Plaintiff (Law Firm Roon, Attorneys Lee Dong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and 1 (Law Firm Oyn, Attorneys Lee In-bok et al., Counsel for the defendant-appellant)

June 18, 2009

Incheon District Court Decision 2007Gahap5140 Decided December 20, 2007

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

The plaintiff shall pay 10 million won to the defendant 1, 30 million won to the defendant 2, 5% per annum from April 26, 2007 to August 27, 2009, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation cost, the part arising between the Plaintiff and the Defendants is borne by the Defendants.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the court of first instance is revoked, and the defendant 1 shall be jointly and severally with the co-defendant 2 of the court of first instance, and the defendant 2 shall pay 100 million won, 300 million won, and 20% interest per annum from the day following the delivery of the copy of the complaint of this case to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the following facts: Gap's evidence Nos. 1 through 6, 9, 10, 11, 12, 13, 14, 16, 17, 19, and evidence No. 21-1, 2, 3, Eul's evidence Nos. 2, 4, 5, Eul's evidence No. 6-1 through 8, Eul's evidence No. 9, part of Eul's evidence No. 3, non-party No. 1 and 5's testimony, and part of defendant No. 1's personal examination results:

A. On October 12, 2004, Defendant 1, who was the joint representative of Nonparty 2 Co., Ltd., Co., Ltd., a Co., Ltd., a Co., Ltd., a Co., Ltd., a Co., Ltd., a Co., Ltd., a Co., Ltd., a Co., Ltd., a Co., Ltd. (hereinafter “Defendant Co., Ltd”) and the Plaintiff, a largest shareholder, were to listen to and take over the lawsuit that he disposes of the Defendant Co., Ltd. due to business difficulties, and jointly participated with Defendant 1, but at the time of concluding the contract (hereinafter “Defendant Co., Ltd.”). On October 12, 2004, Defendant 1 and Co., Ltd., a Co., Ltd., a joint representative of the Defendant Co., Ltd., Ltd., a transfer and acquisition contract (hereinafter “instant contract”) with the Plaintiff regarding all of the Defendant Co., Ltd.’s management licenses and stocks, and paid the down payment amount to the Plaintiff.

(1) The transfer price is KRW 3 billion (registration taxi 89 x 3.4 million). The down payment is KRW 300 million on the date of the contract, and the intermediate payment is paid at KRW 1.2 billion on October 31, 2004, and the intermediate payment is paid from the Plaintiff to the Plaintiff by October 31, 2004 at the same time as the delivery of the office fixtures and official equipment, all documents, the representative director’s employee reduction, rubber, etc. of the Defendant company. The remainder shall be paid on November 15, 2004 after deducting taxes and public charges and the installment payments from the Defendant company, and the remainder shall be paid on November 15, 2004, and the payment of the remainder shall be postponed at the time of

(2) The transfer date shall be November 15, 2004.

(3) If the penalty surcharge and penalty surcharge are imposed on the defendant company for the period prior to the above reference date or the other accounts payable and the defendant company suffered civil or criminal cases due to the claim and debt against the defendant company, the plaintiff shall be responsible and arranged.

(4) Taxes and public charges (excluding the National Tax Service) are responsible for and assessed against the Plaintiff for the period prior to the aforementioned base date, and the undetermined amount of the corporation’s actual residence is paid by the Plaintiff to the Defendant, etc., as well as the Defendant, etc., to be liable for the civil and criminal liability.

(5) The vehicle and building related to the defendant company shall be transferred as it is and shall continue to exist as the defendant company, and the vehicle lease shall continue to continue after the vehicle.

(6) When the Plaintiff violated this contract, he shall reimburse the amount of the down payment and the expenses thereof, and when the Defendant, etc. violated, he shall waive the down payment and not demand the return thereof.

B. Around October 31, 2004, the defendant et al. paid an intermediate payment of KRW 1.2 billion to the plaintiff on the part of October 31, 2004, and received from the plaintiff a statement of accounts, a statement of accounts, a statement of accounts of articles, a statement of retirement allowances for employees, a statement of accounts of retirement allowances for employees, a statement of unused amount of monthly, a list of deductions on provisional seizure against claims, a list of accounts of the unpaid amount of transportation card devices and a list of subscription advance payment (this above evidence No. 6-1 through No. 8) from the defendant company, and taken over the operation rights of the defendant company from November 1, 2004, and the defendant 1 took office as the representative director of the defendant company on November 22, 2004.

C. Meanwhile, around December 3, 2001, Nonparty 3, the Plaintiff’s wife, purchased from Nonparty ○○ Transportation Industry Co., Ltd. the Defendant Company leased and used as a garage ○○-dong (hereinafter its lot number omitted) to 825.9 square meters and its ground buildings, and completed the registration of ownership transfer in its future on January 8, 2002.

D. On November 2004, the defendant et al. settled accounts on the basis of the details of taxi commission and the ledger of wages of the engineers of the defendant company on the basis of the settlement data of the defendant company. The defendant et al. judged that the amount of KRW 977,839,434 was omitted in the sales amount of KRW 300,00,000,000, and the amount of KRW 166,234,648 as the claim of the defendant company was 2,292,691,685 won when considering the amount of taxes that can be imposed in the future due to the omission of sales to the plaintiff, the amount of the debt of the defendant company was 1,526,00,000 won under the contract of this case (3,026,000,000 - 30,000,000 - 1,200,000,000) and the amount of taxes that can be imposed in the future.

E. On December 23, 2004, the defendant et al. again presented to the plaintiff a settlement of accounts increased to KRW 2,371,891,685 as shown in the attached list, and requested the plaintiff to return KRW 679,657,037 [2,371,891,685- - 16,234,648] - 1,526,00,000] after deducting any balance under the contract of this case from the difference between the amount of the debt and the amount of the debt. On December 23, 2004, the defendant et al. demanded the plaintiff to submit a written contract including the garage lease agreement of the defendant company, the ledger of each account, the balance statement, and documents related to the lawsuit, etc. on December 31, 2004, and demanded the plaintiff to submit the documents again on December 31, 2004 and January 3, 2005.

F. On January 1, 2005, the Plaintiff: (a) stated that “the documents requested by the Defendant, etc. are kept in the Defendant Company; (b) in light of the content of Articles 13 and 14 of the Agreement, it is improper for the Defendant, etc. to include the fixed amount of excess vehicle and sales omission in the Defendant Company’s obligation; (c) the fixed amount of excess vehicle and sales omission in the Defendant Company was returned by the Defendant Company from Nonparty 3; and (d) added the Defendant Company’s obligation to KRW 173,449,564, as stated in the separate sheet (Evidence 2), as stated in the separate sheet, to KRW 800,00,00 and KRW 80,00,000 and KRW 300,000,000 and KRW 309,27,256,2056,406,400,5306,408,706,530,74,708).

G. On the other hand, on January 3, 2005, the defendant company requested the above non-party 3 to return the deposit money for the lease of a garage, and the above non-party 3 returned the deposit money to the defendant company on January 5, 2005 to the plaintiff who is the former representative director.

H. On January 7, 2005, the defendant et al. demanded that the plaintiff pay the settlement amount according to the settlement of accounts made by the defendant et al. while recognizing the plaintiff's assertion as improper, and notified that the legal procedure will proceed if the defendant et al. does not comply with it.

I. After that, the dissenting opinion on whether the Defendant Company’s debt scope, in particular omitted sales amount and the deposit for the lease of a garage, are still included in the Defendant Company’s obligation, is not narrowed. On January 20, 2005, the Defendant et al. notified the Plaintiff that the instant contract will be rescinded if the settlement is not made as requested by the Defendant et al., and that, in such case, the Plaintiff would demand payment of KRW 2,415,758,625, including down payment, intermediate payment, penalty and expenses.

(j) On January 28, 2005, the Plaintiff agreed with Nonparty 1, 2, 3, and 4, who was an auditor of the Defendant Company, to the following contents (hereinafter “instant agreement”), including the Plaintiff’s settlement with the Defendant, etc. by returning the amount of KRW 100 million to the Defendant, etc., and the amount of KRW 300 million to the Defendant Company as the deposit money for the garage lease, and paid the Defendant, etc. the sum of KRW 100 million and KRW 300 million to the Defendant Company, respectively.

(1) The portion that differs in relation to the corporate settlement is recognized by the transferee, and the detailed items of the settlement of accounts will be followed by the transferee's settlement of accounts, and the transferor (Plaintiff) will be responsible for the items not included in the settlement of accounts.

(2) Since the lease period of the Defendant Company on the garage has expired, it shall be transferred to February 28, 2005 as secured by the garage.

(3) If the legal problem arises due to the leakage of data (including taxation data) or any other reason for all parts arising before the date of transfer or acquisition, all the transferor shall be held liable for civil and criminal liability, and the personal seal impression of the existing registration director shall be attached to this certification.

2. The parties' assertion

The plaintiff presented the attitude that the defendant, etc. reported to the National Tax Service or filed a complaint by embezzlement with the intent to take over the defendant company at the intermittent value, and concluded a contract with the plaintiff unfairly forced the plaintiff to deduct large amount from the acquisition price under the pretext of omission of sales amount. Thus, the plaintiff asserts that the agreement is null and void as a juristic act in anti-social order or an unfair juristic act, or null and void, and thus, the defendants are liable to return

As to this, the Defendants asserted that the settlement agreement of this case was reached by free will without forced execution during the process of undergoing an inspection for settlement after concluding the contract of this case, and therefore, they do not have any obligation to respond to the Plaintiff’

3. Judgment on the issue

(a) Legal acts contrary to social order;

A juristic act which is null and void under Article 103 of the Civil Act shall not be deemed null and void as a juristic act against social order, although the contents of rights and obligations which are the object of the juristic act are not only in violation of good morals and other social order, and its contents themselves are not only in violation of good morals and other social order, but also in violation of social order by legally forcing it, or attaching social order conditions or monetary consideration to it, and the motive of the juristic act indicated or known to the other party is contrary to social order. However, if the illegal method, which is the coercion in the process of establishing the juristic act, is merely used without any requirement above, it shall not be deemed null and void as a juristic act against social order (see Supreme Court Decision 2000Da47361, Dec. 27, 2002). According to the above facts, even if the contents of the agreement in this case violate good morals and other social order, it is legally compelling, contrary to social conditions, or monetary consideration, it shall not be deemed to be contrary to social order or to be contrary to social order.

(b) Unfair juristic acts;

(1) The unfair legal act stipulated in Article 104 of the Civil Act is established when there exists an objective imbalance between payment and consideration, and subjectively, a transaction which lost balance is established when it was conducted by using gambling, rashness, or inexperience from the affected party. The purpose of the act is to regulate gambling, rash, or influence of the injured party. The requirement for establishing the unfair legal act is not that of gambling, rash, and experience, but that of gambling, rash, and experience, which are only a requirement for establishing the unfair legal act. The term "gambling" refers to an gambling difficulty. It may be based on psychological or psychological cause. Whether the party was in a state of gambling should be determined by comprehensively taking into account all the circumstances such as his status, property status, and the degree of gambling situation (see Supreme Court Decision 98Da82585 delivered on May 28, 199).

(2) In light of the following circumstances: (a) the Plaintiff was aware of the above facts regarding Defendant 7’s management interest and the Plaintiff’s settlement of accounts, and the Plaintiff’s remaining amount of money was 5 billion won for the settlement of accounts; (b) the Plaintiff was not liable for the remaining amount of money due to the Plaintiff’s non-party 1’s settlement of accounts; and (c) the Plaintiff was not liable for the remaining amount of money due to the Plaintiff’s non-party 7’s non-party 1’s non-party 4’s non-party 7’s non-party 1’s non-party 7’s non-party 7’s non-party 7’s non-party 7’s non-party 7’s non-party 1’s non-party 4’s non-party 7’s non-party 1’s non-party 5’s non-party 1’s non-party 5’s non-party 1’s non-party 1’s non-party 3’s non-party 1’s non-party 3’s debt.

(c) Legal act by duress;

Even if the settlement agreement of this case does not constitute an unfair juristic act, in light of the above circumstances, the settlement agreement of this case is deemed to constitute an unfair juristic act by coercion and the fact that the copy of the complaint of this case containing the plaintiff's declaration of cancellation was delivered on April 25, 2007 to the defendant, etc. on the ground that it is apparent in the record that the settlement agreement of this case was delivered to the defendant, etc. on the ground that the fact that the copy of the complaint of this case, including the plaintiff's declaration of cancellation, was delivered on April 25, 2007, is clearly clear, and thus, the settlement agreement of this case was lawfully cancelled.

D. Sub-determination

Therefore, as the plaintiff, the defendant et al., as the duty to restore to the plaintiff, the defendant et al. (the contents of the contract of this case pertaining to the management rights and all transfer of shares of the defendant company, and the defendant et al. received several indivisible rights from the plaintiff according to the contract of this case, and the settlement agreement of this case is executed incidental to the above contract, and the defendant et al. has a close personal relationship with the plaintiff, etc., the obligation to return unjust enrichment owed by the defendant et al. to the plaintiff is indivisible in its nature) under the settlement agreement of this case, and the above amount of KRW 100 million paid by the defendant et al. in accordance with the settlement agreement of this case, the above amount of KRW 30 million paid by the defendant et al. to the plaintiff, and the above amount of KRW 300 million paid by the defendant et al. from April 26, 2007 to August 27, 2009.

4. Conclusion

Therefore, each claim against the Defendants against the Plaintiff is justified within the scope of the above recognition, and the remainder is dismissed as it is without merit. Since part of the part against the Plaintiff in the judgment of the court of first instance differs from this conclusion, it is improper to accept part of the Plaintiff's appeal and revoke it, and order the payment of the above amount. Since the remaining part in the judgment of the court of first instance is legitimate, the remaining appeal by the Plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment List omitted]

Judges Yan Jin-hun (Presiding Judge)