(original)20Na10858 Damage (argument)

1. A;

2. B

[Judgment of the court below]

[Defendant-Appellant]

C

Law Firm Lee & Lee, Counsel for the plaintiff-appellant

Attorney Cho Han-hoon

Changwon District Court Decision 2019Gohap52389 Decided February 6, 2020

November 12, 2020

December 24, 2020

1. The plaintiffs' appeal and the selective claims added by this court are all dismissed.

2. The costs of the lawsuit after the appeal are assessed against the plaintiffs.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiffs 50 million won and 12% interest per annum from the day following the day on which the copy of the complaint of this case was served to the day of complete payment (the plaintiff claimed part of the estimated damages due to the violation of the agreement of the original defendant, but this court selectively added the claim for tort of the defendant, and the delayed interest rate claimed was changed from 15% per annum to 12% per annum, and the claim for compensation was reduced).

1. Basic facts

A. Status of the parties

1) The Plaintiffs were established on February 22, 2018 and run an online health functional food shopping mall, which is called the “D” (hereinafter referred to as “D”). D’s head office is the head office of creative city, and Plaintiff A is a pharmacist, and Plaintiff B is a person who majored in biotechnology in the Chinese KK. The Plaintiffs registered D as a corporate entity on March 15, 2018. The Plaintiffs were operating the “H” business, which was the “online health functional food shopping mall,” which was consulted with pharmacists from around 2016, before D’s establishment.

2) The Defendant is a certified public accountant, the representative director of E (E; hereinafter “E”) and the largest shareholder of E (E (E; hereinafter “E”) who is engaged in the development and manufacture of health functional foods, cosmetics, medicine, etc., and distribution business, which are established on September 26, 2012. The Defendant is directly or indirectly involved in the operation of this corporation, which operates self-management display cases, such as functional foods, cosmetics, and drugs, etc. for pharmacists (hereinafter “L”).

3) The Plaintiffs (D) were one of the transaction partners of E.

C. Conclusion of business transfer contracts with plaintiffs E

1) The plaintiffs and the defendant held that since D and E customer floor overlap, if two companies join the platform sharing method, and two companies are opened with ‘doctors, pharmacists, and biotechnological products'2, the sales of each company's online beauty and health products are increased due to the collapse effect of the two companies, and that the growth of the plaintiffs H business division and the independent corporation, and the acquisition of the DH business division from April 2018 were discussed about the acquisition of the DH business division in order to achieve their respective goals, and since April 2018, E was discussed about the acquisition of the DH business division in the form of an individual business, rather than acquiring the D entire D (the plaintiffs and the defendant determined as favorable to the acquisition of the H business division in the form of an individual business rather than acquiring the D whole).

2) On May 31, 2018, Plaintiff B3, the representative of D, entered into a contract for business transfer and acquisition (Evidence A 2; hereinafter referred to as “instant transfer and acquisition agreement”) with E with E on May 31, 2018, and “the instant transfer and acquisition agreement” (hereinafter referred to as “the instant transfer and acquisition agreement”).

The transferee of the transfer of the business (hereinafter referred to as the “A”): The transferee of the business (hereinafter referred to as the “Plaintiff B”) shall conclude a contract with respect to the acquisition of all rights and obligations with respect to the HH business division (hereinafter referred to as the “business division”) located in the Changwon city (hereinafter referred to as the “resident”) operated by the “Plaintiff B” as follows: The purpose of this contract is to take over all rights and obligations with respect to the “business division” operated by the “B” in general.

Article 2 (Base Date and Method of Payment of Transfer) "A" means the acquisition of assets and total liabilities on the account books of "A" as of May 30, 2018. (2) "A" means the acquisition of assets and total liabilities on the account books of "A". The acquisition subject matter is recorded in the attached Form 1 and the list of assets and liabilities". (4) "A" and Article 3 (Transfer Price and Method of Payment) (1) "A" shall be seven million won. (2) The transferee shall pay the amount of paragraph (1) to the transferor in cash within 10 days after the date of the conclusion of this contract. (4)(1) as of the date of the conclusion of this contract, the terms "A" shall be "A" and "B" shall be determined through consultation with "A". (2) Where the term "project division" as of the date of this contract becomes final and conclusive, unpaid wages and retirement allowances" shall be delivered to "a person who succeeds to his/her obligations" in addition to "A" and "a person who takes over the business" shall be subject to". (2).

3) The plaintiffs are qualified as the major shareholders of H business division, and the defendant prepared a "agreement" with the following contents on the date of the acquisition of the transfer of this case as of the date of the contract (A evidence 3, hereinafter referred to as "the agreement of this case") (the agreement of this case is referred to as "the agreement of this case", hereinafter referred to as "the agreement of this case"). 5)

On May 31, 2018, written agreement: 10,000 weeks + cash provision 400 million won to companies as H business takeover price.

As of the point of time of listing EM 10,00 won per share, the difference between HH 10,000 won per share and 2. HH 2. Acquisition by transfer (1.4 billion won), IF 200 million won, and brands (100 million won net asset succession: 100 billion won in operating assets and liabilities) - The principal office of the EM 300,000,000 operating income for 3 years shall be established at each party.- The amount of less than 90 million profits for 3 years (1.4 billion won beginning on June 1, 2018) calculated each year to be less than 1.2 times in proportion to the amount of less than 1.4 billion operating income of the EM 1.5 billion won (including 1.5 billion won in operating income of the EM 400,000,0000 won) shall be provided to the EM 1.5 billion, more than 1.55 billion won in operating income of the EM 1.4 billion.

6. The approval of the division of the H business shall be granted when the time when the sales of the H business reach five billion won at the end of one year after listing the Subdivision. The equity structure of the H business entity that has been split off shall be 50% of E and 50% of D shall be entitled to preferential right to participate.- A patent that can contribute to the listing of the independent company shall be agreed to make it possible for the independent company to be jointly used. The minimum amount of damages shall be one billion won if the other party is damaged due to the breach of this contract. The Collegiate: the part signed by the Collegiate (Defendant’s signature) Plaintiff A (major shareholder of the H business division) (Plaintiff A (Plaintiff’s signature) (major shareholder of the H business division) (Plaintiff A (Plaintiff & signature of the Plaintiff);

4) According to Articles 1 and 2 of the instant agreement, separate from the acquisition cost of KRW 70 million for the transfer of business assets owned by H business entities (see Articles 2, 3 and 4 of the instant acquisition agreement), the acquisition price of KRW 1.4 billion (hereinafter “the acquisition price of the instant transfer price”) was set at KRW 1.4 billion, among which the acquisition price of the instant transfer price was set at KRW 1.1 billion for E stocks, and the remaining KRW 400 million was set to be paid to the Plaintiffs in cash.

The above transfer price was set upon the e-mail sent by the Plaintiff A to the Defendant on April 26, 2018. The sale in 2016 of H business division was about KRW 300 million, and the operating profit rate was about KRW 10 million, and the sales in 2017 was about KRW 50 million, and the operating profit rate is anticipated to have been 12-15%.

In 2018, sales have been increased to KRW 250,00,000 for the first quarter, and self-produced products have been secured by re-investment of profits and have a high operating rate, and thus, additional improvement in operating profits is expected. If E products are sold at the time they are affiliated with E, additional improvement in operating profits is expected. Therefore, if E products are able to be sold at the time of 2018, setting the goal of 2018 as KRW 1.2 billion for sales and operating profits and 1.2 times as a result of deducting and deducting and deducting profits from the goal of 200,000, KRW 1.2 times as a result of the above e-mail, the Plaintiff would be able to calculate the company value in the above e-mail, “I will have the point of time of compiling sales profits at the end of 2018 and make it possible as one year based on the contract date. If so, it is possible to achieve the goal that you want less to do so, this part would be able to obtain incentives to the contract with E products.

5) At the time of the instant transfer agreement and the instant agreement (hereinafter referred to as “the instant transfer agreement”), E’s capital was KRW 1,021,357,000 per share ( KRW 500 per share, KRW 2,042,714 per share), and D’s capital was KRW 2,00,000 per share ( KRW 5,000 per share, KRW 40 per share).

C. Progress after the transfer of the instant case

1) On May 23, 2018, there had been discussions on the transfer of business of the instant case, E opened a new bank account in the name of “(J) E” (hereinafter “instant account”) for the purpose of using the H business profit and loss and cash flow in the H business division.

2) After the business transfer of the instant case, the Plaintiffs operated H business division under E, and E paid service costs of KRW 15 million to the Plaintiffs from July 2018 to November 201.

3) On June 1, 2018, E loaned KRW 50 million to H business division, 50 million to be used as “the initial operational fund,” the H business division as “the due date for repayment, December 1, 2018 (six months), interest 4% per annum (the last day of each quarter), and overdue interest 15% per annum. In addition, E loaned funds to H business division on September 19, 2018 for use as “the product promotion expenses” and lent KRW 150 million under the pretext of granting loans to the H business division as “the product promotion expenses,” “T7”), 15% per annum, interest 4% per annum (the last day of each quarter), and overdue interest 15% per annum.”

4) The results of H business division for a period of one year after the transfer of the business in this case alleged in E were as follows (Evidence 4.8). In other words, the total annual sales amount of approximately KRW 450 million ( KRW 450,086,040 + KRW 249,936,928 + KRW 200,149,112). The total operating losses amount to approximately KRW 100 million ( KRW 100,58,747 KRW 26,474,94 – KRW 75,1135,753). However, the gross sales amount of KRW 150,000 per month included a specific item in the "sales management expenses" item, and the gross sales amount of KRW 20,000,000,000,000 in this case was not included in "the average sales amount of KRW 20,000,000,00,000.

A person shall be appointed.

A person shall be appointed.

5) On October 25, 2018, Plaintiff B transferred his/her address to Gwangju City of Gyeonggi-do at the request of E that “to change his/her place of residence to Sungnam city with E for the purpose of improving H business profit.”

6) As seen above 4, the board of directors deemed that monthly service costs of KRW 15 million paid to the Plaintiffs were excessive in light of the H business scale, and requested the Plaintiffs to “drawing and coordinating the basis for and amount of the usage of the service costs,” etc. on December 17, 2018. Accordingly, the Plaintiff sent e-mail to the E on December 17, 2018 to reduce service costs of KRW 10 million. Furthermore, around December 10, 2018, E discontinued the execution of the funds of the H business division and the settlement of physical cards for the payment of KRW 15 million. Since then, e-mail continued several times between the Plaintiffs and E executives on December 10, 2018, the Plaintiffs agreed to pay KRW 10,000 to the Plaintiffs on December 10, 2019, and thus, e-mail returned to the Plaintiffs on October 13, 2019.

7) In addition, E sent e-mail to the effect that, on January 11, 2019, the contractual responsibilities under Article 2 of the instant agreement, namely, as long as it denies the obligation to return 1.2 times the amount below the realizing the annual operating income, it is not possible to provide additional funds in the future, and that the aforementioned loans are returned by the end of January 2019. E sent e-mail to the effect that, in light of the operating performance of H business division around February 15, 2019, it is impossible to collect the loans described in the above 3) deposited in the instant account until the time on the ground that the prospect for the collection of loans is unclear. From February 15, 2019 to March 29, 2019, E deposited all the remaining amounts of KRW 11,300,000,000 which were deposited in the instant account until the time, including the above withdrawal amount, as additional deposit of KRW 152,936,000.

D. Related lawsuits, etc. between the plaintiffs and the defendant

1) On April 2, 2020, after the judgment of the court of first instance was rendered, Defendant and E filed a lawsuit seeking the return, etc. of the acquisition price of the instant case against the Plaintiffs under Sung-nam Branch of Suwon District Court 2020 Gahap40333, which was before the judgment of the court of first instance, and the lawsuit is still pending.

2) As of the date of the pronouncement of this decision, E’s capital is KRW 1,056,64,500 per share ( KRW 500 per share, KRW 2,113,289 per share), D’s capital is KRW 424,575,00 per share ( KRW 5,00 per share, KRW 73,123 of outstanding shares, KRW 11,792 of outstanding shares, and KRW 84,915 of outstanding shares).

[Reasons for Recognition] Facts without dispute, Gap's statements in Gap's 1 through 9, 16, 19, 23 through 44, 47, 50, 59, 60, 61 (including each number, unless it is specified; hereinafter the same shall apply), Eul's statements in subparagraphs 1 through 10, and 14 through 18, and the purport of the whole pleadings

2. Summary of the plaintiffs' assertion

A. Defendant’s violation of the instant agreement

1) The Defendant, as the representative director of E and the subject of the instant agreement, violated the instant agreement as follows. ① According to Articles 2 and 5 of the instant agreement, the Plaintiffs and the Defendant agreed to maintain the objective condition of “1 billion won of sales and 300 million won of operating income when they take charge of H business for five years,” and to compensate for E when they fall short of the above objective after settling three years. In other words, the Defendant must guarantee the Plaintiffs at least three to five years of operating opportunity. (9) Nevertheless, the date three months after the date of the transfer of the instant agreement and the date of the transfer of the H business and the date of the execution of the instant agreement to stop the execution of the instant agreement and withdraw money from the instant account, thereby hindering the Plaintiffs’ H business operation of the instant E, and eventually, the Plaintiffs did not have the right to receive and transfer the E business, and the Defendant did not have the right to receive and transfer the E business from the Plaintiff to another account. However, according to Article 3 of the instant agreement, the Plaintiffs did not have the right to receive and transfer the E business.

2) The Plaintiffs suffered damages equivalent to KRW 1 billion from the closure of H online shopping mall, damages equivalent to KRW 1 billion from the transfer price of this case, damages from the Plaintiffs’ failure to receive monthly wages or services from E or the Defendant from June 2018 to April 2019, damages equivalent to KRW 60 million from November 2018 to April 2019, damages equivalent to KRW 10 million from the Plaintiffs’ failure to pay the monthly wages or services, and KRW 10,000 from March 31, 2019, which have not been supplied to E and has not been settled even after having been settled. Accordingly, the Plaintiffs claimed against the Defendant for damages equivalent to KRW 2,808,450,000 from the purchase price of the products, such as dives, etc., such as dives, which were set forth at the end of the instant agreement as liquidated damages.

B. As long as the Defendant’s tortE lends money to the H business division, the right to manage and operate the said money belongs to the H business division, that is, the Plaintiffs. However, as between February 15, 2019 and March 29, 2019, E withdraws without the Plaintiffs’ consent from the instant account without permission is forced to repay the Plaintiffs’ loans to the Plaintiff in a self-help manner, and constitutes a tort. Accordingly, the claim as indicated in the foregoing paragraph (a) is a selective claim for the claim as indicated in the foregoing paragraph, the E representative director, i.e., the Defendant, who is responsible for the above tort, seeking compensation for damages for KRW 50 million and delay damages.

3. Determination on the claim on the ground of the violation of the instant agreement

A. Relevant legal principles

1) Where a party to a contract prepares in writing a disposal document, if the objective meaning of the language and text is clear, the existence of the intent and the content of the written text shall be recognized unless there are special circumstances. However, if the objective meaning of the language and text is not clearly expressed, the parties shall reasonably interpret the contents of the contract in accordance with logical and empirical rules, social common sense, and common transaction norms so that the parties can conform to the ideology of social justice and equity by comprehensively considering the contents of the language and text, the motive and background leading up to the execution of the contract, the purpose and genuine intent of the parties to the contract, transaction practices, etc. regardless of the parties’ intent to deliberate on the case (see, e.g., Supreme Court Decision 93Da3103, Oct. 26, 1993).

2) In general, in order to claim damages on the grounds of a debtor’s nonperformance, the debtor did not perform his/her obligation in accordance with the content of the obligation.

In addition to the facts, the obligor’s excessive relation between the obligor’s nonperformance of obligation and the occurrence of damages should be recognized. The assertion and burden of proof should be borne by the party seeking damages (see, e.g., Supreme Court Decision 2012Da86895, May 18, 2017; Supreme Court en banc Decision 2012Da86901, supra).

B. Determination

1) As to the allegation of violation of agreement regarding the settlement period (as to the foregoing argument)

A) Facts of recognition

Article 2 of the Agreement of this case provides that "The amount below 1.2 times in proportion to the amount received (1.40 billion won) shall be refunded in proportion to the amount received after settling accounts every one year at the time when sales are maintained for 1.0 billion won and 3 years, and income for 3 years is below 900 million (as of June 1, 2018)." The fact that Article 5 of the Agreement of this case states "five years in proportion to the period of management obligation" is as seen earlier.

B) Determination

However, in light of the following circumstances, it is difficult to interpret the above facts as purporting to guarantee the management right for three years to the plaintiffs regardless of their business performance, and there is no other evidence to acknowledge them, in light of the following circumstances, comprehensively based on the evidence and the overall purport of the arguments as seen earlier, including Gap evidence Nos. 3, 8, 24, 26, 27, 39, and Eul evidence Nos. 3 and 6.

(1) Article 2 of the instant agreement stipulates that “The settlement shall be made every one year as seen above,” and the entry of the Plaintiffs’ assertion is merely the purport of maintaining for 3 years the goal of the sales and operating profit for the purpose of achieving the objectives of the instant agreement.” It is difficult to interpret that “one year settlement shall be made” as a unit of the settlement of accounts, and that it guarantees the business opportunity equal to the unit settlement period. It is difficult to interpret as the purport of guaranteeing the management opportunity during the compulsory period. It is difficult to interpret as the purport of guaranteeing the management opportunity during the compulsory period, only Article 5 of the instant agreement, Article 5 of the instant agreement, and Article 13 of the Agreement.

(2) The determination of “1 billion won of sales and 300 million won of operating income” was based on the e-mail explained by the Plaintiff A to the Defendant. The acquisition price of this case was also 1.4 billion won. It also supports the determination that the Plaintiffs shall return the amount corresponding to the above acquisition price if the total operating income for 3 years under Articles 2 through 3 of the instant agreement falls short of 900 million won. However, the time of aggregating sales and operating income in the above e-mail is not the end of every year (in this case, the first settlement shall be deemed to have been 7 months of the contract date as of the end of 2018), but it is also the time of five months, namely, the first settlement shall be deemed to have been 1.8 billion won of the contract date (in this case, the first settlement shall be deemed to have been 1.6 billion won of the contract date as of May 31, 2019), and it shall be deemed to have been 1.8 billion won of the settlement of accounts of this case at the first 200.1 billion won of the contract.

(3) Even if the settlement period of accounts per year was determined, it is reasonable to view that E would have taken appropriate measures to prevent any further loss on H business as stated in the above 1.C. 4) unlike the plaintiffs' 1. The defendant, around July 2018, sent the plaintiff's e-mail to "I will have calculated the H business's revenue and expenditure for June 2018," and "I will have anticipated at any time to change the business's sales from 00 billion won to 1.0 billion won, and it is difficult to view the plaintiffs' 20 billion won to have changed the business's sales from 00 billion won to 1.6 billion won to 20 billion won to 1.6 billion won to 20 billion won to 20 billion won to 30 billion won to 200 billion won to 30 billion won to 200 million won to 1.6 billion won to 3 billion won to 200 million won to 200 million won to 200 million won to e-mail.

C) Sub-decision

According to the agreement of this case, the plaintiffs' assertion on the premise that management rights for at least three years should be guaranteed to the plaintiffs cannot be accepted.

2) As to the allegation of violation of the agreement on delegation of management rights (as to the foregoing argument)

A) Facts of recognition

The fact that Article 3 of the agreement of this case provides that "the management rights for personnel affairs, finance, investment, etc. of H business division shall be delegated to the plaintiffs" is as seen earlier.

B) Determination

However, in light of the following circumstances, it is difficult to acknowledge that the above-mentioned facts and the overall purport of the evidence and the evidence mentioned above, including Gap evidence Nos. 2, 3, 4, 23, 36, 59, 62, 63, and Eul evidence Nos. 5, etc., including the contents that "the business transfer and takeover of the H business department in this case bears the responsibility of E, and the plaintiffs should be able to execute them autonomously," and there is no other evidence to prove otherwise.

(1) Article 2 of the transfer agreement of this case provides that "the employee who is or was employed by the H business division shall assume the business assets and total liabilities on the account books of the H business division," and Article 4 provides that "in principle, the employee shall bear the obligation to continue employment of the H business division." According to the language, the transfer of the business of this case has the appearance the same as the transferor of the business (part) under Article 41 of the Commercial Act and Article 374 (1) 1 of the Commercial Act. However, considering the actual contents of the transfer of the business of this case as seen below, it is difficult to say that the human and physical organization of the H business division was comprehensively transferred to E despite the above language and text (see, e.g., Supreme Court Decision 9Du2680, Jul. 27, 2001). Rather, it is reasonable to deem that the plaintiffs continue to operate the H business division within the scope of the H business division.15)

(A) The assets subject to the transfer under the annexed Form 1 attached to Article 2 of the transfer agreement of this case are the inventory of ‘products' or ‘products', which appears to have been sold in the shopping mall in the H business division, the patent rights held by the plaintiffs, and the Internet domain names of the H business division (the price was KRW 70 million) and the "cash flow" such as financial assets (cash, deposit account, sales bond, etc.) and liabilities of the H business division was not transferred. In other words, although the owner of the H assets and intangible assets changed to E upon the transfer of the H business in this case, most of the cash flow due to the business activities, investment activities, and financial activities of the H business division were still reverted to D or the plaintiffs.

(B) There was no discussion between D and E on the terms and conditions of employment succession under Article 4 of the instant transfer agreement, i.e., the number of succeeded employees, wage, etc., working conditions, the aggregate method of previous working period, and the settlement of accrued wages or retirement allowances. Even after the transfer of the instant transfer, there was no only one person who moved his/her position among D employees, and Plaintiff B, a D director, moved his/her address to E at the request of E around October 2018, and D employees still were to have been in charge of partial division of H business affairs in the course of performing the instant transfer of the instant transfer of the instant transfer of the instant transfer of the instant contract. D employees were not only paid monthly certain amount of service charges for work provided by the Plaintiffs, but also paid to D employees under the name of “service charges,” and they did not exercise the right to direction and supervise any business affairs by several of D employees.

(C) As seen in Article 6, etc. of the instant agreement, the transfer of the instant business was ultimately aimed at the autonomousization of the H business division, and further listing. In other words, the Plaintiffs had no intention to fully transfer the H business from the beginning to the Defendant due to the transfer of the instant business, and the Defendant also became aware thereof (see each of the foregoing shares 15).

(D) Articles 2 and 4 of the instant acquisition agreement, etc. are deemed to have been incorporated without any special intention, without sufficiently understanding or examining the detailed and legal differences between the Plaintiffs and the Defendant’s usual acquisition of business, and without sufficiently understanding or reviewing the detailed and legal differences with the instant acquisition of business.

(2) Articles 2 and 4 of the instant agreement provide for incentives and news in cases where the plaintiffs have not achieved or failed to achieve the target performance. This is a provision that can not be naturally interpreted on the premise that H business division has been transferred to E. In addition, Article 5 of the instant agreement provides that even after the transfer and takeover of the business, the plaintiffs and the defendant (E) bear certain duties to "the other party" in accordance with the principle of good faith, such as prohibition of dealing with competitive products, and compensate for the penalty of at least one billion won, and the plaintiffs have the duty to "10% transparent disclosure management" to E. Thus, they are also natural provisions on the premise that E is incorporated into E by fully taking over the H business division itself.

(3) If so, Article 3 of the instant agreement delegates management rights to the plaintiffs for financial affairs, investment, etc., it should be deemed that the plaintiffs have the right to select and decide on the funding execution office, as well as the plaintiffs bear the burden of the plaintiffs as before and after the transfer of the financial obligation of this case. In fact, the plaintiffs continued the operation of H business division without receiving funds from E, and especially continued the operation of H business division without receiving funds from E, as a result of the accumulation of business losses, until December 2018, the financial management method between the plaintiffs and E was not particularly problematic.

(4) In a situation where the plaintiffs have the authority and responsibility for financing and management, it is difficult to conclude that E has violated the agreement to open and manage the instant account for the purpose of identifying profit and loss of the H business division and cash flow, and to delegate management rights to the plaintiffs with respect to finance, investment, etc. In addition, Article 5 of the agreement of this case states that "the plaintiffs shall carry out a transparent disclosure management with 100% in principle," and there is no evidence to support that the plaintiffs participated in or participated in the execution of individual funds for H business concerning the H business division until the enforcement of service costs, etc. is deferred. In other words, there is no evidence to support that there was not been an execution of funds due to E's refusal even if the plaintiffs requested the settlement of funds prior to December 2018.

(5) Meanwhile, E’s withholding of the execution of funds, such as service charges, and withdrawing money from the instant account is generated in the situation where the difference between the Plaintiffs and H business losses were accumulated and narrowed regarding the interpretation and implementation of the instant agreement, and is separate from the violation of the instant agreement itself, and E had a loan claim against the Plaintiffs at the time.

C) Sub-decision

The plaintiffs' assertion on this part is not acceptable, which is based on the premise that "H business division's operational funds should be raised E, and the plaintiffs should be able to execute them autonomously."

3) Violation of agreement due to work instruction unrelated to H project division (as to the foregoing allegation (3))

A) As seen in the Plaintiffs’ assertion, Article 5 of the instant agreement states that “The Defendant provided the Plaintiffs with an environment that is concentrating the work of the H business unit.” According to the respective statements in the Evidence Nos. 10 through 18, 19 through 22, and 24 through 27, the Defendant appears to have partially performed the work related to the Defendant L, I, Z., Z., and AA, etc., which appears to have no direct relation with the operation of the H business unit.

B) Determination

However, in light of the above-mentioned facts and the whole purport of the arguments and the following circumstances, namely, the latter part of the above provision, stating "at the time of performing the E business other than the H business division at the large level", it is difficult to conclude that the part part of the plaintiffs' participation was not indirectly helpful for the operation of the H business division, and it appears that there were some purposes for the plaintiffs to achieve incentives 2 and 3 stipulated in Article 4 of the agreement of this case on the background where the plaintiffs performed the above duties, the evidence submitted by the plaintiffs alone is insufficient to recognize that the defendant ordered or forced the plaintiffs to perform the duties unrelated to the H business division, or the plaintiffs could not choose whether to participate therein, and there is no other evidence to support this.

C) Sub-decision

We cannot accept this part of the plaintiffs' assertion.

4) As to the assertion that the acquisition price is unpaid [the foregoing 4 grounds]

A) Facts of recognition

The fact that the acquisition price of this case was paid to the plaintiffs in the way of issuing 10,000 won out of 1.4 billion won of the acquisition price of this case to the plaintiffs by the method of issuing 10,000 won of the shares of E is as above, and the fact that E has not yet been listed to the KOSDAQ market is

B) Determination

However, the following circumstances can be revealed by taking into account the facts acknowledged earlier and the overall purport of the pleading, namely, that the plaintiffs have received only 10,00 shares of E, and that the time limit for listing is specified in Article 1 of the Agreement, etc., and there is no provision regarding the handling of cases where E is not listed within that time limit, and that E cannot be readily determined as not being listed smoothly. Even if E assumes that the price per share was below 1 billion won when listing to the KOSDAQ market, even if E is assumed that the price per share was below 1 billion won, E agreed to compensate for such difference in cash or E shares, and that E has agreed to compensate for the difference in such cases, and that E has no choice but to be deemed to have contributed to the deterioration of the performance of H business division, the evidence submitted by the plaintiffs alone is insufficient to acknowledge that the acquisition price of this case was not paid to the plaintiffs on the part of E, and there is no other evidence to acknowledge this otherwise.

C) Sub-decision

We cannot accept this part of the plaintiffs' assertion.

C. Sub-committee

The plaintiffs' claims under the premise that the defendant violated the agreement of this case are without merit.

4. Determination as to claims caused by tort

A. Relevant legal principles

In a tort, the existence of an illegal harmful act based on intention or negligence, and the assertion and burden of proof as to the causal relationship between such act and the occurrence of damages are against the person who asserts the tort (see, e.g., Supreme Court Decision 2001Da38692, Sept. 28, 2001).

B. Determination

E, around February 15, 2019, the fact that the entire balance of KRW 11,300,000 from the instant account was closed, as well as that of KRW 152,79,536 from the instant account by March 29, 2019 is as seen earlier.

However, it is difficult to view that E exercised the right to manage the account of this case in order to grasp and secure the plaintiffs' 'clear open management', i.e., E had a loan of 200 million won and interest claim against the plaintiffs at the time of the above withdrawal, and E's determination that it is difficult to collect the loan claim due to cumulative business losses of H business division is difficult to view that E's withdrawal of funds from the account of this case is unlawful, based on the evidence submitted by the plaintiffs alone, and there is no other evidence to acknowledge this differently.

C. Sub-committee

The plaintiffs' claims under the premise that E’s withdrawal of funds from the account of this case is illegal are without merit.18)

5. Conclusion

Therefore, the claim of the plaintiffs shall be dismissed in its entirety as it is without merit. The judgment of the court of first instance that dismissed the plaintiffs' claim on the grounds of the defendant's violation is justified. Therefore, the plaintiffs' appeal against this is dismissed as it is without merit, and this court's selective tort is dismissed as it is without merit. It is so decided as per Disposition.

For the presiding judge, judges in charge

Judges Yang Dong-soo

Judges Powers Presiding Justice

1) The trade name of E was changed to M & G Co., Ltd. (G) on or before, and on January 6, 2020, it appears that it was changed to N Co., Ltd. (N). However, according to the trade name at the time of concluding the business transfer contract with the Plaintiffs.

2) On April 26, 2018, Plaintiff A sent to the Defendant, expressed in its e-mail, “ beauty and health bat online bat,” or “slance nutrition and beauty the platform image” (No. 2).

3) On June 7, 2018, Plaintiff B resigned from office as D director, and Plaintiff A was appointed as D’s representative director on the same day. However, Plaintiff B was appointed as D’s director again on February 24, 2020, and Plaintiff A was appointed as D’s representative director on the same day.

4) Attached 1. The list of transferred assets and debts is composed of 34,357,80 won, including rabic 1,314 won, "products equivalent to 32,387,948 won, such as Kakabsp 100 won," "products equivalent to 6,735,66,745,748 won, such as "products equivalent to 32,387,948 won," and "a total of 6,735, 66,745,748 won," and "a summary management server and its method based on video cover map" (the filing date: R: inventor registration number: the plaintiffs), three inventions in which only the patent was filed, "S/T" and "a total of 3,254,252 won, such as the value and value of the inventory assets in this case."

5) Articles 3 and 4 of the instant agreement were not included in the agreement discussed between the plaintiffs and the defendant around May 3, 2018. Accordingly, even though the order of Articles 5 and 6 of the instant agreement was followed by the order of Articles 5 and 6, Article 5 still stated in the instant agreement as "Article 3" and Article 6 as "Article 4". The agreement is corrected and indicated in the following.

6) From January 1, 2018 to April 9, 2018, the Plaintiffs asserted that the sales revenue from the trade name “X” was KRW 227,332,169, and the business income was KRW 25,615,334 (the “income classification statement” No. 50), and the above H business division is deemed to mean the H business division (see, e.g., Supreme Court Decision 2020, Aug. 10, 2018). However, the business number is not the number registered as a corporate business entity, and the Plaintiffs cannot be deemed to have been audited by the accounting corporation, etc. with respect to the said invoice.

7) As products developed by E, as described in Article 2 of the instant agreement, the Defendant granted the Plaintiffs the right to acquire its domestic sales in KRW 200 million, and the Plaintiffs paid KRW 220 million (including value-added tax) to E on May 31, 2018 pursuant to the said provision.

8) The plaintiffs alleged in this court that it is difficult to believe the defendant's 'H business partial income and loss statement' submitted by the defendant in the first instance trial (Evidence 18). However, in light of the fact that E was subject to external audit by Y accounting corporation for the fiscal year 2018 (Evidence 47) and that the plaintiffs did not make the above assertion in the first instance trial, the records stated in the main text of the defendant's assertion are deemed to be reliable.

9) On January 28, 2020, Plaintiff 3 pages for reference documents, and on September 1, 2020, Plaintiff 1 et al.

10) The Plaintiffs claim that the amount of reduced service charges of KRW 15 million, each of the five million on November 2018, December, 2018, and January 2019, paid by E upon the reduction of the amount of KRW 15 million (see Plaintiff 2019, October 18, 2020, and Nonparty 51 through 54, respectively) is also a loss (see Plaintiff 2019, October 18, 2020, and Nonparty 12, and Nonparty 51 through 54, respectively);

11) The Plaintiffs are also deemed to have asserted that the main body of withdrawal of funds as stated in the main body is Defendant (Plaintiffs’ preparatory brief dated 8, 2020 13 pages).

However, the instant account is not the Defendant’s individual account, but E’s corporate account, and there is no evidence to deem that the Defendant voluntarily withdrawn funds from the instant account. Accordingly, the Plaintiffs’ claim for this part of the claim is without merit as the composition of the cause of the claim. However, it is to be determined with good faith as indicated in the main text.

12) For example, even if it is assumed that there was a month of deficit, the conditions are satisfied if the total annual sales amounting to one billion won, and operating income amounting to three hundred million won, for one year.

13) For example, the Plaintiffs cannot arbitrarily reverse the instant agreement on the ground that they have good performance, but may divide the H business division into the H business division pursuant to Article 6 of the instant case.

14) However, up to December 2018, E paid the Plaintiffs the service cost of KRW 15 million each month.

15) The plaintiffs also thought that the plaintiff 3 pages of the complaint (H had not been able to transfer all these agreements to the business sector with the plaintiffs' main power, and that they would not be able to simply transfer them. On the same day, they prepared a written agreement on the condition that they operate the H business department on the condition that they operate the business." The plaintiff 4 pages ("the defendant) of the plaintiff B's paper on the 12,16th of 2020, and 4 pages ("the defendant) of the plaintiff B would be able to learn various business know-how and experience, and they thought that the plaintiff would be able to work together to protect each other's interests. The plaintiff thought that the plaintiff would have been able to make efforts to protect the interests of the partnership, and that the defendant also she was able to recognize that the business acquisition of this case was close to the same business contract between the defendant and the defendant (the subject of the agreement in this case is also the plaintiffs and the defendant Da).

16) The Defendant asserted that “E, regardless of Article 4 of the instant transfer agreement, intended to hire one of the D writers as E and to take exclusive charge of H business affairs, but the employee refused to take exclusive charge of H business affairs.” (Article 8 pages of the briefs dated August 10, 2020);

17) Defendant 1’s preparatory brief dated August 10, 2020 see, e.g., 7-8 pages.

18) As seen in Section 11 of the preceding Note, there is no evidence to deem that the Defendant withdrawn funds from the account of this case, and there is insufficient proof as to how such withdrawal constitutes the Defendant’s tort.