2015 Doz. 10143 (Counterclaim)

3. The costs of lawsuit are assessed against the Defendant (Counterclaim Plaintiff) by aggregating the principal lawsuit and the counterclaim.

4. Paragraph 1 can be provisionally executed.

Counterclaim: The plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") shall pay to the defendant (Counterclaim plaintiff; hereinafter referred to as "the defendant") 136,206,650 won with an amount calculated by the rate of 20% per annum from the day after the delivery of the copy of the counterclaim of this case to the day of complete payment.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

A. The plaintiff and the defendant's summary

(1) The Plaintiff is a school juristic person that maintains and operates Cmiddle School, D High School, and Ehigh School located in Gyeong-gun, Chungcheongnam-gun. The Plaintiff established on April 24, 1964 by G, which operated F, and from around 1995 when G died, H, a son, was appointed as the president. As follows, H retired from office around October 2014 and on February 10, 2015, he was appointed as the president.

(2) The defendant is a company established and operated by J on March 6, 2006 for the purpose of entrusted operation of a dormitory.

B. Relation between H and J

(1) Around 1994, J joined the said F, and around March 1995, when G died, she takes charge of not only F’s personal property management and 10 K/L operated by H, and the management of schools belonging to H, and the Plaintiff around January 200.

(2) From July 2008, J received benefits from H to take charge of the personal property and various litigation affairs of H, and around March 2010, J joined M&A, a building leasing management company, the ownership of which is 62% of H’s shares, and worked as a registration director, etc.

(3) Even after having taken office as the president of M&A, the J continued to manage the overall business of M&A in accordance with the direction of H, which is the actual operator of M&A, as well as the personal lawsuit or personal property management of H, and the duties of other companies run by H and the Plaintiff-related duties. In particular, the J reported the specific situation of M&A, the progress of the lawsuit by M&A, and the progress of the Plaintiff’s school duties to H on a daily basis, and received necessary instructions from H.

(4) In addition, around February 2, 2009, J had been selected and appointed as the Plaintiff’s auditor at the Plaintiff’s meeting, who attended as the president on February 2, 2009, and around June 8, 2009, leased from the Plaintiff the 9,10th and 10th and the 10th and the 10th and the 5th and the 5th and the 5th and the 5th and the 1

(1) On November 5, 2003, the Plaintiff decided to newly construct a dormitory on the ground of D High School (hereinafter referred to as D High School) on the ground of 0, Gyeongnam-gun, Seoul Special Metropolitan City (hereinafter referred to as "D"), which is a school site. The Plaintiff borrowed KRW 1.02 million from the Korea Private School Foundation for new construction from the Korea Private School Foundation, and the amount of the loan applied for a loan for new construction of a dormitory to the Office of Education in Gyeongnam-do, Gyeongnam-do by means of repayment of school income and F Contribution, but the Office of Education in Gyeongnam-do returned the said application.

(2) Around April 26, 2004, the Plaintiff filed an application for re-permission of the loan with a plan to repay the loan borrowed by H, the president of the board of directors. On May 18, 2004, the office of education in Gyeongnam-do permitted the re-application on the condition that the loan will be repaid with a contribution of the president of the school juristic person (H). The loan amount of KRW 1.2 million: from May 18, 2004 to 2016, June 30 (12 years); the loan interest rate of KRW 4.37% per annum; the loan interest rate of KRW 4.37% per annum; the newly built dormitory of D; the principal and interest on repayment method; the principal and interest on the loan.

(3) On August 3, 2004, the Plaintiff borrowed from the Korea Foundation for the Promotion of Private School the amount of KRW 1,00,000,000 per annum, 4.37% per annum, 4.37% per annum, and 12 years from August 3, 2004, on the date of commencement of the credit, only interest shall be repaid for five years from the date of commencement of the credit, and on the condition that all principal and interest shall be repaid within seven years thereafter (hereinafter “the loan in this case”).

(4) On March 5, 2005, the Plaintiff completed the D High School dormitory (hereinafter referred to as “instant dormitory”) which is a building listed in the separate sheet, and completed the registration of initial ownership on March 30, 2005. D. The Plaintiff entered into and terminated the contract for the entrusted operation of a dormitory with the applicant and the company.

(1) On July 29, 2005, the principal of Down School entered into the instant dormitory operation consignment contract (hereinafter “the instant first consignment contract”) with the new company (hereinafter “non-party company”) around the period of contract from August 1, 2005 to 2008, 12, and 31 in order to entrust the instant dormitory, which is an fundamental property for education, with the operation of the instant dormitory. Around July 29, 2005, the period of contract was set at KRW 10,000 per annum, and the amount of the dormitory fee was set at KRW 70,00 per month.

(2) During the period of the first consignment contract of this case, the non-party company used the above dormitory operating profit and repaid the interest on the instant loan that H is required to repay, as described in paragraph (3) (2) above.

(3) On December 22, 2008, immediately before the termination of the first consignment contract of this case, D High School principal and the non-party company concluded a sub-entrustment contract with the entrustment period from January 1, 2009 to December 31, 201 (hereinafter “the second consignment contract of this case”) and raised the student’s dormitory expenses for the students enrolled in a dormitory at the time of the conclusion of the consignment contract (hereinafter “the second consignment contract of this case”).

(4) However, as described in paragraph (3) above, in the situation where, from around 2009 to the principal of the instant loan, the non-party company should quarterly repay not only the interest on the instant loan, but also the principal, the agreement was concluded with the Plaintiff on December 31, 2009 with the waiver of the operation of the instant dormitory and the agreement on the second consignment contract of this case around December 31, 2009.

(1) Around January 1, 2010, the principal of D High School entered into a contract with the Defendant to entrust the operation of the instant dormitory (hereinafter “instant third consignment contract”) with the Defendant for a period from January 1, 2010 to February 28, 2013.

(2) While holding a temporary meeting around November, 2009 and around October 30, 201, the D High Steering Committee raised 100,000 won from 10,000 won per year to 200,000 won per month, and the dormitory cost also increased from 90,000 won per month to 110,000 won. However, at the time of the third consignment contract for the operation of a dormitory (No. 5-1 of the evidence A) prepared at the time of the third consignment contract of this case, stated that “one year new students of the first year of entry fee as of the date of the contract shall be KRW 10,00 per month, and 90,00 per month of the dormitory cost.”

(3) On December 13, 2011, the Committee held a committee and raised the dormitory cost in 2012 from KRW 110,000 per month to KRW 130,000 per month.

(4) 한편 D고 교장은 '학교에 지급해야 하는 각종 납부금을 학생 또는 학부모 명의 은행계좌에서 학교의 수납계좌로 자동이체 되도록 하는 시스템'인 '스쿨뱅킹 시스템'을 통해 입금된 이 사건 기숙사 입사비, 기숙사비, 세탁비에 관해 회계지출결의를 한 후 입금액 전액을 피고 명의 은행계좌로 송금해주었고, 피고는 송금받은 기숙사 수입 금 중 일부를 이용하여 H 대신 이 사건 차입금의 원리금을 상환하였는데, 이 사건 제3차 위탁계약 기간 중 피고가 기숙사 운영 수익금을 사용하여 상환한 이 사건 차입금의 원리금은 아래 표와 같이 합계 707,772,390원에 이른다.

More than the time of holding the director flag;

A person shall be appointed.

(5) D. The Operating Committee held a committee around December 17, 2013 and raised the dormitory cost in 2014 from KRW 130,000 per month to KRW 140,000 per month.

(6) On March 1, 2014, March 1, 2014, when the third consignment contract of the instant case was terminated, the principal entered into a sub-contract with the Defendant for the contract term from March 1, 2014 to February 28, 2016 (hereinafter “the fourth consignment contract of the instant case”).

(7) At the time of entering into the fourth consignment contract of this case, the principal of DJ entered into a special agreement that guarantees the Defendant’s entrusted operation of the dormitory of this case for at least five (5) years. However, the special agreement for the period of entrusted operation of the dormitory of this case for five (5) years is stipulated in the consignment contract that must be submitted externally to the Gyeongnam-do Office of Education for a concern that it may be at least at issue (the consignment contract submitted as evidence No. 8). The special agreement for the period of entrusted operation of the dormitory of this case is stipulated only in the contract that is to be kept internally without stating the above special agreement (hereinafter “the contract submitted as evidence No. 5-2” of this case).

The main contents of the instant special agreement are as follows.

Article 1(1) of the Agreement on Entrustment of the Operation of Dormitory at High School (Period of Contract). The term of this Agreement is from March 1, 2014 to February 28, 2016, and is to guarantee at least five (5) years in consideration of the repayment of loans from the Private School Promotion Foundation (years KRW 200 million), facility investments, etc.; 2. Unless one of the parties fails to notify the other party of his/her refusal of renewal in writing at least 30 days before the end of the term of this Agreement, it shall be automatically extended under the same conditions, and the extended term of contract expires. Article 10(Termination of this Agreement) 1. D may terminate this Agreement if the Defendant violates the terms and conditions of this Agreement or the following matters. (a) Where the consumer’s civil petition due to decline in the quality of dormitory operation causes three or more times for the same reason, or refuses to rectify the operation of a dormitory without justifiable grounds. Other cases where the Defendant violates the obligation or obligation stipulated in this Agreement and fails to rectify the principal of this case within 15 days prior to terminate this Agreement.

(8) 이 사건 제4차 위탁계약 기간 중 D고는 스쿨뱅킹 시스템을 통해 학교 명의 계좌로 입금된 2014학년도 기숙사 수입금 합계 618,849,350원을 피고에게 송금하였고, 피고는 그 중 121,406,060원을 이 사건 차입금의 2014년도 1, 2, 3분기 원리금 상환금으로 사용하였다.(이 사건 제3, 4차 위탁계약 기간인 2010년부터 2014년까지 기간 동안 D고가 피고에게 송금한 기숙사 수입금은 합계 2,744,074,930원이고, 같은 기간 동안 피고가 기숙사 수입금을 가지고 상환한 이 사건 차입금의 원리금은 합계 829,178,450원에 이른다).

F. Dispatching the Plaintiff’s intention of termination of the fourth consignment contract of this case

(1) As seen earlier, while operating the Defendant Company, the J concurrently served as the Plaintiff’s auditor, and while serving as the president of the said M Company, received KRW 200 million annual salary and KRW 200 million from M Company. H, the actual owner of the M Company, tried to reduce the amount of the J’s annual salary at KRW 80 million around March 24, 2014.

(2) If the J did not consent to the annual salary reduction, M&A dismissed M&A as of March 31, 2014, the J filed a lawsuit to nullify dismissal against M&A as Seoul Central District Court 2015Gahap500526, and the Defendant suspended repayment of the principal and interest of the instant loan that the Defendant expected to repay (payment deadline December 20, 2014) in the fourth quarter of 2014.

(3) In addition, H was indicted by violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes on November 15, 201, and was sentenced to two years of imprisonment and three years of suspended execution in Seoul High Court Decision 201No641, Seoul High Court Decision 2011No641 on May 25, 2012, and three years of imprisonment with prison labor and two years and six months of suspended execution and three years of suspended execution in Seoul District Court Decision 201No1344 on May 25, 2012, H filed a civil petition stating that “H maintains the Plaintiff position despite the disqualification of school juristic person as an executive officer in the National Examination,” and the Plaintiff’s board of directors delivered the civil petition content that “H maintains the Plaintiff position despite the disqualification of school juristic person as an executive officer.” On October 2014, the Plaintiff Council passed a resolution of resignation of the president of H on the ground that

(4) On December 4, 2014, the Plaintiff held a board of directors and dismissed J from office. (5) On the other hand, on January 14, 2015, the Plaintiff sent to the Korea Foundation for the Promotion of Private School KRW 39,568,160, total amount of principal and interest of the instant loan on April 14, 2015 (However, it is unclear whether the source of repayment is a principal and interest of H’s personal contribution) and then sent a document verifying the purport that “Around January 26, 2015, the Defendant was not able to repay the principal and interest of the instant loan on April 2014, and thus the instant document verifying the content was sent to the Defendant around that time.”

G. Operational status of the dormitory in this case for the year 2015

원고가 위와 같이 이 사건 제4차 위탁계약을 해지한다는 내용증명우편을 피고에게 발송한 이후에도 이 사건 변론종결일 현재까지 피고는 계속하여 이 사건 기숙사를 점유하며 운영하고 있고, 원고는 2015. 3월부터 같은 해 8월까지 기간 동안 스쿨뱅킹 시스템을 통해 D고등학교 명의 계좌로 입금된 기숙사 수입금 합계 339,126,360원 중 202,949,790 원만을 피고에게 송금하였다.

【Ground of recognition】 In the absence of dispute, each entry in Gap's 1, 2, 4, 5, 8, 9, 12, 13, 15 through 19, 21, 24 through 28, 30, 31, Eul's 1, 2, 4, and 8 (including each number, if any), and the purport of the whole pleadings

2. Determination as to the claim on the principal lawsuit

A. The parties' assertion

(1) Summary of the Plaintiff’s assertion

Pursuant to the instant fourth consignment contract, the Defendant is obligated to repay the instant loan. As the Defendant did not repay the principal and interest of the instant loan in the quarter of April 2014, and the Plaintiff terminated the instant consignment contract on the grounds of the Defendant’s nonperformance, the Defendant is obligated to deliver the instant dormitory subject to the entrustment contract to the Plaintiff.

(2) The defendant's argument

The Defendant’s repayment of the instant loan from around 2010 with the operating profit of the dormitory is merely limited to each of the following subparagraphs, taking into account the trust relationship between J, the representative of the Defendant and H, the former president of the Plaintiff. Since the obligation to repay the loan as asserted by the Plaintiff is not included in the Defendant’s obligations stipulated in the instant fourth consignment contract, the Plaintiff cannot terminate the fourth consignment contract on the ground that the Defendant did not repay the quarterly loan in April 2014.

B. Determination

(1) On March 1, 2014, when the Plaintiff and the Defendant entered into the 4th consignment contract of this case, the agreement on consignment of the Plaintiff (No. 8) or the special agreement of this case does not explicitly stipulate the Defendant’s contractual obligation to repay the instant loan. However, the following circumstances acknowledged by the evidence, i.e., the Plaintiff’s obligation to repay the instant loan is the Plaintiff’s former president, or H had the principal and interest of the instant loan enter into the instant 1 and 2 consignment contract from 205 to 3000 won with the Defendant’s annual interest rate of KRW 40,000,000,000,000,000,000,000,000 won, which were 1 and 200,000 won, were 40,000 won, and the Defendant continued to pay the principal and interest of the instant loan from 1 and 20,000 won, to 30,000 won, respectively.

Therefore, the fourth entrustment contract of this case is legally terminated at the end of February, 2015, which is one month after the date of delivery of the letter of special agreement of this case to the defendant on January 26, 2015, stating that the above entrustment contract was terminated on the ground that the defendant neglected the obligation to repay the loan of this case, and on the ground that the certificate of content was served on the defendant as of January 26, 2015. Thus, the defendant has a duty to deliver the dormitory of this case subject to entrustment to the plaintiff, barring special circumstances.

(2) On this issue, the Defendant asserted that “If the Plaintiff had the Defendant assume the obligation to repay the instant loan in return for the entrustment of the operation of the dormitory of this case to the Defendant, it would run a profit-making business as the basic property of the school, and thus, it would be subject to deliberation and decision by the Plaintiff’s board of directors prior to the conclusion of the contract, and the Office of Education in the Gyeongnam-do should report and obtain permission. The Plaintiff did not undergo these procedures, which would result in the Plaintiff’s repayment of the loan originally due to the Plaintiff’s substitute repayment, thereby facilitating H’s embezzlement or breach of trust, and thus would be null and void.”

On the other hand, if the contents of the fourth consignment contract of this case, which had the Defendant liable to repay the loan of this case as alleged by the Defendant, are null and void, it is reasonable to view that the whole consignment contract of this case is null and void since the Defendant’s obligation to repay the loan of this case is the most important part of the consignment contract, considering the background leading up to the conclusion of each consignment contract of this case and the amount of the loan of this case scheduled to be repaid by the Defendant. Therefore, the Defendant is currently possessing the dormitory of this case without a legitimate title, and the Defendant is obliged to immediately deliver it to the Plaintiff who is the owner of this case. Thus, there is no difference in the conclusion that the Defendant may deliver the dormitory of this case to the Plaintiff. Further, it is unreasonable to view that the Defendant can terminate the contract solely on the ground that the Defendant did not perform one time the obligation to repay the loan of this case in this case under the continuous consignment contract of this case, such as each consignment contract of this case, and instead, it is difficult to view that the Plaintiff was aware of the aforementioned unlawful interest of the Plaintiff’s operation of this case’s interest or interest.

Therefore, the defendant should deliver the dormitory of this case to the plaintiff.

3. Judgment on a counterclaim

가. 피고는 이 사건 제4차 위탁계약이 유효함을 전제로 하여, 2015. 3월부터 같은 해 8월까지 기간 사이에 이 사건 기숙사 이용 학생들이 스쿨뱅킹 시스템을 이용하여 D고등학교 명의 계좌로 송금한 금원 중 원고가 피고에게 지급한 금원을 공제한 나머지 136,206,650원에 대해 부당이득으로써 원고에게 그 반환을 구하고 있다.

B. However, as seen earlier on February 2015, the fourth consignment contract of the instant case was lawfully terminated, and thus, the Defendant’s counterclaim claim of the instant case premised on the validity of the consignment contract is without merit without having to examine the age.

4. Conclusion

If so, the plaintiff's claim of the principal lawsuit is justified, and the defendant's counterclaim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-tae

Judge Lee Jin-hun

the effect of the contract that the head of the school has entered into for the operation of the basic property for education pursuant to the above provision shall return to the school corporation.

shall be applicable.

2) The Office of Education of Gyeongnam-do entered the dormitory of this case from August 201, 201 to December 18, 2013 under the name of "the operational subsidies for dormitories of farming and fishing villages".

10,000 won per 1 month for the students of the D High School.

3) From the year 2009 to the year 2014, the details of changes in the annual membership expenses and monthly dormitory expenses of the instant dormitory are as follows.

A person shall be appointed.

4) The expiry date of the third consignment contract of this case was originally renewed automatically after or after the expiration of the first consignment contract, and the actual contract term is until February 28, 2014.

It seems that it has been maintained.

5) Upon entering into the third consignment contract of the instant case, the Defendant prepared a consignment contract (Evidence A No. 5-1) as of January 1, 2010, and the Plaintiff entered into the ordinary consignment contract of the instant case.

In reporting the conclusion of the third commission contract to the Office of Education in South-do, the above 2010, January 1, 2010, and submitted the third commission contract as related documents, and the instant 4

The third entrustment contract is made without submitting the operation entrustment contract, etc. on March 1, 2014 to the Office of Education of Gyeongnam-do separately.

It seems that the automatic renewal was made only.

6) The Defendant appears to have made the above assertion under the premise that the Plaintiff benefiting from each of the instant consignment contracts, but such assertion is given.

탁계약으로 인해 실제 이득을 얻은 것은 H이고, 원고의 입장에서는 스쿨뱅킹 시스템을 통해 D고등학교명의 은행계좌로 입금

The defendant shall pay to the defendant the amount of money more than the appropriate operating commission fee out of the dormitory revenue, and the defendant shall repay the loan of this case.

It is judged that the actual property damage has been incurred.