should respect the agreement between the private parties as a territory of the parties, rather than the territory that requires guardianship interference or protection of the court.

In the course of the corporate restructuring procedure by creditor financial institutions, the principal creditor bank or the council of creditor financial institutions shall, in consultation with the relevant enterprise, have the relevant enterprise showing signs of insolvency undergo an appraisal of its assets, liabilities, actual assets, and the continuation as a continuing enterprise from an external specialized institution, such as an accounting firm, appointed in consultation with the relevant enterprise, to disclose the non-performing assets or liabilities of the relevant enterprise. The creditor financial institutions may either commence the joint management procedure of creditor financial institutions, or may request the relevant enterprise to dispatch the funds manager to obtain approval in the course of performing the principal business, such as fund management (Article 11(1) and 13(3) of the former Corporate Restructuring Promotion Act, and the said Act was enacted after the commencement of the workout program for the target company, but it is presumed that the workout program for the target company was similar thereto).

On August 23, 2000, due to the economic crisis that became due at the end of 1998, the workout program was initiated for the Daewoo Heavy Industries. On October 23, 200, the above company was divided into three companies, including the target company. The Defendants converted the total amount of claims to the target company on December 14, 2000, into equity investment of KRW 987.9 billion. The Defendants exercised their influence as shareholders after the target company completed the workout program on August 26, 2001, as shareholders after the completion of the workout program, and the target company bears the duty of disclosure on important matters that affect the business operation, production, financial structure, etc. of the target company. In full view of these circumstances, there is no dispute that the target company bears the duty of disclosure on important matters that affect the business operation, financial structure, etc. of the company, and in particular, in the case of the target company, the possibility of occurrence of contingent liabilities or insolvency is very low.

In light of the above characteristics of the acquisition of the workout company, there is no statement or guarantee of the asset value of the company in question, or the scope of the price adjustment limit is limited (limited to the limited consensus that reduces the scope of adjustment that was 5% of the purchase price at the time of the bidding in order to obtain the status of a priority purchaser, and the Plaintiff’s assertion that the scope of adjustment of the purchase price is narrow is reasonable), the existence of the provision on forfeiture of penalty or penalty for breach of contract, and the cancellation of contract when significant changes occur, cannot be readily concluded to be an unfair agreement solely based on the absence of provisions, such as the cancellation of contract.

Article 3(2) of the Understanding of this case provides that "No. 4 shall be legally binding between the seller and the purchaser." According to Gap evidence 69, Eul evidence 6-1, Eul evidence 34-1, and non-party 1 and 2's testimony (excluding the parts not trusted in the future) of the non-party 1 and the non-party 2 after the conclusion of the above 9-year Agreement, the KIF shall be deemed to have been given the highest level of advice from domestic law firm's legal advice and global investment advisory advice and advice for the conclusion of the 9-year Agreement, and it shall not be concluded until the end of the 20-year Agreement, even if the non-party 2 concluded the above 9-year Agreement, and it shall not be concluded until the end of the 208-year Agreement." Even if the non-party 1 and the non-party 2 wished to conclude the 9-year Agreement, it shall not be concluded by the end of the 2008-year Agreement.

Therefore, it is reasonable to interpret that the instant MOU was concluded in a state of sufficient legal, accounting and financial review between the equal parties, and that the text of the MOU itself reflects the intentions of the parties.

(c) Relationship between the confirmation room and the final contract, and the conclusion of transactions;

Even if an accurate assessment of corporate value is made through the verification agency in the corporate acquisition transaction, the verification agency should not necessarily be prior to the conclusion of the final contract, and in the principle of private autonomy, it can be determined after the conclusion of the final contract according to the parties' will.

Examining each provision of the instant MOU organic relation, the buyer shall pay a performance guarantee equivalent to 5% of the purchase price (the tender proposal submitted by the buyer) within three business days from the bank day immediately after the date of the conclusion of the instant MOU (hereinafter “business day”) (Article 4(1) and the buyer may, upon paying the performance guarantee, make an inspection of the target company and its affiliated companies for three weeks from the date of mutual agreement (Article 5(1)); the buyer shall present a written request for price adjustment within five business days from the date of the first completion of the verification inspection (Article 6(2)); or the buyer shall not have completed the adjustment of the purchase price under Article 6 or any other adjustment procedure under Article 7(1) through (3); the buyer shall not have completed the final contract (Article 7(1) and any final contract (Article 4(2)); and the buyer shall not be completed until the date of the confirmation or completion of the final contract (Article 9(2)); and the buyer shall not have completed the procedure for the confirmation or completion of the final contract (3).

In light of the above facts and evidence, the Defendants shared the perception that the Defendants could delay the verification room due to the lack of the capacity of the labor union of the subject company at the time of conclusion of the instant MOU. 2, the Defendants are obliged to adjust the sales price to 3% or less, and the Defendants are not obliged to conclude the final contract by 20% or less, even if the Defendants concluded the final contract with 20% or less, by 10% or less of the date of conclusion of the final contract, notwithstanding the period of about 45 days from November 29, 2008, which is the date of conclusion of the final contract, the date of conclusion of the instant MOU. 2, which is the date of conclusion of the instant MOU. 20. In light of the fact that, even if the Defendants were to conclude the final contract with 20% less than the date of completion of the final contract, the Defendants are not obliged to complete the final contract with 20% less than the date of completion of the contract, and thus, the Defendants are not obliged to complete the final contract.

(d) Requirements for forfeiture of performance guarantee ( Interpretation of Article 12 (2) 4) - Whether justifiable grounds exist

1) Contrary arguments and the conclusion of a final contract inconsistent with the main tender proposal, a memorandum of understanding, etc.

Article 12 (2) 4 of the MOU of this case provides that "Where the purchaser has cancelled the MOU due to the reasons attributable to the purchaser, such as the expiry of the period for concluding the final contract under Article 7 (3) of the MOU, or the conclusion of the final contract by December 29, 2008, such as where the purchaser does not conclude the final contract not later than the earlier date, the performance bond and its interest accrued therefrom paid by the purchaser shall be attributed to the seller as the penalty," without any justifiable reason, in the case where the purchaser's final position as to the terms and conditions of the transaction in this case, such as this bid proposal, this MOU, and the purchaser's written statement of understanding, are contrary to the details notified in writing to the seller."

On December 17, 2008, the Hanhwa Consortium made a resolution contrary to this tender or the MOU, such as the statement of understanding (No. 16-4 and No. 45) on December 17, 2008, unlike the contents of the statement of understanding, ① installment payment of the balance of the purchase price, ② additional reasons for cancellation of the final contract as a result of the verification inspection (where the verification room and the price adjustment procedure has not been completed by March / [where the confirmation room and price adjustment procedure have not been completed by March], ③ change of the payment period for down payment (after completion of the confirmation room and price adjustment procedure), ④ change of the statement and guarantee clause of the subject company of the Defendants, and ④ request the Defendants to have the statement and liability clause on the compensation for damages. On December 26, 2008, the Hanhwa Consort Council, a member of the Hansung Consortium, made a resolution contrary to this tender or the statement of understanding, such as the “a final contract after confirmation and consultation on the payment terms.”

Unlike the financing plan (No. 47 evidence, No. 17) submitted on January 9, 2009, the Han Livesium prepared a financing plan (No. 3. 3,62.6 billion won in possession of cash, KRW 1.5 billion in bank loans, KRW 1.65 billion in financial investors, KRW 8.479.6 billion in total, KRW 650 billion in financial investors, and KRW 3.80 billion in final sale of assets, etc. [Article 1.75 billion in possession, KRW 1.75 billion in possession of cash, KRW 1.6 billion in stock sale of life, KRW 5 billion in stock sale, KRW 200 billion in total, KRW 50 billion in stock sale, KRW 1.5 billion in total, KRW 200 billion in total, KRW 50 billion in stock sale, and KRW 50 billion in total after the sale of the remaining shares].

This constitutes the buyer's final position on the terms and conditions of this case, and the seller's assertion and demand clearly conflicting with those notified in writing, and as seen earlier, the Korea-Japan consortium did not enter into the final contract by December 29, 2008 by the time the final contract was refused to enter into by December 29, 2008.

2) Whether there was a serious change in circumstances on the basis of the conclusion of the memorandum of Understanding

I would like to examine whether the Korea-U.S. consortium did not enter into the final contract by making such assertion and demand as above, and there is no justifiable reason.

A) Whether the asset value of the company involved has fallen

If Gap evidence No. 11, Eul evidence No. 64, No. 67-1, and No. 67-3 were collected to inquire about the fact of the company subject to review. The company subject to review entered into a monetary guidance contract for the purpose of avoiding exchange rate fluctuation risk, and even if losses were incurred due to derivatives transaction, losses can be offset due to the increase of sales corresponding thereto. The Han Telecommunication Co., Ltd. entered into the notice of occurrence of derivative trading losses (Evidence No. 67-1, No. 64) of the company subject to review on August 14, 2008 and the derivatives transaction status (Evidence No. 67-3) with detailed details of the derivatives assessment and derivatives transaction contract. The net cash assets held by the company subject to review on the end of December 2008 decreased compared to those of electricity, but rather increased net assets of the company subject to review on the 20th anniversary of the increase in net assets of the company subject to review on the 19th anniversary of the conclusion of the 20th anniversary of the 20th anniversary of the settlement period.

According to the above facts, if the circumstances alleged by the Plaintiff constitute a de facto collapse of the basis for this bid and conclusion of a memorandum of understanding, or if the confirmation room or equivalent data are not provided, the final contract cannot be concluded. No. 95, the testimony of Non-party 1, Non-party 3, and Non-party 5, respectively, of the witness of the first instance trial, the testimony of Non-party 1, the witness of the first instance trial, Non-party 3, and Non-party 5 are insufficient to reverse it, and there is no other evidence to reverse it (the grounds for adjustment of the purchase price in Article 6 (1) (b) of the MOU).

B) Whether the Plaintiff’s financing cost increases

In light of Gap evidence Nos. 47, Eul evidence Nos. 38 through 42, and 48 (including Serial number), the testimony of non-party 4, and the overall purport of the pleadings, around September 2008, the financial crisis has been realized due to the bankruptcy of Slivers, and the plan for raising funds submitted by the Klivers at the time of this bidding was submitted as of October 6, 2008, KRW 3.362.6 billion in cash in possession (the Klivesium submitted the certificate of balance as of October 6, 2008), KRW 1.55 billion in the proceeds from the sale of stocks of the Bank loans, KRW 1.95 billion in bank loans, KRW 1.2 billion in financial investors, KRW 1.6 billion in total, KRW 2.8 billion in cash loans, KRW 1.5 billion in the short-term loans, KRW 208 billion in cash loans and KRW 9.5 billion in the short-term loans, but only 9.7 billion in cash loans and KRW 9.5 billion.2.5 billion.

The fundamental and major reasons for the rapid increase in the financing cost of the Han-Tech is that most of the acquiring funds were intended to be raised by the loan method rather than the cash holding, and it is not anticipated due to an unexpected economic crisis. This is, in fact, because there was no cash holding in possession, and there was a lack of sufficient evidence to reverse it by each testimony of the witness of the first instance court, the witness of the first instance court, the witness of the first instance court, the non-party 1, the non-party 5, and the non-party 4 of the trial court, and there was no other evidence to reverse it.

3) Whether there was a cause attributable to the Defendants with respect to failure to conduct the verification room

In accordance with Article 8(2)7 (e) and (9) of the Understanding of Understanding, the Korea-Japan consortium as well as the Defendants shall cooperate with each other by making its best efforts to satisfy the conditions prior to the conclusion of the final contract (including the verification room) and even if the verification room is not normally completed due to the disturbance of a third party, even if the verification room is not completed due to the above problem, it is determined to reasonably resolve the above problem, and to faithfully consult with the good faith about the plan to achieve the purpose of the transaction in this case.

갑 제4, 10, 14 내지 22, 55, 61, 62호증, 을 제2, 6, 9 내지 14, 25, 26, 46 내지 48, 50호증의 각 기재, 제1심 증인 소외 7, 소외 2, 소외 1, 소외 6의 각 일부 증언 및 변론 전체의 취지를 종합하면, 대상회사의 노조는 이 사건 주식 매각 절차가 본격적으로 실행되기 이전부터 정리해고 금지, 기존 단체협약의 승계, M＆A성과금 지급 등을 요구하면서 이를 관철하기 위하여 예비실사단계에서도 현장실사를 저지하여 한화컨소시엄 관계자가 현장에서 장시간 대치하다가 실사를 포기하기도 하였던 사실, 원고의 대표이사는 2008. 9. 29. 대상회사의 우리사주조합에 대하여 본건 인수와 관련하여 대상회사의 임직원들의 고용을 승계할 계획이라는 내용의 공문을 발송하기까지 하였던 사실(을 제50호증), 피고 산업은행은 노조의 실사저지 문제 등을 원만히 해결하기 위하여 입찰단계에서부터 노사관계 발전계획을 입찰제안서에 포함시킬 것을 요구하였고, 이에 한화컨소시엄은 입찰제안서(갑 제6호증의 1)에 “노사관계발전을 위하여 100% 고용승계, 고용안정보장, 5년간 인위적 정리해고 금지, 노동조합 및 단체협약의 전면 승계, M＆A 격려금을 지급하겠다.”는 취지를 기재하여 제출한 사실, 대상회사 노조는 2008. 10. 30. 피고 산업은행에 이 사건 주식매각과 관련하여 고용승계 등 고용보장에 관한 사항, 기업회생성과금, 자사주 지급 등 종업원 보상에 관한 사항, 회사주요자산의 처분금지 등 회사발전에 관한 사항 등을 요구사항으로서 전달(갑 제14호증, 을 제10호증의 1)한 바 있는데, 한화컨소시엄 측이 본입찰제안서에 기재한 고용보장, 단체협약승계, 격려금 지급 등이 이루어지면 대상회사 노조의 요구사항이 대부분 수용되어 실사저지가 해소될 수 있었던 사실, 그러나 한화컨소시엄은 2008. 11. 25.경 당초 입찰제안서에 기재한 내용과 달리 피고 산업은행 측에 고용보장과 관련하여서는 고용승계는 원칙적으로 수용하나 인수 이후 인적구조조정을 하지 않겠다는 보장을 할 수 없고, 완전한 고용보장 및 고용보장기간을 확약하는 것은 곤란하며, 단체협약 승계와 관련하여서는 승계하는 것을 원칙으로 하되 관행적으로 인정된 조합활동에 대하여 향후 실사를 통해 현황을 파악하여 정상적인 조합활동을 초과하는 부분에 대하여 수용할 수 없고, 종업원 보상과 관련하여서는 자사주 출연으로 인한 보상은 검토하고 있지 않으며, 한화가 지급할 새출발 격려금의 지급시기와 규모는 인수절차완료 후 검토할 예정이며, 경영성과에 대한 노고와 관련한 성과금에 관하여는 피고 산업은행 측에서 지급하여 확인실사가 가능하도록 하여야 한다는 입장을 표명하였던 사실(을 제10호증의 2), 한화컨소시엄은 2008. 12. 23.경 개최된 노조와의 3자 면담에 있어서 한화컨소시엄은 우선협상대상자에 불과하여 협상에 임할 수 없다는 태도를 취한 사실, 한화컨소시엄은 2009. 1. 7.경 피고 산업은행에 정밀실사로 회사 내용을 파악하기 전에는 노조와의 협의를 고려하고 있지 않으며, 본입찰제안서, 이 사건 양해각서 등에 명시된 노조관련사항을 공개하는 것에 반대한다는 입장을 전달한 사실, 한화컨소시엄과 피고 산업은행은 이 사건 양해각서 체결 전부터 수차례에 걸쳐 확인실사자료 준비를 위한 교섭을 진행하여 왔고, 한화컨소시엄의 2008. 12. 15.자 자료제공요청에 관하여 피고 산업은행은 2008. 12. 17. 한화컨소시엄에 “그 요청자료가 실질적으로 확인실사자료에 해당하는 것으로서 이를 제공할 경우 확인실사기간이 개시되는 것이 될 수 있는바, 대상회사나 노조에 확인실사의 개시를 알리지 않고 핵심적인 회사정보를 제공하여 실질적인 실사작업을 시작하는 것은 노조와의 관계를 악화시켜 현장실사에 부정적인 영향을 미칠 수 있다는 점을 고려할 때 노조와의 협의를 통하여 정상적으로 실사가 개시될 수 있도록 협조하여 달라.”는 취지의 공문을 보냈던 사실, 한화컨소시엄은 앞에서 본 최종계약 내용 수정 요구와는 별도로 “확인실사 관련 한화 Guideline"을 통하여 자신들이 실사자료 준비 여부를 확인한 후에야 실사가 개시될 수 있다는 점을 강조하면서 피고측에 2008. 12. 24.까지도 계속하여 추가자료의 준비를 요청하였는데 피고 산업은행측의 조선업계 프레젠테이션 제안에 대하여는 이것이 ‘확인실사 개시’가 되는 것인지 확인하는 등 확인실사가 실제로 개시되는 것을 꺼리는 태도를 보였던 사실을 인정할 수 있고, 갑 제55호증의 기재, 제1심 증인 소외 6, 소외 7의 일부 증언만으로는 위 인정을 뒤집기에 부족하다.

In light of the above facts, the following facts revealed by the evidence, i.e., foreseeable circumstances that may arise in the process of corporate acquisition and acquisition, and whether an employment guarantee or succession to a collective agreement, which is the core requirement of labor union, is difficult for the seller to promise or trust to the purchaser of the relevant company in the future. The Korea Trade Council could have anticipated that the union of the relevant company at the time of conclusion of the MOU, which prevented the confirmation from entering into the confirmation or completion within December 29, 2008, which was the time when the confirmation real company entered into the final contract, may not be entered into, or completed. Even if the Defendants were to bear the primary liability for the provision of confirmation real opportunity, the Defendants already failed to cooperate with the Defendants as much as possible in accordance with the principle of trust and good faith, i.e., labor union-management agreement, as well as the implementation of the MOUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUU.

On the contrary, as to the fact that the defendant Industrial Bank did not enter into the verification room by mutual agreement against the labor union of the target company that prevented the defendant Industrial Bank from making a confirmation room, or by refusing to provide the confirmation room data to the target company, the fact that the confirmation room was not initiated, the only statements of the evidence Nos. 14 through 22, 52, 53, 55, 61, and 62, and some testimony of the non-party 1 and the non-party 6 of the first instance trial are insufficient to acknowledge it, and there is no other evidence to acknowledge it.

E. Sub-committee

Therefore, on the grounds of the decline in the value of assets, the rapid increase in financing costs, and the failure of confirmation, etc. of the company in question, it shall be deemed that there is no justifiable reason to refuse to enter into a final contract by December 29, 2008, on the grounds that there is no "justifiable reason" in the payment of proceeds that conflict with the main bidding proposal and the instant memorandum of Understanding, etc., the installment sale of the instant shares, and the conclusion of a final contract after the fact-finding inspection, etc.

3. Judgment on the assertion of reduction of confiscated performance guarantee amount

A. The plaintiff's assertion

Article 12 (2) of the MOU of this case can be confiscated only when the MOU is cancelled due to reasons attributable to the purchaser, and it is impossible to compensate for damages as the only remedy when the MOU is cancelled (Article 12 (4) of the MOU of this case), which is due to its nature, it constitutes an estimate of damages. The reasons why the MOU of this case includes the final obligation to conclude the contract, the unfairness of the forfeiture clause of performance guarantee, the unfairness of the forfeiture clause, and the absence of the final contract, and there is no cause attributable to the Defendants or the target company, and thereby there is a little amount of damages suffered by the Defendants or the target company, and the amount of the performance guarantee amount reaches 315 billion

Even if the clause of forfeiture of house performance guarantee constitutes a penalty for breach of contract, the provision of forfeiture of performance guarantee is unilaterally set by the defendant, taking into account the convenience of the provision of forfeiture of performance guarantee, the decline in the value of the target company due to the global financial crisis, aggravation of financial conditions, etc., compelling the conclusion of the final contract without any opportunity of confirmation room is excessively harsh; the defendant refused to provide or refuse to provide the verification data already secured on the ground of the actual inspection room of the target company's union; the defendants' debt-equity swap amount (total amount9,87.9 billion won) was modified as of January 9, 2009, even if the contents of the final contract were modified as of January 9, 2009, there is no damage to the defendants even if the contents of the final contract were modified; the defendants received a large amount of shares as dividends after the sale of the target company's stocks was made; it is more inappropriate to impose any damage on the defendants at a higher price due to the increase in the target company's share price; it is more inappropriate to impose all the defendants's total sale of net profit at 2083.

B. Determination

1) The nature of the warranty bond forfeiture provision

In the instant case, Article 12(2) of the MOU provides that the performance bond that the buyer paid and the interest accrued therefrom shall be attributed to the seller as “compact penalty,” and it shall be deemed that the MOU and the Defendants entered into the instant MOU at a mutually equal position in terms of economic status, capacity, negotiating power, etc., as seen earlier.

According to the evidence Nos. 2-1 and 2-2, in light of the fact that the Defendants received legal advice at the highest level prior to and after the conclusion of the MOU attached to the MOU (Evidence No. 2-1 of Evidence No. 2-2), “five percent of the purchase price (tender price) immediately after the conclusion of the MOU shall be paid as a performance guarantee” (Article 4(1) and “in the case of cancellation due to a purchaser’s responsible cause, the performance guarantee already paid and interest accrued therefrom shall belong to the seller as “comfort punishment” (Article 12(2)). Thus, in light of the fact that the MOU has been given legal advice at the highest level prior to and after the conclusion of the MOU, the parties to the conclusion of the MOUUU has no different legal advice from the tender proposal of the target company, the MOUUU has no exception to the presumption of Compensation for Damages, and the Supreme Court has no exception to the reduction of full or partial reduction of the penalty under Article 398(2).”

Although the above facts and the above facts are reached at KRW 315 billion, since the amount of the purchase price of shares up to KRW 6.30 billion is linked to the acquisition transaction size, it cannot be determined that the above amount of penalty is excessive by removing only the above amount. The sale of shares in this case was promoted for the recovery of public funds invested in the company subject to insolvency for several years, which has a significant impact on the national economy and industrial structure, and continued with considerable interest in the nation. In light of the fact that prompt conclusion of the contract and the termination of the transaction have a very important meaning, and that the defendants and the target company suffered losses and losses which are difficult to make measurement due to the fall of the new delivery or the loss of opportunity for the management normalization, it is reasonable to view that the above warranty bond is subject to the execution of the contract in this case to prevent any difficulty in proving the damages and losses and to simplified the legal relations at the time of the conclusion of the contract in this case, it appears that the above warranty bond and the guarantee of trust agreement in this case would be subject to the conclusion of the contract in this case.

2) Whether a part or whole of the penalty agreement is invalid

In light of the size and nature of the stock acquisition transaction of this case, the above provision on forfeiture of penalty for breach of contract was already stipulated in the bidding guide. The above provision on forfeiture of penalty for breach of contract or its amount is too excessive or unfair in light of the size and nature of the stock acquisition transaction of this case, and the decline in the value of the target company due to financial crisis, deterioration of financial conditions, etc. cannot be a justifiable reason to deal with the conclusion time of the final contract specified in the MOU after the confirmation truth. The Han Crlified Council should have the duty to cooperate with the defendant Industrial Bank in order to resolve the actual situation of the old union and to make the confirmation truth by the MOU, but it was impossible to cancel the contract even after the conclusion of the final contract after the conclusion of the contract, and thus, it seems that there is no need for the defendants to change the terms of transaction, request the provision of information, etc., and that there is no reason to view the conclusion of the above agreement or the conclusion of the contract as invalid after the completion of the contract as a whole between the parties to the contract and the acquisition company.

3) Even though the above provision on forfeiture of the performance bond for household affairs falls under the scheduled amount of damages, in light of each of the above circumstances, since the amount cannot be deemed to be excessive, it is reasonable that it does not reduce it.

Therefore, the plaintiff's above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and all appeals against the defendants are dismissed. It is so decided as per Disposition.

Judges Lee Do-won (Presiding Judge)

1) According to the Plaintiff’s assertion, net cash assets = (cash and cash assets + short-term financial products) - (short-term borrowings + long-term liquidity financial lease debts + long-term loan + financial lease debts)

2) The Han City Act enacted by Act No. 6504 on August 14, 2001 and effective until December 31, 2005. The Corporate Restructuring Promotion Act was enacted after several times, and it has the same provisions under Articles 7(1) and 5 and 13 of the current Corporate Restructuring Promotion Act.

3) It means the method of payment in which the advance payment ratio is low by the method of payment in the shipbuilding industry and the delivery rate is high.

Note 4) The Han-conium argues that the decrease in the “net Cash Asset” was not indicated in the preparatory document dated July 19, 201, when the final contract was concluded, and even until the application for the instant conciliation was submitted, it should be noted in the preparatory document on July 19, 201.