Gsung (Attorney Kim Young-ro et al., Counsel for the plaintiff-appellant)

G. G. P.T. (Law Firm Rosp, Attorneys Kim Jong-Gyeong et al., Counsel for the plaintiff-appellant)

March 18, 2015

1. The defendant shall deliver the part of the building indicated in the attached list to the plaintiff.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. On September 11, 2008, the Plaintiff and the Defendant acquired the right to use the land for each 1/4 of the land of the first stage 5-16 land in the Gisung-si Industrial District.

B. On November 10, 2008, 2000 million won (each of 615 billion won for the newly constructed building on the ground of the above land) between the Plaintiff’s parent company, and the Han River, which is the Defendant’s parent company, determined the construction cost as 1.23 billion won (each of 615 million won for the Han River and Han River) and Lee Han-chul Co., Ltd., Ltd. (hereinafter “Yuri-do”) and the Defendant’s parent company.

C. The Plaintiff and the Defendant completed the new construction of a building with 855 square meters of 1,2, and 3 stories each of the 1/2, and 855 square meters of a general steel structure in the above land (hereinafter “instant building”) on the ground of the instant land (hereinafter “instant building”). On March 26, 2010, the Plaintiff and the Defendant: (a) completed the registration for the preservation of ownership on each of the 1/2 shares of the instant building; and (b) occupied and used the respective 1/2 shares of the instant building; and (c) the Defendant occupied and used the portion of the instant building as indicated in the attached Table (hereinafter “the instant building”).

D. In the event that this case’s construction price was not paid by the Defendant, the Defendant entered into a sales contract with the Defendant on June 15, 201, under which the Defendant purchased one-half shares of the instant building (hereinafter “instant sales contract”), and completed the transfer of ownership on June 24, 201 with respect to the first-half shares of the instant building on June 24, 201. The content of the instant sales contract is as follows.

Article 1(1) of the Table contained in the main text provides that a seller and a buyer shall pay the purchase price as follows by an agreement. The sales price of KRW 600 million shall be offset by the unpaid construction cost and interest payment on June 15, 201. Any balance of KRW 160 million shall be offset by a rent until December 30, 2014. 2. The special agreement provides that a seller shall offset by the rent of KRW 440 million; 3. The buyer shall offset by the construction cost and interest that the seller shall pay to the buyer; 40 million. 4. 4. 4. 4. 4. 4. 4. 4. The buyer may substitute the remainder amount of KRW 16,000 by a lease agreement in the attached Form to the Defendant, the seller of which until December 30, 2014, by the expiration of the lease period under the said special agreement.

E. On the same day, the Defendant entered into a lease agreement with respect to the 1/2 shares (actually the part of the instant building) of the instant building (hereinafter “instant lease agreement”) of the instant building pursuant to paragraph (3) of the terms of the instant sales agreement, and the Defendant continued to use the part of the instant building.

The lessee shall pay the rent to the lessor by agreement with respect to the lease of the above real estate in the main sentence of Article 1 (Purpose) of the table included in the main sentence as follows: The lessor, as of December 30, 201, Article 2 (Duration) of the table (111) as of June 15, 201, shall be delivered to the lessee by June 15, 201 in a state that the above real estate can be used for the purpose of the lease, and the lease period shall be until December 30, 2014 from the date of the lease.

F. On January 30, 2013, E.S., between the Plaintiff and E., the Plaintiff sold 1/2 shares owned by E.S., among the instant building, to the Plaintiff at KRW 530 million. However, the Defendant entered into a real estate sales contract that succeeds to the instant lease agreement, and the Plaintiff completed the ownership transfer registration on February 21, 2013, and subsequently owned all the instant building.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 6, Eul evidence 1 and 3, the purport of the whole pleadings

2. Judgment on the Plaintiff’s assertion of the cause of claim

According to the above facts, the Plaintiff acquired the status of a lessor under the instant lease agreement in accordance with the sales contract with the Egyptian. Since it is apparent that the instant lease agreement was terminated due to the expiration of the lease term (not later than December 30, 2014), the Defendant is obliged to deliver the part of the instant building to the Plaintiff, barring any special circumstance.

3. Judgment on the defendant's assertion

A. The assertion of transfer security

1) The defendant's assertion

This case's sales contract was concluded on the part of the building of this case by stipulating that "if 300 million won are paid, 300 million won will return the shares of the building of this case under the name of the defendant" before the date of auction after applying for a compulsory auction on the 1/2 shares of the building of this case owned by the defendant for the compulsory auction on the 1/2 shares of the building of this case, and that it would return the shares of this case to the defendant on the 31 December 31, 2014." Thus, the sales contract of this case was concluded for the purpose of establishing security for the part of the building of this case, and as long as the Hasssssssssssssssssss have not completed the settlement procedure, the Hasssssssssss did not acquire the ownership of the 1/2 shares of the building of this case. In addition, the plaintiff did not acquire the ownership of this case.

Therefore, the defendant cannot respond to the plaintiff's request for delivery of the building part of this case.

2) Determination

In light of the facts stated in the evidence Nos. 5 and 8 of this case, it is not sufficient to acknowledge that the contract of this case between the Defendant and the Defendant was a contract with a weak meaning of transfer for security, i.e., a contract with the Defendant to acquire ownership of the collateral through the settlement procedure, in the event that the Defendant fails to perform the secured obligation at the maturity of payment period, and there is no other evidence to acknowledge that it is a contract. Rather, the Defendant agreed that, even before the expiration of the lease term of this case, the Defendant may sell the building part of this case to a third party on condition that the buyer of this case takes over the lease contract of this case (Paragraph No. 4 of the terms of the contract of this case and Paragraph 3 of the terms of the lease contract of this case) as seen above, and according to these facts, the contract of this case is not a contract with a weak meaning. Accordingly, the Defendant’s argument is without merit.

B. The assertion that a sales contract was concluded by deception

1) The defendant's assertion

In concluding the instant sales contract with the Defendant, the instant sales contract was concluded with the Defendant, at any time before the term of lease expires, that the Defendant may pay the construction cost and repurchase the instant building parts. The instant sales contract was concluded without notifying the Defendant even though the Defendant did not intend to implement the said repurchase agreement.

Therefore, the sales contract of this case is a contract concluded by the deception of Egypt, and the plaintiff is well aware of these circumstances, so the defendant cannot respond to the plaintiff's request for delivery.

2) Determination

In light of the above facts, it is not sufficient to recognize that, while entering into the instant sales contract and the instant lease contract by Egypt, Egypt and the Defendant, Egypt and Egypt entered into the instant lease contract, Egypt and Egypt agreed that Egypt may sell the instant building to a third party on the condition that Egypt may accept the instant lease contract even before Egypt expiration of the lease term. In light of these facts, each entry in E to Egypt and Egypt and Egypt and the Defendant entered into a repurchase agreement as alleged above by Egypt and the Defendant, and there is no other evidence to acknowledge it

(c) Claim for extension of the lease term;

1) The defendant's assertion

When the Defendant entered into the instant lease agreement with the Egyptian, the Defendant set the lease period by returning the balance to the Egyptian for the period of KRW 160 million, which the Defendant shall pay to Egyptian according to the instant contract. As such, the lease period shall be guaranteed 111 days. Since the Defendant was unable to use the part of the instant building during the closure of the Ggyptian Corporation, the lease period shall be extended for the period for which the Defendant was unable to use.

Therefore, since the term of lease has not yet expired, the defendant is not obligated to deliver the part of the building of this case to the plaintiff.

2) Determination

However, as seen earlier, Article 1 (Purpose) of the instant lease agreement provides that “The rent: 160 million won (111 days) is indicated until December 30, 2014. However, if the Defendant is unable to use the building of this case due to force majeure, such as closure by the GIC itself, it is difficult to view that the term of lease should be guaranteed for 111 days to the Defendant, and there is no evidence to prove that the said meaning has been written. Rather, Article 2 of the instant lease agreement provides that the lessor shall deliver the leased object to the lessee by June 15, 201, and the term of lease is from the date of lease to December 30, 2014, to the date of lease to the date of 14 days after the date of lease to the date of closure of the building of this case, and the Defendant’s assertion that the term of lease is less than 16 days after June 16, 2011 to December 14, 2014.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

[Attachment]

Judges Park Jong-ju (Presiding Judge)