(영문) 부산고등법원 창원재판부 2018.11.29. 선고 2018나10121 판결

1. Of the judgment of the first instance, the part against the Defendant (Counterclaim Plaintiff) in excess of the amount ordered to be paid below is revoked, and the Plaintiff (Counterclaim Defendant)’s claim on the revoked part is dismissed.

The Defendant-Counterclaim Plaintiff (Counterclaim Defendant) shall pay to the Plaintiff (Counterclaim Defendant) 363,00,000 won with the interest of 6% per annum from August 25, 2016 to November 29, 2018, and 15% per annum from the next day to the date of full payment.

2. The remainder of the appeal against the Defendant (Counterclaim Plaintiff) and the counterclaim filed by the Defendant (Counterclaim Plaintiff) in this court are dismissed.

3. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by the Defendant (Counterclaim Plaintiff) respectively.

Purport of claim and appeal

1. Purport of claim

A. Main suit: The Defendant (hereinafter “Defendant”) pays to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 396,00,000 won with 15% interest per annum from August 24, 2016 to the date of full payment.

B. Counterclaim: The plaintiff shall pay to the defendant 4,00,000 won with interest of 15% per annum from the day following the service of a copy of the counterclaim of this case to the day of complete payment (the defendant filed a counterclaim at the appellate court).

2. Purport of appeal (as to the lawsuit in question)

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's main claim corresponding to the revoked part is dismissed.

Reasons

1. Quotation of the first instance judgment

The reasoning of the judgment of this court is as follows: (a) the second 10th 10 of the reasoning of the judgment of the court of first instance (2015.3.3.3.3.3.3.3.3.3.3.3.5 of the first 15-16. The part is deleted; and (b) the defendant added the judgment under the following 2.4.0, the reasoning of the judgment of the court of first instance (2.9 to 7.7.8 of the second 9.3) is the same as the reasoning of the judgment of the court of first instance, and thus, it is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination as to the defendant's additional assertion as to the main lawsuit and the counterclaim

A. Determination on the revocation and invalidation argument

1) The defendant's assertion

Although the Plaintiff was well aware of the circumstances that it is difficult for the Plaintiff to develop the parts of the instant case and process and supply them normally, the Plaintiff could sufficiently develop, process and supply them, and concluded the instant business transfer agreement and the instant approval agreement (hereinafter referred to as “each of the instant agreements”) by deceiving the Defendant as if they were possible to develop, process and supply them, but did not perform its duty to cooperate thereafter. Accordingly, the Defendant failed to develop the parts of the instant case and failed to obtain approval and order for the completion of the development of parts from the Youngdong Complex. Accordingly, each of the instant contracts was concluded by the Plaintiff’s deception, and thus, the Defendant is revoked by the delivery of a preparatory document as of June 25, 2018.

Even if each of the contracts of this case does not have the effect of cancellation because it does not meet the requirements for cancellation, the contract of this case was null and void. In other words, Article 2 (2) (d) of the Agreement of this case provides that "the plaintiff, as the first development contracting party, transfers his authority over the development and mass production of parts to the defendant, the plaintiff shall cooperate with the defendant as much as possible and complete the development of parts until the completion of the development of parts, and Article 2 (2) (e) of the Agreement provides that "the plaintiff shall respond to the processing until the defendant invests in facilities." Therefore, the plaintiff is obligated to cooperate in the development and processing of parts of this case. Accordingly, the defendant failed to develop the parts of this case because the plaintiff did not fulfill such obligations. Accordingly, even if he did not approve the transaction in accordance with the Agreement of this case, even if he approved the above transaction under the Agreement of this case, the business transfer of this case became null and void.

Ultimately, since the instant contract for the transfer of business was revoked or invalidated, the Plaintiff’s claim on the premise that it is valid is without merit, and rather, the Plaintiff shall return the down payment already received to the Defendant upon the Defendant’s counterclaim claim amounting to KRW 44 million.

2) Determination

In light of the following circumstances, evidence cited by the judgment of the court of first instance as seen earlier, evidence No. 11, evidence No. 11, and evidence No. 11 through No. 17, each of the witness B, C, and D of the appellate trial witness B, C, and D of the appellate trial, and each of the testimony of this court, the dynamics of the court, C, C, C, and Han-gu Co., Ltd. (hereinafter referred to as “detaileds”), it is difficult to recognize the defendant’s assertion, and the defendant’

(A) The Plaintiff, while taking over the business rights for the development and supply of the instant components from 30 tons, transferred its business rights to the Defendant. The Plaintiff stated that, at the time of the Plaintiff’s transfer of its business rights from 20 tons, the Plaintiff’s transfer of its business rights to 30 tons of the instant components was stated to the effect that “it is difficult to produce good because there is no error in the supply of components” out of the instant components. However, according to the Plaintiff’s transfer of business rights to 30 tons of the instant components, the Plaintiff’s transfer of its business rights to 20 tons of the instant components was stated to the Defendant under the premise that the Plaintiff’s transfer of its business rights to 30 tons of the instant components was necessary, and that the Plaintiff did not have any problem in the Plaintiff’s transfer of its assets and development rights to 40 tons of the instant components (Evidence No. 5) and the Plaintiff’s transfer of the instant components to 30 tons of the instant components. However, the Plaintiff did not enter the Plaintiff’s transfer of its business rights to 40% of the instant components.

(B) The defendant is a main company more than the plaintiff and became aware of the plaintiff through the defendant E company (the latter seems to have become F; hereinafter the same shall apply). The business transfer contract of this case was concluded as G, and G also submitted to the plaintiff a letter of intent to invest (the evidence No. 6-1) prior to the conclusion of the business transfer contract of this case. The above letter of intent to investment stated "the desired amount of investment (the business transfer amount)" as "40 million won", and "an alteration and approval" as one of the "other requirements". In addition, G is a "an annual sales of more than 10 billion won if the defendant's officers and employees develop another part", and G is a "an issue arising from the Daging." In fact, G is a witness of the court of first instance (the witness of the court of first instance) to consult about the precision and correction of the amount of investment."

The instant contract for the transfer of business was made and concluded on the basis of the draft that G was drawn up and prepared by G. The contractual transfer proceeds were set at KRW 40 million as the same amount as the “investment amount” under the “Investment Encouragement” presented by G, and the down payment of KRW 440 million as the date of the contract shall be paid on July 5, 2016, which is the date of the contract, and the remainder of KRW 396 million shall be paid at KRW 1,000,000,000,000 on July 5, 2016, and the remainder of KRW 396,000,000,000,000,000 won, and ② at the time when the Plaintiff’s asset acquisition by the Plaintiff is completed. It appears that the said clause also reflects “4M and approval” as stated in

Even if based on the details of such contract and the contents of the contract, it seems that the Defendant, more than the Plaintiff, did not complete the development of the parts of the instant case, concluded the instant business transfer agreement with a plan to gain significant profits by taking over the business rights and completing the development of parts under the Defendant’s responsibility.

(C) After the conclusion of the instant business transfer agreement, the Plaintiff transferred all gold, spaging, sampling, and processing programs necessary for the development of the instant parts to the Defendant, and the Plaintiff’s employees C and H, who were in charge of the development of the parts, have retired from the Defendant Company in accordance with the instant business transfer agreement.

In light of the above human resources and physical facilities, the Defendant did not complete the development of the instant parts. However, the Defendant pointed out that the Plaintiff did not perform its obligations under each of the instant contract until the instant lawsuit was filed, and there was no objective evidence that the Defendant demanded the Plaintiff to perform its obligations. The Defendant asked the Plaintiff to provide any balance under the instant contract by November 30, 2016 for the Plaintiff’s final approval of the instant business transfer. The Defendant did not appear to have agreed to pay the Plaintiff the balance at the time of completion of the Plaintiff’s business transfer agreement (Evidence 7-1), and the Defendant did not appear to have been in cooperation with the Defendant, even if there was no evidence agreed upon between the Plaintiff and the Defendant on the completion of the development of the instant parts, and the Defendant did not have any specific obligation to provide the Plaintiff’s construction of the parts so that it would have been difficult for the Plaintiff to obtain the Plaintiff’s final approval of the Plaintiff’s transfer of the parts. The Defendant did not appear to have been in compliance with the instant agreement to obtain the Plaintiff’s consent.

(D) The transfer contract of this case provides that "the time of payment of the balance shall be 4m change and completion of the transaction approval with the first company and the partner, 2." (Article 2 (4) of the Framework Agreement on Trade) and that "the time of completion of the Plaintiff's asset transfer" shall be determined as 'the time of completion of the transaction approval' (Article 2 (5) of the Framework Act on Trade, Industry and Energy, and 2 (Article 4 of the Framework Act on Trade, Industry and Energy), 'the time of completion of the transaction agreement with the Defendant before the approval contract of this case' (Article 2 (2) of the Framework Act on Trade, Industry and Energy, 'the time of completion of the contract of this case'), 'the modification of the terms and conditions of the transfer contract of this case to the Defendant and the Plaintiff's business transfer contract of this case, 'the modification of the terms and conditions of the transfer contract of this case to the Defendant and the Plaintiff's business transfer contract of this case, 'the modification of the terms and conditions of the transfer contract of this case.'

(E) Article 2(2)(d) of the instant approval agreement provides that “The Plaintiff, as a contracting party to the first development, transfers his/her authority over the development of parts and the mass production to the Defendant, shall complete the development of parts in cooperation with the Plaintiff as much as possible under the Defendant’s responsibility until the completion of the development of parts (Article 2(2)). Even according to the language and text of this clause, the subject responsible for the completion of the development of parts is the Defendant, and the Plaintiff has already transferred his/her authority over the development of parts and mass production to the Defendant, and did not specifically specify the contents of the Plaintiff’s maximum cooperation. Therefore, it is difficult to deem that the Plaintiff’s maximum cooperation is a contractual binding obligation, and it is difficult to deem that the Plaintiff failed to perform his/her duty of “the maximum cooperation

In addition, the agreement of this case provides that "the plaintiff shall respond to the process until the defendant completes facility investment (Article 2-2-2-e)." The meaning of this provision is that where the defendant completes the development of parts under his/her responsibility, the plaintiff who is temporarily equipped with the processing facilities until the defendant completes facility investment necessary for the processing. However, the defendant could not request the plaintiff to process the parts because the development of parts itself was not completed due to the problems arising in the process of the brewing circumstances, and therefore, there is no room for problem as to whether the plaintiff violated his/her obligations.

In addition, the above contents are only approved contracts of this case, but do not include the terms and conditions of the payment of the balance of the business transfer contract of this case.

(F) On August 11, 2017, during the proceeding of the first instance trial, he notified the Plaintiff of the cancellation of the instant approval contract (Evidence No. 11). Accordingly, according to this, the Plaintiff’s rescission of the instant approval contract in violation of Article 2(2) of the instant approval agreement pursuant to Article 6(1) and (2) of the instant approval agreement. However, it cannot be recognized that the Plaintiff violated the instant approval agreement, and Article 6 of the instant approval agreement provides for matters concerning the rescission of the contract between the Defendant and the Youngdong-cke, and thus, the Plaintiff cannot rescind the instant approval agreement based thereon. Accordingly, the said notification of cancellation is null and void as it fails to meet the requirements.

(G) Ultimately, the instant contract for the transfer of business was concluded by the Defendant’s proposal to transfer the business rights to the Defendant as to the instant parts, which was developed by the Defendant’s proposal, to the Defendant, and the Plaintiff and the Defendant obtained approval from the Youngdongtech, and the Plaintiff performed all obligations under each of the instant contracts. Therefore, it cannot be said that the Plaintiff concluded each of the instant contracts by deceiving the Defendant, or that the Plaintiff’s failure to perform its duties was legally rescinded.

B. Determination as to the assertion of mutual aid

In full view of the purport of the arguments, evidence Nos. 4 and 11 as a whole, the Plaintiff agreed in the approval agreement of the instant case that the Plaintiff shall bear the expenses for rectification of the penalty only once against the Defendant. The Defendant may recognize the fact that the Defendant received rectification of the penalty in Hansung-depth around October 201, 2016, and that the expenses for rectification of the penalty were 33 million won. As such, upon the Defendant’s assertion, the Defendant shall deduct the expenses for rectification of the penalty from the balance of the business transfer agreement of the instant case that the Defendant is liable to pay to the Plaintiff at KRW 396 million.33 million.

3. Conclusion

The defendant is obligated to pay to the plaintiff 363 million won (i.e., KRW 396 million - KRW 33 million) and to pay to the plaintiff the amount calculated at the rate of 63 million per annum under the Commercial Act from August 25, 2016 to November 29, 2018, which is the day following the day when the plaintiff fully performs his/her obligation under the contract for the transfer of the business of this case, to the day when the plaintiff fully performs his/her obligation under the contract for the transfer of the business of this case, 63 million. The plaintiff's claim against the plaintiff is justified within the extent of the above recognition, and the remaining claim shall be dismissed as without merit. Since the judgment of the court of first instance partially accepted the defendant's appeal and the part against the defendant in excess of the above recognition amount is revoked, and both the plaintiff's claim against the defendant and the defendant's remaining claim against the plaintiff are dismissed as it is without merit.