The Defendant-Counterclaim Plaintiff (Counterclaim Defendant) shall pay to the Plaintiff (Counterclaim Defendant) 100,750,000 each interest rate of 5% per annum from October 1, 2013 to October 21, 2015, and 20% per annum from the next day to the day of full payment.

2. The remaining appeals by the Plaintiff (Counterclaim Defendant) against the Defendant (Counterclaim Plaintiff) and the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

3. The total costs of the lawsuit shall be borne by the Defendant (Counterclaim Plaintiff) in total with the principal lawsuit and the counterclaim.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

Of the judgment of the first instance, the part concerning the principal lawsuit shall be revoked. The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) shall pay 100,750,000 won to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) with interest of 20% per annum from the day after the last delivery of the instant complaint to the day of complete payment.

2. Purport of the defendant's counterclaim and purport of appeal

Of the judgment of the first instance, the part concerning the counterclaim shall be revoked. The plaintiff shall pay to the defendants the amount of KRW 2,500,000,000 per annum, calculated by the ratio of 20% per annum from the next day of service of the counterclaim of this case to the day of full payment, respectively, and she shall pay KRW 1,250,000 per annum from November 1, 2013 to the time when the plaintiff appoints one officer on the recommendation of the defendants as the officer of the plaintiff.

The following facts are not disputed between the parties, or may be acknowledged by the respective entries in Gap evidence Nos. 1, 2, 5, 6, 8, and Eul evidence Nos. 1 and 3 (including the branch numbers, if not specially indicated; hereinafter the same shall apply) and the whole purport of pleadings, and there is no counter-proof.

A. The Plaintiff is a company aimed at the Plaintiff’s ordinary passenger car business, etc., and the Defendants are married couple, and each of 20,000 shares out of 140,000 shares are owned by each of 140,000 shares.

B. On July 13, 2005, the Plaintiff entered into an agreement with the Defendant (Counterclaim Plaintiff) on the following terms (hereinafter “instant share purchase agreement”) with a view to resolving the financial difficulties arising from stock transfer and borrowing, when the Nonparty (Defendant Counterclaim Plaintiff 1), a company owner, transferred his management right to employees and operated in the form of an employee stock ownership association managing the company as its employees. As the Plaintiff was faced with serious financial difficulties in 2005, the Plaintiff entered into an agreement with the Plaintiff (Counterclaim Plaintiff) on July 13, 2005.

The Plaintiff and the Defendant Lessee (Counterclaim Plaintiff) included in the text shall enter into a contract with the following terms: (a) the Defendant Lessee purchased 40,00 won of the Plaintiff’s shares. Of total 132,812 shares, the purchase price shall be 5,000 won per share; (d) the purchase price of shares shall be determined by the Defendants; (a) the said purchase price of shares shall be deposited into the Plaintiff’s account on July 14, 2005; (b) the transfer of the purchased shares shall be completed by September 30, 2005; (c) the Defendant Lessee shall be immediately refunded the said shares (200 million won); and (d) the amount of interest calculated at KRW 105 billion shall be calculated at KRW 100,000 per annum to the Defendant Lessee; and (e) the amount of shares so purchased shall be 500,000 won per annum to the Defendant Lessee; and (e) the amount of shares so purchased shall be 100,5000 billion won per annum.

C. The Defendants purchased 40,000 shares of the Plaintiff’s 40,000 shares per share pursuant to the share purchase agreement of this case and held 20,000 shares for each of them. The Defendants paid KRW 400,000,000 to the Plaintiff separately from the above share purchase price.

D. From August 2005 to July 2013, the Plaintiff paid the Defendants KRW 100,750,000 each total of KRW 1,000,000,000,000 per month, as advisory fees, around December 12, 2000 (hereinafter “instant payment”).

2. The parties' assertion

A. The plaintiff's assertion

1) Return of unjust enrichment

The Defendants did not exercise the right to recommend an executive officer under the instant share purchase agreement, and in return, received KRW 100,750,000,000, respectively, from the Plaintiff. The agreement between the Plaintiff and the Defendants on the instant payment not only infringes on the right to appoint an executive officer at a general meeting of shareholders and the right to decide on the amount of remuneration for directors, but also provides monetary benefits only to some shareholders, thereby contrary to the principle of shareholder equality and preventing the provision of financial benefits in relation to the exercise of shareholder rights. Therefore, the agreement between the Plaintiff and

Furthermore, the Defendant (Counterclaim Plaintiff) received the instant payment from the Plaintiff even though there is no basis to receive the instant payment due to the lack of an agreement on stock transaction with the Plaintiff.

Therefore, the Defendants are obligated to pay each of the above KRW 100,750,000 paid as above to the Plaintiff as the return of unjust enrichment.

2) Compensation for tort damages

The Defendants constitute “person who instructed the performance of duties” under Article 401-2(1) of the Commercial Act. The Defendants were entitled to receive the instant payment from the Plaintiff by unfairly exercising their influence on the Plaintiff’s side. As a result, the Plaintiff suffered damages equivalent to the said amount, so the Defendants are obligated to pay each of the damages amounting to KRW 100,750,000 as compensation for damages, and the delay damages therefrom.

B. The defendants' assertion of the agreed amount

1) The Plaintiff and the Defendant-Counterclaim Plaintiff (Counterclaim Plaintiff) concluded a contract with a third party on behalf of the Defendant-Counterclaim Plaintiff (Counterclaim Plaintiff) for the payment of 1/2 advisory fees under the aforesaid advisory fee payment agreement, and the Defendant-Counterclaim Plaintiff (Counterclaim Plaintiff) expressed his/her intent to make profits by informing the Plaintiff of his/her deposit account and requesting the remittance of the agreed amount. Even if the Plaintiff entered into the advisory agreement as above, each Defendant did not pay the advisory fees from September 2013. As such, the Defendants, upon the instant counterclaim, seek from November 1, 2013, that one executive officer on the recommendation of the Defendants should be paid in 1,250,000 won each month until the Plaintiff is appointed as the Plaintiff’s executive officer.

2) The Defendants were duly paid the instant payment from the Plaintiff based on the advisory fee payment agreement. Therefore, they did not have any obligation to return the instant payment to the Plaintiff.

3. Determination

A principal lawsuit and a counterclaim shall be deemed simultaneously.

A. Grounds for the payment of the instant payments

1) According to the above facts and quoted evidence, the Plaintiff concluded an oral agreement with the Defendants to pay the instant payment (hereinafter “instant payment agreement”) around the time of the instant stock transaction agreement, and there is no reflective proof.

2) In full view of the following circumstances, it is reasonable to view that the Defendant 1 (Counterclaim Plaintiff) did not exercise the right to recommend executives as stipulated in the share purchase agreement, and as a result, the Plaintiff agreed to pay the instant payment to the Defendants without exercising the right to recommend executives as stipulated in the share purchase agreement. The mere descriptions of the evidence No. 16, No. 22, and No. 6 are insufficient to reverse the fact of recognition, and there is no counter-proof.

① The instant mutual savings agreement was concluded orally without resorting to the document. The instant mutual savings agreement is divided into a share purchase price (200,000,000) and a loan (400,000,000) to be paid by the Defendants. The Defendants received all the principal and interest prescribed in the initial agreement with respect to the said loan, and thus, cannot be deemed as a part of the instant mutual savings agreement.

② The Plaintiff’s account book (Evidence No. 16) and the Plaintiff’s account book (Evidence No. 22) indicated the cause for the payment of the instant amount as “business adviser fee” as “business adviser fee,” etc. However, there is no evidence to deem that the Defendants actually provided advisory services pursuant to the advisory fee payment agreement to the Plaintiff (Evidence No. 4 is an opinion inquiry to the Plaintiff and cannot be deemed a request for advisory services). In light of the fact that there is no evidence to deem that the Defendants actually provided advisory services to the Plaintiff, the above account book entry appears to be for convenience in accounting.

③ Defendant 2 (Counterclaim Plaintiff) is a wife of Defendant 1 (Counterclaim Plaintiff) and is merely a shareholder of the Plaintiff Company, and does not have a position or career to provide management consulting services to the Plaintiff.

④ The instant payment began to be paid from the date immediately after the conclusion of the share purchase agreement between the Plaintiff and the Defendants, and the Defendant (Counterclaim) continued to have continued to be paid for the period of time during which it is practically impossible to provide advisory services to the Plaintiff, as the Plaintiff (Counterclaim) stays overseas as an exchange professor from 2006 to 2007.

⑤ Even according to the Defendants’ assertion, the Plaintiff paid the instant payment to the Defendants as advisory fees in order to reduce the remuneration of executive officers to be appointed on the Defendant’s recommendation. Therefore, the instant payment ought to be deemed as remuneration that the Defendant does not exercise the right to recommend executive officers, notwithstanding the name or form thereof.

B. Whether there was a legal ground for the payment of the instant amount

As seen earlier, the instant monetary payment agreement provides that “the Plaintiff and the Defendant-Counterclaim Plaintiff (Counterclaim Plaintiff) shall pay the Defendants the instant monetary payment in return for the non-exercise of the right to recommend executives.” As such, the Defendants were not able to claim the instant monetary payment from the beginning, notwithstanding the instant monetary payment agreement, for the following reasons.

(1) According to Article 382 of the Commercial Act, directors shall be appointed at a general meeting of shareholders. According to Article 363-2 of the former Commercial Act (amended by Act No. 9362 of Jan. 30, 2009), shareholders who hold no less than 3/100 of the total number of issued and outstanding shares other than nonvoting shares may make a proposal (hereinafter referred to as "shareholders' proposal") to make a certain matter the subject matter of the general meeting of shareholders as the subject matter of the shareholders (hereinafter referred to as "shareholders' proposal") to directors in writing at least six weeks before the date set for the meeting (paragraph (1) and shareholders referred to in paragraph (1) may request the directors to notify and make a public notice of the agenda to be submitted by the relevant shareholders in addition to the subject matter of the meeting at the general meeting of shareholders at least six weeks before the date set for the meeting (paragraph (2)). In such cases, shareholders' proposal shall be reported to the board of directors if there is a shareholder proposal under paragraph (1), and the board of directors shall explain the subject matter at the general meeting of shareholders concerned.

According to Article 366(1) of the former Commercial Act (amended by Act No. 9746 of May 28, 2009), shareholders who hold shares equivalent to at least 3/100 of the total number of issued and outstanding shares may submit to the board of directors a document stating the purpose of the meeting and reasons for convening the meeting, to request the convocation of an extraordinary general meeting.

According to Article 467-2 of the Commercial Act, a company shall not grant any property interest in connection with the exercise of shareholder's rights (paragraph (1)), and where a company has granted any property interest to a specific shareholder without compensation, it shall be presumed that it has given such interest in relation to the exercise of shareholder's rights (paragraph (2)), and where a company has granted any property interest in violation of paragraph (1), the person who received such benefit shall return it to the company (paragraph (3)).

② At the time of the instant payment agreement, the Defendants owned 20,000 shares of approximately 140,000 shares issued by the Plaintiff. As such, there was a shareholder proposal right under Article 363-2 of the former Commercial Act and a claim for convening an extraordinary general meeting under Article 366(1) of the former Commercial Act. Of the instant payment agreement, the Defendants’ right to recommend executives of the Defendants in violation of Article 382(1) of the Commercial Act in interpreting that “the Plaintiff must appoint a candidate for the officer recommended by the Defendants.” As such, the said right to recommend executives in violation of Article 382(1) of the Commercial Act has no effect against the Plaintiff. Therefore, the said right to recommend executives is entitled to recommend candidates by exercising the shareholder proposal right under Article 366-2(1) of the Commercial Act, and whether to appoint the candidate is determined by the resolution of the general meeting of shareholders.”

③ In the event that the Defendants received the instant payment as a matter of course in return for not exercising the right to recommend executives, the Defendants are in violation of Article 467-2(1) of the Commercial Act. Therefore, the Defendants shall return the instant payment to the Plaintiff pursuant to Article 467-2(3) of the Commercial Act.

④ According to Article 388 of the Commercial Act, remuneration for directors of a stock company shall be determined by a resolution of the general meeting of shareholders when the amount of remuneration for directors or retirement allowances is not determined by the articles of incorporation. Thus, barring any evidence to prove that there was a resolution of the general meeting of shareholders on the amount, payment method, payment period, etc. of remuneration for directors or retirement allowances, a director may not exercise his right to claim remuneration or retirement allowances (see Supreme Court Decision 2004Da25123, Dec

The Defendants asserted that one of the candidates recommended by the Defendants was to be appointed as the Plaintiff’s director due to the implementation of cumulative voting system, and therefore, they received the instant payment in lieu of the remuneration of the director to be appointed in the future from the Plaintiff. However, even if the director agreed on the remuneration of the director with the company, it is not possible to claim the remuneration of the director unless the resolution of the general meeting of shareholders is adopted, so the Defendants cannot claim the remuneration of the director against the Plaintiff on the ground of the instant payment agreement.

C. Sub-committee

The Defendants, without any legal cause, benefit from receiving KRW 100,750,000 from the Plaintiff respectively and thereby, incurred a loss equivalent to the same amount to the Plaintiff. As such, the Defendants are obligated to pay to the Plaintiff the return of unjust enrichment at a rate of 100,750,000 per annum under the Civil Act from October 1, 2013 to October 21, 2015, which is the day following the delivery date of the principal complaint of this case, which includes the Plaintiff’s intent to demand performance, and as to the existence or scope of the obligation, it is reasonable for the Defendants to dispute as to whether the obligation exists or not.

Therefore, the Plaintiff’s assertion of the cause of the principal claim (return of unjust enrichment) is justified within the scope of recognition as above (i.e., the Plaintiff’s selective relation and the Plaintiff’s assertion of compensation clearly going beyond the above cited scope is not judged.), the remainder of the Plaintiff’s assertion and the Defendant’s assertion of the cause of the counterclaim are without merit.

4. Conclusion

Therefore, the plaintiff's claim of the principal lawsuit shall be accepted within the scope of the above recognition, and the remainder of the principal lawsuit and the defendants' counterclaim shall be dismissed without merit. Since the part against the plaintiff in the judgment of the court of first instance equivalent to the above recognition amount is unfair with different conclusions, it shall be revoked and the defendant shall be ordered to pay the above recognition amount. Since the remaining part of the judgment of the court of first instance and the part concerning the counterclaim are legitimate in conclusion, the remaining part of the judgment of the court of first instance and the part concerning the counterclaim are justified in conclusion, the plaintiff's remaining appeal against the defendants and the appeal by the defendants shall be dismissed.

Judges Jin Sung-chul (Presiding Judge) Kim Tae-tae