Hanyang Technical Corporation (Attorney Han-soo et al., Counsel for defendant-appellant)

CKD Co., Ltd. (Law Firm North Eastern Law Office, Attorney Park Jong-il, Counsel for the plaintiff-appellant)

October 8, 2014

1. The defendant shall pay to the plaintiff 50 million won with 20% interest per annum from June 13, 2014 to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is a company whose business objective is the building design business, construction business, etc., and the Defendant is the owner of Seopo-si ( Address 1 omitted) and 31 lots (hereinafter “instant real estate”).

B. On December 23, 2013, the Plaintiff entered into an agreement with the Defendant on the implementation of the project to develop a professional store in the Jeju-Seomun Tourist Complex on the instant real estate surface (hereinafter “instant project”). The main content of the agreement is as follows (hereinafter “instant project agreement”).

(2) In the event that the Plaintiff and the Plaintiff enter into an agreement on the construction of 0th anniversary of the loan agreement with the Plaintiff, the Plaintiff shall enter into an agreement on the construction of 10th of the loan agreement (hereinafter “this agreement”) with the Plaintiff on the basis of its good faith with the Plaintiff regarding the construction project for 10th of the loan agreement or for 20th of the loan agreement. The term “business outline” means the following: Provided, That the name of the business may be changed by agreement between the parties to the agreement on the construction, design change, etc.; 2. The land area of the construction project for 30th of the loan agreement and 4th of the loan agreement, including the first of all the loan agreement and the second of the loan agreement, shall be 0th of the loan agreement and the first of all the loan agreement on the construction project for 10th of the loan agreement. The Defendant shall enter into an agreement on the construction of 10th of the loan agreement and the first of all the loan agreement on the construction project for 5th of the loan agreement. The total area shall be 24th of the construction agreement.

C. On the date of the conclusion of the instant business agreement, the Defendant entered into a loan agreement with the Non-Party Stock Savings Bank, the ASEAN Savings Bank, and the Busan Credit Union to obtain a total of KRW 5,300,000 from the above financial institutions to obtain a loan from the above financial institutions in order to repay the existing loans on the instant real estate and cancel all of the collateral security. The Defendant entered into a real estate security trust agreement and a fund management agent agreement with respect to the execution of the instant business and the trust of the instant real estate and the new building, respectively.

D. According to Article 3(1)1 of the above loan agreement entered into between the Defendant and the above financial institution, the Defendant entered into a real estate security trust agreement with respect to the real estate of this case as the first priority beneficiary, and ② the Korea National Tourism Organization, which had no ownership transfer registration under the name of the Defendant, entered into a contract on the succession of rights and obligations between the purchaser and the seller of this case on the seven lots of land for which the ownership transfer registration has not yet been completed under the name of the Defendant, and ③ the conditions should be fulfilled, such as establishing a collateral security right in the future with respect to five parcels of land other than the real estate of this case owned by Nonparty 5 by the Defendant’s representative director for additional security

E. However, after entering into each of the instant business agreements and the instant loan agreements, the Defendant failed to comply with the preceding conditions for the execution of the loan, despite the Plaintiff’s highest notice, and eventually, the instant business was executed as the execution of the loan was no longer.

F. Accordingly, the Plaintiff expressed to the Defendant the intent to rescind the instant business agreement by serving a written complaint of this case.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Eul evidence 4, Eul evidence 1, Eul evidence 5, Eul evidence 6, Eul evidence 8, the purport of the whole pleadings and arguments

2. Determination as to the cause of action

According to Article 2(1) and (2) of the instant business agreement, the Defendant secured the ownership of the entire real estate of this case for the implementation of the instant business and performed the cancellation, removal, etc. of legal and physical matters. To this end, the Defendant is obligated to prepare funds to cancel the instant real estate by allowing the loan to be implemented by fulfilling all the conditions set forth in the instant loan agreement with the said financial institution. However, the Defendant failed to perform the aforementioned conditions prior to the execution of the loan, which led to the failure of the Defendant to execute the loan, and the execution of the instant project was also unnecessary.

Therefore, the business agreement of this case was lawfully rescinded upon the plaintiff's declaration of intent for rescission on the ground of the defendant's above causes. Thus, the defendant is obligated to pay the plaintiff a penalty of 500,000,000 won and damages for delay in addition to the damages pursuant to Article 5 (3) of the business agreement of this case.

3. Judgment on the defendant's assertion

A. Recognizing the failure of contract

The defendant argues that the business agreement of this case was not binding upon the defendant because the defendant did not understand important matters of the contract, and there was no agreement between the plaintiff and the defendant, and that the financial institution was not a loan, which is a prerequisite for the formation of the contract, and thus, it was not binding upon the defendant. However, the non-party 3's testimony of the witness who seems to be consistent with this is difficult to believe it, and there is no other evidence to support that there was no agreement between the plaintiff and the defendant on the contents of the business agreement of this case. Thus,

B. The assertion of non-performance of conditions

The defendant argues that the business agreement of this case is a contract under the condition of suspension on the condition that a financial institution will suspend its lending. Since the business agreement of this case is a contract under the condition that a financial institution will suspend its lending, it is confirmed that the condition of suspension is not met, the business agreement of this case is null and void. However, even if all of the terms of the business agreement of this case are examined, it does not have any ground to regard the lending of a financial institution as a condition of suspension to take effect, and even if such a condition of suspension exists, the non-performance of the terms is because the defendant failed to perform the prior conditions for the execution of the lending, as seen earlier, and thus, the defendant cannot assert the non-

(c) the assertion that it is an unfair contract and invalid.

The defendant asserts that the business agreement of this case was invalid in accordance with Article 104 of the Civil Act, since the contents of the business agreement of this case are extremely unfair in examining together with the contents of the real estate security trust contract, etc. concluded on the same day, and it was concluded through the defendant's old-age,

On the other hand, an unfair legal act stipulated in Article 104 of the Civil Act is established when there exists an objective imbalance between payment and consideration, and a transaction which has lost balance as a subjectively, is conducted using the old, rashness or experience of the victimized party. If there is no objective imbalance between payment and consideration, it does not constitute an unfair legal act stipulated in Article 104 of the Civil Act (see, e.g., Supreme Court Decision 2010Da53457, Jan. 27, 201). According to the terms of the business agreement of this case, the Plaintiff is obliged to lend KRW 130,000 to the Defendant, and it is difficult to guarantee the payment of interest of KRW 212,00,000 to the Plaintiff (Article 4(1)), and the Defendant is not obliged to give priority to the Plaintiff in terms of the above terms and conditions to the Plaintiff’s right to benefit, other than the above terms and conditions of the Plaintiff’s business and the constructor’s duty to benefit in consideration.

(d) argument for revocation due to deception.

The defendant asserts that the business agreement of this case was concluded by the terms different from the terms of the agreement that the plaintiff, trust company, and non-party 2, etc. had been presented before the conclusion of the agreement by deceiving the defendant, and thus, the business agreement of this case should be revoked as a contract by fraud.

According to the statement of Nos. 4, 4, and 10 No. 10-1 of the business of this case, the part of the "compact penalty" in Article 5 (3) of the business agreement of this case was stated as "compact penalty" and the contents of Article 5 (4) and (5) of the business agreement of this case were not existing in the above draft, on December 22, 2013, the day before the date when the business agreement of this case was concluded between the plaintiff, the defendant and the trust company of this case, and the non-party 2 sent the draft of the business agreement of this case to the non-party 3, who is the son of the defendant representative director of this case.

However, each of the following circumstances acknowledged by the above evidence, i.e., Article 5 (3) of the business agreement of this case, which provides that the penalty shall be paid separately from the damages, is clearly indicated in the draft of the above business agreement, and the purport of the above provision is not the liquidated damages but the penalty for breach of contract is clearly expressed. As such, changing the entry of the first clause into the "compact penalty" into the "compact penalty" to the "compact penalty" is only for clarifying its purport, and it is difficult to see that the new contents are stated. ② The plaintiff's second priority interest in the business agreement of this case as provided in Article 5 (4) and (5) of the business agreement of this case is stated in the real estate security trust agreement of this case as well as the business agreement of this case, and it is difficult to recognize the fact that the above second priority interest in the business agreement of this case is not sufficient to recognize the defendant's new contents of the business agreement of this case as the defendant's witness and the witness of this case.

Therefore, the defendant's above assertion is without merit.

4. Conclusion

Therefore, the Defendant is obligated to pay the Plaintiff the penalty amounting to KRW 500,000 and the damages for delay calculated at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from June 13, 2014 to the date of full payment after the rescission of the instant business agreement with respect to the service of the written complaint of this case. Thus, the Plaintiff’s claim is justified, and it is so decided as per Disposition.

Judges Lee Ho-ho (Presiding Judge)