Plaintiff (Law Firm B&W, Attorneys Park Dong-young, Counsel for the plaintiff-appellant)

Defendant

December 20, 2012

Seoul Central District Court Decision 2010Gahap16735 Decided August 26, 2011

1. The part against the plaintiff falling under the following order of payment among the judgment of the court of first instance shall be revoked:

The Defendant, under the name of Nonparty 5 on December 25, 2010, transferred the Plaintiff’s status as a lessee under a lease agreement concluded between Nonparty 1 and Nonparty 20 square meters (○○○○○○○○○○ Point Point Point Part) of the first floor of the building on the ground of Dongjak-gu Seoul ( Address omitted). At the same time, each of the above building and the movable property indicated in the attached list are delivered to the Plaintiff, and simultaneously, paid KRW 678,571,428 to the Plaintiff

2. The plaintiff's remaining appeal is dismissed.

3. The plaintiff and the defendant bear 50% each of the total costs of the lawsuit.

4. Paragraph 1 can be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 1 billion won and the amount calculated by the ratio of 20% per annum from the day after the delivery of a copy of the complaint to the day of full payment.

1. Basic facts

A. From around 2002, the Plaintiff lent money to Si Lease Cases operated by the Defendant or the Defendant on several occasions. Accordingly, around November 2004, the Plaintiff and the Defendant agreed to adjust the debt owed by the Defendant and the said company to “○○○○○○○○ (hereinafter “instant safe store”) located in the Dongjak-gu Seoul ( Address omitted) operated by the Defendant, and to pay the said company the debt owed by the said Defendant and the said company at KRW 950 million. On November 24, 2004, the Defendant and the said company calculated the debt owed to the Plaintiff (including the Plaintiff’s debt owed to the Plaintiff’s customer amounting to KRW 60 million) and the balance amount amount to KRW 50 million,00,000,000. However, the Plaintiff agreed to pay the total debt at KRW 60,000,000 in excess of the unpaid debt owed to the customer.

B. In addition, on December 30, 2004, the Plaintiff and the Defendant concluded the following agreements (hereinafter referred to as the “instant agreement”) with the subject matter as the inner point of this case.

Amount: KRW 1,000,000,000

In transferring ○○○○○○○○○○○○○○○○○○○○○○, agree as follows:

1. On December 1, 2004, the Defendant shall transfer to the Plaintiff all of its deposits, premiums, machinery and articles, etc.

2. The plaintiff shall be operated for three years (36 months, December 1, 2004 - November 30, 2007) after acquisition from December 1, 2004.

3. Paragraph 3 of the attached Form of the above location lease contract (non-party 1 and lessee) is jointly dealt with by the plaintiff and the defendant.

4. The plaintiff may sell to others even during the contract under paragraph (2).

5. When the plaintiff and the defendant terminate the agreement, they will terminate the agreement without any condition and the defendant will accept the above amount.

C. On October 22, 2007, the Plaintiff notified the Defendant of this case’s termination of the instant agreement as the period of operation of the instant border point based on the instant agreement expired on November 30, 2007. As such, the Plaintiff notified the Defendant that one billion won of the acceptance amount stipulated in the instant agreement should be paid.

[Grounds for recognition] The items of evidence Nos. 1 to 3, and the purport of the whole pleadings

2. Determination

A. The parties' assertion

(1) The plaintiff's assertion

The agreement of this case was intended to cover the interest of the existing claim with the profits that the plaintiff deferred the repayment period to the defendant while running the border point of this case. Since the contract of this case was terminated in accordance with the method stipulated in the agreement of this case, the grace period stipulated in the agreement of this case and the plaintiff terminated the agreement of this case, the defendant must pay one billion won to the plaintiff the acquisition price stipulated in the agreement of this case

(2) The defendant's assertion

The agreement of this case has the nature of the payment contract in lieu of the Defendant’s repayment of the existing obligation to the Plaintiff, and the Defendant transferred the Plaintiff the instant premium points to the Plaintiff, thereby extinguishing all the Defendant’s existing obligation to the Plaintiff. Accordingly, the Plaintiff and the Defendant cannot settle the agreement in accordance with the agreement of this case.

The part on termination of the contract of this case is subject to the condition that the plaintiff maintains the right at the time of transfer without disposing of the border point of this case on September 1, 2005. However, on June 27, 2007, the plaintiff transferred to the non-party 2 50 million won shares of 50 million won of the boundary point of this case. The non-party 1, the lessor of the boundary point of this case, notified the termination of the lease contract of this case on August 25, 2007, notified the non-party 1 of the termination of the lease contract of this case, and received the lease deposit in whole on August 25 of the same year. After which the condition was 28 square meters, the non-party 3 operated a new lease contract of this case and operated the border point in order with the non-party 4 and the non-party 5 to acquire the goods at the time of the non-party 2's non-party 1's non-party 1's disposal of the goods of this case.

Even if the plaintiff should terminate the agreement of this case and the defendant must take over the boundary point again, the defendant is only obligated to recover the plaintiff according to the condition at the time when he delivers the boundary point of this case, and this is also related to the duty to return KRW 1 billion to the plaintiff simultaneously.

B. Whether to exercise the Plaintiff’s right to make a re-sale reservation

(1) The nature of the instant agreement

The following circumstances, which are acknowledged as comprehensively considering the purport of evidence No. 1 and No. 15 of the Plaintiff’s evidence, are difficult. The Plaintiff appears to have concluded the instant agreement with the Defendant for the purpose of additional lending KRW 200 million to the Defendant to conclude the instant agreement (the Plaintiff’s assertion would not stipulate only the rights to secure claims, but also the content of the instant agreement to secure claims, such as granting the Plaintiff’s right to discretionary disposal, right to complete re-sale, and right to complete sale, and thus, it would be reasonable to interpret that the instant agreement would not be effective in the future when the instant agreement provides for the Plaintiff’s right to terminate sale and purchase at the price of KRW 100,000,00,000,000 for the purpose of the instant agreement, and thus, it would be reasonable to interpret that the instant agreement would not be effective for the purpose of completing sale and purchase of claims at the price of KRW 300,000,000,000,000,000,00.

Although the Defendant asserts that the instant agreement is a conclusive payment contract, it is not construed to harmonize with the grant of the right to complete the re-sale agreement under the instant agreement, as seen earlier, so even if the circumstances asserted by the Defendant, such as the Plaintiff’s payment of KRW 200 million to the Defendant during the instant agreement, etc., all of the circumstances asserted by the Defendant are acknowledged, such recognition cannot be reversed.

(2) Whether the exercise of the right to re-purchase is conditional or conditional

The defendant asserts that the right to the re-sale reservation of the instant agreement is not subject to the disposition of the instant safe point on the other side, but subject to the maintenance at the time of transfer in the state of transfer.

First of all, as to whether or not it is a condition not to dispose of others, the plaintiff's voluntary disposition stipulated in the contract of this case shall be deemed to mean only a conclusive one by the plaintiff's own person's own person's arbitrary disposition as follows. In this case, it is reasonable to view that the plaintiff's claim against the defendant is recovered, and the other party to the disposition shall also be fully acquired the safe point of this case, and it is impossible to recover the safe point of this case again by the plaintiff. Thus, it is reasonable to view that the plaintiff's failure to dispose of the safe point of this case to the other party to the contract of this case is a condition to exercise the right to complete

Next, with respect to whether or not the conditions to be maintained under the conditions as at the time of transfer, it means the following circumstances that can be acknowledged by comprehensively considering the overall purport of pleadings as to whether the agreement is conditions to be maintained under the conditions as at the time of transfer, namely, the premise of the Plaintiff’s operation. In the event of operating a chill point, it can be easily anticipated that the facilities and inventories are changed frequently. In the agreement of this case, there is no restriction on the Plaintiff’s method of operating the chill point; in the agreement of this case, it would be assumed that the Defendant would terminate the agreement without any condition, and would not dispute any change in the state that would normally arise by determining that the contract would be terminated and take over at least one billion won, and in general, it would be difficult to recognize that the contract relationship would lose its effect in the future, and that the parties would not be obliged to recover to the original condition at the time of sale and purchase, and thus, it would be difficult to see that there would be no change in the status of the Plaintiff at the time of sale and purchase as at the time of this case.

Therefore, the Plaintiff’s exercise of the right to completion of the repurchase agreement under the instant agreement shall be subject to the condition that the Plaintiff did not dispose of it in another place, and that the situation of the inner point of this case is not the same as that of the previous inner point in light of social norms.

(3) Whether the conditions have been fulfilled

(A) First, we examine whether the Plaintiff disposed of the instant border point to another person.

In the following circumstances, the Plaintiff’s right to voluntary disposal stipulated in the agreement of this case, which can be acknowledged by considering the purport of the entire pleading as a whole, refers to the Plaintiff’s right to voluntary disposal in return for payment to the other party and the Plaintiff’s claim against the Defendant (i.e., the expression “sale” under the agreement of this case). The inner point of this case may no longer operate the inner point of this case on the ground that the lessor does not renew the lease contract when the lease term expires because the lessor is located in leased real estate. In such a case, it is unreasonable that the Plaintiff would lose the right to complete the repurchase of resale, which is a condition for the exercise of the right to complete the repurchase of resale, should be deemed to mean that the Plaintiff’s right to voluntary disposal in return for the Plaintiff’s own disposal in return for the collection of its claim, which is satisfied with the Plaintiff.

In the case of this case, according to the evidence No. 17 of this case, it can be acknowledged that the plaintiff entered into a contract with the non-party 2 and the non-party 2 on September 1, 2005 to operate the boundary of this case with 50% of their respective shares, and thus, the boundary of this case can be deemed to have become a quasi-joint property of the plaintiff and the non-party 2. However, in full view of the whole purport of the arguments in the above documentary evidence and evidence No. 20, the above written contract with the plaintiff and the non-party 2 was a temporary period of November 30, 2007, which is the plaintiff's operating term under the contract of this case. Upon the termination of the above written contract, the non-party 2 returned their shares in money after withdrawing from the partnership and returned their shares to the plaintiff. According to this, even if the plaintiff disposed of the boundary of this case under the above contract of this case, it cannot be deemed that the plaintiff was a temporary disposition between the plaintiff and the non-party 2.

In addition, according to the evidence No. 5, No. 6-2, No. 1, No. 4-6, No. 8, and No. 9, the plaintiff's disposal of the non-party No. 5, and the non-party No. 1's disposal of the non-party No. 4, the plaintiff's disposal of the non-party No. 5, and the non-party No. 1's disposal of the non-party No. 5, and the non-party No. 5's disposal of the non-party No. 1, the plaintiff's disposal of the non-party No. 5, and the non-party No. 5's disposal of the non-party No. 1, the non-party No. 3's disposal of the non-party No. 1, the non-party No. 4, the non-party No. 5's disposal of the non-party No. 1, and the plaintiff's disposal of the non-party No. 2, the non-party No. 5's. 2 and the non-party No. 5's.

Therefore, this part of the defendant's assertion is without merit.

(B) Next, we examine whether the situation of the instant border point has changed to the extent that it is difficult to recognize the identity in terms of social norms.

According to the evidence Nos. 2 and 3, the size of the area of approximately 8 square meters of the building at the time of the instant agreement with Nonparty 6 on Oct. 1, 2007, which was part of the building at the time of the instant agreement, can be acknowledged that Nonparty 6 operated the pharmacy at the above part of the building. However, solely on the circumstance, it is insufficient to recognize that the situation of the inner branch of the instant building has been changed to such a degree that it is difficult to recognize the identity, and there is no other evidence to acknowledge it. Rather, according to the video of evidence No. 32, the inner branch of the instant case accounts for two sides of the single mother branch of the instant building. The above pharmacy accounts for only one half of the first floor of the building. From the appearance of the above pharmacy, it is not deemed that there was a big difference between the inner branch of the instant case and the facilities, etc., and it is difficult to view that the amount of the instant agreement has been changed to the extent that it would be unfair to avoid the exercise of the right to purchase and sale.

The Defendant asserted that, at the time of the conclusion of the instant agreement, it cannot be deemed as identical to the instant agreement, since all the goods were dead, and thus, at the time of the conclusion of the instant agreement. However, there is no evidence to support the fact that the facilities or the value of the goods located at the instant inner point at the time of the conclusion of the instant agreement reaches KRW 7 to 80 million. Rather, even if the facilities or the goods were based on the value of the facilities or the goods, it is not deemed that the Defendant would have transferred the leased deposit and the goodwill at the time of the conclusion of the instant agreement, and that the Defendant’s failure to entirely examine the facilities and inventory of the instant inner point at the time of the conclusion of the instant agreement would not be deemed to have been equipped with a high-priced facility or inventory to a degree different from the general inner point at the time of the conclusion of the instant agreement. In view of the fact that the Plaintiff had been operating the instant inner point at the time of the conclusion of the agreement, it cannot be deemed as having reached the degree of identity at the time of the conclusion of the instant agreement.

In addition, at the time of the agreement of this case, the defendant raised an average of KRW 100 million on a monthly basis while full-time optician 7 or 8 at the time of the agreement of this case. However, the defendant asserts that the condition that the situation of the boundary point of this case was changed to the extent that one optician is able to operate the same. However, the meaning of the condition that the situation of the boundary point of this case was changed to the extent that it is impossible to identify the identity is merely the objective condition of the boundary point of this case, i.e., size and facilities, and it does not constitute a change in its business performance. This is because the agreement of this case does not stipulate any restriction on the re-sale based on the business performance, and the plaintiff's exercise the right to complete the re-sale, even if there is another method that the plaintiff obtained the satisfaction of the claim, is not possible to obtain the satisfaction of the purchase price stipulated in the right to complete the re-sale by disposing of it or holding it on his own, and this is no reason to limit the exercise of the right of this case.

Therefore, this part of the defendant's assertion is without merit.

(4) As seen earlier, the Plaintiff may exercise the right to make a re-sale reservation as stipulated in the instant agreement. As such, the Plaintiff sent to the Defendant on October 22, 2007, a notice to the effect that the Plaintiff would exercise the right to complete the re-sale as of November 30, 2007, is identical to the above-mentioned notice given by the Plaintiff, and thus, the re-trade was established between the Plaintiff and the Defendant on November 30, 2007.

(c) Liabilities borne by both parties by re-trades;

(1) Defendant’s obligation to pay the price

The fact that the agreement of this case sets the re-sale price of one billion won is acknowledged as above.

However, in light of the following facts: (a) the size of the inner point of this case was 28 square meters; (b) the size of the inner point of this case was reduced to 20 square meters as seen earlier; (c) such circumstance appears to have been unexpected at the time when the Plaintiff and the Defendant entered into the instant agreement; and (d) the lease period between the Plaintiff and the Nonparty 1 was 36 months (Evidence (Evidence (No. 1) that the Plaintiff could have prevented Nonparty 1 from entering into the instant agreement due to the Plaintiff’s circumstances; (d) it appears that the Plaintiff could not be able to conclude the lease contract again in the name of Nonparty 3; and (e) it appears that the Plaintiff and the Defendant did not intend to maintain the price until there is any unexpected change in circumstances, such as that the Plaintiff and the Defendant’s intention at the time of the instant agreement was 0 billion won; and (e) it would be reasonable to deem that the size of the instant case was 80 billion won or less in consideration of the above rate of KRW 500,000,00.

In addition, in the event that the Plaintiff and the Defendant kept the balance of KRW 50 million in the Plaintiff’s existing claim settlement on November 24, 2004, and the Defendant paid the balance of KRW 60 million in excess of the amount payable by the Defendant, the remaining portion is determined to be settled as above. However, inasmuch as there is no evidence to prove that the amount payable by the Defendant exceeds KRW 60 million, the Plaintiff paid the amount to the Defendant in excess of the amount of KRW 50 million in the repayment of the unpaid obligation, and thus, it is deemed that the Plaintiff would pay the amount to the Defendant, and thus, the Plaintiff would pay the said amount to the Defendant (the assertion that the Defendant did not have settled the amount corresponding to the said balance is that it should be avoided from the re-sale price. This is not the amount that the Plaintiff should have paid to the Defendant prior to the completion of the re-sale, and thus, the standard amount of the re-sale price should be calculated in the way of deducting the total amount of KRW 50 million from this amount as agreed.

Therefore, upon the establishment of the said re-sale, the Defendant shall pay to the Plaintiff KRW 678,571,428 ( KRW 728,571,428 - KRW 50 million).

(2) The plaintiff's duty to deliver the safe point of this case

In accordance with the agreement of this case, the Plaintiff acquired all of the lease deposits, premiums, machinery, goods, etc. from the Defendant pursuant to the agreement of this case, as seen earlier, and as of November 30, 2007, the date of the establishment of the re-sale, the Plaintiff is the Plaintiff that there was machinery and goods listed in the separate sheet at the location point of this case as of November 30, 2007 (the Defendant should deliver the goods at the time of the agreement of this case), but as acknowledged earlier, the Defendant appears to have concluded the agreement of this case with the intent to accept the re-sale without taking into account the changes in the goods, etc. at the location point of this case at the time of the re-sale, although it was possible to predict that there was any change in the goods, etc. at the location point of this case at the time of the re-sale, and thus, the transfer of the machinery and goods as of the date of the establishment

Therefore, upon the establishment of the re-sale, the Plaintiff should transfer the status of lessee under the lease agreement with Nonparty 1 to the Defendant, and deliver the instant location points and the movables indicated in the attached Table.

(3) The relationship of two obligations

When each party's right to defense of simultaneous performance is related with each other's obligation on the basis of the concept of fairness and the principle of good faith, one party's right to defense of simultaneous performance is recognized to be related to each other's performance, and when one party's claim for performance of the other party's obligation without performing the other party's obligation or not providing the other party's obligation (see Supreme Court Decision 98Da53899 delivered on April 23, 199).

In the case of this case, the duty of both parties to perform in the re-trade relationship which is established as the right of the plaintiff's right of completion of the re-trade agreement has a mutual meaning of consideration from the perspective of fairness, and therefore it is reasonable to authorize the relation in the performance. Therefore, the defendant's defense pointing this out has merit.

D. Sub-committee

Therefore, the Defendant is obligated to pay KRW 678,571,428 to the Plaintiff at the same time, along with the fact that the Plaintiff transferred the status of lessee (the name of the lessee under the contract is Nonparty 5) based on the lease agreement with Nonparty 1 with the Plaintiff and the delivery of the building at issue (referring to the portion reduced by 20 square meters) and the movable property indicated in the attached list.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. Since the part corresponding to the above payment order in the judgment of the court of first instance is unfair with different conclusions, it is revoked and order the defendant to pay the above amount, and the remaining appeal by the plaintiff is dismissed as it is without merit.

[Attachment]

Judges Lee Jin-man (Presiding Judge)