2. The plaintiff (the counterclaim defendant)'s remaining main claim against the plaintiff (the plaintiff) and the conjunctive claim against the plaintiff (the plaintiff) are dismissed, respectively.

3. The costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).

4. Paragraph 1 can be provisionally executed.

Counterclaim: The plaintiff shall pay to the defendant an amount of KRW 200,000,000 and an amount calculated by the rate of 20% per annum from the day following the service date of the counterclaim in this case until the day of complete payment.

A. On July 23, 2009, the Plaintiff prepared a comprehensive acceptance contract on ASM (hereinafter “instant contract”) with the Defendant for the purpose of developing, manufacturing, and selling automobile machinery parts, while holding technology and patents related to non-ferrous metal specification materials (hereinafter “ASM”). The main contents are as follows.

ASM comprehensive acceptance contract on non-metallic specifications and materials

1. Production facilities and equipment: All the production facilities and equipment currently in the plaintiff's factory shall be transferred to the defendant;

2. Materials and Stockpiling: The plaintiff and the defendant shall transfer all the materials, such as the inventory inspection report executed on July 19, 2009, together with the storage of the goods.

3. Human resources: The director of the plaintiff and the non-party 1 division of KSM work for the production of ASM from August 1, 2009 to the defendant company.

① Plaintiff: Total annual salary of KRW 36,000,000

2. Non-party 1 director: Total annual salary of KRW 24,00,000 (annual salary is included in retirement pay).

4. Transfer of a patent and utility model: the plaintiff shall transfer to the defendant the current patent, utility model, and patent application matters.

(1) A patent (patent number omitted)

(2) Utility model numbers)

(3) Portions for patent applications.

The plaintiff shall be obliged to work for at least three years. If the plaintiff retires from the defendant company for at least three years, the right to use paragraph 4 shall be guaranteed.

5. Data necessary for the business: The plaintiff shall provide the defendant with all the data necessary for the business and shall hand over all the data necessary for the future business.

(1) Data on telephone and facsimile arrival status, E-M AIL arrival portion, website basic data.

(2) Existing Customer List and Customer (including +agency Customer)

6. Cases concerning the offer of royalties.

(1) The sales price shall be 5% for existing 1, 2, and double-tighting.

(2) 10% of the sales price shall be paid for the future type 3 and class 4.

(Provided, That the machinery produced by the defendant shall be 5% of the cost of manufacture or manufacture, and 10% of the cost of manufacture or manufacture.

7. Amount of acceptance: The defendant shall pay to the plaintiff KRW 100,000,000,000 in total, when transferring and taking over paragraphs 1 through 5 to the plaintiff.

(The amount of 50,000,000 won shall be paid on July 24, 2009, and any balance shall be paid after the completion of the directors)

8. Settlement of debts: In case of comprehensive acquisition or transfer of existing business, all the obligations of the plaintiff shall be settled by the plaintiff in principle, and the defendant shall not be liable to repay the obligations of the plaintiff. In addition, all the civil and criminal liabilities of the defendant shall

9. Compensation for damages when a contract is not performed: The plaintiff and the defendant shall make every effort to faithfully implement this contract: Provided, That if the promise is not performed as specified in the contract, 200,000 won, which is two times the acquisition amount, shall be the compensation for damages; and

10. Dispute Resolution: If a dispute arises between the two parties in connection with this contract, it shall, in principle, be settled by mutual agreement between the parties and the defendant. Nevertheless, if the dispute is not settled, it shall be requested to the court having jurisdiction over the domicile.

B. Under the instant contract, the Plaintiff delivered to the Defendant the production facilities, devices, materials, and storage units, and entered the Defendant company from August 1, 2009.

C. As to the patent right listed in the separate sheet No. 1, the transfer registration based on the transfer under the Patent Office No. 2009-016182, Aug. 7, 2009, and the utility model right listed in the separate sheet No. 2, as to the utility model right listed in the separate sheet No. 2, was made in the name of the defendant, respectively.

D. The Defendant paid KRW 100,000,000 to the Plaintiff.

[Ground of recognition] Facts without dispute, Gap's 2, 5, 6 evidence, non-party 3's testimony, plaintiff's examination result, plaintiff's whole purport of pleading

2. Judgment on the plaintiff's main claim

A. The main claim

1) Whether the instant contract was rescinded or terminated

A) As to the non-performance of the obligation to pay royalties

(i)Recognitions

Around October 209, the Plaintiff’s entry into the Defendant Company, 300mm cut (No. 1) around 3, 2009, 4, and 2500mm heading (No. 3), around April 2009, and 2, 1800mm cut (No. 4) around December 27, 2009, respectively. Around October 27, 2010, the Plaintiff requested the Defendant to calculate and pay the royalty amount to the Defendant at KRW 24,130,000. The fact that the Defendant did not pay royalties to the Plaintiff does not conflict between the parties, or that the Defendant did not pay royalties to the Plaintiff, and that the Plaintiff’s written application for the alteration or cancellation of the Plaintiff’s statement contained in the evidence No. 4, 13-3 through 8, and the purport of Nonparty 3’s testimony in part of Nonparty 3’s testimony, is clear that the Plaintiff’s application for the alteration or cancellation of the Plaintiff’s claim of the instant contract.

Shes defense of the defendant

In light of the above facts, the Defendant’s defense that there was no cause attributable to the Defendant. 1) Then, considering the following facts: (a) The Plaintiff: (b) the Plaintiff designed the above machinery; and (c) assembled and manufactured the said machinery directly by purchasing parts; (d) Nonparty 2 did not request the Plaintiff to prepare an order form for manufacturing machinery; (c) the Plaintiff’s employees did not have the right to request the Plaintiff to purchase the machinery from Nonparty 4 to the point of time; and (d) the Plaintiff did not have the right to request the Plaintiff to submit an order form for manufacturing the machinery without permission; and (e) the Plaintiff could not be deemed to have been aware of the fact that the Plaintiff’s use of the machinery, which was the first time after the Plaintiff’s use of the machinery, was not the first time after the Plaintiff’s use of the machinery, to obtain an order form for manufacturing the machinery without permission, and (e) the Plaintiff’s use of the machinery, which was the first time after the Plaintiff’s use of the machinery, to obtain access to the said machinery.

B) As to the non-performance of the obligation to create the working environment

(1) The plaintiff's assertion

The plaintiff asserts that the contract of this case was rescinded or terminated by serving a duplicate of the complaint of this case or a copy of the claim of this case and an application for modification of the cause of the claim, since the defendant did not place an environment in which the defendant can work normally as follows.

① The Plaintiff requested several times to purchase a computer with a large storage capacity for the CAD work, but the Defendant did not accept the request. ② The Plaintiff requested to purchase a Compresor and submitted a quotation for the safety of the manufacture of machinery, but the Defendant did not also purchase it. ③ Nonparty 2, the Defendant’s representative director, sent the Plaintiff to the Plaintiff as the company “Afs” irrelevant to the Plaintiff’s work against the Plaintiff’s will without justifiable grounds. ④ The above Nonparty 2 sent the Plaintiff to the vice president of the same company, partner company president, etc. ④ The above Nonparty 2 would dismiss the Plaintiff to the vice president of the same company, partner company president, etc.

Shed Judgment

① According to the evidence evidence No. 3, the Plaintiff requested the Defendant to purchase a new computer with a higher capacity, but it is insufficient to recognize that the above evidence alone is insufficient to recognize that the computer used by the Plaintiff at the time of entry was a dead figure to the extent that it could not be used for the Plaintiff’s business, and there is no other evidence to acknowledge this otherwise.

② The descriptions of Gap evidence 7 and 13-2 alone are insufficient to acknowledge that the purchase of the presses for compliance was necessary due to a defect in the manufacturing safety of machinery at the time, and there is no other evidence to acknowledge it.

③ Although there is no dispute between the parties regarding the fact that the Plaintiff was dispatched to the company “Ap”, there is no evidence to prove that the above dispatch was made against the Plaintiff’s will without any justifiable reason. Rather, in full view of the written evidence Nos. 6 and 7 and the witness Nonparty 4’s testimony, the above Alp is an agent of the Defendant company, and when the Plaintiff was appointed to the Defendant company for five to six months, the Plaintiff suggested that the location of the Alp’s store would be good for Nonparty 2 to have a male employee and operate the Alp’s store, and Nonparty 2 would be better for the Plaintiff to have a male employee, it can be acknowledged that the above dispatch was made under an agreement between the two parties.

④ As shown in the Plaintiff’s above facts, some of the statements in Gap evidence 7, 12-13, and 14, as stated in the Plaintiff’s above facts, are difficult to believe, and there is no other evidence to acknowledge it.

⑤ Therefore, the Plaintiff’s assertion on this part is without merit.

2) Determination on the claim for cancellation of registration of transfer of patent rights and utility model rights

The plaintiff asserts that the defendant is obligated to implement the procedure for cancelling the registration of transfer of a patent right and utility model right, as stated in the purport of the claim, since the contract of this case was cancelled or terminated, but the contract of this case was not cancelled or terminated, so this part of the plaintiff's assertion is without merit.

3) Estimated amount of damages

The plaintiff asserts that the contract of this case set the amount of damages at KRW 200 million, and the defendant did not perform the obligation to pay royalties and the obligation to create work environment, so the defendant is obligated to pay the above estimated amount of damages to the plaintiff.

In light of the following circumstances, as seen earlier, there is no evidence to deem that the Defendant did not perform the obligation to create a working environment. In other words, the estimated amount of damages for the contract of this case is determined based on the acquisition amount, and the amount of damages for the contract of this case is determined based on the assumption that the Defendant did not perform the obligation under paragraphs (1) through (5) of the contract of this case in consideration of the following circumstances: (i) the estimated amount of damages for the contract of this case is determined based on the acquisition amount; and (ii) the amount of damages for the contract of this case is set at KRW 100 million as the price for the “paragraphs (1) through (5)” while there is no reference to

Therefore, this part of the Plaintiff’s assertion seeking the amount of liquidated damages based on the Defendant’s royalty payment obligation (Paragraph 6) nonperformance is without merit.

(iv) royalties;

A) The Plaintiff and the Defendant entered into an agreement on royalties, the fact that the Plaintiff made a total of 10 million won before absence from office without permission after the Plaintiff joined the Defendant company is as seen earlier. In full view of the Plaintiff’s results of an inquiry into the Republic of Korea Non-Iron Co., Ltd., the total manufacturing cost for the said 10 machinery was 2,4130,000 won, taking into account the entire purport of the pleadings, the Plaintiff’s part of the inquiry into the fact that the manufacturing cost for the said 10 machinery was 14,50,000 won, and the Defendant could recognize the fact that the Plaintiff sold the two 10,000 won to Non-Korean Non-Korean Non-Korean Co., Ltd. on July 201, each of which was 20,4130,000 won and KRW 9750,000 [14,500,000 won + KRW 3850,000].

B) Defendant’s assertion

(1) The defendant asserts as follows.

① Since the Defendant acquired a patent right or utility model right from the Plaintiff and owned the said right, royalties stipulated in the instant contract are not true, but merely allowances in the form of incentives paid in cases where the Plaintiff manufactured machinery while working in the Defendant Company and contributed to an increase in the sales amount of the Defendant Company. However, during the period when the Plaintiff worked in the Defendant Company, the Plaintiff did not sell the said ten machinery, and sales to the Korea Non-Iron Co., Ltd. were made after the Plaintiff retired. Accordingly, the Defendant did not have any obligation to pay royalties under the instant contract to the Plaintiff.

② The list of manufacturing cost prepared by the Plaintiff includes the cost produced by the Defendant Company and the Plaintiff’s labor cost. The said machinery was manufactured by the Defendant Company, and thus, the cost spent by the Defendant Company, namely, design cost, processing cost, assembly cost, and the Plaintiff’s labor cost, should be deducted.

D. Shebly, the terms and conditions of the payment of royalties in the instant contract are limited to “the period during which the Plaintiff serves in the Defendant Company” or “the case where the machinery was sold”, or there is no evidence to acknowledge that the amount of royalties produced by the Defendant Company excluded either the expenses paid in the course of production in the Defendant Company or the Plaintiff’s personnel expenses. Therefore, the Defendant’s above assertion is without merit.

5) Wages

The facts that the Plaintiff’s annual salary was KRW 36 million are as seen earlier. In full view of the entries in Eul’s evidence No. 6, witness Nonparty 4’s testimony and the purport of the entire arguments, the Plaintiff may be recognized as working in the Defendant Company from October 1, 2010 to October 15, 201. Thus, the Defendant is liable to pay the Plaintiff wages of KRW 1.5 million (=36 million ±12 months ±2).

6) Sub-decisions

Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 3,538,00 (i.e., the royalty of KRW 33380,000 + wage of KRW 1.5 million) and the damages for delay calculated at each rate of 5% per annum as stipulated in the Civil Act from December 23, 2010, which is deemed reasonable for the Defendant to dispute on the existence and scope of the obligation to perform from December 23, 2010 to May 3, 2012, which is the date of the adjudication of this case, and the date of full payment from the following day to the date of full payment.

(b) Preliminary claim

1) Of the Plaintiff’s conjunctive claim, the part of the Plaintiff’s conjunctive claim is identical to the pertinent part of the primary claim, and thus, cannot be determined separately.

2) Regarding the grant of a non-exclusive license

A) The plaintiff's assertion

The plaintiff, under the contract of this case, guarantees the right to use patent rights and utility model rights when the plaintiff worked for the defendant company for at least three years, and the plaintiff's failure to work for at least three years is caused by the defendant's cause or non-liability of both parties. Thus, the defendant asserts that the defendant has a duty to grant the above right to use, namely, a non-exclusive license under the Patent Act.

B) Determination

However, there is no evidence to prove that the plaintiff's failure to work for not less than three years has no reason attributable to the plaintiff, and it is difficult to consider that the defendant is responsible for the failure to pay royalties, and there is no evidence to prove that the defendant did not create a working environment. Accordingly, this part of the plaintiff's assertion is without merit.

3. Judgment on the defendant's counterclaim

A. The defendant's assertion

The plaintiff provided all the data necessary for the business stipulated in Paragraph 5 of the contract of this case, and even though the defendant company has to work for not less than three years at the defendant company, any data other than the basic data on the website was not available and voluntarily withdrawn on October 2010. Thus, the plaintiff asserts that the plaintiff is obliged to pay 200 million won, which is the estimated amount of damages, to the defendant.

B. Determination

1) There is no evidence to prove that the Plaintiff did not provide the Defendant with the data necessary for the business, and instead, in light of the overall purport of the arguments in Gap evidence Nos. 7, 9, and 10 (including the paper numbers), the Plaintiff changed the phone and facsimile numbers of KSM as his/her representative to the name of the Defendant company, and it is recognized that the Plaintiff transferred the website data, the current customer, and the list of customers to the Defendant company.

2) Meanwhile, as seen earlier, the Plaintiff agreed to work at the Defendant Company for at least three years, comprehensively taking account of the respective descriptions in Eul evidence Nos. 6, 12, and 13, witness Nonparty 4, and 5’s testimony, part of the Plaintiff’s personal examination results, the Plaintiff was present at the Defendant Company from August 1, 2009 to October 15, 201, and the fact that the Plaintiff was serving in the Defendant Company “Ausco” from February 201 to February 15, 201.

On the other hand, the plaintiff argues that the above three-year mandatory work agreement is null and void in violation of the Labor Standards Act, and Article 16 of the Labor Standards Act provides that "the period of employment contract shall not exceed one year except where the period is not specified and the period necessary for the completion of a certain business is specified." Article 15 of the same Act provides that "(i) a labor contract which determines the working conditions which fall short of the standards prescribed in this Act shall be null and void only in that part. (ii) The labor contract which is null and void in accordance with paragraph (1) of this Article shall comply with the standards prescribed in this Act." Accordingly, the period of employment under the contract of this case shall be one year, and the plaintiff has worked in the defendant company for that period.

In other words, the Defendant asserts that the above three-year working period falls under “the period required for the completion of a certain project” as the time necessary for the Defendant to obtain the technology, etc. on non-ferrous metal specification and materials from the Plaintiff, but it is difficult to recognize such circumstance alone.

4. Conclusion

Therefore, among the plaintiff's main claim of this case, the main claim of this case is accepted within the scope of the above recognition, and the remaining main claim and the conjunctive claim are dismissed as it is without merit. The defendant's counterclaim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Jeon Nam-nam (Presiding Judge) KimNa

1) In order for the right of rescission to be created due to delay of performance, such delay of performance must be attributable to the obligor. However, Article 397(2) of the Civil Act provides that the obligor shall not protest against the absence of negligence with respect to the non-performance of monetary obligation. Thus, even in the case of claiming the rescission of the contract on the ground of the non-performance of monetary obligation, the issue is whether the obligor cannot defend the absence of negligence with the obligor. However, the legislative intent of Article 397 of the Civil Act is the degree of interest in arrears as naturally arising from the arrival of the due date, and the obligor shall be deemed as a loss naturally arising from the occurrence of the due date, and the degree of interest in arrears