Attorney Song-ho et al., Counsel for the defendant

2. C Stock Company:

[Defendant-Appellant] Law Firm Barun

Attorney Lee Sung-hoon, Counsel for the defendant-appellant

[Defendant-Appellant] Defendant 1

2. The costs of appeal are assessed against the Defendants.

Defendant B Co., Ltd. (hereinafter referred to as “B”) shall require Defendant C Co., Ltd. (hereinafter referred to as “C”) to deliver each object listed in the separate sheet to the Plaintiff. Defendant C shall deliver each object listed in the separate sheet to the Plaintiff. In the event that Defendant B violates the above obligation, it shall pay to the Plaintiff the amount calculated by the ratio of KRW 10 million per day of the violation day to the Plaintiff (the first instance court dismissed the above indirect compulsory performance claim on October 11, 2019, but the Plaintiff did not appeal against this, so the above part of the claim for indirect compulsory performance was excluded from this Court’s judgment).

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the revocation part is dismissed in entirety.

(a) A party;

On December 15, 2014, the Plaintiff is a corporation established for the purpose of managing and operating port facilities, loading and unloading of ports, and harbor transport businesses on December 7, 201, and Defendant B is a corporation established for the purpose of marine transportation and container operation, logistics terminal operation, etc., and Defendant C is a corporation established for the purpose of managing and operating port facilities, loading and unloading of ports, and harbor transport business after being divided from the Plaintiff on December 1, 2015.

B. Lease between the Plaintiff and the Korea Water Resources Corporation

1) On October 11, 201, the Plaintiff entered into a lease agreement with the Korea Water Resources Corporation (hereinafter referred to as the “Water Resources Corporation”) on lease of each object (C 1st and future site; hereinafter referred to as “the instant terminal”) and E 2nd and future site (hereinafter referred to as “E terminal”) listed in the separate sheet among the 1st stage container containers.

2) The main contents of the instant previous lease agreement are as follows.

Article 4 (Period of Lease) ① The rental period of a wharf shall be 0.1 December 31, 204. (2) The rental period of the future site among the rental facilities shall be 0.2 years starting from the date of use to December 31, 2019. Article 5 (Commencement of Use and Liability) ① The date of commencement of the rental facility shall be 2012, and February 1, 201. (1) The National Water Resources Corporation shall collect a rental fee for a wharf from the Plaintiff pursuant to Article 31.2 (The annual rental fee of a wharf shall be 0.2 years starting from the date of use to the 20.2 years starting from the date of use, the annual rate of rent for the 20.2 years starting from the date of use to the 20.2 years starting from the date of use to the date of the 20.2 years starting from the date of use, the Plaintiff shall calculate the rate of rent for the 2 years starting from the date of use to the 20.2 years starting rate of the terminal, 2016000,000,0000,00000 million won.

C. Convention between the Plaintiff and the Defendant B

1) On February 11, 2015, the Water Resources Corporation requested the Korea Water Resources Corporation to submit a rehabilitation plan on the grounds that the Plaintiff’s unpaid rents for wharfs, the financial status of the Plaintiff aggravated due to cumulative business losses, and the sustainability of the cargo wharf business is unclear. On February 26, 2015, the Plaintiff submitted a rehabilitation plan on the premise that it is an external investor entry, etc. by separating the contracts between the E terminal and the instant terminal.

2) Meanwhile, on July 2, 2014, the Plaintiff entered into a logistics facility operation consignment agreement with L Co., Ltd. on the part of the Plaintiff, including the shipping and shipping of containers and freight in the site for logistics facilities. On June 17, 2015, the Plaintiff requested the Korea Water Resources Corporation to cooperate in corporate division and lease agreement to attract the Defendant B, which was established with L Co., Ltd as its business objective of shipping and container operation business on December 15, 2014, to investors. Accordingly, on June 22, 2015, the Korea Water Resources Corporation: (a) complies with the mandatory use period of the previous lease agreement eight years under Article 16(1) of the previous lease agreement; (b) satisfies the requirements of the instant lease agreement to secure the efficiency of operation under Article 16(5) of the previous lease agreement; (c) satisfied the requirements of the instant agreement with the Plaintiff to obtain more than KRW 62,000,000,00 for the purpose of verifying the payment of rent.

3) On September 10, 2015, the Plaintiff established Defendant C through personnel division, and secured the management right by acquiring 99% shares through Defendant C’s allocation to a third party. At the same time, at the same time, the Plaintiff subleases the instant terminal to Defendant B until Defendant C acquires the management right. After the said personnel division, Defendant C entered into a new lease agreement on the instant terminal with the Water Resources Corporation and the instant terminal, and immediately thereafter, the said sub-lease agreement was concluded (hereinafter “instant agreement”).

4) The main contents of the instant agreement are as follows.

전 문1. 본 협약서 체결일 현재, 원고의 자본금은 55억 원, 발행 주식 수는 110만 주이며 주주는 주식회사 F (85.46%), 주식회사 G (7.27%) 및 H(7.27%, 이하 합하여 “B 주주들)로 구성되어 있다.본문제2조(이 사건 터미널 등 전대차계약 및 원고의 미납임대료 납부)② 피고 B은 본건 전대차계약 체결과 동시에 원고의 수자원공사에 대한 기존 임대차계약상 미납임대료 중 [15억 원](이하 “본건 사용료)을 사용료 등으로 원고에게 확정적으로 지급하고, 원고는 즉시 피고 B로부터 수령한 위 금액을 기존 임대차계약 따른 미납임대료 중 일부로 전액 수자원공사에 납부하여야 하며, 위 15억 원으로 변제된 임대료 채무 범위 내에서 원고는 추후 피고 C로 하여금 기존 임대차계약에 따른 임대료 채무를 부담하게 해서는 아니 된다.제7조(본건 주식 양도)① 원고는, [제2조 본건 사용료의 지급, 제3조의 본건 분할 및 제5조의 본건 3자배정유상증자가 모두 완료되는 것]을 조건으로, 위 조건이 성취된 후 즉시, B 주주들이 피고 C의 지분 1%(여기서 1%는 본건 3자배정 유상증자 후 발행주식 전체의 1%이며, 본건 3자배정 유상증자 완료 후 B 주주들의 소유주식 전체를 의미한다)를 피고 B에게 [무상]으로 양도(양도시기: 2020. 3. 2.)하는 내용의 주식양수도계약을 B 주주들로 하여금 체결하도록 하여야 한다.제8조(해지 등)① 다음 각 호의 사유가 발생한 경우, 원고는 피고 B에 대한 서면 통지로써 본 협약을 즉시 해지할 수 있다.1. 피고 C이 사건 터미널에 대한 의무사용기간 8년을 준수하지 못할 경우2. 피고 C이 2017. 1. 1.부터 2017. 12, 31.까지 이 사건 터미널 컨테이너 부두에서 처리한 2017년 연간 물동량이 기본물동량 6만 2,000TEU에 미달한 경우(다만, 2017년 연간 물동량 산정에 있어서 피고 C의 2017년 운영 중 발생한 전쟁, 천재지변, 파업, 관련법령 개폐 기타 이에 준하는 사유로 인하여 영업을 할 수 없는 기간은 연간 물동량에서 일할 계산하여 제외하고 연간 물동량으로 환산하여 산정한다)3. 피고 C이 2017. 12. 31. 기준 납입자본금이 100억 원에 미달하거나 한국수자원공사에 대하여 체납한 임대료가 있을 경우③ 본 협약이 본조 제1항에 따라 해지될 경우, 당사자들은 다음 사항을 이행하거나 피고 C로 하여금 이행하도록 하여야 한다.1. 수자원공사의 요청에 따라 피고 C은 신규 임대차계약상 피고 C의 계약상 지위를 원고로 이전함 (단, 피고 C이 위 계약상 지위 이전 전에 부담한 임대차계약상 채무는 원고로 이전되지 아니하며, 피고 C이 계속하여 채무를 부담하고, 원고를 그러한 채무의 불이행으로 인한 제반 손해 또는 손실로부터 면책하여야 함)2. 피고 C은 신규 임대차계약상 임대목적물을 즉시 본건 전대차계약의 개시일의 상태로 원상회복하여 원고에게 반환하고 그 점유를 이전하도록 하여야 함3. 피고 C은 신규 임대차계약 또는 그 임대목적물에 관하여 부담한 채무(수자원공사에 대한 미납 임대료, 손해배상채무, 기타 원상회복에 필요한 비용, 또는 제3자에 대한 공사대금 기타 미지급 비용 등을 포함하나 이에 한정되지 않는다)를 즉시 상환함제9조(진술 및 보증)원고는 피고 B에 대하여 다음 사항을 진술하고 보증한다.② 피고 CO승계할 기존 계약의 목록은 부록 2와 같고 피고 C은 그 외에 다른 계약을 승계하지 아니한다.제10조(추가 확약)② 피고 B은 직접 또는 (해당하는 경우) 피고 C로 하여금 다음 사항을 이행하거나 이행하도록 할 것을 원고에게 확약한다.1. 피고 B은 피고 C의 활성화를 위해 업계의 상관행에 부합하는 범위 내에서 수자원공사의 동의를 조건으로 원고와 부두운영기술지원 협약을 체결하여야 하고, 이 사건 터미널 컨테이너 부두 등에 대한 의무사용기간 8년을 준수하여야 한다.2. 피고 B은 피고 C01 2017. 1, 1.부터 2017. 12, 31.까지 이 사건 터미널 컨테이너 부두에서 처리한 2017년 연간 물동량이 기본물동량 6만 2,000TEU 이상이 되도록 하여야 한다.3. 피고 B은 유상증사 등을 통해 피고 C의 2017. 12, 31. 기준 납입자본금이 100억 원 이상 되도록 하여야 한다.4. 피고 B은 피고 C로 하여금 수자원공사와 체결할 신규 임대차계약상 의무를 이행하도록 하여야 한다.제13조(본 협약서의 효력기간)당사자들이 본 협약서에 기명날인하는 날부터 본 협약서의 효력은 발생하고, 제7조에 따라 본건 주식양도가 완료되는 날에 본 협약서의 효력은 종료한다.

D. The performance security agreement between the Plaintiff, Defendant B, and the Water Resources Corporation

1) On November 25, 2015, the Plaintiff entered into an implementation security agreement (hereinafter “instant implementation security agreement”) with Defendant B and the Water Resources Corporation to ensure the implementation of the terms and conditions set forth by the Water Resources Corporation, as follows:

Article 1 (Purpose of this case) The purpose of this Agreement is to secure the performance of the terms and conditions set forth in the former Convention on Security of Water Resources (except for the 3rd anniversary of the 3rd anniversary of the 2nd anniversary of the 3rd anniversary of the 3rd anniversary of the 3rd anniversary of the 3rd anniversary of the 1st anniversary of the 3rd anniversary of the 1st anniversary of the 3rd anniversary of the 3rd anniversary of the 1st anniversary of the 1st anniversary of the 3rd anniversary of the 1st anniversary of the 1st anniversary of the 3rd anniversary of the 1st anniversary of the 3rd anniversary of the 1st anniversary of the 1st anniversary of the 1st anniversary of the 1st anniversary of the terms and conditions set forth in the 1st Amendment to the 2nd CF, the 2nd anniversary of the 1st anniversary of the 3rd anniversary of the 1st anniversary of the terms and conditions set forth in the 2nd CFF and the 1st of the 3rd.

2) On December 1, 2015, the Plaintiff was newly established by dividing Defendant C, and on December 31, 2015, Defendant C concluded a lease agreement between the Water Resources Corporation and the instant terminal (hereinafter “instant lease agreement”).

Article 4 (Period of Lease) ① The period of lease of a wharf shall be until December 31, 2041. The period of lease of a future site shall be until December 31, 2019. Article 5 (Commencement of Use and Liability) ① The date of commencement of use of the leased facility shall be January 1, 2016. The term of lease of the leased facility shall be at least 6 months from the date of commencement of the lease contract to the end of the term of lease contract to the end of the term of lease contract to the end of the term of lease contract to the end of the term of lease contract to the end of the term of lease contract to the end of the term of lease contract to the end of the term of lease contract to the end of the term of lease. The term of lease shall be at least 10 years after the end of the term of lease contract to the end of the term of lease contract to the end of the term of lease contract to the end of the term of lease contract to the end of the term of lease contract to the end of the term of lease contract to the term of the former.

3) On August 9, 2016, Defendant C requested the Korea Water Resources Corporation to grant approval on the operation of the main station for export in the instant terminal. Accordingly, on August 19, 2016, the Korea Water Resources Corporation granted conditional approval to the effect that, in the event that the rights, obligations, etc. are not effective due to the nonperformance of the obligations stipulated in the instant Performance Security Convention, the use should be terminated and returned to the original state immediately. Defendant C submitted written consent to the Korea Water Resources Corporation on August 29, 2016 regarding the said conditional approval.

4) On January 12, 2017, Defendant C requested the Korea Water Resources Corporation to grant approval on the operation of the open-end motor vehicle for import in the instant terminal. Accordingly, on January 16, 2017, the Korea Water Resources Corporation granted conditional approval to the effect that the use should be immediately terminated and reinstated in the event that the rights, obligations, etc. are not effective due to the nonperformance of obligations as stipulated in the instant Performance Security Convention. Defendant C submitted written consent to the Korea Water Resources Corporation on January 25, 2017.

E. The instant implementation security agreement and the termination of the instant agreement

1) Meanwhile, Defendant C concluded a basic design drawing agreement for the construction of a vessel of 500 TEU level on May 13, 2016 and received a written estimate on August 29, 2016, but in fact did not place an order for the construction of the said vessel.

2) On January 4, 2018, the Water Resources Corporation requested Defendant C to submit evidentiary documents regarding “the current status of Defendant C’s paid-in capital (hereinafter “the instant water supply conditions”), “the instant conditions of vessel,” “the instant conditions of capital,” “the total amount of which, during the period from January 1, 2017 to December 31, 2017, the volume of water used at the terminal wharf during the period from January 1 to December 31, 2017, or the results of construction and operation of vessels of at least 350TEU level,” “the annual amount of water used at the terminal wharf,” “the instant conditions of capital,” and “the instant conditions” collectively, to the effect that Defendant C did not directly submit evidentiary documents regarding “the annual amount of water used at the terminal wharf,” “the amount of which, during the period from January 30, 2018,” and Defendant C did not directly process Defendant C’s 13050 tons of water used in the instant case from 20130.37.5 billion tons.

3) On April 27, 2018, the Water Resources Corporation notified the Defendants of the termination of the instant lease agreement on April 30, 2018 pursuant to Article 3(2) of the instant Performance Security Convention on the ground that the Defendants violated the instant condition, and requested the instant terminal to restore the leased object to its original state.

4) On June 4, 2019, the Plaintiff also requested that the instant agreement be terminated pursuant to Article 8(1) of the instant agreement and the Defendant C return the instant terminal to its original state in accordance with Article 8(3)2.

(f) Progress of a decision of the Fair Trade Commission and administrative litigation;

1) On July 26, 2018, Defendant B reported to the Fair Trade Commission (hereinafter referred to as the “Fair Trade Commission”) to the effect that the establishment of the instant terms and conditions and the subsequent termination thereof constituted unfair trade practices. On July 31, 2019, Defendant B issued a warning of an examiner’s discretion on the ground that the termination based on the instant terms and conditions and the violation thereof constitutes a disadvantageous provision due to abuse of trade position under Article 23(1)4 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”).

2) On September 20, 2019, the Water Resources Corporation filed an administrative litigation against the Seoul High Court (Seoul High Court 2019Nu57369) seeking the revocation of the aforementioned warning disposition. On July 2, 2020, the said judgment was rendered in favor of the lower court that ordered the revocation of the above warning disposition. Accordingly, on July 22, 2020, the said judgment was pending in the Supreme Court Decision 2020Du45292 as of July 22, 2020.

[Ground for recognition] The facts without dispute, Gap evidence Nos. 1 through 10, 18, 19, 21 through 28, 38, 39 (including the number of each unit; hereinafter the same shall apply), Eul evidence Nos. 6, 16, 17, 20, 21, 22, 24, 37, 42, 49, 51, 52, and 65 respectively, and the purport of the whole oral argument [the defendants] of the evidence Nos. 21 through 26 were not acquired through the procedure of the law, but the plaintiff did not have any evidence to be deemed to have collected through the unlawful procedure of the prohibition of each of the above evidence, so the defendants' above assertion is without merit].

2. Summary of the parties’ assertion

A. The plaintiff's assertion

1) The assertion against Defendant B

The instant agreement is valid separately from the instant lease agreement or the instant performance security agreement, and the Plaintiff terminated the instant agreement pursuant to Article 8(1)2 and 3 of the instant agreement on the grounds of Defendant B’s violation of water dynamics and capital conditions. As such, Defendant B is obliged to have Defendant C deliver the instant terminal to the Plaintiff and deliver it to the Plaintiff pursuant to Article 8(3)2 of the instant agreement.

2) The assertion against Defendant C

The instant performance security agreement constitutes a contract for a summary of the Plaintiff, the water resources construction works, and the third party whose beneficiary is Defendant C, and the Defendant C, by impliedly and impliedly concluding the instant lease agreement with the Water Resources Corporation, bears the obligation under the instant performance security agreement. On April 27, 2018, the Water Resources Corporation terminated the instant lease agreement pursuant to Article 3(2) of the instant performance security agreement on the ground of non-compliance with the instant terms and conditions. As such, the Defendant C is obliged to deliver the instant terminal to the Plaintiff pursuant to Article 3(2)2 of the instant performance security agreement.

B. The defendants' assertion

1) Defendant B’s assertion

A) Article 3 of the instant Performance Security Convention constitutes a special provision for Article 8 of the instant Convention, and thus, the instant Performance Security Convention is preferentially applied, and the instant Convention is in conflict with the instant Performance Security Convention. Therefore, the termination under the instant Convention is null and void.

B) Even if Article 8 of the Convention applies, the termination on the ground of the instant water quantity and the violation of capital conditions is impossible to realize such conditions and is null and void in violation of good morals and other social order as unfair trade.

2) Defendant C’s assertion

A) The Plaintiff is not a party to the instant lease agreement, and the instant performance security agreement does not directly acquire the right to Defendant C, but merely promises to enter into a lease agreement or allow a lessee to take over the status of the lessee, and thus cannot be deemed as a contract for the third party. Therefore, Defendant C did not bear any obligation under the instant performance security agreement, but did not accept the obligation by declaring the intent of profit, etc.

B) The establishment of the terms and conditions of this case and the termination on the ground of such violation (hereinafter referred to as "the termination, etc. of this case") are unfair trade practices that provide disadvantage by setting terms and conditions that are impossible to realize by abusing their position in trade, which are in violation of good customs and other social order, and thus constitutes judicial invalidation.

C) Since the instant lease agreement or the instant performance security agreement provides for a lease agreement between the Water Resources Corporation and the Defendant, there is no provision on the duty to deliver to the Plaintiff at the time of termination or termination, among the grounds for termination stipulated in the instant performance security agreement, the act of violating the terms and conditions of the instant lease agreement is modified or modified, and thus, it cannot be terminated as a ground for termination, and the said notification of termination was not given six months prior to April 27, 2018, and thus, is procedurally unlawful.

3. Determination as to the claim against the defendant B

A. The validity of the instant agreement

According to the above facts, Article 13 of the Convention provides that the effective period of the Convention shall be until the date when the transfer of shares is completed pursuant to Article 7, and Article 7 of the Convention shall be March 2, 2020. Thus, the Convention shall continue to exist until March 2, 2020, and there is no evidence to deem that the contract of this case was terminated prior to the termination of the Convention on June 4, 2019. In addition, even though the defendant C does not become a party to the Convention, Article 8 (3) 2 of the Convention provides that the defendant C shall deliver the instant terminal to the plaintiff, so the legal relations between the plaintiff and the defendant shall continue to be effective separately from the lease contract of this case or the performance security agreement of this case.

B. Whether this case’s performance security agreement constitutes a special provision

According to the above facts, Article 5(1) of the instant Performance Security Convention provides that “If the instant Convention conflicts with the instant Performance Security Convention, the legal relationship between the Water Resources Corporation and the remaining parties shall prevail.”

However, such provision cannot be deemed to regulate the legal relationship between the Plaintiff and the Defendant B, not water resources corporation, and Article 5(2) of the instant Performance Security Convention provides that “In spite of the conclusion of the instant Performance Security Convention, the instant Convention shall continue to exist effectively. The legal relationship between the Plaintiff, the Defendant, or the Defendant C shall be governed by the instant Convention, except as otherwise expressly provided for in the instant Performance Security Convention.” While Article 8 of the instant Convention provides for the Plaintiff’s termination right and its effect, Article 3 of the instant Performance Security Convention cannot be deemed to be identical to that of the instant Water Resources Corporation’s termination right and its effect, and thus, it cannot be deemed that Article 3 of the instant Performance Security Convention constitutes a special provision under Article 8 of the instant Convention, and thus, is excluded from its application.

Therefore, this part of the defendant B's assertion is without merit.

C. Whether grounds for termination arise

According to the above facts, Defendant C’s annual 2017 water volume was limited to 330 tons, and as of December 31, 2017, Defendant C violated the terms and conditions of this case’s water quantity and capital amount as of December 31, 2017, and accordingly, Defendant C violated the terms and conditions of this case’s water quantity and capital. Accordingly, the ground for termination as prescribed in Article 8(1)2 and 3 of the Convention was established. Thus, the Plaintiff may terminate the instant agreement on the grounds of the above termination.

Furthermore, as seen later, it cannot be deemed that the establishment of the water volume and capital conditions of this case and the termination on the ground of the violation thereof cannot be deemed as an unfair trade act that violates good morals and other social order, and thus, Defendant B’s assertion on this part is without merit.

D. Sub-committee

Therefore, the instant Convention is deemed to have been lawfully terminated upon the Plaintiff’s declaration of termination on June 4, 2019. Accordingly, Defendant B is obligated to have Defendant C deliver the instant terminal to the Plaintiff pursuant to Article 8(3)2 of the instant Convention.

4. Determination as to the claim against Defendant C

(a) Whether a contract is concluded for a third party;

1) Unlike the fact that a contract for a third party is ordinarily effective only between the parties to the contract, the purpose of which is to have a third party acquire rights directly between the parties to the contract under one’s own name. Whether a contract constitutes a contract for a third party is an issue of interpreting the intent of the parties to the contract to directly acquire rights directly to the third party. It may be determined by interpreting a reasonable intent of the parties to the contract by comprehensively taking into account all the circumstances such as the purpose of the contract, the nature of the act of the parties to the contract, the understanding gained, transaction practices, and the social functions of the contract system for the third party, etc. (see, e.g., Supreme Court Decision 97Da28698, Oct. 24, 1997). In addition, the party to the contract may have a third party acquire rights under one’s own name and at the same time assume the duty of return in return (see, e.g., Supreme Court Decision 2005Da286365, May 26, 2006).

2) Comprehensively taking account of the following circumstances revealed from the above facts, it is reasonable to view the instant performance security agreement as a contract for a third party to acquire contractual rights by declaring the intent of profit by making the Plaintiff a summary, the Water Resources Corporation, and the Defendant C as the beneficiary, and at the same time, to have the third party perform the duty in return.

① After receiving investment from Defendant B and newly establishing Defendant C by dividing it from the Plaintiff with the approval of the Water Resources Corporation, the Plaintiff acquired the right to lease, etc. of the instant terminal. In the course of the negotiations, the instant agreement was concluded between the Plaintiff and the Defendant B, and thereafter, the instant implementation security agreement was concluded upon conditional approval of the Water Resources Corporation.

② Defendant C was established immediately after the conclusion of the instant performance security agreement, and 9% of the shares of Defendant C acquired by Defendant C through the instant agreement, thereby securing the management right. As such, it was anticipated that the right of lease, etc. due to the instant performance security agreement be attributed to Defendant C. In the instant agreement and the instant performance security agreement, Defendant C had been set forth the rights and obligations prior to the establishment of Defendant C.

③ The instant implementation security agreement set forth the main terms and conditions of the instant lease agreement to be entered into between the Water Resources Corporation and the Defendant C in attached Form 1, and the instant lease agreement was concluded in the same manner as the instant attached Table 1. It can be deemed that the instant lease agreement was concluded within the meaning of confirming the contents of attached Table 1 between Defendant C and the Water Resources Corporation, established after the conclusion of the instant implementation security agreement.

④ In order to enhance the efficiency of the instant terminal operation, the terms of this case are deemed to have been added to the Water Resources Corporation with the authority to select the operator of the instant terminal. As long as the right to the instant terminal lease agreement is granted to Defendant C through the instant Performance Security Convention, it is necessary to have the Water Resources Corporation bear the obligation to pay in return for the instant terminal lease agreement. The terms of this case were referred to as the “Water Resources Corporation” from the time when the Plaintiff requested the Corporation to cooperate in the initial division and lease agreement. The instant agreement also stipulated the volume of water and the capital conditions of this case.

⑤ Even after the conclusion of the instant lease agreement, the Plaintiff still remains a party to the instant agreement or the instant performance security agreement, and since the instant performance security agreement provides for the conclusion of a new lease agreement, i.e., the “re-acquisition,” the said agreement after the termination thereof due to the instant violation, the Plaintiff’s promise to enter into the instant lease agreement only to Defendant C through the instant performance security agreement, but it is not limited to taking over the status of a lessee under the instant previous lease agreement, as it was added not only to the leased object but also to the instant terms and conditions, etc. compared to the instant

3) Furthermore, along with the above facts acknowledged: (a) Defendant C appears to have reached the instant lease agreement with the Water Resources Corporation under the instant performance security agreement; (b) Defendant C, a major shareholder of Defendant C and the instant terminal lessee, concluded the instant performance security agreement; (c) as long as the instant performance security agreement was concluded in the process of leasing the instant terminal, it is not deemed that Defendant C would have made a special objection to the burden of obligation under the instant performance security agreement; and (d) Article 23(1)5 of the instant lease agreement provides for cases where Defendant C refuses to conclude a new lease agreement despite the fulfillment of the terms “pre-acquisition terms” under Article 3(2)1 of the instant performance security agreement as one of the grounds for termination, it would be reasonable to deem the instant lease agreement to have agreed to terminate the instant lease agreement without having expressed his intent to conclude the instant performance security agreement until the date of signing the instant performance security agreement pursuant to Article 3(2) of the instant performance security agreement.

4) Therefore, the instant performance security agreement is deemed a contract for a third party, including a mandatory burden, and the Water Resources Corporation may terminate the instant lease agreement in accordance with Article 3(2) of the instant performance security agreement.

B. Judicial effects such as the termination of the instant case

1) In cases where an Act explicitly prescribes the validity of a juristic act in violation of a certain obligation to the parties to a juristic act, such as a contract, or an Act prohibiting a certain act, determination of the validity of the juristic act ought to be made pursuant to the relevant provision. If the Act provides that a juristic act in violation of the relevant provision is null and void or the relevant provision provides that the juristic act in violation of the relevant provision is effective or compulsory provisions, the juristic act in violation of the said provision is null and void. In other cases where there is no clear definition of the validity of the juristic act in violation of the prohibition provision, the determination of its validity should be made by comprehensively taking into account various circumstances, such as the legislative background and purport of the provision, protected legal interests, seriousness of the violation, whether the parties intended to violate the provision of the Act, impact of the violation on the parties to the juristic act or a third party, social, economic, and ethical valuation of the violation, and attitude of the Act on similar or closely related acts (see, e.g., Supreme Court Decision 2015Da2700, Jan. 17, 2019).

2) However, in light of the following circumstances known from the above facts, each of the evidence and evidence set forth above is not sufficient to recognize that the termination, etc. of this case constitutes a juristic act violating good customs and other social order, and thus, constitutes a juristic act violating good customs and other social order, and thus, it also becomes null and void under the private law. There is no other evidence to prove otherwise.

① The Korea Water Resources Corporation received a warning on the ground that the termination of the instant measure constitutes a disadvantageous provision due to abuse of trade position under Article 23(1)4 of the Fair Trade Act, but only provides that it may order suspension of the relevant unfair trade practice and deletion of contract clauses in accordance with Article 24 of the Fair Trade Act. However, in light of the contents of the aforementioned corrective measure, even if it falls under an unfair trade practice, it is assumed that the act is legally effective, and its judicial effect cannot be immediately denied solely on the fact that it constitutes an unfair trade practice.

② Since it is difficult to see the intention or purpose of the termination, etc. of the instant case as malicious, it was intended to issue a warning considering the circumstances that it is difficult to see that it was a damage remedy case limited to Defendant B, and did not issue an order to suspend unfair trade practices, etc. and the warning disposition was revoked as a result of administrative litigation, it cannot be deemed that the termination, etc. of the instant case itself has a significant anti-social or anti-competence to the extent that it should be denied its judicial effect.

③ The instant condition appears to have been added by the Korea Water Resources Corporation in the process of separating a corporate division and a lease agreement by the Plaintiff. As such, there is room to view that the Korea Water Resources Corporation has the authority to select the operator of the instant terminal, and thus, has the status that may affect trading activities. However, Defendant B was a new-born corporation established on December 15, 2014 and for which about one year has not passed since it was established, and Defendant C leased and operated the instant terminal was not established at the time of the instant performance security agreement. As such, Defendant C was not an establishment and operation of the instant terminal, it is deemed that there is a need to add the instant condition to the Korea Water Resources Corporation to promote the efficient operation of the instant terminal.

④ Article 16 of the previous lease agreement of this case provides that the period of compulsory use of the instant terminal shall be eight years, and no shares and operating rights shall be transferred for five years from the date of compulsory use, and only for inevitable reasons, such as bankruptcy and bankruptcy, rehabilitation procedure, and in order to increase the efficiency of operation, it is determined that the instant terminal can be transferred with approval from the Korea Water Resources Corporation. Thus, the separation of the lease agreement of this case and the lease process thereof would have to be prudented.

⑤ On July 2, 2014, L Co., Ltd. substantially established Defendant B entered into a distribution facility operation consignment agreement with the Plaintiff on the part of July 2, 2014, including container and shipping-out and shipping-out of freight, and Article 7 of the above agreement appears to have a provision on the cost and settlement of accounts based on the volume of water. However, it cannot be deemed that L Co., Ltd was at a location that could not be fully aware of the water capacity and operating status of the instant terminal, etc. from the time of the instant agreement, and thus, it cannot be deemed that the Defendants were bound to enter into the instant performance guarantee agreement without the Defendants’ knowledge of such circumstances.

(6) In addition, the 62,00TEU annually calculated based on the results of the report made by the Korea Development Institute under the Ministry of Strategy and Finance as of November 30, 2009. Defendant B appears to have been able to determine whether to enter into the instant agreement after fully examining the results of the report as above and the actual water quantity, etc., and it is difficult to view that Defendant B was difficult to reject the instant condition requested by the Korea Water Resources Corporation due to the exclusion of independent managerial judgment at the time of entering into the instant agreement with the Plaintiff.

7) The instant Convention does not include the terms of the instant vessel, but the instant implementation security agreement contains the instant vessel terms and conditions on an selective basis, and the Defendants may be deemed to have reduced the obligations under the instant implementation security agreement than the instant agreement. It is difficult to view that the instant water resources corporation was in an inferior position to accept the instant terms and conditions without any inevitable condition.

8) Although Defendant C received a quotation of the 500TEU container vessel, and it was practically difficult to operate the vessel within the time limit prescribed by the instant condition because the transport of the instant terminal is small and the total time required for the construction of the vessel, Defendant C does not seem to be currently in the process of construction or the order of the container to comply with the instant vessel condition.

① Even if Defendant C paid rent, etc. or paid the Plaintiff’s overdue rent of KRW 1.5 billion after the conclusion of the instant lease agreement, it is difficult to view it as a legal loss by itself, and such expenditure is also deemed to be based on the Defendants’ business judgment, and there are no other circumstances to deem that the Water Resources Corporation obtained unjust benefits by taking advantage of its status and the Defendants had an excessive and unfair burden.

C. Whether grounds for termination arise

1) According to the above facts, so long as the implementation security agreement of this case on behalf of a third party is in force on the defendant C, it cannot be deemed that the grounds for termination under the implementation security agreement of this case exist. Thus, it is reasonable to view that the grounds for termination under Article 2(3)1, 2, and 4(4)1 of the performance security agreement of this case have occurred, since Defendant C’s annual water consumption in 2017 exceeded 330 tons, Defendant C did not build a 350TEU level vessel, and Defendant C’s capital payment in December 31, 2017 was merely 4 billion won, and thus, Defendant C violated the conditions of this case.

2) In addition, even though the expression of intent to terminate the instant lease was not notified before the six-month period stipulated in Article 23(2) of the instant lease agreement, it shall be deemed that the instant lease agreement was terminated on October 27, 2018, which was apparent that six months passed since the instant lease agreement was terminated on October 27, 2018. Thus, the Korea Water Resources Corporation may terminate the instant lease agreement in accordance with Article 3(2) of the instant performance security agreement. Ultimately, this part of the Defendant C’s allegation is without merit.

D. Sub-committee

On April 27, 2018, the fact that the Water Resources Corporation expressed to Defendant C an intention to terminate the instant lease agreement in accordance with Article 3(2) of the instant Performance Security Convention is as seen earlier. As such, the instant lease agreement is deemed to have been lawfully terminated, Defendant C is obligated to deliver the instant terminal to the Plaintiff pursuant to Article 3(2)2 of the instant Performance Security Convention.

5. Conclusion

Therefore, the judgment of the court of first instance is just in its conclusion, and the defendant's appeal of this case is without merit, and all of the appeals are dismissed. It is so decided as per Disposition.

Judges Lee Jae-hwan

Judges Senior Superintendent-Appellee