Law Firm provisional rate (Law Firm Doz., Counsel for defendant-appellant)

[Defendant-Appellant]

Law Firm Lee & Lee LLC, Counsel for defendant-appellant

[Defendant-Appellant]

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

(a) A healthcare operating agreement, etc.;

On May 2016, the Plaintiff and the Defendant agreed from C to jointly manage the business of Guro-gu Seoul Metropolitan Government D and D and D E (hereinafter referred to as “the instant health center”). Accordingly, on May 31, 2016, the Plaintiff entered into the instant health center operation agreement (hereinafter referred to as the “instant agreement”) with C to take over the entire facilities and business rights of the instant health center as follows, and paid 60,000,000 premium to C at its own expense.

Article 2 From June 1, 2016 to June 1, 2018, the term of contract for business registration under Article 3 and the name of business operator under the business registration certificate for an additional one year shall be maintained in the name of C. In this case, the premium for the premium for the premium for Article 4 (1) shall be KRW 60 million and shall be paid per contract date. (hereinafter the Plaintiff’s obligation (hereinafter the omission) Article 5 (1) Article 5 (1) provides that C shall pay the deposit for the rent of KRW 210,000 paid to the building owner in installments within the above contract period. While the above 2.10,000 won is not paid, the interest shall be paid at the end of each month by applying the interest rate of KRW 7.2% per annum. (2) The Plaintiff may unilaterally terminate this contract because the Plaintiff failed to pay the above interest for at least two months or 2.10,000 won within the above contract period, and at this time, the Plaintiff may not request C to refund the premium, and without any condition for the instant operation.

B. Suspension of operations and the Defendant’s sole operation

The Plaintiff and the Defendant agreed to operate the instant health center solely from around August 2016 to the Defendant, and the Defendant returned to the Plaintiff the sum of KRW 50,000,000 out of the premium under the instant contract from July 2016 to June 2018.

C. Progress of the relevant case

1) Meanwhile, on November 6, 2018, C terminated the instant contract on the ground that the Plaintiff did not pay KRW 210,000,000 as the Seoul Southern District Court Decision 2018Gadan22378 (Seoul Southern District Court Decision 2018Gadan22378) and filed a lawsuit claiming damages, etc. due to the contractual parties, rents, public charges and taxes, fines, fines for negligence, the sale of house fixtures, and the invitation of long-term members.

2) On July 3, 2020, the Plaintiff and C had been on July 3, 2020 during the lawsuit as referred to in paragraph (1) (hereinafter referred to as “decision in lieu of the instant conciliation”) confirmed that “the Plaintiff shall pay C KRW 10,000,000 to July 31, 2020, but the amount not paid until the said payment date shall be paid in addition to 12% per annum from the day following the said payment date until the day of full payment” (hereinafter referred to as “decision in lieu of the instant conciliation”).

[Ground of recognition] The fact that there is no dispute, entry of Gap's 1 through 5, purport of whole pleading

2. The assertion and judgment

A. The parties' assertion

1) Plaintiff

The Defendant agreed to refund KRW 60,000,000 for the instant contract paid by the Plaintiff to the Plaintiff in its sole operation. The Defendant is obligated to pay KRW 10,000,000 for the remainder of the premium, excluding KRW 50,000,000,000 for the instant contract, and the amount of KRW 10,000 for the settlement to be paid by the Plaintiff to C, a transferor of the instant healthcare, upon the progress of the instant case.

2) The defendant;

Since August 2016, the agreement with the Plaintiff was not terminated, the Defendant paid the Plaintiff the proceeds from the operation of the healthcare. On the other hand, the Defendant spent KRW 32,070,000 in total, including the interior work and the purchase of the healthcare equipment in the process of operating the healthcare of this case, and thus, it is offset against the amount on an equal basis with the Plaintiff’s claim.

B. Determination

1) Determination on the cause of the claim

The Defendant independently operated the instant healthcare from August 2016 to June 2018. The fact that from around that time, the Plaintiff returned KRW 50,000,000 out of the premium under the instant contract to the Plaintiff is as seen earlier. It is reasonable to deem that the agreement between the Plaintiff and the Defendant regarding the operation of the instant healthcare was terminated as agreed upon by the Defendant in the sole operation of the said healthcare around August 2016 (i.e., the Defendant transferred the Plaintiff’s revenues of KRW 320,000 each month thereafter, and thus, the agreement was continued. However, according to the Plaintiff’s evidence No. 4, the Defendant’s assertion appears to have paid the agreed interest on the remainder of the premium to be returned to the Plaintiff, and thus, the Defendant’s assertion is not accepted).

Therefore, the Defendant is obligated to pay to the Plaintiff the remainder of KRW 10,000,000 and damages for delay calculated at the rate of 12% per annum from July 4, 2019 to the day of full payment, which is the day following the delivery of a copy of the instant complaint, to the day of full payment, to C, the other party to the instant contract, according to the progress of the instant case.

2) Judgment on the defendant's assertion

Although the Defendant asserts that the claim amounting to KRW 32,070,000 is offset against the Plaintiff’s claim amount on an equal basis with the claim amounting to KRW 32,070,000 for the construction cost of the instant healthcare, the Defendant’s assertion is not sufficient to deem that the Defendant had the claim against the Plaintiff, such as construction cost, etc., and there is no other evidence to acknowledge it. Accordingly, the Defendant’s assertion is rejected.

3. Conclusion

The plaintiff's claim of this case is justified and accepted.