Plaintiff (Law Firm Han, Attorneys Kang Han-soo et al., Counsel for plaintiff-appellant)

Defendant (Law Firm Min & Yang, Attorneys Na Sung-tae, Counsel for defendant-appellant)

Seoul Central District Court Decision 201Gahap3928 Decided December 23, 2011

October 10, 2012

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

The defendant shall pay 240,000,000 won to the plaintiff.

2. The plaintiff's remaining appeal is dismissed.

3. All the costs of the lawsuit are borne by the Defendant.

4. The part on which money is paid under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff an amount of KRW 240 million with 5% per annum from October 1, 2010 to the service day of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

A. From May 2009, the Defendant: (a) operated the ○○○○○ Pac (hereinafter “instant store”); (b) terminated the franchise agreement on July 2010 on the first floor of the building underground of Gangnam-gu Seoul (hereinafter address omitted); and (c) requested a consulting company to sell the said store to the J&J.

B. On September 2010, the Plaintiff received the instant store from the employee Nonparty, and visited the instant store, and directly presented “a specification of coffee transaction from January 2010,” from the Defendant, and received the content of sales on August 2010 (Evidence A 3) from the Defendant.

C. On September 11, 2010, the Plaintiff entered into a contract on acquisition of the premium for a start-up shop (hereinafter “instant premium contract”) with the Defendant on the same day, separately from the lease transfer contract (Evidence A-1-1) with the content that the business right, value right, know-how, facility cost, etc. related to the instant store should be evaluated as KRW 240 million and transferred to the Defendant on the same day. On the date of the contract, the Plaintiff paid KRW 20 million to the Defendant the down payment of KRW 10 million on September 17, 2010, the intermediate payment of KRW 120 million on September 30, 201, and the remainder of KRW 1240 million on September 30, 2010, the Plaintiff paid KRW 290,000,000 as the consulting cost. In addition, the Plaintiff paid KRW 290,000 as the consulting cost.

D. On October 1, 2010, the Plaintiff received delivery of the instant store from the Defendant and operated it until May 2012, 2012, but the monthly average sales amounted to approximately KRW 13 million.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 3, Eul evidence 6-1 through 20, Eul evidence 2-1, 2, Eul evidence 4, part of the non-party witness of the first instance trial, and the purport of the whole pleadings

2. Summary of the Plaintiff’s assertion

A. The Defendant, as if there were considerable net profits, fabricated and sold the instant store, which is in a state of enemy and self-defensive, made a false sales data and concluded a premium contract for purchasing the instant store’s goodwill, etc. from the Defendant by deceiving the Plaintiff. As such, the instant premium contract was revoked as a delivery of the duplicate of the complaint of this case, as an intentional expression by fraud.

B. Although the defendant has a duty to provide all the data, such as details of sales on the store of this case, so that the plaintiff can set a reasonable level of transfer price, it provided false data. The defendant's act of providing false data constitutes non-performance of obligation, and thus, the premium contract of this case is terminated.

C. Therefore, the Defendant is obligated to pay to the Plaintiff the premium amounting to KRW 240 million and damages for delay, which was paid to the Plaintiff as a performance of the duty to restore to the original state due to the cancellation or termination of the premium contract in this case.

3. Determination

(a) Presentation of false sales data;

According to the above evidence, at the end of July 2010, the defendant requested a consulting company to sell the store of this case at L&C, and notified the consulting company that "at least 22 million won per month or 23 million won per month, and at least 25 million won per month," and notified the consulting company that "at least 17 million won per month was included in the profit and loss quarter." Upon introducing the store of this case from the consulting company's employees, the plaintiff visited the store of this case at early September 2010 and asked the plaintiff about the extent of sales. The defendant presented a tea list from January 1, 2010 to present a tea list, and the plaintiff demanded the plaintiff to present the sales data, and the defendant made it clear that the sales amount was 00 won per month or 23 million won per month or 23 million won per month, and the sales amount was 17 million won per month or more per month or 200 billion won per month after the date of acquiring the store of this case.

However, in light of the following circumstances, the above sales data (Evidence A 3) include false sales data that the Defendant prepared for the sale of the store of this case and included processed sales in order to use them as favorable material for premium calculation, and the processing size of the sales is the amount exceeding six million won out of the total sales amount of August 23, 2010 in the attached Table ’s attached Table ’, ‘A', ‘A', ‘A evidence 6-1 through 61, ‘A evidence 10-1 through 46, ‘A evidence 13-1 through 7', ‘A evidence 13-7', and ‘A evidence 13-1 to ‘A evidence 13-7'.

① According to the result of compiling sales data stored in the computer of the POS system during the period from January 2010 to August 2010, 2010, which was the delivery of the conclusion of the instant premium contract at the instant store, the Defendant’s sales revenue amounting to KRW 22,416,00, and KRW 23,109,890, while the sales revenue amounting to KRW 23,109,890, from January 201 to June 2010, which was the delivery of the instant premium contract.

② According to the data that arranged the details of sales on July 7, 2010 and August 2010 stored in the pertinent POS computer by time (No. 6-1 through 20, and No. 13-1 through 7 of the evidence No. 13-7), sales from the Defendant’s commission of sales brokerage to the number of KRW 22:0,000 to the number of million per transaction before and after the end of every day after the Defendant’s commission of sales brokerage of the instant store. Such sales are different from the sales during the period of transfer, as well as from the sales of the instant store’s daily sales on the one-day business scale.

③ The Defendant stated that it was due to the fact that the mass sales, which was recorded as the one that occurred immediately before the closing of business hours, were recorded at one time on the closing of cash sales (the result of the party’s personal examination by the Defendant), but only one time during the period prior to the Defendant’s request for sale brokerage, did not occur during the period prior to the commission of sale brokerage, and in some business days, the volume of the daily mass sales exceeds the total amount of cash sales on the day (i.e., the evidence No. 3 and the evidence No. 6-1 through 20). Rather, it cannot be seen that the said mass sales are recorded at one time, in light of the fact that the size of the daily mass sales exceeds the total amount of cash sales on the day (i.e., the evidence No. 3 and the evidence No. 6-1 to 20).

④ The Defendant asserts that: (a) prior to the termination of the franchise agreement and the request for sales brokerage on July 2010, the Defendant entered the cash sales on the business day only once into the POS’s terminal at the end of business hours with a view to omitting sales of the franchise headquarters; (b) printed receipts only for verifying the total sales; and (c) cancelled the entry of the cash sales on the day immediately before transmitting the details of the sales to the franchise headquarters.

However, even according to the defendant's argument, the printing of cash sales by entering the cash sales in a lump sum before the closing of business hours can be seen as the purpose of confirming and keeping accurate sales data. The defendant could not submit a receipt for confirming the whole sales that he printed out. In addition, if the plaintiff requests the defendant to submit the data on sales before entering into the premium contract of this case, he may answer that there is no accurate sales data due to omission of sales. In addition, if the purpose of omitting sales is to enter the cash sales into the device, it is sufficient to enter the cash sales into the device, and it is not easy to accept that only the receipt was printed to confirm the total sales, but only the cancellation was made.

⑤ Since the Defendant did not need to avoid sales after the termination of the franchise agreement, it is argued that the Defendant collected cash sales on the business day to reduce the sales cost, and entered them in the POS at once immediately before the closing of the business hours, it appears that the mass sales occurred. However, it is not easy to believe that: (a) cash buyers did not issue a receipt to reduce the sales cost of receipts; or (b) it appears that the receipt was confirmed individually at the time of ordering; (c) if the franchise agreement was terminated, the sales did not need to be omitted; (d) by entering the sales into the POS system, the Defendant made more easy business methods to automatically adjust and settle the sales on the business day by automatically entering the sales at the time of ordering; and (e) made a separate storage of the cash sales on the business day before the closing of the sales period, and recorded it in the lump sum at the time immediately before the closing.

(b) Whether the revocation is an expression of intent

In a case where a false notice of important facts is made in a manner to the extent of being subject to criticism in light of the duty of good faith, it can be evaluated as an illegal deception. According to the above facts, the defendant paid the store of this case and notified the plaintiff who intends to acquire the premium of this case of the degree of sale or profit, and as if there was no actual sales during the period of one month or more immediately after the request for the sale brokerage, the false processed sales shall be recorded in the POS, and as if there was no actual sales during the period of one month or more from the day after the request for the sale brokerage, the act of notice as if there was a larger sales than the actual sales by printing and presenting the POS sales data including false sales

In addition, the premium in the store premium contract is calculated by comprehensively assessing the various factors such as goodwill, know-how, location of the store, growth potential, and facility costs as well as sales, among them, the sales of the store concerned is a very important factor in calculating the premium. Furthermore, if there are circumstances that would have not concluded the contract if it was presented with accurate sales data or that it would not have concluded the contract at least on the same condition, it would have a causal relationship between illegal deception and contract. In light of the scale of the false sales (6,451,570 won) included in the total sales (23,109,890 won) recorded in the sales data presented by the defendant, the plaintiff was provided with the actual sales data excluded from false sales, and therefore, the sales of the store in this case would not exceed the quarter as notified by the defendant himself, and thus, the causal relationship between the defendant and the contract in this case was concluded.

(c) Cancellation and reinstatement;

Therefore, since the plaintiff falls under the deception of the defendant's presentation of false sales data, and entered into the premium contract of this case with the defendant, it can be revoked as an expression of intent by fraud. Since it is clear in the record that the plaintiff revoked the above contract as a delivery of a duplicate of the complaint of this case, the defendant is obliged to pay to the plaintiff KRW 240 million for the premium paid to the plaintiff as a performance of duty to restore.

On the other hand, the plaintiff claimed the payment of damages for delay from the day after the last day of payment of the above premium to the day of full payment. However, if the premium contract of this case is cancelled, the other party's obligation to return the plaintiff's business facilities, etc. and the defendant's obligation to return the premium of this case are concurrently performed (see Supreme Court Decision 93Da1622, Sept. 10, 1993). If both parties' obligation are jointly performed in the bilateral contract, even if one party's obligation comes in the simultaneous performance relationship, the other party's obligation is not liable for the delay until the other party's obligation is performed. The effect of this is that the claimant's right to defense of simultaneous performance does not necessarily arise until the other party's obligation is performed (see Supreme Court Decision 97Da54604, 54611, Mar. 13, 1998). The defendant does not bear any responsibility for delay in the above premium until the plaintiff provided the above obligation.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the judgment of the court of first instance is unfair, so the part against the plaintiff corresponding to the above amount ordered to be paid among the judgment of the court of first instance shall be revoked and its payment shall be ordered to the defendant, and the remaining appeal of the plaintiff shall be dismissed and so decided as per Disposition.

[Attachment]

Judges Cho Young-chul (Presiding Judge)

(1) POS (PO) is a system that combines the functions of a cash register with a computer terminal to settle the sales amount, as well as to collect and process various information and data necessary for retail management at the same time.