(영문) 서울중앙지방법원 2020.11.25. 선고 2019나60747 판결

1. All appeals filed by the Defendant (Counterclaim Plaintiff) against the instant principal lawsuit and counterclaims are dismissed. 2. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff) in total.

Purport of claim and appeal

1. Main elements;

A. Purport of claim

The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) pays to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 17,38,000 won with interest of 9% per annum from July 1, 2017 to the service date of the original copy of the instant payment order, and 15% per annum from the next day to the day of full payment.

B. Purport of appeal

The part of the judgment of the court of first instance against the defendant among the part of the lawsuit against the defendant is revoked, and the plaintiff's claim against the revoked part is dismissed.

2. Counterclaim;

Of the judgment of the court of first instance, the part regarding the counterclaim shall be revoked. The C contract concluded on August 8, 2013 between the Plaintiff and the Defendant is invalid. The Plaintiff shall pay to the Defendant 48,211,000 won with the interest of 5% per annum from July 1, 2017 to the date the judgment of the court of first instance is rendered, and 15% per annum from the next day to the date of full payment.

Reasons

1. Basic facts

A. The Plaintiff is a company that engages in broadcasting, film equipment sales and rental, consular machine sales and agency business, and the Defendant is a distributor that engages in film production, content distribution and distribution business. Digital cinema means screening of motion pictures in a digital file beyond the traditional film method. To this end, equipment such as digital projector, digital media server and accessory equipment need to be installed. On the introduction of digital cinema, digital cinema takes the effect of reducing the production cost and transportation cost of film film, but from the perspective of the theater that shows it. The introduction of digital cinema has been recognized as inevitable choice to screen the motion pictures imported from a foreign country where digital consular method is established, and social discussions, including the parties to a theater, distribution, etc. have started from around 207.

C. In relation to this, L (hereinafter “L”) was established on January 2008 as a joint venture between H (hereinafter “H”) and J Co., Ltd. (hereinafter “K”), and L (hereinafter “L”) was established on or around January 208. L (hereinafter “VP”) provided digital cinema equipment to L (e.g., H and K) and the theater business operator paid L (VP) purchase fund to L (VP) by a distribution company that reduces the production cost of film lifts, but L (VP) paid part of L (VP) to L (VP) and paid to the theater business operator to share the cost of digital cinema equipment.

D. In order to promote the above VP business model, the Plaintiff entered into a business model with a small and medium theater business entity (referring to the same role as the above L), which was established by M Co., Ltd. (hereinafter referred to as “M”), which is a digital cinema equipment supplier, with a small and medium theater business entity, and received VPF subsidy contracts, and then promoted a business model in which part of the above VPF is paid to the theater business entity as a subsidy for purchasing equipment, excluding its own operating expenses.

E. Accordingly, the Plaintiff entered into a digital cinema system screening contract (hereinafter referred to as the “VPF subsidy contract”) with the operator of the theater listed in the attached list 1 (hereinafter referred to as the “the theater in this case”). The main contents of the contract are as follows (a) the theater and B are as follows:

제3조 (계약기간)② 본 계약의 계약기간은 계약체결일로부터 10년 또는 VPF지급 종료일 중 먼저 도래되는것으로 한다.제4조 (VPF의 지급범위 및 지급금액): 국내 배급사의 경우① 본 계약서상 지급받는 VPF의 범위는 관당 최대 일금 구천이백만원(₩92,000,000)으로하고 최소 일금 팔천육백만원(W86,000,000)을 보장한다.② '을'이 '갑'에게 지급하는 VPF는 아래의 기준에 따른다. 다음의 금액은 부가세 및 각종세금을 제외한 순수한 금액이다.2. 디지털 시네마 시스템이 설치된 상영관에서 각 디지털 콘텐츠 상영시 1회 상영당 일금칠천원(W7,0000)을 지급한다.제5조 (VPF 서비스료): 국내 배급사의 경우① '을'은 본 사업의 추진주체로서 VPP의 정산 및 관리를 위해 '갑'에게 지급하는 VP 이외에 다음의 서비스료를 배급사에게 징수하며 '갑'은 이를 인지하고 합의한다. 다음의 금액은 부가세 및 각종 세금을 제외한 순수 금액이다. 이는 '을'이 '갑'에게 지급하는 자비 구입지원금과 별개로 배급사가 ‘을’에게 지급하는 금액이다.1. 디지털 시네마 시스템이 설치된 상영관에서 각 디지털 콘텐츠 상영시 1회 상영당 일금삼천원(W3,000)을 지급한다.

F. Meanwhile, the Plaintiff entered into a “C contract” with the Defendant, a distributor on August 8, 2013 (hereinafter “instant contract”). According to the instant contract, the Defendant would pay KRW 10,000 per time to the Plaintiff for the display of digital contents, such as motion pictures, from a shop in which the digital cinema system is installed. Of the VPF that the Plaintiff received, 65% of the amount of subsidies for the purchase of equipment is paid to the theater, and the remainder of 35% is reverted to the Plaintiff as the Plaintiff’s operating expenses. The instant contract sets the unit price of the digital cinema system at KRW 115,00,000 and sets KRW 23,00,000, whichever is 20% among them, the Defendant would be liable to the Plaintiff for the remainder of KRW 80,000, 92,000,000, whichever is 100,0000, which is 200,000,000 won, including the Plaintiff and the Defendant’s sales contract.

Article 2(Definition of Terms) ① 6, VPF: Virtual 6: The prior meaning of ‘VPF' to the weak of Virtual 5' means the fee to be paid to the distributor who acquires the benefit of the production and transportation cost of physical films following the conversion of the theater to the theater or theater, but the VPF under this contract is as provided for in this Section. 10. TDL list: The digital professional projector and the manufacturer's name, model name or model name of the theater or IMF before the expiration of the contract term of this Agreement, and the term of this Agreement will not be extended to 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 5th of the 1st of the 5th of the 2th of the 5th of the contract.V.

2) VPF business operators shall provide 0% of the total amount of 0 0.0% of the subsidy to be paid to 0.0% of the subsidy to be paid to 0.0% of the subsidy to be paid to 0.0% of the subsidy to be paid to 0.0% of the subsidy to be paid to 0.0% of the subsidy to be paid to 0.0% of the subsidy to be paid to 0.0% of the subsidy to be paid to 0.0% of the subsidy to be paid to 5% of the subsidy to be paid to 0.0% of the subsidy to be paid to 0.0% of the subsidy to be paid to 0% of the subsidy to be paid to 5% of the subsidy to be paid to 5% of the subsidy to be paid to 0.0% of the subsidy to be paid to 5% of the subsidy to be paid to 5% of the subsidy to be paid to the operator, including any change in the 0.0% of the subsidy to be paid to the digital cinema system.

For this purpose, distributors shall have the audit authority of VPF operators and annual audit frequency shall be regular audit and inspection. (Article 9 (Conditions for Equipment subject to VPF Support) ① Equipment subject to VPF under this Agreement shall meet all the following conditions. 1. From among the theaters which complete the digital screening contract with VPF operators within one year from the date of commencement of the digital screening contract, the film business was normally installed at the time of the digital screening contract under this paragraph 1. 3. the ownership of equipment has been secured (including the lease contract with which the transfer of ownership has become final) 50% or more of the total screen of the relevant theater, and the digital cinema system shall not be paid by 10% or more of the total screen of the relevant theater by the due date of its failure to pay the amount in full by the due date of its failure to pay in full by the due date of its opening or other reasons of the digital content distribution (Article 10 (Payment Procedures) 2). 3. 5. 5. 5. 5.

G. The Defendant imported and distributed 15 motion pictures from “F” to “G” opened on August 14, 2013 to “G” opened on May 3, 2017, and each of the said motion pictures was screened through the instant theater, and the Defendant generated a total of KRW 65,549,000, as shown in attached Table 2. The Defendant paid KRW 48,21,000 among them to the Plaintiff.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 14, Eul evidence Nos. 2, 3 and 6 (including branch numbers; hereinafter the same shall apply), the result of fact inquiry of N in the first instance court's judgment and the purport of the whole pleadings

2. Determination

A. Determination as to the cause of the principal claim

According to the above facts, the defendant is obligated to pay the plaintiff the total amount of KRW 17,338,00 (=65,549,000 - 48,211,000) and damages for delay.

B. Determination as to the defendant's assertion on the main lawsuit and the cause of the counterclaim

1) Determination as to the assertion that the contract of this case is null and void and the cause of counterclaim claim

A) Grounds for invalidation and counterclaim

The Defendant asserts that the instant contract is null and void for the following reasons, and sought a return of KRW 48,211,00,000, which was already paid, as a counterclaim.

Since a consul is necessarily equipped with a theater operator pursuant to Article 36(1) of the Promotion of the Motion Pictures and Video Products Act, the cost of purchasing the digital cinema system is right and wrong to entirely bear the theater operator and there is no reason for distributors including the defendant to bear 80% of the purchase cost as at the present time even if he bears the burden. Moreover, it is unfair for the plaintiff to receive 35% of the VPFF that the defendant pays for the digital film screening by submitting the content of the digital film screening to the defendant, etc. and issuing tax invoices, even though he/she simply issues the tax invoices. After concluding the contract with the theater operator who has superior status in the film industry, the plaintiff notified the defendant that if he/she fails to conclude the contract of this case, it would affect the conclusion of the contract of this case.

Therefore, the instant contract is null and void under Article 104 of the Civil Act as an unfair trade practice abusing a transactional position under Article 23(1)4-2 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”). In addition, the instant contract is a contract enforced by intimidation, and thus null and void under Article 110 of the Civil Act. Since the instant contract is null and void, there is no obligation to pay the remainder to the Defendant that the Plaintiff seeks. Rather, the Plaintiff return the fee KRW 48,211,00 to the Defendant for unjust enrichment. As such, the Defendant sought confirmation of invalidity of the instant contract and return of the said unjust enrichment.

B) Determination

In light of the following circumstances or facts, which can be acknowledged by comprehensively taking into account the aforementioned facts, the aforementioned evidence, and evidence Nos. 1 through 4, and the purport of the entire pleadings, even if all evidence submitted by the defendant are combined, it is insufficient to deem the contract of this case as unfair trade practices that abuse superior status under the Fair Trade Act, unfair legal acts under Article 104 of the Civil Act, or null and void under Article 110 of the Civil Act, or there is no other evidence to acknowledge it. Therefore, the Defendant’s assertion on the title of the principal claim, which the contract of this case is null and void, is without merit, and the Defendant’s assertion on the ground of counterclaim claim seeking nullification of the contract of this case

(1) Article 36 of the Promotion of the Motion Pictures and Video Products Act merely requires a person who intends to install and operate a movie theater to be equipped with facilities, and does not specify the subject of the cost burden. In order to establish the digital cinema system, it is a reasonable transaction method to share the cost among interested parties in relation to the cost for the establishment of the digital cinema system, as it requires considerable investment in the purchase of equipment, etc., and thus, is a major burden from the perspective of the theater business owner. In this context, from around 2007, the VPF business model was spreading through social discussions including interested parties, and as a part, the instant contract appears to have been concluded.

In addition, the Plaintiff delivers the VPF received from multiple distributors through the instant contract, including the instant contract, to the theater business operator who constructed the digital cinema system, and partly appropriating the system installation cost to the theater business operator, and allowing the theater business operator to screen the film normally. Since it is difficult for the theater business operator located in the local area to enter into a VPF contract by contact with more than 30 distributing companies and import companies, it is difficult for the Plaintiff to conclude that the operating expense would be unfair even if the Plaintiff brought about the operating expense of the VP business operator who performs the said business as above.

Furthermore, there is a benefit that can be gained through the establishment of a digital cinema system by concluding the instant contract based on the VPF business model, such as reducing film production costs and transportation costs by reducing the Defendant. The Defendant appears to have concluded the instant contract through sufficient review of the content of the instant contract, including the VP business model, VP amount and its composition (the amount of support for the purchase of equipment to extreme business owners, the Plaintiff’s operating expenses). After concluding the instant contract, the Defendant has paid VPF subsidy without any objection.

In full view of these points, it is difficult to view that the Plaintiff or the extreme business owner obtained unjust benefits through the conclusion of the instant contract, while it is difficult to view that there is an excessive burden on the Defendant, and it is difficult to view that there exists a significant imbalance between the performance of the instant contract and the consideration.

(2) To recognize a trade position under Article 23(1)4 of the Fair Trade Act, a trade superior position or at least a position that may have a significant impact on the other party’s trade activity should be held.

"Greeb", which is a requirement for establishing an unfair juristic act, means "An urgent difficulty" (see, e.g., Supreme Court Decision 2002Da38927, Oct. 10, 2002).

However, in the process of concluding the instant contract, the Plaintiff sent an official document stating that if the Plaintiff did not conclude the contract to the Defendant during the process of concluding the instant contract, there may be disadvantages in relation to the theater that entered into the agreement with the Plaintiff, and the fact that the LPF business model was presented for the first time around January 2016 that the VPF business was terminated is not a dispute between the parties.

However, the Plaintiff entered into the instant contract with the Defendant on August 8, 2013, as a corporation newly established around November 201 to build a VPF business model. The Plaintiff entered into the instant contract with the Defendant on the basis of concluding a VPF subsidy agreement with the main small and medium business entity. The theater, which entered into a contract with the Plaintiff, was the first 31 theater, and is now limited to 29 theaters (see attached Table 1) and most local theaters, and the Defendant is unable to screen the film distributed to the above theaters, and it seems that there is no limitation on the Defendant’s screening of the film in other theaters. Meanwhile, even if LPF business model introduced for the first time, LPF business model was established by HF companies, and HF companies established by HF companies, the Plaintiff cannot be deemed to have a superior business relationship with LPF business status for which the Plaintiff continued to operate the same business for the same period of 20 years.

In full view of the above facts, it is difficult to view that at the time of entering into the instant contract, the Plaintiff had a superior position against the Defendant or at least the position that could have a significant impact on the other party’s transaction activity. It is difficult to view that the Defendant was in an imminent situation at the time of entering into the instant contract due to the Plaintiff’s public notice as above, and it is difficult to view that the Defendant entered into the instant contract by coercion or intimidation solely with the aforementioned public notice. Therefore, it is difficult to deem that the Plaintiff was entering into the instant contract by unfairly taking advantage of its dominant position or superior position, or that the instant contract was an unfair juristic act, coercion, or intimidation.

2) Determination as to the assertion that VPF should be paid only when the existing film consul is replaced by the digital cinema system

A) The assertion

VPF means a subsidy to a distributor for the cost of replacing an existing film consul with a digital cinema system. As such, VPF is required only when the existing film consul is replaced with a digital cinema system, and at least, there is no obligation to pay VPF for digital cinemas newly installed after the end of 2013, the transition to the digital cinema system, at least after the end of 2013, the transition to the digital cinema system, including the Defendant, is completed.

B) Determination

However, the fact that the contract of this case was concluded with the conversion of the theater into digital files, such as the conversion of the film from the method of screening the film in the previous film to the digital file, does not conflict between the parties, and such circumstance is reflected in some provisions of the contract of this case (Article 2 subparagraph 6 of the contract of this case provides that the prior meaning of the contract of this case refers to the fee that is paid by the distributor who acquires the benefit of reducing the production cost and transportation cost of physical films due to the conversion into the theater, while defining the VPF, which means the fee that is paid by the distributor who takes advantage of the benefit of reducing the production cost and transportation cost of physical films due to the conversion into the theater).

However, under the instant contract, VPF merely stipulates that distributors shall pay a royalty for using the digital cinema system to the theater or theater agent (Article 2 subparag. 6 and Article 5(1)1 of the instant contract). The extreme does not stipulate that a distributor shall assist part of the cost incurred when replacing the existing film consul to the digital consul, but does not have any requirement to support VPF only when the film consul is replaced to the digital cinema system under Article 9 of the instant contract specifying the condition of the equipment subject to the VPF support. Moreover, there is no provision that the VPF shall be paid only when the film consul is replaced to the digital cinema system.

Therefore, the conclusion of the instant contract is interpreted differently from the language and text of the instant contract, and the VPF paid only when the film consul is replaced with the digital cinema system. Therefore, it cannot be interpreted that additional digital cinema system is not paid after the end of 2013 when digital conversion was completed. The Defendant’s assertion is without merit.

3) Determination as to the assertion that the instant contract was terminated upon the completion of the payment of VPF

A) The assertion

Even if the Defendant is obligated to pay VPF to all theaters equipped with the digital cinema system, the instant contract terminated in accordance with Article 8(4) because the Plaintiff’s total sum of the subsidies for purchase of equipment out of the amount paid by the distributors who concluded the VPF contract, exceeds the amount to be paid by the distributors as subsidies for purchase of equipment.

B) Determination

(1) First of all, according to the statement in Gap evidence No. 14 regarding the number of theaters for which the plaintiff entered into a subsidy contract with VPF subsidies contract, the number of theaters 1 through 29, among the theaters of this case (see the table 1) in which the plaintiff entered into a subsidy contract with VPF subsidies contract, is 191.

In this regard, the defendant asserts that the sales revenue for the theater in this case of M, the parent company of M, which supplied digital cinema equipment, is less than 8,047,874,000 won, and that the total supply equipment is less than 76.6 (=8,047,874,000 won / 105,000 won). Thus, the defendant asserts that the candidate to be paid VPF screening is less than the above 191 won.

In the context of the instant contract, there is no provision requiring the exhibition hall that receives VPF from the Plaintiff must be supplied with digital cinema equipment from M. Therefore, the Defendant’s above assertion based on this premise is without merit without any need to further examine each amount.

(2) According to Article 8(1)1 of the instant contract, a distributor shall pay to the Plaintiff KRW 92,00,000 per screen as a subsidy for the purchase of equipment out of the amount of VPF paid. Therefore, a distributor shall pay the Plaintiff a total of KRW 17,572,00,000 (i.e., KRW 92,00,000 x 191 x 191) with the subsidy for the purchase of equipment. In the event that all payments are made, the distribution company’s VPF payment expires pursuant to Article 8(4) of the instant contract, and the validity of the instant contract is suspended.

(3) However, according to the fact-finding results with respect to the director of the Gangnam Tax Office of this Court, from October 1, 2012 to March 2020, the Plaintiff’s total sales amount is KRW 20,404,943,325 (attached Form 3, and value-added tax separate). Among them, if the Defendant deducts KRW 200,793,398, which is recognized by the Defendant as the sales amount between the customer and the customer who is not the distributor, the sales amount arising between the distributor and the distribution company is 20,204,149,927 (i.e., KRW 20,404,943,943,325 - KRW 200,793,398). According to Article 8(1)2 of the instant contract, 65% of the subsidization amount is 13,132,697,294,297,297,297,2705).

C. Sub-committee

Therefore, the Defendant is obligated to pay the Plaintiff the annual interest rate of 9% per annum under Article 10(3) of the instant contract from July 1, 2017 to September 7, 2017, the delivery date of the original copy of the instant payment order, as well as the annual interest rate of 15% per annum under the main sentence of Article 3(1) of the former Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 2978, May 21, 2019) from the next day to May 31, 2019 to the next day of the payment date of the VPF related to the motion picture opened by the Defendant.

3. Conclusion

The plaintiff's claim of the principal lawsuit shall be accepted within the extent of the above recognition, and the remainder of the plaintiff's claim of the principal lawsuit and the defendant's counterclaim shall be dismissed as it is without merit. The judgment of the court of first instance is justifiable in conclusion, and the defendant's appeal against the principal lawsuit and counterclaim of this case is dismissed as it is without merit

Judges

The judges of the presiding judge shall leather

Reinforcement of Judges

Judges Kim Jong-soo

Note tin

1) The contents of the contract may vary depending on the kinds of theater business operators. However, the following main contents are the contract with five theater business operators as shown in the instant argument:

The contents in question are the contents in question.

2) Article 23 of the Fair Trade Act (Prohibition of Unfair Trade Practices)

(1) An enterpriser is an act which falls under any of the following subparagraphs, and which is likely to impede fair trade (hereinafter referred to as "unfair trade"):

shall not engage in, or cause an affiliated company or any other business entity to engage in, such conduct.

4. Trading with a certain transacting partner by unfairly taking advantage of his/her position in trade;

3) Under the instant contract, the average purchase price of equipment was set at KRW 115,00,000,000; and KRW 105,000,000 claimed by the Defendant was set at KRW 115,00,000.

He appears to be a clerical error in the defendant's assertion, but he shall be recorded and determined.