[1] Purport of the provisions of Article 30(3) of the former Installation and Utilization of Sports Facilities Act, and whether a successful bidder of a site among the golf course facilities before completion under the former Installation and Utilization of Sports Facilities Act succeeds to the approval of a project plan as a matter of course (negative)

[2] The probative value of the relevant criminal judgment in a civil trial

[1] Article 30 (3) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003) / [2] Article 202 of the Civil Procedure Act

[1] Supreme Court Decision 2004Da10213 decided Oct. 28, 2004 (Gong2004Ha, 1949) / [2] Supreme Court Decision 96Da14470 decided Aug. 29, 1997 (Gong1997Ha, 2830) Supreme Court Decision 2004Da4386 decided Apr. 28, 2004 (Gong2004Sang, 901)

Plaintiff (Law Firm Shin, Attorneys Kim Jong-hee et al., Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Law Firm KEL, Attorneys Lee Hon-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na65987 decided July 28, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

The purport of Article 30(3) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003; hereinafter “former Sports Facilities Act”) is to interpret that where a person who has obtained approval of a business plan succeeds to the status of a person who has obtained approval of a business plan, such as the transferee, heir, and the corporation after the merger, pursuant to the business plan, pursuant to the provisions of Article 12 of the same Act, if the person who has obtained approval of a business plan succeeds to the status of a sports facility business before the completion of the construction of the sports facility and the report and registration of the sports facility business upon completion of the construction of the sports facility, the person who received the approval of a business plan before the completion of the construction plan shall succeed to the status of a sports facility business plan under the provisions of the former Installation and Utilization of Sports Facilities Act (see Supreme Court Decision 2004Da10213, Oct. 28, 2004).

In this case, it is clear that the Defendant Company paid the price by winning the instant golf course site on February 19, 200 and then the former Sports Facilities Act is applied. In light of the aforementioned legal principles and records, the Defendant’s bid for the instant golf course site, which is an essential facility for the instant sports facilities before completion, cannot be deemed to have succeeded to the approval of the instant project plan as a matter of course, and the Plaintiff, who asserts the invalidation of the acquisition agreement as to the instant approval of the project plan, has the interest to seek confirmation of invalidity of the acquisition agreement and legal relations depending on whom the approval of the instant project plan is applicable, for the fundamental resolution of rights and legal relations that vary depending on whom the right and legal relations are to be determined. Furthermore, seeking confirmation of invalidity of the acquisition agreement of the instant golf course site, the purport of seeking confirmation of the acquisition agreement is to seek confirmation of the legal relationship arising therefrom, and thus, it cannot be said that the instant lawsuit does not constitute a settlement of the original means of origin.

In the same purport, the court below is just to reject the defendant's defense on the merits that there is no interest in nullification of the lawsuit, and there is no error in the misapprehension of legal principles as to the interest in the lawsuit in the approval of the business plan or the lawsuit for confirmation as alleged in the ground for appeal. The

2. As to the grounds of appeal Nos. 2 and 3

A. After finding the facts based on the evidence of employment, the lower court determined that the acquisition of the business plan of this case was null and void for the reason that the Plaintiff’s obligation to acquire the loan was not determined to be reasonable and void for the following reasons: (a) the acquisition of the business plan of this case was continuously owned by the Plaintiff; (b) the Plaintiff used the original cost of 13 billion won or more; and (c) the Plaintiff did not make any mention of the following facts: (a) the content of the acquisition agreement of this case, the statement of waiver of management right, the letter of confirmation, and the motive and circumstances leading up to the preparation of the acquisition agreement of this case; and (d) the motive and circumstances leading up to the conclusion of the acquisition agreement of this case, etc.; (b) the acquisition of the business plan of this case, after the conclusion of the acquisition agreement of this case, and both Nonparty 1 and Nonparty 1 were remaining in the Plaintiff at the time of the contract.

In light of the records, the fact-finding and judgment of the court below are just, and there is no error of law by misunderstanding legal principles as to the interpretation of contract or juristic act cited in the grounds of appeal. This part of the appeal

B. Meanwhile, the relevant criminal judgment cited in the ground of appeal by the defendant is about the crime of breach of trust against the non-party 2, 3 and non-party 1, and it is difficult to recognize the intention of breach of trust against them. On the other hand, this case is about the validity of the acquisition agreement between the plaintiff and the defendant, and thus, both cases differ from each other, and the facts recognized in the relevant criminal judgment are not sufficient evidence in civil trials unless there are special circumstances. However, in a case where it is acknowledged that it is difficult to adopt the criminal judgment as it is, in light of other evidence submitted in the civil trial, the court can dismiss it (see Supreme Court Decisions 96Da1470 delivered on August 29, 199, 204Da4386 delivered on April 28, 2004, etc.). However, the court below did not err in the misapprehension of legal principles as to the probative value judgment of a civil judgment as to the acquisition of the criminal contract in spite of the above criminal judgment.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)