2016 Gaz.42544 (Counterclaim)

Preliminary claim: From among the supplementary project agreements concluded on July 13, 201 between Defendant, B University president, and C, the content that "if the management and operation rights are lost or waived the management and operation rights of the subject matter under this agreement due to the circumstances of Section C, and the management and operation rights are changed due to the loss or waiver of the rights to manage and operate the subject matter under this agreement, the president of B University confirms that the subject matter under this agreement shall be guaranteed as a condition of the entrusted management and operation contract."

[Reserve Counterclaim] Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) shall pay to the Defendant 100,000,000 won with 15% interest per annum from the day after the delivery of a copy of the instant counterclaim to the day of full payment.

1. Basic facts

A. On December 7, 2005, the president of the Buniversity was designated by the former Ministry of Education and Human Resources Development as the competent authority in charge of the business affairs of BO (the method of public-private partnership project in which ownership belongs to the State or a local government-invested organization, but the project implementer obtains profits by granting the right to manage and operate the facilities for a certain period of time) (hereinafter referred to as the “instant business”). The president of B University, based on the former Act on Public-Private Partnerships in Infrastructure (hereinafter referred to as the “Private Investment Act”), the president of the B University, the president of the B University, established and announced a basic plan for BO private investment project in B, which is to build, maintain, manage and operate the D culture center, and to build, maintain, and operate it. The content of B, which is the subject of the concession agreement, was referred to as the “public-private partnership project” under the name of B, 2006, 200, 200, 200, 26, 26, 36, and 3.

Article 6 (Reversion, etc. of Ownership of Facilities) (1) Ownership of this facility shall belong to the competent authority upon completion and at the same time, the competent authority shall grant the project implementer the right to manage and operate this facility as a measure to guarantee the project implementer's rights and legal status pursuant to this Convention at the same time with confirmation of completion.Article 56 (Effect at the Time of Termination of the Convention) (1) of this Convention is terminated in accordance with the provisions of Article 53, the project facilities shall immediately belong to the competent authority at the time of termination, the project implementer's rights, powers, etc. shall be terminated, and the period for the establishment of the management and operation rights shall also expire. (2) If the project implementer has decided to succeed to the contract to which the project implementer is a party, the project implementer shall take all necessary measures to ensure the succession of the contract to the competent authority within the limited period

B. C (hereinafter referred to as “C”) commenced the instant project and completed the building indicated in the separate sheet (hereinafter referred to as “instant building”), and obtained approval for the use of the instant building from the total head of B University, and obtained the management and operation right of the instant building on April 2, 2009. C entered into a lease agreement with the lessee who will move into the instant building under the opening name of “J”.

C. However, due to the lower rate of sale of the instant building, C was lower in the rent-generating profit received by C, and the president and C decided to introduce a plan to collectively entrust the operation of the instant building to a third party, a specialized distributor. On May 9, 2011, C entered into an entrusted management and operation agreement with the Defendant on consignment management and operation of the facilities from the second to third floors above the instant building for twenty (20) years (hereinafter referred to as the “entrusted management and operation agreement”), and the main contents thereof are as follows.

Article 2 (Indication of Real Estate) (B) (Defendant) is to lease from 2nd underground to 3rd above the ground surface on the registration of the J building located in the Geum-gu in Busan Metropolitan City: Provided, That with respect to the object of lease on the 4nd floor and the 5nd floor above the ground surface on the registration, a separate contract shall be concluded with A (C) and a third party (Defendant) who has entered into a lease contract shall cooperate with B. The term of lease under this contract shall be 20 years from the date of commencement of business on the whole of the object of lease. The term of lease under this contract shall be 20 years from the date of commencement of business by B (Defendant) unless there is an agreement between A and B on the date of termination of the term of lease under paragraph (1) and B. The term of lease under this contract shall be automatically renewed until December 31, 2039, the date of expiration of the establishment of management and operation rights of A, and the annual rent of less than 300 billion won shall be paid to A.

D. On May 12, 2011, the Defendant entered into an entrusted management contract with L Co., Ltd. (hereinafter “L”) that leases 4 and 5 floors above the instant building from C (hereinafter “the instant building”) on May 12, 201, under which the Defendant transferred 4 and 5 floors from L from May 12, 201 (hereinafter “contract for entrusted management and operation”). The main contents are as follows.

Article 2 (Indication of Real Estate) (Defendants) is to lease from 4 to 5 stories above the ground on the registration of the instant building. Article 4.1. The sub-lease period of this Agreement shall be twenty (20) years from the date of commencement of the business on the leased object: (L) Party (L) who is not required to maintain sub-lease any longer at the end of the sub-lease period of paragraph 1; (2) Party (L) shall be automatically renewed not later than December 21, 2039, the expiration date of the establishment of the facilities management and operation right of C. Article 7.1.2.2.3.2.0% of the lease deposit (1,00,000,000,000) shall be paid to Party A by 1.2.2.2% of the monthly increase of 2.0% from 20 months to 3.15 months before the start of the sub-lease period of this Agreement.2.2% of the above amount shall be paid to Party B as the following monthly rent:

E. On May 9, 201, C changed the subject matter of the consignment management contract between the Defendant and the second floor of the instant building to the fifth floor above the ground; the term of the consignment operation; the term of the lease; the term of the lease deposit to the term of the consignment operation; the term of the monthly rent; the term of the lease deposit to the term of the monthly fee; and the other term of the consignment management operation contract (hereinafter referred to as the "entrusted management operation contract of June 30, 201; the term of the consignment management contract of June 30, 201; and the term of the consignment management contract of June 30, 201 to the same as the date of the preparation of the consignment management operation contract.

F. Meanwhile, on July 13, 201, the Defendant entered into a supplementary business agreement with B University president and C (hereinafter “the instant supplementary business agreement”) on the guarantee of the business period and the refund of deposit in the entrusted object. Of them, Article 3 of the Act stipulates that “If management and operation rights are changed due to the circumstances of C, the management and operation rights of the object shall be lost or renounced under this agreement, and the management and operation rights are lost or changed, the president of B University shall guarantee the use of the object under this agreement as a condition of the entrusted management and operation contract.” Since April 25, 2012, the Defendant began business activities with M as to the entire building of this case from April 25, 2012.

G. Notwithstanding the Defendant’s commencement of entrusted operation, C failed to pay interest to the Nonghyup Bank Co., Ltd. (hereinafter “CF”) which is a lending financial institution in connection with the instant business, and the Nonghyup Bank against the Plaintiff and BFC branch in Busan District Court.

On January 7, 2015, the Busan District Court filed a lawsuit against the Plaintiff and rendered a ruling to pay to the Nonghyup Bank an amount equivalent to the principal and interest of loan out of the amount payable upon termination (Seoul District Court 2013Gahap40813). The said court recognized the termination of the instant concession agreement by the Nonghyup Bank, which is the lender, and determined that the Plaintiff and the Nonghyup Bank were liable to pay the amount payable upon termination to the Plaintiff as an effect of termination under the concession agreement. While the Plaintiff and the NH Bank appealed to Busan High Court, the appellate court immediately acknowledged the Plaintiff’s obligation to pay the amount upon termination of the instant concession agreement on the premise that the Plaintiff’s simultaneous performance defense right was rejected and the instant concession agreement was terminated (Resan High Court 2015Na50897), and both the Plaintiff and the Nonghyup Bank were currently pending in the final appeal

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 8, 9, Eul evidence No. 22 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings.

2. The parties' assertion

A. The plaintiff's assertion

1) In the first place, the Plaintiff, by deception of the Defendant, entered into a supplementary business agreement in this case with the Defendant, without knowledge that the 4 and 5th floor of the instant building were transferred from L, instead of the 2011, 201, 201, 201, 201, 201, 201, 30, 201, 201, 201, 201, 201, 5 and 12, 201, 4 and 5th floor of the instant building. Since the supplementary business agreement in this case was concluded by the Defendant’s deception, the Plaintiff’s delivery of the copy of the complaint in this case is revoked. Even if it is not recognized as the Defendant’s deception, the Plaintiff did not enter into the supplementary business agreement in this case if it was aware that the Defendant had concluded the entrusted management agreement on May 12, 201, 200, 205, 2011.

2) Preliminaryly, even if the cancellation of the instant supplementary project agreement is not recognized due to mistake or fraud, guaranteeing the Defendant’s right to use and benefit from the instant supplementary project agreement Article 3 of the instant supplementary project agreement from the second to the fifth above ground among the instant buildings is a permit for use and benefit from administrative property, and thus, it should be made in accordance with the provisions of the State Property Act. However, since the instant supplementary project agreement was concluded in the form of a civil agreement with the Defendant and C without following such procedures, the provisions of the instant supplementary project agreement are null and void in violation of the provisions of the State Property Act.

B. Defendant’s assertion

1) The Defendant did not deceiving the Plaintiff regarding the entrusted management and operation contract from the second to fifth above ground among the instant buildings, and the Plaintiff had already been aware that the fourth and fifth floors of the instant building were transferred from L as the lessee, and there was no error in the fact that the Defendant had already been aware of the fact that the Plaintiff transferred the fourth and fifth floors of the instant building from L as the lessee. Even if there was an error in the contents of the household declaration, the Defendant

2) In addition, the instant supplementary project agreement constitutes a concession agreement under the Private Investment Act, and the infrastructure installed as a private investment project should be operated in accordance with the provisions of the concession agreement. As such, there is no room to apply the State Property Act with respect to guaranteeing the use and profit-making of the instant building. Even if the instant building is applied under the State Property Act, it is merely a general property, not an administrative property, and the provisions of the State Property Act concerning permission to use general property do not constitute a mandatory provision, and thus, even if the instant supplementary project agreement was violated, it does not become invalid.

Judgment

A. Judgment on the main claim

1) The allegation of revocation on the ground of an expression of intent by fraud

The facts that the Defendant did not directly submit each of the above contracts to the Plaintiff or notify the terms of the contract after concluding the entrusted management and operation contract as of May 9, 2011 and the entrusted management and operation contract as of May 12, 201 are either a dispute between the parties, or may be recognized by comprehensively taking into account the overall purport of the pleadings. However, considering the following circumstances, the above facts alone are insufficient to recognize that the Defendant deceptioned the Plaintiff, and there is no other evidence to prove otherwise. Accordingly, this part of the Plaintiff’s assertion is without merit.

① On May 13, 2011, N, a member of the Defendant’s new development team, sent e-mail to P, who was in charge of entering into the instant entrusted management and operation agreement and supplementary projects agreement, did not deviate from the existing framework requested in B, and entered only the contents related to the film board, added to e-mail, and added the content that the 4 and 5th of the subject matter of the entrustment was entered into with a third party in the draft of the supplementary project agreement attached to e-mail, thereby entering into a contract with a third party, with respect to the 4 and 5th of the subject matter of the instant building.

② On May 13, 2011, the e-mail sent by the attorney-at-law affiliated with the Defendant to P was accompanied by the draft of the Supplementary Project Agreement amended by the Defendant. The e-mail states that the Defendant may conduct business with respect to up to five floors above the ground among the buildings of this case, including a theater part, and that the Defendant should guarantee the deposit for the object borrowed from L or obtain a supplementary Project Agreement. In light of this, the Defendant appears to have wanted to receive a definite business period guarantee or an agreement to return the deposit on the premise that the transfer of the 4th and the 5th of the building of this case from L was notified to the side of the B University.

P on July 1, 2011, as the director of Q division of the National University Planning Center, sent e-mail to the person who was the business operator of the instant project, and attached the revised consignment management operation contract to ‘A sent the deposits under the consignment management contract in full as subsidies.' The attached consignment management operation contract also includes the 4th and the 5th floor of the entrusted object, which is excluded, and this part is changed to ‘the principal' as it is stated that the defendant entered into a separate contract with a third party. Thus, it is reasonable to view that the defendant sent the original copy of the consignment management contract, which the defendant plans to deliver to P only the 0th floor of the instant building, to notify P of the fact that the defendant leases only the 3rd floor of the instant building from C to the third floor of the instant building.

④ In relation to the instant consignment management agreement and the instant supplementary project agreement, the Defendant did not directly proceed with consultation with, or exchange e-mail with, B University’s side, and only delivered intent through, or exchanged the original copy of the contract reflecting the opinion. Therefore, even if the Defendant did not directly submit the instant consignment management operation agreement on May 9, 201 and the instant consignment management operation agreement on May 12, 2011, it cannot be readily concluded that the Defendant had expressed an intent to deceive the Defendant solely. Rather, the Defendant sent the draft of the consignment management operation agreement clearly stating that the fourth and fifth floors of the instant building were transferred from L to C several times, thereby deeming that C was delivered the said draft to the end of B University by sending it again to the end of B University and receiving the original copy of re-delivery. Therefore, it is difficult to deem that the Defendant intentionally concealed the fact of sub-lease on the fourth and fifth floors of the instant building, or that there was an intention to induce B University.

2) Claim for revocation on the ground of an expression of intent by mistake

According to the evidence evidence Nos. 4 and 5, upon requesting the president of B University on July 6, 201 to enter into a supplementary project agreement on the building of this case, C attached an entrusted management contract on June 30, 201, and even the instant supplementary project agreement entered into as a result, the following supplementary project agreement is acknowledged to have been entered into in order to supplement the entrusted management agreement entered into between A and B (Defendant) and the concession agreement entered as between B (Defendant) on June 30, 2011. However, considering the following facts or circumstances, C’s evidence Nos. 11, 2, 3, 7, 14, 15, and 31, and the overall purport of testimony and arguments of the witness N, 15, and 0, the above facts alone are insufficient to acknowledge that the Plaintiff entered into the supplementary project of this case, and there is no other evidence to support that the Plaintiff was absent from the agreement.

① On April 11, 2011, P sent a memorandum of understanding concluded between C and the Defendant on January 24, 2011, and the above memorandum of understanding was written to exclude the scope of the object leased by the Defendant from “the theater is excluded from either 4 or 7 floors above the ground level” among the instant building, or “three floors above the ground level” from the leased object.

② On May 6, 2011, P sent a e-mail sent an original copy of the consignment management contract to N. The main text of e-mail states that “I will arrange and send the deleted portions requested by BB University.” In the indication column of the subject matter of the consignment management contract attached thereto, “I will see the fourth floor above the ground (3rd floor above the ground on the registration) from the fourth floor above the ground (4th floor above the ground on the registration)”, “I will conclude a lease contract separately with the third party (the 4th floor above the registration) under the lease contract with the third party (the 4th floor above the registration).” P appears to have sent the e-mail to this day, “I will cooperate,” and “I will delete the disease from the party to the consignment management contract,” and attached the original copy reflecting the contents of the request from B201 in the process of the above entrusted management contract. However, the above original copy still appears to have been included in B’s e-mail management contract with the president up to 3th floor above ground level.

③ On May 7, 2011, P sent several authentic copies to P on the same day, “a lease agreement and special agreement,” which was received from the Defendant, by e-mail. Article 2 of the consignment management contract attached to e-mail still states that, up to the third floor of the instant building, the fourth and the fifth floor were entered into a separate contract between the third party and the Defendant, while the attached special agreement was entered from the fourth to the fifth floor above the ground. On the other hand, on May 7, 201, the object of the special agreement was entered into between the fourth and the fourth floor above the ground and the special agreement, which was received from P on May 7, 201, changed the title to the supplementary business agreement and partially revised the contents thereof. This was sent by e-mail from P on several occasions on May 7, 2011, and it appears that it was known that the object of the instant consignment management agreement was either known or known to the third floor of the date of the instant consignment management contract.

④ On May 23, 2011, 00 sent the e-mail of the title “Supplementary Project Agreement (Bnd Amendment)” to P. The part of “the indication of the object” among the certified copies of the supplementary Business Agreement attached to e-mail is the real estate stipulated in Article 2 of the Act on the Management and Operation of Entrusted (the attached list from the second to the fifth floor of the instant building): Provided, That with respect to the object under the proviso to Article 2 of the Act on the Management and Operation of Entrusted Management, the third party who entered into a lease contract and the Defendant, who entered into a separate contract and submitted the contract to the president of B University, it is difficult to see that the Defendant, as the side of B University, cannot be seen as completely eliminating the method that the Defendant would receive the 4 and the fifth floor of the instant building from a third party, not C, was aware that it could actually be concluded a sub-lease contract and an entrusted management contract with the same content.

⑤ On July 1, 2011, P sent e-mail to July 1, 201, stating that “A has sent the deposits specified in the consignment management contract as a full subsidy” and attached the consignment management operation contract, and the attached consignment management operation contract was excluded from the 4th and the 5th floor of the entrusted object, and the Defendant stated that the contract was entered into separately with a third party.

④ On July 1, 2011, 201, B University Planning Board Q and R sent e-mail to P on July 4, 2011, which was newly in charge of the instant business practice. The main text of e-mail states, “The content of revision after reviewing and examining several persons, such as a public administration review member.” The original copy of the consignment management contract attached to e-mail is revised from the underground second to the third above ground second to the fifth above ground level of the instant building only with the indication of the object of entrustment. (It seems that the date of the execution of the consignment management contract attached to the instant supplementary business agreement was formulated retrospectively on June 30, 201, which was attached to the instant supplementary business agreement, was changed to “the date of the execution of the consignment management contract,” and the proviso to the proviso to the above 3rd level of the building, which was actively known to, or should have been deleted from, the third level of the above ground and the third level of the building were deleted.

7) ① On June 7, 2011, P sent an e-mail to the e-mail and sent the e-mail as an accompanying file, and according to the above official text, the construction of the instant building was conducted from June 11, 201 to September 201 and its use was restricted. As such, B University and C were aware of the fact that the entrusted management operation contract for the instant building was already concluded, and were given an opinion on the schedule of the progress of the construction for the entrusted management on the premise thereof.

(8) On June 8, 2011, the professor T of B University sent a e-mail stating that "I will take over and operate the management rights of J in A" to P on June 8, 201. On June 8, 2011, U sent a e-mail stating that "I will be a new leader due to the change of the operation system of the D D D D D D Association Center to teachers and staff within the B University." The above e-mail states that "C, a project operator, was entrusted to the V Group, a large professional living convenience facility operator, to further enhance the convenience of university members and local community residents," and the defendant is deemed to have already been aware of the fact that I concluded each entrusted management contract with L and D on May 9, 201 and May 12, 201.

B. Determination on the Preliminary Claim

1) Whether the instant building constitutes administrative property

The term "administrative property under the State Property Act" means a property owned by the State and determined to be directly used or used for public, public, or corporate purposes. Among them, such artificial property as a road or park is designated by a statute or determined to be used for public purposes as an administrative disposition, or is used as administrative property (see, e.g., Supreme Court Decision 9Da54332, Feb. 25, 200). According to the evidence Nos. 9 and 23, the president of B University established a master plan for the establishment and operation of the DIC facilities under the Public-Private Partnerships Act on Dec. 21, 2005 and announced it in the Official Gazette (Public Notice No. 2005-2, Feb. 16, 2009; the building of this case was newly constructed as school facilities under the regulations on the establishment and operation of a university; the building of this case constitutes administrative property under the Plaintiff's use of the building of this case after completion of construction of the building of this case.

Although the defendant asserts that the building of this case is used as a sales facility, in light of the above legal principles, even if the plaintiff did not take an administrative disposition directly designating the building of this case as administrative property, as seen earlier, so long as it was used as a sales facility after the construction of school facilities, it does not hinder the defendant from becoming administrative property even if it was used as a sales facility after the construction of the building of this case. Thus, the defendant's assertion is without merit.

2) Whether Article 3 of the instant Supplementary Project Agreement is null and void

A) The meaning of Article 3 of the instant Supplementary Project Arrangement

(1) Article 3 of the Supplementary Project Agreement provides that "If the management and operation rights of the object under this Agreement are lost or renounced due to the circumstances of Section C, and the management and operation rights are changed due to the loss or waiver of the rights to manage and operate the object under this Agreement, the president of the B university shall guarantee the defendant's use and profit-making under the terms of the entrusted management and operation contract." However, pursuant to Article 26 (1) of the Private Investment Act, the competent authority may grant the project implementer the right to manage and operate the infrastructure for a period for which the project implementer can gratuitously use and benefit from the infrastructure when the completion of the construction is confirmed.

(2) However, the management and operation rights shall be deemed a real right, and where the management and operation rights are divided, merged or disposed of, the management and operation rights shall be subject to prior approval from the competent authority (Article 27), and in case of violation of laws and subordinate statutes, any order or disposition under the Private Investment Act may be revoked or modified (Article 46), and where the competent authority cancels the designation of a project implementer pursuant to Article 46, the relevant private investment project may be directly executed or a new project implementer may be designated and continuously implemented pursuant to Article 13 (Article 49).

On the other hand, according to the evidence No. 22, Article 56 of the concession agreement of this case provides that "if the agreement of this case is terminated, the right, authority, etc. of the concessionaire shall be reverted to the competent authority at the time of termination, and the period for the establishment of management and operation rights shall be terminated (paragraph (1))," "competent authority shall acquire and take over all the concessionaire's rights and assets relating to the facilities, including all equipment, structures, installations, fixed and mobile equipment, computer hardware, software, and inventory of all other movable and spare parts, and all other movable and spare parts owned by the concessionaire without payment to the concessionaire, and if the agreement of this case is terminated, the concessionaire shall conduct an actual inspection of the facilities jointly with the person designated by the competent authority, and shall transfer the facilities to the competent authority (paragraph (5))". In light of the above facts, upon termination of the concession of this case, all rights of this case shall be extinguished and the period for the establishment of management and operation rights shall also be terminated and thereby the project of this case shall lose its status as C.

(3) Therefore, C disposes of management and operation rights with the approval of the competent authority, ② where the competent authority cancels designation of the concessionaire, ③ and where the concession agreement of this case is terminated, the status of the concessionaire of this case and the management and operation rights of the building of this case are lost, thereby altering them.

B) Whether Article 3 of the Supplementary Project Agreement applies to the Private Investment Act

(1) As the competent authority, in the case of the disposition of C’s management and operation rights, there is sufficient room to guarantee the Defendant’s use and profit by participating in the disposition through prior approval, and even in the case of C’s revocation of designation of a concessionaire or the cancellation of the instant concession agreement, the president may directly implement the instant project or designate a new concessionaire and continue to implement the instant project. Accordingly, there is sufficient room to guarantee the Defendant’s use and profit by such process under the same conditions as the instant entrusted management and operation contract.

However, approval for the disposition of the president's management and operation right, whether the project is directly implemented at the time of filing a lawsuit to designate a concessionaire, or the designation of a new concessionaire is within the authority of the competent authority under the Private Investment Act. Therefore, even if the building in this case is administrative property, even before the expiration of the project in this case, as long as it is related to the project in this case, the Private Investment Act, which is a special provision of the State Property Act, takes precedence over the State Property Act (Article 4 of the State Property Act and Articles 26 (1) and 49 of the Private Investment Act). Thus, the concession agreement in this case related to the project in this case and supplementary project agreement in supplement thereof,

(2) On the other hand, there is no reason to deem that Article 3 of the Supplementary Project Agreement was null and void in violation of the Private Investment Act, and otherwise there is no reason to deem that the above Article 3 was null and void (On the other hand, the fact that the No. 1 and the No. 2 court, which recognized the termination of the concession agreement of the No. 1 and the No. 2, was handed down by the No. 1 and the No. 2 court, and is currently pending in the final appeal, but such circumstance alone is that the president of the No. 2 university directly implements the instant project or has a new project implementer designated and continue to implement the instant project. Thus, it is difficult to deem that the instant project was terminated, and otherwise, in the event that the president of the No. 2 University loses its management and operation right by the termination of the concession agreement of the No. 3, the No. 20

C) Sub-decision

Therefore, the plaintiff's above assertion, which is premised on the application of the State Property Act to Article 3 of the Supplementary Project Agreement, is without merit.

4. Conclusion

Therefore, all of the plaintiff's main claim and the main claim are dismissed on the ground that they are without merit (the defendant asserts that the plaintiff's conjunctive claim among the main claim is claimed as a preliminary counterclaim in preparation for the case where the plaintiff's main claim is accepted, but the defendant's main claim of this case is a condition of rescission that the plaintiff's conjunctive claim will be dismissed among the main claim of the plaintiff's main claim, so long as all of the plaintiff's main claim is dismissed as seen above, it is not judged separately as to the defendant's main

Judges Kang Han-ju

Judge Choi Jin-hun