(영문) 인천지방법원 부천지원 2019.10.11. 선고 2019가합102009 판결

If the defendant B Co., Ltd. (hereinafter referred to as the "Defendant B") violates the obligations set forth in paragraphs (1), the amount of money calculated by the ratio of KRW 10,000,000 per day of the violation shall be paid to the plaintiff.

Reasons

1. Facts of recognition;

A. Lease of the Plaintiff’s object, etc.

On October 11, 201, the Plaintiff leased (hereinafter referred to as “E Terminal”) each object listed in the separate sheet (hereinafter referred to as “the object of this case”) from Nonparty Korea Water Resources Corporation (hereinafter referred to as the “Water Resources Corporation”) on the first stage of container container package No. D, E2, E2, and future site (hereinafter referred to as “the previous lease”).

B. Conclusion of agreements between the Plaintiff and the Defendant B

1) On June 17, 2015, in order to attract Defendant B to investors, the Plaintiff requested the Korea Water Resources Corporation to cooperate in the division of a corporation and the separation of lease contracts. On June 22, 2015, the Korea Water Resources Corporation granted conditional approval on the said request to the Plaintiff.

2) On September 10, 2015, the Plaintiff entered into an agreement with Defendant B on the subject matter of this case (hereinafter “instant agreement”) by reflecting the conditional approval of the Water Resources Corporation, reflecting the aforementioned conditional approval.

3) The main contents of the instant agreement were to establish Defendant C through personnel division, secure the management rights of Defendant C through the allocation of shares with capital gains by Defendant C, and it is necessary for Defendant B to take over the management rights of Defendant C. As such, at the same time as the instant agreement was concluded, the Plaintiff subleases the instant object to Defendant B, and Defendant C entered into a new lease agreement with the Water Resources Corporation after such personnel division.

4) Defendant B transferred the instant object from the Plaintiff on September 10, 2015 in accordance with the instant agreement.

5) Of the instant agreements, the term of validity and the main contents of termination are as follows.

1. As of the date of the conclusion of this Convention, the Plaintiff’s capital is 50 million won, the number of shares issued shall be 1,100,00 shares, and the shareholders shall be 85.46%, G (7.27%) and H (B. shareholders shall be hereinafter referred to as “the total amount of shares”) as of the 3rd anniversary of the 1st anniversary of the 3rd anniversary of the 3rd anniversary of the 3rd anniversary of the 1st anniversary of the 3rd anniversary of the 3rd anniversary of the 1st anniversary of the 3rd anniversary of the 1st anniversary of the 3rd anniversary of the 3rd anniversary of the 1st anniversary of the 3rd anniversary of the 1st anniversary of the 3rd anniversary of the 1st anniversary of the 3rd anniversary of the 1st anniversary of the 1st anniversary of the 3rd anniversary of the 1st anniversary of the 3rd anniversary of the 1st anniversary of the 3rd anniversary of the 1st anniversary of the 2nd 3rd of the 1st anniversary of the 2nd of the 3rd.

C. Conclusion of a performance security agreement on the subject matter of this case

1) On November 25, 2015, the Plaintiff, Defendant B, and the Water Resources Corporation entered into an implementation security agreement (hereinafter “instant implementation security agreement”) with respect to the subject matter of this case, and its main contents are as follows (hereinafter “instant conditions”)

Article 1 (Purpose) The purpose of this Convention is to enter into the Agreement between the Plaintiff and the Defendant B with a view to clarifying the implementation of the terms and conditions set forth in the Agreement with respect to Section B. The terms and conditions of the Agreement shall be as follows: (a) no longer than 3 months before the date of re-issuance of the Agreement with the Plaintiff, and no more than 62,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,000,00,000,00,00,00,00,00,000,00,00,000,00,00,00,00,00,00,00,00,0

2) Defendant C was established on December 1, 2015, and pursuant to the instant Performance Security Convention, leased the instant object from the Water Resources Corporation on December 31, 2015 (hereinafter “instant lease”). The instant lease provides that the instant lease shall be notified in writing six months prior to the termination of the lease during the lease term under Article 23(2) of the instant contract.

(d) Declaration of termination of the Water Resources Corporation and the Plaintiff;

1) On January 4, 2018, the Water Resources Corporation demanded the Defendants to submit evidentiary documents as to whether the instant condition was fulfilled, and on April 27, 2018, expressed to Defendant C his/her intent to terminate the instant lease as of April 30, 2018, on the ground that the instant condition was not fulfilled.

2) On June 4, 2019, the Plaintiff sent to the Defendants a certificate of content that the instant agreement is terminated on the grounds that the grounds under each subparagraph of Article 8(1) of the instant Convention occurred, and the said certificate reached the Defendants around that time.

[Reasons for Recognition] Facts without dispute, entry of Gap 1 through 9, 18, 19, 27 evidence (including paper numbers), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) Notwithstanding the instant performance security agreement, the instant agreement, the termination date of which has not yet arrived, still remains effective between the Plaintiff and the Defendant B. Since the Plaintiff terminated the instant agreement on the grounds that it falls short of the annual water quantity and paid-in capital pursuant to the instant agreement, Defendant B is obligated to have the Defendant C deliver the instant object to the Plaintiff pursuant to Article 8 of the instant agreement. In preparation for the occurrence of the failure of Defendant B to perform the said obligation, which is an incidental act obligation, the indirect compulsory performance is also sought.

2) The Water Resources Corporation and Defendant C shared the same rights and obligations as the content of the instant lease in accordance with the instant Performance Security Convention. As such, the instant Performance Security Convention constitutes a contract for a third party with which Defendant C is the beneficiary, and Defendant C expressed an intention of profit. The Water Resources Corporation terminated the instant lease on the ground that Defendant C breached the instant condition.

Therefore, Defendant C is obligated to deliver the subject matter of this case to the Plaintiff pursuant to Article 3 of the instant Performance Security Convention.

3) It cannot be said that the establishment of the instant condition and the judicial effect of the act of cancelling the instant lease of the Water Resources Corporation (hereinafter referred to as “the instant termination, etc.”) cannot be denied on the grounds of the warning measures taken by the Fair Trade Commission (hereinafter referred to as the “Fair Trade Commission”).

B. The defendants' assertion

1) Pursuant to Article 5(1) of the instant Performance Security Convention, the instant Performance Security Convention shall prevail over the instant Convention between the Plaintiff and Defendant B. In addition, as long as the instant termination, etc. cannot be claimed by the Korea Water Resources Corporation as null and void under private law, the Plaintiff, not the right holder under the instant Performance Security Convention, may not terminate the instant agreement against its purport, or seek restitution of the instant object to Defendant B.

2) The instant performance security agreement is merely an purport of comprehensively taking over the lessee status of the instant previous lease from the Plaintiff by the terms of promising the Water Resources Corporation to enter into the instant lease with Defendant C, or by Defendant C to comprehensively take over the lessee status of the instant previous lease by the instant lease. Since Defendant C did not acquire any right pursuant to the instant performance security agreement, the instant performance security agreement does not constitute a contract for a third party. Therefore, the instant performance security agreement does not have any effect on Defendant C, and therefore, the Plaintiff’s claim against the Defendant C premised on the effect of the instant performance security agreement is groundless.

3) Even if the instant performance security agreement becomes effective as a contract for a third party, the terms of this case constitute unfair trade practices under which the Water Resources Corporation’s abuse of trade position and impossible conditions were established. Furthermore, in the event that the instant lease is terminated on the grounds of the instant violation, the Defendants, including the Plaintiff’s payment of arrears, bear approximately KRW 3.5 billion economic losses. Thus, the termination of this case, etc. is null and void under private law in violation of good customs and other social order. Furthermore, the instant lease is not prescribed as a ground for termination. As such, the Water Resources Corporation cannot terminate the instant lease on the grounds of the instant violation, and did not notify the termination in writing six months prior to the termination of the instant lease, and thus, there is no indication of intent to terminate the instant lease. Accordingly, as long as the instant lease remains valid without termination, the Plaintiff’s claim against the Defendant C on the premise of termination is without merit.

3. Determination as to the claim against the defendant B

A. Determination on the claim for restitution

1) According to Articles 13 and 7(1) of the instant Convention, the validity of the instant agreement shall be the termination date of March 2, 2020, and there is no other evidence to prove that the instant agreement has been terminated. Furthermore, according to Article 5(2) of the instant Performance Security Convention, the legal relationship between the Plaintiff and the Defendant, except as otherwise expressly provided for in the instant Performance Security Convention, shall be governed by the instant agreement.

However, Article 3 of the Performance Security Convention provides for the right to terminate the Water Resources Corporation's right to terminate the lease of this case, and it is difficult to view it as the purport of the special provision on Article 8 of the Convention, which provides for the plaintiff's right to terminate the contract of this case. Thus, the plaintiff may terminate the contract of this case to the defendant B for reasons under each subparagraph of Article 8 (1) of the Convention ( even if the plaintiff acted with the purport that the above grounds for termination, which overlaps with some of the terms of this case, are null and void under the private law, the condition of this case cannot be deemed null and void under the private law as seen later, and there is no other evidence to deem the grounds for termination as null and void under the private law).

2) The Plaintiff’s declaration of termination on June 4, 2019 of the instant Convention reached Defendant B is as seen earlier. Moreover, there is no evidence to support that Defendant C had the volume of water used in the instant subject matter for a year of 1, 2017 was at least 62,000 TEU, or the paid-in capital as of December 31, 2017 was at least ten billion won. Accordingly, the instant Convention was terminated by the Plaintiff’s declaration of termination.

3) Accordingly, Defendant B is obligated to have Defendant C deliver the instant object to the Plaintiff pursuant to Article 8(3)2 of the instant Convention.

B. Determination as to a claim for indirect compulsory performance

1) In order to ensure effective enforcement of the judgment ordering an incidental act obligation, even if enforcement title is established in view of the time of closing of argument in the judgment procedure, it is apparent that the obligor is not likely to arbitrarily perform his/her obligation, and the obligor has been given sufficient opportunity to present the obligor regarding the propriety of the decision of indirect compulsory performance in the judgment procedure. In cases where the amount of reasonable compensation ordered by the obligor pursuant to Article 261 of the Civil Execution Act can be calculated in the judgment procedure, an indirect compulsory performance order that orders the obligor to compensate for certain damages may also be issued in cases where the obligor fails to perform his/her obligation in the future (see Supreme Court Decision 2013Da50367, Nov. 28, 2013).

2) The obligation of Defendant B to have Defendant C deliver the instant object to the Plaintiff constitutes the incidental act obligation. However, this is identical to the claim for and purpose of the delivery of the instant object against Defendant C, and cannot be deemed to require separate enforcement procedures for Defendant C, which is the alternative act obligation. However, as seen below, the Plaintiff’s claim against Defendant C is accepted. As long as the Plaintiff can achieve the purpose of delivery of the instant object through provisional execution procedure, it is difficult to deem it necessary to make a decision of indirect compulsory enforcement to guarantee a separate effective enforcement against Defendant B.

3) Therefore, the Plaintiff’s claim for indirect compulsory performance is without merit.

4. Determination as to the claim against Defendant C

A. Validity of an agreement on the instant performance security

1) Relevant legal principles

Whether a contract constitutes a contract for a third party is a matter of interpretation of intention as to whether the intention of the party concerned is to obtain a direct right to a third party under the contract. This is a matter of interpretation of intention as to whether the party concerned intends to obtain a direct right to the third party under the contract. This is to be determined by rationally interpreting the intent of the party concerned to the contract by taking into account all the circumstances such as the purpose of conclusion of the contract, nature of the act of the party concerned, understanding and loss arising between the parties or between the third party due to the contract, transaction practices, and social functions with the contract system for the third party (see Supreme Court Decision 2004Da18804, Sept. 14, 2006). At the same time granting a right to the third party, the contract for the third party to bear a benefit is also permissible as a contract for the third party (see Supreme Court Decisions 4289Da536, Mar. 16, 195; 2005Da6873, May 12, 2006).

2) The legal nature of the instant performance security agreement

Comprehensively taking account of the facts as seen earlier and the following circumstances revealed from the evidence, it is reasonable to view the instant performance security agreement as a contract for a third party whose beneficiary is a summary of the Plaintiff, the Water Resources Corporation, and the Defendant C’s beneficiary.

A) The conclusion of the instant agreement and the performance security agreement seems to have been aimed at receiving investment from Defendant B with respect to the subject matter of this case, which the Plaintiff had leased and used from the Water Resources Corporation, and allowing Defendant C to run the business in the subject matter of this case.

B) Since Defendant C had not yet been established at the time of the conclusion of the instant performance security agreement, it was deemed that it was not a party to the instant performance security agreement, but was established immediately thereafter, and Defendant C acquired and possessed 9% of the shares of Defendant C as a party to the instant agreement and the performance security agreement.

C) The instant performance security agreement provides for the main terms and conditions of the instant lease agreement between the Water Resources Corporation and the Defendant C, and it appears that the instant lease would have been concluded as the same as the foregoing attached Table 1. There is room to view that the instant lease was concluded by Defendant C, which was established after the instant performance security agreement was concluded, to re-examine the contents of the instant attached Table 1 with the Water Resources Corporation. Pursuant to the implementation security agreement and the lease as above, the Water Resources Corporation bears the duty as the lessor, and the Defendant C bears the duty of care as the lessee at the same time as the lessee of the Water Resources Corporation.

D) Even if Defendant C does not bear any right at the same time with the instant performance security agreement alone, it is recognized that Defendant C had the obligation to deliver the instant object to the Plaintiff when the instant lease is terminated, and that Defendant C consented to the burden, as seen thereafter.

E) Even if the instant lease was concluded, the Plaintiff is still a party to the instant performance security agreement, and the instant performance security agreement provides for the Plaintiff’s re-acquisition, etc., and taking account of the developments leading up to the conclusion of the instant performance security agreement, it is difficult to deem that the instant performance security agreement is merely the content of the promise to conclude the instant lease to Defendant C. Furthermore, unlike the instant lease, the instant lease is deemed to be an object, E terminal is also an object, and Defendant C bears an additional duty, such as the instant condition, upon conditional approval by the Water Resources Corporation at the time of the instant agreement. Therefore, it is difficult to deem that Defendant C acquired the previous lease from the Plaintiff.

3) Effects on Defendant C of the instant performance security agreement

A) The fact that Defendant C entered into the instant lease with the Korea Water Resources Corporation in accordance with the instant Performance Security Convention is as seen earlier, and as such, Defendant C asserts that each of the above documentary evidence is inadmissible, as the Plaintiff acquired the documents constituting Defendant C’s trade secrets by avoiding the statutory process. However, there is no evidence to acknowledge that each of the above documentary evidence constitutes Defendant C’s trade secret, or that the Plaintiff acquired them by avoiding the statutory procedure, according to each of the following facts are acknowledged:

(1) On August 9, 2016, Defendant C requested the Water Resources Corporation to approve the operation of a main station for export in the subject matter of the instant case. Accordingly, on August 19, 2016, the Water Resources Corporation approved the instant implementation security agreement on the condition that it performs the obligations provided for in the instant implementation security agreement. Defendant C submitted a written consent to implement the said conditional approval to the Water Resources Corporation on August 29, 2016.

(2) Defendant C’s freight within the subject matter of this case to the Water Resources Corporation on January 12, 2017

On January 16, 2017, the Water Resources Corporation requested approval on the operation of the camping site. Accordingly, on January 16, 2017, the Korea Water Resources Corporation approved the obligation under the instant Performance Security Convention. Defendant C submitted written consent on January 25, 2017 to the Korea Water Resources Corporation to implement the said conditional approval.

B) Comprehensively taking account of the aforementioned facts, it is reasonable to deem that Defendant C concluded the instant lease and provided a written consent for performance assurance to the Water Resources Corporation to have expressed an intent or consented to the burden thereof. Moreover, considering that Defendant C requested approval from the Water Resources Corporation to change the purpose of use of the instant water resources, and submitted a written consent for performance assurance regarding the conditional approval of the Water Resources Corporation, it is difficult to deem that each written consent for performance assurance submitted by Defendant C is a customary reply. Accordingly, the instant performance guarantee agreement is deemed effective in Defendant C, and the Water Resources Corporation may terminate the instant lease on the ground of the violation of the instant conditions pursuant to Article 3 of the instant Performance Security Convention.

B. Termination of the lease of this case and the duty to deliver the object of this case by Defendant C

1) Determination as to the cause of claim

On April 27, 2018, the Water Resources Corporation expressed its intent to terminate the lease of this case on the ground of the violation of the terms of this case, as seen earlier, and there is no evidence to prove that the terms of this case were fulfilled. Thus, the lease of this case was terminated on October 27, 2018, which was apparent in fact after six months from the date on which the said declaration of termination was issued by the Water Resources Corporation. Accordingly, Defendant C is obligated to deliver the subject matter of this case to the Plaintiff pursuant to Article 3(2)2 of the Performance Security Convention.

2) Determination as to Defendant C’s assertion that the termination of the instant case is null and void

A) In a case where a prohibition provision is not clearly prescribed on the validity of a juristic act in violation of the prohibition provision, its validity shall be determined after comprehensive consideration of various circumstances, such as legislative background and purport of the provision, protected legal interest, importance of the violation, whether the party concerned intended to violate the prohibition provision, influence of the violation on the party concerned or a third party, social, economic, and ethical value assessment of the violation, and attitude of the law on similar or closely related acts. In a case where the prohibition provision is included in the so-called public law, it shall be determined carefully as to whether the prohibition provision beyond suppressings such acts through public law sanctions such as punishment or administrative disadvantage frequently stipulated in the Act, despite such legislator’s implied or lack of law, it shall be effective in the private law area and shall affect the effects of the juristic act in question (see, e.g., Supreme Court Decisions 2008Da7519, Dec. 23, 2010; 2015Da27079, Jan. 17, 2019).

B) According to the statements in the evidence Nos. 1, 2, 4, and 6 (including each number), the Fair Trade Commission: (i) issued warning on July 31, 2019 that the termination, etc. of the instant case constitutes unfair trade practices under Article 23(1)4 of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the “Act”) (hereinafter referred to as the “Act”), and (ii) granted Defendant C to the Water Resources Corporation with respect to the instant object, the fact that Defendant C paid KRW 33,465,915 on August 31, 2018, KRW 30,325,302 on November 30, 2018, KRW 327,265,04 on February 8, 2019, KRW 305,0584 on April 15, 2015, respectively.

C) However, comprehensively taking account of the above evidence and the following circumstances revealed from the entry of the evidence Nos. 10 and the evidence submitted by Defendant C alone, it is insufficient to recognize that the Water Resources Corporation obtained unfair benefits beyond the termination of the instant case’s unfair trade practices, and Defendant C constitutes a juristic act in violation of good customs and other social order that imposes excessive and unfair burdens on Defendant C.

(1) Article 24 of the Act provides that the Fair Trade Commission may order the suspension of the relevant unfair trade practice and the deletion of the relevant contract clause as a corrective measure against the unfair trade practice. This, even if the act constitutes an unfair trade practice, can be seen as a provision premised on the fact that the act is once effective under the private law. Thus, the termination, etc. of the instant case cannot be deemed to be denied as a matter of course on the sole basis of the fact that the termination, etc. of the instant case constitutes an unfair trade practice. Furthermore, even if the Fair Trade Commission may order the suspension of the relevant unfair trade

(2) Defendant B was a company with the purpose of marine transportation business and container operation business, port service business, and port loading and unloading business, and entered into the instant agreement with the Plaintiff after four years from the previous lease of this case. The 62,000 TEU annually shows that the 62,000 tons per annum are calculated based on the results of the report of November 3009 by the Korea Development Institute under the Ministry of Strategy and Finance, and even according to the Defendants’ assertion, the 7,000 tons per annum from 2012 to 2016 was exceeded from the object of this case. Defendant B could have determined whether to enter into the instant agreement after sufficiently examining the results of the said report and the actual water quantity. Moreover, it does not seem that there were circumstances that it was difficult for Defendant B to refuse the conditions, such as the annual water quantity required by the Water Resources Corporation at the time of entering into the instant agreement.

(3) In light of the developments leading up to the conclusion of the instant agreement and the contents of Article 1, it appears that the instant agreement was concluded in accordance with the instant agreement to secure the implementation of the terms of the said agreement. However, although the grounds for termination of the instant agreement did not include the matters concerning the construction and operation of vessels, the instant conditions were added to the annual conditions for the construction and operation of vessels. Accordingly, the Defendants may be deemed to have been more mitigated than the instant agreement, and the Defendants could have sufficiently examined the conclusion of the instant agreement. Therefore, it is difficult to view that the instant conditions presented by the Water Resources Corporation were in an inferior position to accept the terms of the instant agreement.

(4) As alleged by the Defendants, even though it was practically difficult for Defendant C to build and operate a ship within the time limit under the instant condition because the transportation route of the instant object is small in size and requires a long period of time for the construction of the ship, Defendant C does not seem to be currently under construction, and there is no circumstance to deem that Defendant C requested the Water Resources Corporation to change or mitigate the instant conditions on the ground of such difficulty.

(5) A considerable portion of the economic losses arising from the termination of the instant case asserted by the Defendants

As for the money equivalent to the rent or rent during the period of use of the subject matter of this case, Defendant C used the subject matter of this case as an open site, etc. In addition, even if Defendant B paid the said money on behalf of the Plaintiff following the conclusion of the instant agreement, as long as the instant agreement, etc. was terminated due to the non-performance of the terms and conditions of this case explicitly stipulated, it is difficult to view the said amount of rent paid by Defendant B under the instant agreement as an economic loss due to the termination, etc. of this case.

D) Accordingly, Defendant C’s assertion is rejected.

5. Conclusion

The plaintiff's claim against the defendant C shall be accepted on the ground of the reasons, and the claim against the defendant B shall be accepted within the extent of the above recognition, and the remaining claim against the defendant B shall be dismissed on the ground of the reason.