The defendant-Counterclaim plaintiff's counterclaim is dismissed.

2. The Plaintiff (Counterclaim Defendant)’s appeal on the principal lawsuit is dismissed.

3. Of the costs of appeal, the costs of appeal due to the principal lawsuit shall be borne by the Plaintiff (Counterclaim Defendant), and the costs of appeal due to the counterclaim shall be borne by the Defendant (Counterclaim Plaintiff) in total, the first and second instances of appeal.

The principal lawsuit: the Defendant (Counterclaim Plaintiff; hereinafter only the Defendant) paid 50 million won to the Plaintiff (Counterclaim Defendant; hereinafter only the Plaintiff) and 5% per annum from April 1, 2004 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

Counterclaim: The plaintiff shall pay 124,00,000 won to the defendant and 6% per annum from November 2, 2004 to the service date of a copy of the counterclaim of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 50,000,000 won with an annual amount of 5% from April 1, 2004 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment. The defendant's counterclaim is dismissed.

A. On March 31, 2004, the Plaintiff purchased 11,600 shares of the non-party 1 corporation (hereinafter the non-party 1 corporation) owned by the Defendant in total at KRW 174,00,000 per share of KRW 15,000 per share, and agreed to pay the down payment at KRW 50,000,000 on April 1, 2004, and to pay the remainder KRW 124,00,000 as part payment and the remainder by November 1, 2004 (hereinafter the instant sales contract).

B. On April 1, 2004, the Plaintiff paid KRW 50,000,00 to the Defendant as the down payment.

(Reasons for recognition) No. 1 does not dispute between the parties, or the purport of Gap evidence and the whole pleadings

2. Determination on the main claim

(a) Whether it is revoked by deception;

(1) The Plaintiff, first of all, was in a situation where the non-party company did not have excellent technical skills, such as non-party 2, and the number of its actual executives and employees is limited to eight persons, and the level of such technical level is a starting point that falls short of the market access level due to treatment without any organizational capabilities of its members, and serious financial difficulties. However, in entering into the instant sales contract to the Plaintiff, the Defendant asserted to the effect that the sales contract in this case was revoked on the ground that the non-party company was comprised of outstanding human resources, such as non-party 2, while showing the introduction of the non-party company and the statement of profit and loss, etc. different from the facts in the contract to enter into the instant sales contract to the Plaintiff, the number of officers and employees is 12, and the next generation HTS system, futures options system, risk management system, comprehensive asset management system, and trade contract system are owned by the non-party company's financial status, technical research system, and possession technology.

(2) Therefore, in concluding the instant sales contract, it is not sufficient to recognize the Plaintiff’s deception of Nonparty Company’s technical advancement, technical level, financial status, etc. as to the conclusion of the instant sales contract. The Plaintiff’s assertion is without merit, on the grounds that there is no other evidence to acknowledge the Plaintiff’s assertion, since it is not sufficient to acknowledge the Plaintiff’s deception of Nonparty 3 and Nonparty 4, respectively.

(b) Whether a mistake has been cancelled or not;

(1) In other words, the Plaintiff notified the Plaintiff of the false content by packaging the technical research, technological level, and financial status of the non-party company to the Plaintiff, and the Plaintiff also concluded the instant sales contract without properly knowing the technical research, technical level, and financial status of the non-party company. As such, it constitutes an error in the important part of the content of the legal act, the Plaintiff asserted that the instant sales contract was revoked on the ground of mistake, and sought the return of the down payment.

(2) Therefore, the above evidence alone is insufficient to acknowledge that the Plaintiff entered into the instant sales contract due to a mistake in the technical research, technological level, and financial status of the non-party company. Even if the Plaintiff entered into the instant sales contract due to a mistake in the above matters of the non-party company, it constitutes a mistake in motive. There is no evidence to support the Plaintiff’s motive as the content of the instant sales contract, and there is no evidence to prove that the Plaintiff entered into the instant sales contract by indicating that the motive would be the content of the instant sales contract to the Defendant. In addition, due to such circumstance, the Plaintiff was gross negligence in light of the fact that the Plaintiff entered into the instant sales contract without properly investigating the technical research, technological level, and financial status of the non-party company. Thus, the Plaintiff cannot cancel the instant sales contract on the ground of an error. Therefore, the Plaintiff

(c) Whether to cancel the contract on the ground of defects in the subject matter of sale;

(1) In addition, the Plaintiff asserts to the effect that the sales contract of this case was cancelled on the ground of the defect in the subject matter of sale since the Plaintiff could not achieve the purpose of the sales contract of this case because the non-party company did not have excellent technical skills, such as non-party 2, at the time of entering into the sales contract of this case, and the level of such technical skills did not meet the level of market access, and was faced with serious financial difficulties.

(2) Therefore, since the sale contract of this case aims to take over the shares of the non-party company 11,600 shares owned by the defendant from the defendant, the defect of the object of sale is the object of pledge, etc., so it is impossible to achieve the purpose of the sale contract of this case because the plaintiff, the transferee of the shares, is unable to acquire the ownership or lose the ownership of the shares, etc. Therefore, the plaintiff's assertion that there is any defect in the shares which are the object of the sale contract of this case. Thus, the plaintiff's assertion is without merit.

3. Determination on a counterclaim

A. As a counterclaim, the Defendant sought payment of the purchase and sale balance equivalent to the amount stated in the purport of the counterclaim based on the instant sales contract, and thus, it is clear that the Plaintiff and the Defendant entered into the instant sales contract with the Plaintiff and the Defendant. Therefore, barring any special circumstance, the Plaintiff is obliged to pay the purchase and sale balance to the Defendant, barring any special circumstance.

B. As to this, the Plaintiff asserts to the effect that he had rescinded the instant sales contract pursuant to Article 565(1) of the Civil Act.

Therefore, as seen earlier, the Plaintiff paid KRW 50,00,00 to the Defendant based on the instant sales contract as down payment. In light of the purport of the entire pleadings in the statement No. 13, the Plaintiff expressed his/her intent to waive the down payment and cancel the instant sales contract in accordance with the provisions of Article 565(1) of the Civil Act around June 13, 2006, which is the date of the judgment of the first instance court (the date of the judgment of the court of first instance), and the non-party company still has issued share certificates. The non-party company can recognize the fact that there is no issuance of share certificates. Unless otherwise agreed between the parties, where one of the parties has delivered money and other things at the time of the contract, the delivery party may waive it until the time of the commencement of the performance of the contract, and the receiver may cancel the sales contract by repayment of that amount. The commencement of the performance here refers to the Plaintiff’s act of sale and purchase of shares to the extent objectively recognizable from the outside or necessary for the execution of the contract (see Supreme Court Decision 2006Da264, etc.26, supra).

4. Conclusion

Therefore, all of the plaintiff's principal claim and the defendant's counterclaims claim shall be dismissed as they are without merit. Since the part concerning the counterclaims in the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal concerning the counterclaims shall be accepted, and the defendant's counterclaims claim shall be revoked, and the part concerning the principal claim in the judgment of the court of first instance concerning the principal claim shall be justified with the conclusion, and it shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Il-young (Presiding Judge)