Plaintiff (Attorney Song-Gyeong et al., Counsel for the plaintiff-appellant)

Han Newa Co., Ltd. (Law Firm LNB Partners et al., Counsel for the defendant-appellant)

November 30, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall be dissolved.

1. Basic facts

(a) Conclusion, etc. of a trust deed;

1) On September 17, 2008, the Plaintiff established ADC Co., Ltd. (hereinafter “ADC”) holding the entire shares of the Plaintiff to conduct a project to create a culture and arts tourism complex including leisure and recreational facilities, sports facilities, art-based villages on the ground (hereinafter “instant land”).

2) On May 11, 2009, the Plaintiff sold the instant land to ADC at KRW 50 billion. For the purpose of securing purchase price on the same day, ADC entered 14 billion loan from D&C Mutual Savings Banks (hereinafter referred to as “ D&C”), C&C companies, C&C companies, private mutual savings banks, L&C companies, and Scar Mutual Savings Banks (hereinafter referred to as “T&C companies”) with loans of KRW 14 billion from 14 billion in order to secure loan obligations. On May 18, 2009, the Plaintiff entered the instant trust contract and each of the instant real estate trust contracts and each of the instant real estate trusts, which were the first beneficiaries of the instant real estate, into a disposal trust agreement and each of the instant real estate trusts, with each of the instant real estate beneficiaries described in the list of P&C trust contracts and each of the instant real estate trusts, the date on which each of the instant real estate was entered in the instant trust contracts and each of the instant real estate trusts (hereinafter referred to as “B&D trust agreements”).

(b) Conclusion of joint venture contracts, establishment of special-purpose corporations, etc.;

1) On February 8, 2010, the Plaintiff and LAWC (hereinafter “Plaintiff”) entered into a joint venture agreement with the Korea-New Co., Ltd. (hereinafter “Korea-New Co., Ltd”) to jointly carry out the instant project (hereinafter “instant joint venture agreement”), and the main contents thereof are as follows.

(2) The public interest rate of KRW 4,034,012 (this case’s land omitted) shall be determined as KRW 65 billion on the basis of the above land, and the public interest rate of KRW 300 million shall be determined as KRW 4,000,000,000. The public interest rate of KRW 300,000 shall be KRW 10,000. The public interest rate of KRW 300,000 shall be determined by the agreement between the Plaintiff and the public interest rate of KRW 30,000. The public interest rate of KRW 4,00,000 shall be determined by the agreement between the Plaintiff and the public interest rate of KRW 30,000,000. The public interest rate of KRW 3,000,000 shall also be determined by the agreement between the Plaintiff and the public interest rate of KRW 300,000,000,00,000,00,000.

2) Under the instant joint venture agreement, Korea-Japan paid the Plaintiff the down payment of KRW 3 billion on the same day, and the Plaintiff entered into a contract to add the Plaintiff’s side to the second priority beneficiary under the instant trust agreement (the preferred beneficiary amount of KRW 3.9 billion) and the Plaintiff’s joint debtor on February 25, 2010.

3) After that, the Plaintiff’s side and the Korea New Technology Co., Ltd., a public affiliate of Korea New Technology Co., Ltd. (hereinafter “Co., Ltd”) agreed to participate in the instant joint venture investment agreement. Accordingly, the Plaintiff’s side and the Korea New Technology Co., Ltd entered into a contract to amend the instant joint venture investment agreement (hereinafter “the first amendment agreement”) on March 9, 2010, including partial revision of the land size. The key contents are as follows, and the amendment of the terms of the instant joint venture agreement is to apply mutatis mutandis to the matters not modified.

(3) On the basis of the land of this case, the agreement between the plaintiff and the new government will be confirmed and concluded that the new government will cooperate with the plaintiff, and the new government will establish SPC, and the operation of SPC will be operated under agreement. 3) The ratio of SPC will be 49%, 31%, 20 billion won, and 30 billion won, and the new government will be 4 billion won, and the new government will be 5 billion won, and the new government will be 1 billion won, and the new government will be 4 billion won, and the new government will be 3 billion won, and the new government will be 4 billion won, and the new government will be 10 billion,000,000,000,0000 won, and the new government will be 4 billion,000,000,0000,000 won, and the new government will be 10,000,000,000,000 won,00 won,00 won.

4) The Chinese government paid the Plaintiff the first intermediate payment of KRW 2.5 billion on the same day.

5) On March 11, 2010, the Plaintiff’s side and the Han New Joint Ventures established the Defendant as a special purpose corporation for the execution of the instant project in accordance with the instant joint venture agreement and the first modified agreement. At the time of the establishment of the Defendant, three of the Defendant’s directors is Korea New Joint Ventures, the two of the Plaintiff’s directors is to be recommended respectively by the Plaintiff, and the audit is three directors recommended by the Han New Joint Ventures, the two of the Plaintiff’s recommendation was the director, and the two of the Plaintiff’s recommendation was the Nonparty 4 and the Plaintiff’s joint representative director recommended by the Plaintiff.

(c) Conclusion, etc. of sales contracts;

1) On March 16, 2010, the Plaintiff’s side and the Korea New and New Joint Venture concluded a contract to amend the terms and conditions of the instant joint venture agreement (hereinafter “the second modified contract”), and the content thereof are as follows.

Article 3 (Business Apportionment) (1) of the Joint Venture Investment Contract in this case where the Plaintiff led to the management of SPC and takes charge of the acquisition of the license of the instant project, the Plaintiff’s business (2) from March 16, 2010, shall enter into this modified contract by mutual agreement that the Defendant, SPC, operates it on its own, is responsible for the acquisition of the license, and is to operate it on its own.

2) On March 26, 2010, the Plaintiff entered into a sales contract with the Defendant on March 26, 2010, including that the Plaintiff sold the instant land and ground buildings (including unregistered buildings), ground objects, standing trees, and all other superficies for KRW 25.5 billion (hereinafter “instant sales contract”). The main contents of the instant sales contract are as follows.

본문내 포함된 표 [이 사건 매매계약의 주요 내용] 매도인 원고, 가이아디앤씨, 매수인 피고, 한신공영, 코암시앤시는 아래와 같이 부동산 매매계약을 체결한다. 제1조(계약의 목적) 본 계약은 이 사건 합작투자계약 및 제1차 변경계약에 의하여 원고측, 한신공영측이 「주한미군 공여구역주변지역등 발전종합계획」에 따라 남양주시 와부읍 월문리 일대에 지정된 「○○○○예술문화단지」내에 있는 원고측 소유의 이 사건 토지를 투자하는 등으로 피고를 설립하여 피고를 사업시행의 주체로 하여 이 사건 사업을 시행하기로 하였으나, 현 시점에서 토지거래허가 제한 등으로 이 사건 토지의 소유권 이전이 불가능하므로, 우선 본 계약에 따라 원고측은 피고에게 이 사건 토지를 매도하고, 피고는 「주한미군 공여구역주변지역등 지원 특별법」에 의하여 이 사건 사업을 시행하여 그 사업승인을 받거나 토지거래허가를 취득하는 즉시 이 사건 토지에 관한 소유권이전등기를 완료함으로써 이 사건 사업을 효율적으로 시행하기 위한 목적으로 이 사건 토지 매매계약을 체결한다. 제3조 (총매매대금 및 매매대금의 지급내역, 시기, 방법) ① 본 계약의 총 매매대금은 255억 원으로 한다. ② 지급방법 1. 계약금 계약금 30억 원은 이 사건 합작투자계약에 따라 한신공영이 원고측에게 이미 지급한 30억 원의 반환채무를 피고가 인수하는 것으로 그 지급에 갈음하기로 하고 한신공영은 원고측과 피고 간의 위 채무인수를 승인한다. 2. 1차 중도금 1차 중도금 25억 원은 제1차 변경계약에 따라 한신공영측이 원고측에게 이미 지급한 25억 원의 반환채무를 피고가 인수하는 것으로 그 지급에 갈음하기로 하고, 한신공영측은 원고측과 피고 간의 위 채무인수를 승인한다. 3. 2차 중도금 2차 중도금 140억 원은 제1차 변경계약에 따라 부림상호저축은행 등으로부터 원고측의 연대보증으로 가이아디앤씨가 차주가 되어 2009. 5. 11. 대출받은 140억 원의 대출금 채무를 피고가 인수하는 것으로 그 지급에 갈음하는 것으로 하되, 위 인수채무금 중 40억 원은 인수와 동시에 부림상호저축은행 등에 상환하고, 한신공영은 피고가 위 인수채무를 상환하는데 필요한 40억 원을 피고에게 대여한다. 4. 잔금 잔금 60억 원은 이 사건 토지 일체에 대한 소유권이전등기가 마쳐진 날로부터 10 영업일 이내에 지급한다. 한신공영은 원고측에 대하여 피고의 위 60억 원의 잔금 지급 채무를 연대보증한다. 제4조 (자금지원 및 출자전환) ① 피고는 사업추진을 위하여 자금이 필요할 경우 소유권이전등기를 마치기 전이라도 이 사건 토지를 활용하여 금융기관으로부터 대출을 받을 수 있으며, 이 경우 대출 차주는 피고로 한다. ② 한신공영측은 제1차 변경계약에 따라, 본 계약 제3조에서 정한 바와 같이 채무인수의 승인, 인수채무에 대한 연대보증, 자금 대여 등의 방법으로 피고의 원고측에 대한 매매대금 지급을 지원할 수 있고, 이를 통하여 피고에 대하여 취득하게 되는 채권금액 255억 원의 범위 내에서 유상증자 등의 방법으로 출자전환할 수 있다. 이 경우 원고측과 한신공영측 간 피고에 대한 지분율 49:51에는 변동이 없도록 처리하며, 이 과정에서 발생할 수 있는 증여세 등의 제세금은 피고가 부담하고 향후 정산시 원고측과 한신공영, 코암시앤시의 지분율에 따라 정산한다. 제5조 (신탁계약 등의 변경) ① 이 사건 신탁계약 및 이에 따른 부동산담보신탁예약증서와 관련하여, 원고측과 피고 및 한신공영은 본 계약 체결일로부터 10영업일 이내에 위 신탁계약의 수익자 겸 채무자를 가이아디앤씨에서 피고로 변경하고, 대주단을 제외한 우선수익자를 한신공영 또는 코암시앤시로 하는 우선수익자 지위변경 및 123억 5,000만 원을 한도액으로 하는 수익권 증서를 발행하는 내용의 신탁계약 변경계약 체결을 완료하고, 변경된 계약내용에 부합하는 신탁변경등기를 완료하여야 한다. 단, 수익권증서 발행비용은 피고가 부담한다. ② 피고가 이 사건 사업을 시행함에 있어 필요한 자금을 한신공영측이 추가로 대여하는 경우 원고측과 피고는 전항의 신탁계약 변경을 통하여 한신공영측에게 추가 대여자금에 대한 수익권 증서를 발행하여 준다. 제6조 (사업시행 승인에 필요한 협력의무 등) ① 원고측, 한신공영측은 피고가 관할관청으로부터 이 사건 사업의 사업시행 승인 등을 받는데 필요한 서류 등의 교부, 인장 등의 날인, 민사상, 행정상 절차 이행 등 일체의 협력하여야 할 사항에 대하여는 즉시 협조하여 이행하여야 한다. 제7조 (계약의 해제 및 위약금) ③ 원고측과 피고는 상대방이 제6조에서 정한 협력의무를 이행하지 않는 경우 1주 이상의 기간(단, 즉시 협력이 필요한 경우에는 협력이 유효할 수 있는 상당한 기간)을 정하여 그 이행을 최고하고 그 기간 내에 이행하지 아니하는 경우 본 계약을 해제할 수 있다. ⑤ 상기 제②항과 제③항에 의하여 계약이 해제되는 경우 원고측은 피고에 대하여 피고가 이미 지급한 매매대금의 배액을 위약금으로 배상하고, 피고가 이 사건 사업 시행을 위하여 투입한 비용 일체를 추가로 배상한다.

3) At the time of the instant purchase and sale contract, both the Han New and the Plaintiff evaluated the value of the instant land as KRW 50 billion, but the sale price to reduce the acquisition tax burden was KRW 25.5 billion.

4) According to the instant sales contract, on March 26, 2010, the Defendant acquired the obligation to return KRW 5.5 billion (the sum of KRW 3 billion for the down payment and KRW 2.5 billion for the first intermediate payment received pursuant to the instant joint venture investment contract and the first modified contract) owed by the Plaintiff for the public interest of Korea. On March 31, 2010, the Defendant borrowed KRW 10 billion from the Glim Mutual Savings Bank after obtaining a joint and several guarantee from Korea, and borrowed KRW 4 billion for the same day, and repaid all the obligation to the Plaintiff’s lender against the Plaintiff’s part of the lender that the Defendant acquired with the said loans.

5) In addition, on March 31, 2010, the Plaintiff agreed to amend the instant trust contract in accordance with the terms and conditions set forth in the instant trust contract. 1) On March 31, 2010, the first priority beneficiary under the instant trust contract is an additional mutual savings bank (14 billion won of preferential profit) at the lender, and the obligor is changed from ADC to the Defendant, and the second priority beneficiary is the first priority beneficiary (However, the amount of preferential profit is increased from 3.9 billion won to 12.35 billion won, and the second priority beneficiary is the first priority beneficiary, and the debtor is changed from the Plaintiff’s side to the Defendant, and 2.3 billion won, the Defendant changed the terms of the credit transaction agreement to “the time of the violation of the credit transaction agreement concluded between the first beneficiary and the debtor,” which is the requirements for the disposal of the trust real estate under the instant trust contract, to return the loan amount of KRW 1.5 billion to the Plaintiff’s new loan agreement that the Defendant took over from B.5 billion won to the public loan agreement.

(d) Cancellation notification, etc.;

1) On April 27, 2010, the Defendant’s board of directors held on April 27, 2010, Nonparty 4 resigned from the joint representative director and Nonparty 3 was appointed as the joint representative director.

2) On November 2010, Korea New and New Technology requested the Plaintiff to issue a certificate of beneficial rights to the expenses paid to the Defendant. Of the expenses, the second part of the instant transaction agreement included interest for KRW 14 billion.

Around December 2010, the Plaintiff is required to pay interest of KRW 14 billion for the part payments for the Korea-Japan public service. As such, the Plaintiff cannot issue a certificate of beneficial rights. If the Defendant has completed the registration of ownership transfer for the instant land, the Defendant is obligated to cancel the beneficial rights equivalent to KRW 25.5 billion on land. Under the instant sales contract, the Plaintiff demanded the holding of the board of directors for the sake of the Defendant’s capital increase with capital increase, and Nonparty 1 recommended by the Plaintiff would resign from the position of director. Thus, Nonparty 2 wanted to appoint Nonparty 2 as a director.

On January 20, 201, the non-party 3 recommended by the Korea-Japan Joint Representative Director recommended to hold a general meeting of shareholders as to the appointment of directors proposed by the plaintiff of the defendant Joint Representative Director; ② the issue of a certificate of beneficial rights to the borrowed funds from the plaintiff of Joint Representative Director of the defendant Joint Representative; ③ the issue of a certificate of beneficial rights to the borrowed funds from the Korea-Japan Joint Representative Director; ④ the notice that the meeting of the board of directors should be held on January 28, 2011 due to the dismissal and appointment of joint representative director due to non- cooperation by the plaintiff of Joint Representative Director; ④ the non-party 3, non-party 4, and non-party 5 present both at the meeting of the board of directors held while the plaintiff was absent (the non-party 1, the director recommended as the plaintiff, also resigned), and dismissed the plaintiff by adopting the above ①, non-party 3, non-party 4,

3) In addition, around January 17, 201, Nonparty 3 notified the Plaintiff of the request to approve the application for approval for the implementation of the instant project and the relevant documents to submit the project plan upon the request of the Plaintiff on January 12, 2011 at the Namyang-si, Namyang-si.

Around January 21, 2011, the Plaintiff notified Nonparty 3 of the purport that “The Plaintiff would give prompt answers after detailed and careful review as data need to be kept off for a review.” The Plaintiff did not approve the application for approval to implement the project and the relevant documents to submit the project plan as above.

4) Around January 28, 2011, the Plaintiff sent a notice to the Defendant, the Newcom Co., Ltd, and the Camb, to the effect that the instant contract would be revoked. After that, Aamb, on February 1, 2011, he/she applied for the approval of the business that he/she would independently implement the instant project at the Namyang city. On February 9, 2011, the Plaintiff sent a notice to the Defendant demanding dissolution.

5) Meanwhile, from February 7, 2011 to March 3, 2011, the Defendant requested the Plaintiff to issue a written consent for the instant project approval and the submission of the project plan, but was rejected.

6) Around March 23, 2011, the Defendant sent a notice to the Plaintiff that the instant sales contract will be rescinded on the grounds of the Plaintiff’s failure to perform his/her duty to cooperate. The said notice reached the Plaintiff around that time.

(e) Progress, sale, etc. of the auction procedure.

1) As seen earlier on April 1, 2011, Korea-Japan Mutual Savings Bank notified Defendant, Korea-Japan, and Plaintiff of repayment of principal and interest on the ground that the maturity of the Defendant’s loan obligation jointly and severally guaranteed by Korea-New Mutual Savings Bank ( March 31, 2011) has arrived. The Korea-New Mutual Savings Bank, a joint and several surety of the above loan obligation, on the same day, paid the entire principal and interest of the loan to Busan Mutual Savings Bank.

2) On April 6, 201, Korea New Trust requested the Public Auction Disposition of the instant land as the first and second first beneficiaries of the instant trust agreement, after it subrogated for the loan obligation as above, and on June 8, 2011, this trust publicly announced the progress of the Public Auction Procedure for each real estate and building on its ground as shown in the separate sheet 1 as of June 8, 201.

3) On the other hand, around May 4, 201, the Plaintiff requested a third party, a financial provider, to issue a certificate of preferential right under the instant trust agreement, as one of the third parties is expected to repay the secured debt of the first and second preferential right to the Han New Trust, who is the applicant for the public auction with the third party’s funds. However, on May 13, 201, the Plaintiff notified the Plaintiff of its rejection on the ground that the Plaintiff’s consent is necessary.

4) Pursuant to the above auction procedure on June 21, 201, each of the real estate and its ground buildings listed in the separate sheet 1 was sold to Scina Development Co., Ltd. in the amount of KRW 37.25 billion.

【Ground of recognition】 The fact that there has been no dispute, Gap’s evidence of 1 through 20 (including each number; hereinafter the same shall apply), Eul’s statement of 1 through 14, 17, 18, 20, 21, 23, 24, 27, 28, 29, 30 through 33, and 38 through 40, and the purport of the whole pleadings

2. The plaintiff's assertion

For the purpose of running the instant business, the Defendant notified the Plaintiff and the Defendant of the rescission of the instant sales contract, which is the basis of the instant business, due to disputes between the Plaintiff and the Defendant, based on the instant joint venture investment contract, the instant sales contract between the Defendant and the Plaintiff, or between the Plaintiff and the Korea-China, and the Defendant, as well as the Defendant lost ownership of the instant land, which is essential assets to operate the instant business. As such, the Defendant could no longer achieve the purpose of establishing the instant establishment that the Defendant runs the instant business, such as the Defendant loses ownership of the instant land, which is no longer necessary assets to operate the instant business, which constitutes “when the company’s business operation may cause or threaten to cause irreparable damage,” as prescribed in Article 520(1)1 of the Commercial Act

3. Determination

(a) The Commercial Act governing dissolution judgment of a company;

Article 520 (1) of the Commercial Act provides that "any shareholder who holds shares equivalent to not less than 10/100 of the total number of issued and outstanding shares may file a petition with the court for dissolution of the company," and subparagraph 1 provides that "when the company's business operations are likely to cause or threaten to cause irreparable damage to the company," and subparagraph 2 provides that "when the company's existence is at risk due to significant loss in its management or disposition of the company's assets," and subparagraph 2 provides that "if the company's business operations under Article 520 (1) 1 of the Commercial Act continues to be remarkably in a state of fixed amount, even if the company's business operations are likely to cause or threaten irreparable damage to the company, and even in such case, a petition for dissolution of the company may be filed only when there is an unavoidable reason."

In addition, the determination of whether a company should be dissolved under Article 520(1) of the Commercial Act shall be based on the following: ① in the case of an unlimited partnership member, the company has a responsibility to repay all its obligations as its own property, so the Commercial Act receives a relatively wide range of claims for dissolution of the company (in the case of an unlimited partnership company, any partner may file a claim for dissolution of the company (Article 241(1) of the Commercial Act), but in the case of an unlimited partnership company, any partner may file a claim for dissolution of the company (in the case of an unlimited partnership company, any partner may file a claim for dissolution of the company if any inevitable reason exists) by means of avoiding the scope of employees' liabilities, as the shareholder of the company bears limited liability within the limit of investment shares (Article 241(1) of the Commercial Act). ② In the case of a physical company such as a stock company, there is relatively little need to wide recognize the cause for filing a claim for dissolution of the company, ② in the case of a company with the nature of protecting the minority shareholder, even if the purpose of protecting the minority shareholder.

(b) the existence of reasons for dissolution;

1) In order to file a claim for dissolution of a stock company pursuant to Article 520(1) of the Commercial Act, there should be extenuating circumstances in each subparagraph of the said provision. As such, we examine whether the Defendant in this case constitutes “when the business of the stock company causes, or threatens to cause, irreparable damage to, its business.”

2) Comprehensively taking into account the evidence and facts found earlier, ① the Plaintiff, the Defendant, and the Korea New Technology Co., Ltd. entered into the instant joint venture investment contract, the first and second revision contract, and the instant sales contract for the purpose of running the instant business; ② the Defendant was established as a special purpose company for the instant business; ② the Plaintiff and the Korea New Technology Co., Ltd., which continued to run the business related to the scope of the right to benefit from the instant land and the right to lead the Defendant’s operation; ③ the Plaintiff, the Defendant, and the Korea New Technology Co., Ltd., who declared their intention to cancel the instant sales contract for the purpose of operating the instant business without resolving the dispute; ④ The instant sales contract appears to have been terminated by declaring their intention to cancel the first amendment contract, and ④ the instant land, which is an asset necessary for operating the instant business, was disposed of by public auction, and the Defendant lost its ownership. In light of the circumstances, it is reasonable to deem that the Defendant was unable to run the instant business for the original purpose, and even if the Defendant continued to make a decision other business operation.

3) The Plaintiff asserts that the Defendant’s loss of ownership of the instant land, which is an asset essential for running the instant business, is an irrecoverable loss, and that the Defendant’s waste of unnecessary expenses for other business unrelated to the instant business, may cause irrecoverable damage.

In light of the fact that the Defendant lost ownership of the land in this case, which appears to be essential assets for operating the business in this case, but the following circumstances revealed in light of the above facts, i.e., the Defendant’s loss of ownership of the land in this case, should be deemed to be one of the causes that the Defendant was unable to operate the business in this case, and it cannot be deemed that the Defendant continued to operate the business in this case, and the Defendant’s loss caused thereby. ② The Defendant paid the Defendant’s debt with the payment received after disposing of the land in this case, and there is no evidence that the sales amount is a significant small amount of damage, and thus, it is insufficient to recognize that the Defendant suffered irreparable loss due to the public sale of the land in this case. ③ The Defendant’s loss of ownership of the land in this case is insufficient to recognize that the unnecessary expenses are likely to cause irreparable damage to the Defendant. In light of the following circumstances, even if the Defendant continued to operate the business in this case even if it was a special purpose company for operating the business in this case, it cannot be concluded that there was no other evidence that the Defendant caused damage.

4) Thus, the defendant cannot be deemed to have a ground for dissolution under Article 520 (1) 1 of the Commercial Act. Thus, the plaintiff's assertion is without merit without further review.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment List omitted]

Judge Lee Sang-won (Presiding Judge)