Where a contract is concluded for a right to operate a rest area of an expressway in response to a bid price exceeding three times the appropriate deposit due to the estimated sales on the tender oil offered by the Korea Highway Corporation, the case holding that the cancellation of the contract is recognized on the grounds that there is a motive error in the important part.

If the annual sales of the expressway rest area were to be at least three times the actual sales of the expressway rest area and entered into a lease agreement to operate the said rest area in response to the bid, such mistake would be a kind of motive mistake. However, if the error is based on the estimated sales on the tender bond presented and issued by the Korea Highway Corporation, and the Korea Expressway Corporation provided such motive, and if there was no such motive, it would be more than three times the reasonable deposit would have been offered, the motive would be an important part of the bid and the lease agreement to operate the said rest area. Thus, the relevant motive would have dealt with the important part of the bid and the lease agreement to operate the said rest area. Therefore, the said agreement may be revoked on the ground of

Article 109 of the Civil Act

Jinjin Co., Ltd. (Attorney Go-sung et al., Counsel for the defendant-appellant)

Korea Highway Corporation (Law Office of Dong-dong, Attorney Lee Jin-woo, Counsel for defendant-appellee)

Seoul High Court Decision 96Na38874 delivered on February 19, 1997

Supreme Court Decision 97Da14019 Delivered on July 8, 1997

1. The defendant shall pay to the plaintiff the amount of 315,30,000 won with 25 percent interest per annum from January 4, 1996 to the date of full payment.

2. The costs of lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The primary purport of the claim is the same as the original order.

Preliminary claim: The defendant shall pay to the plaintiff 268,030,500 won with an amount of 250% per annum from the following day to the date of full delivery of a copy of the instant preliminary claim and the instant application for change of cause.

1. Facts of recognition and judgment

A. The following facts can be acknowledged in light of Gap evidence Nos. 1 through 7, Gap evidence Nos. 9-1, 2-2, witness leap, and testimony of a kind of job and fact-finding with respect to the head of the original tax office of this court, and the whole purport of the pleading, and there is no counter-proof.

(1) On August 28, 1995, the Defendant announced a total of 18 rest areas, including but not limited to two rest areas located at a 197km point from Daegu subway point, and the instant rest area; hereinafter referred to as the “instant rest area”), which are scheduled to be newly installed on the central highway, as part of the implementation of a plan for privatization of the right to operate the highway and the gas stations.

(2) According to the tender offer and related data (Evidence 7) that the Defendant issued to the bidder for reference in the bidding as above, the sales amount of 1995 at the rest area of this case shall be estimated to be KRW 3,200,000 (Article 4 of the tender offer), the tender price(s) shall be set at KRW 952,00,000 (Article 7), and the tender price(s) shall be set at KRW 952,00,000 (Article 7). On the other hand, the participant shall pay at least 5/100 of the tender amount in cash or at the bidding registration site by the cashier's cashier's cashier's checks issued by financial institutions, postal service offices, and postal service offices before submitting an application for the participation in the bidding (Article 11), and the successful bidder shall be set at the highest bid price immediately above the average tender amount (Article 16).

(3) A total of 56 companies, including the plaintiff, participated in the above bidding around September 13 of the same year in order to lease the right to operate the rest area of this case. The defendant, on February of the same year, entered into a lease agreement with the defendant on the operation of the rest area of this case for five (5) years from the beginning date of the business where the contract was terminated due to the plaintiff's fault, or the contract was terminated at will, on the 29th of the same month, the bid for the twenty-five (25) rest areas, including the 25) rest areas on the 1993, such as the 193 rest area on the 20th of the 20th of the same month prior to the above bidding, and the bid was made for the above 3,153,300,000 won in trust and adjacent to the 3,1530,000 won in advance, and the bid was made for the above 10,10050 won in advance as the deposit for the lease contract.

(4) As a result of self-inspection of estimated sales on the instant rest area based on the vehicle traffic volume after concluding the lease contract, the Plaintiff determined that there was no feasibility due to the fact that the amount less than half of the amount stated in the bid price was less than KRW 1,500,000,000. The Plaintiff notified the Defendant of the cancellation of the above lease contract and the return of the deposit money for the said lease contract to the Defendant on November 13 of the same year with the intent to waive the operation of the rest area of this case, but the Defendant unilaterally terminated the said lease contract and did not pay the amount to the Defendant for the reason that the said amount was attributed

(5) After the completion of the instant rest area, the Nonparty Highway Management Corporation operates it. The sales amount from January 1, 1996 to March 31, 1996 for the instant rest area, for which Nonparty 1 reported the scheduled value-added tax return for the first time in 1996, is KRW 227,105,000.

B. According to the above facts, the plaintiff entered into an operation right lease agreement with the defendant, knowing that annual sales of the rest area of this case would be KRW 3,200,000,000,000. This error is a kind of motive mistake, but the above mistake is based on the estimated sales of 1995, on the tender note presented and issued by the defendant, and the defendant provided such motive. The motive is that if the plaintiff did not provide such motive, the plaintiff would not be required to make a bid of KRW 3,153,30,000, more than three times the above reasonable deposit. Thus, since the plaintiff would have dealt with the important part of the above bid and the operation right of the lease, the above operation right of this case was lawfully revoked in accordance with the above declaration of intention of cancellation by delivery of a copy of the preparatory document as of April 15, 196.

2. Conclusion

Therefore, since the above lease contract was revoked and retroactively invalidated, the defendant is obligated to pay to the plaintiff 315,30,000 won of the above lease deposit and damages for delay at the rate of 25% per annum from January 4, 1996 to the date of full payment as claimed by the plaintiff, which is clear as the date of delivery of the copy of the complaint of this case. Thus, the plaintiff's claim of this case seeking the performance of this case shall be accepted for the reasons.

Judges Sungmun-mun (Presiding Judge)