(영문) 수원지방법원 성남지원 2016.1.7. 선고 2015가합2351 판결

In the first place, the understanding that the Plaintiff and the Defendant concluded on October 26, 2007 on the promotion of the project, such as the establishment of a charnel house and the use of access roads related to the project for the establishment of a charnel house, is null and void. In the first place, it is confirmed that the Plaintiff and the Defendant did not have any contractual obligation under the Plaintiff’s contract, based on the MOU drafted drafted on October 26, 2007.

Reasons

1. Basic facts

A. On June 23, 2005, the Ministry of Land, Transport and Maritime Affairs established a basic urban planning with the content that the site of the E Graveyard Park located in the area of 656,079m2,341m2 from 656,079m2 to 860,341m2,000m2, and on June 18, 2007, the Sungnam Mayor decided to extend the area of the instant park to 858,341m2 in accordance with the basic urban planning.

B. On October 26, 2007, the Plaintiff drawn up a memorandum of understanding with F as follows (hereinafter “instant memorandum of understanding”).

In order to promote mutual cooperation, G and (tentatively named) Incorporated Foundation B agree to enter into an agreement on the following matters in accordance with the principle of mutual benefits and equality.With respect to two parcels of land outside Sungnam-gu, Sungnam-si, Seoul-si, which are determined as the urban planning facility source for a park cemetery, F, a prop, establishes B, a foundation, and implements projects to establish and operate a charnel house (4,968 square meters of the total floor area of a building), shall not raise any objection, and shall cooperate with all matters necessary for the promotion of projects, such as the use of access roads.This agreement shall enter into force from the date on which the representatives of both corporations sign their signatures. The representative of G (tentatively named) of the Foundation, the Applicant for the Establishment of B, a foundation, who is a foundation, shall be the F (person) of the B (tentatively named

C. On May 29, 2008, the Defendant established a charnel in the park site expanded as above and obtained permission from the Gyeonggi-do Governor for the establishment of an incorporated foundation for the purpose of selling it in lots, and completed the registration of incorporation on June 9, 2008 (F was appointed as the representative at the time of the establishment of the Defendant, but retired on February 3, 2010 and taken office as the head of F, the Defendant’s representative.)

D. On January 15, 2009, the Plaintiff proposed an amendment to the creation plan of the instant park to the Sungnam City Mayor, and requested a amendment to the development plan on July 29, 2009. The Sungnam City made a decision to modify the development plan (hereinafter referred to as the “development plan of the instant case”) with the content that the location of a charnel house in the instant park was changed from 3,520 meters to 2,960 meters, and the total floor area was changed from 9,900M to 8,320 meters, and publicly notified.

E. After that, on October 21, 2009, the Defendant filed an application for the designation of a project implementer and the authorization of an implementation plan for the instant project with the Sungnam City Mayor, which was executed from the 8,097 m of a park site in which urban planning facility project that installs a charnel house, road, etc. is located in accordance with the changed urban planning as above.

F. On December 9, 2009, the Sungnam Mayor: (a) designated the Defendant as a project implementer and added the conditions of authorization at the same time; (b) changed the total floor area from 8,320 square meters to 7,660 square meters; and (c) authorized the implementation plan by setting the project implementation period as until November 30, 2010; (b) on August 31, 2010, issued a disposition revoking the designation of the project implementer and the authorization of the implementation plan (hereinafter “instant disposition”).

G. The Defendant dissatisfied with the instant disposition and filed an administrative litigation via an administrative appeal, and the first instance court (U.S. District Court 2011Guhap3983) rendered a judgment that “the revocation of the instant disposition is revoked.” The appellate court (Seoul High Court 2012Nu10040) rendered a judgment dismissing the said judgment. However, the said appellate court’s judgment was reversed and remanded in the final appeal (Supreme Court 2013Du7025) and rendered a judgment dismissing the appeal in the final appeal (Supreme Court 2013Du7025) on December 24, 2014 (Seoul High Court 2014Nu6205) rendered a judgment dismissing appeal in the male market against the first instance judgment and became final and conclusive in the final appeal on April 9, 2015 (Supreme Court 2015du400).

H. On December 17, 2014, the Sungnam City determined and publicly announced the alteration of the park building plan to create a green facility a total of 772 meters of the J land and the K land, which was scheduled to be developed as a road according to the instant creation plan, in relation to the instant park.

(i) On May 11, 2015, the Plaintiff did not consent to the Defendant to promote a charnel project by a third party, other than F, and the Defendant or F unilaterally promoted a charnel project without a specific agreement to implement the content of the instant memorandum of Understanding, and notified the Defendant or F that the instant memorandum of Understanding has lost its validity on the ground that the content itself does not have any legal binding power.

(j) On June 30, 2015, as the instant disposition was revoked, the Sungnam Mayor issued a disposition to authorize the Defendant to extend the period of implementation of a charnel house by November 30, 2017. On July 20, 2015, the Defendant reported the commencement of construction works on charnel houses, roads, etc. to the Sungnam City Mayor.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence Nos. 1, 3 through 6, 10, 11 (including each number; hereinafter the same shall apply), entry of Eul evidence Nos. 1 through 16, 22, and 25, and the purport of the whole pleadings

2. The plaintiff's assertion

A. The instant memorandum of Understanding is merely a document containing the preliminary understanding of the preparation phase to conclude this contract, and it is not binding, and it can be cancelled or terminated at any time by either party’s intent.

B. F did not have any idea of promoting a charnel project and concluding this contract within the limit of 4,968m of the area of 3,431m of the site as stipulated in the instant memorandum of Understanding from the beginning. Nevertheless, as if there were such intent, F had the Plaintiff’s representative induce H to prepare the instant memorandum of Understanding. The instant memorandum of Understanding was made by F’s deception, and the declaration of intention under the instant memorandum of Understanding is revoked.

C. The instant memorandum of Understanding was prepared on the premise that F established the Defendant and promoted a charnel project, which was changed to the Defendant’s representative, and the Defendant breached its duty under the instant memorandum of Understanding by executing a charnel project beyond the scope specified in the instant memorandum of Understanding. On May 11, 2015, the Plaintiff rescinded or terminated the agreement on the instant memorandum of Understanding on the ground of the violation of the agreement by the Defendant or F.

D. Accordingly, the instant memorandum of Understanding does not have the legal effect from the beginning or has the legal binding force. Even if so, it is sought to confirm its invalidity as it becomes null and void due to its cancellation or cancellation.

3. Determination

A. Legal effect of the MOU of this case

1) In general, a MOU means a document prepared for the purpose of agreements on substantial negotiations for the requirements of a contract at the pre-contract stage, records of trade general clauses, etc., confirmation of the legal system for the future conclusion of this contract, and provisions concerning partial contents of an existing contract or subsequent measures, etc.

Meanwhile, in order for a contract to be concluded, the agreement between the parties is required to be reached, and such agreement is not required with respect to all matters that form the content of the contract in question, but there is a need for a specific agreement with respect to its essential matters or important matters, or at least an agreement with respect to standards and methods that may specify them in the future (see, e.g., Supreme Court Decision 2005Da39594, Nov. 24, 2006). If the above agreement between the parties exists, it is reasonable to deem that the contract is legally binding, regardless of the name of the document.

2) In light of the following facts or circumstances acknowledged by comprehensively taking into account the respective descriptions of evidence Nos. 1, 1, and 4, it is reasonable to deem that the instant MOU has reached an agreement on the essential matters which form the content of the contract or on the standards and methods that can be specified in a specific future, and that it is a legally binding contract between the parties. The Plaintiff’s assertion that the MOU of this case can be freely cancelled and terminated due to its lack of binding force between the parties.

A) The F established the Defendant for the purpose of establishing and operating a charnel in the instant park, and prepared the instant memorandum of understanding in the course of preparation. The Sungnam Mayor permitted the establishment of the Defendant Incorporated Foundation to enter into a memorandum of understanding in order to promote mutual cooperation. In the future, matters concerning the future use of access roads, park cemetery creation plan, etc. shall be jointly consulted and implemented so that civil petitions may not occur. When the Defendant engages in a business other than the purpose, or engages in a violation of the terms and conditions of the permission of establishment or other conduct detrimental to public interest, the permission of establishment shall be revoked pursuant to the provisions of the Civil Act, and after the completion of the establishment of the facility, the implementation of the memorandum of understanding of this case shall be included as the conditions for the permission of establishment of the Defendant.

B) The instant memorandum of Understanding cannot be deemed to have the same meaning as that of the “Written Elimination of Understanding” that the Plaintiff understood the promotion of the Defendant or F’s charnel project and cooperate in the use of roads. In addition, it is difficult to conclude that the instant memorandum of Understanding is scheduled to enter into this contract between the Plaintiff and the Defendant unless the Plaintiff explicitly plans to enter into this contract or states that it excludes the legal binding force. Thus, it is reasonable to deem that the instant memorandum of Understanding does not constitute a “written MOU” within the general meaning, and that the agreement in the instant memorandum of Understanding is a binding agreement between the parties.

C) The instant MOU purporting to allow the Plaintiff to use roads inside and outside the instant park to the extent necessary for the Defendant’s operation of a charnel project in the instant park, and to cooperate necessary for the modification of the park building plan, can be recognized as a final and binding agreement between the parties to the said extent. Even if the parties to a household did not reach a separate agreement to determine the hours of use of a charnel house, matters concerning the management of emotional and emotional sentiments, matters concerning road usage fees, etc., the conclusion does not change.

3) Even if the letter of understanding of this case is merely a document containing the preliminary understanding that the two parties planned to conclude this contract, they are obligated to faithfully negotiate for the purpose of concluding this contract, and if one of the parties violates the above obligation without justifiable grounds, they are liable to compensate for the other party's damage. Therefore, it is legally binding in this sense.

In a case where the parties include the essential contents of the contract in the memorandum of Understanding and either or both of the parties have commenced the implementation in accordance with its contents, it shall be binding upon the parties. As seen earlier, it is reasonable to deem that consultation on matters concerning the use of access roads, park cemetery creation plan, etc., which are the essential contents of the memorandum of Understanding of this case, and the implementation has commenced due to the defendant's permission of establishment. Therefore, even in this regard, the memorandum of Understanding of this case shall

B. Whether the declaration of intention under the MOU of this case has been cancelled or the agreement has been cancelled

In light of the following facts and circumstances acknowledged by Gap evidence 3, Eul evidence 3, 19, 20, and 21 comprehensively considering the purport of the entire pleadings, it is not sufficient to recognize that F deceivings the plaintiff, and there is no other evidence to prove otherwise, the plaintiff cannot cancel his/her declaration of intention under the memorandum of Understanding of this case, and since the defendant cannot be deemed to have breached his/her duty under the memorandum of Understanding of this case, the plaintiff cannot cancel or terminate the agreement under the memorandum of Understanding of this case. Thus, the plaintiff's above assertion premised on this point is without merit.

1) The instant creation plan, as well as a charnel project, has established a detailed plan regarding roads, parking lots, toilets, graves, green areas, and the management offices of the Plaintiff in the instant park. Therefore, if the Plaintiff did not cooperate with the formulation of the instant creation plan, it is deemed impossible to establish the specific plan as above.

2) On October 7, 2008, the Defendant entered into a service contract for the establishment of the instant development plan with respect to the application for authorization and permission and the implementation of administrative procedures with respect to the establishment of the instant development plan, and agreed to establish a development plan. Since then, the Defendant terminated the contract with the Sejong Engineering and entered into a service contract with the H&C Co., Ltd. (hereinafter “L&C”), and formulated the instant creation plan. The Plaintiff also participated in the process of consultation on the formation of the development plan with the S&C through its employees.

3) The instant creation plan was formulated with a size of a charnel project site of 8,097 meters and with a total floor area of 8,320 square meters, and expanded the project site and total floor area compared to the instant memorandum of Understanding. The Plaintiff directly proposed and requested the formulation of the instant creation plan, and, even after the instant creation plan was decided, submitted a written consent to the Defendant’s consent to designate the Defendant as the project implementer for the creation of the instant charnel, etc., on the premise of the instant creation plan. In light of the aforementioned circumstances, the Plaintiff appears to have approved the details of the instant creation plan during the process of the establishment of the instant creation plan and the designation of the project implementer.

4) Although the instant memorandum of Understanding was concluded between F and the Plaintiff, it was stated as “applicant B, an incorporated foundation,” in front of the F name on the instant memorandum of Understanding, and the Plaintiff and F appears to have agreed to succeed to the rights and obligations under the instant memorandum of Understanding when the Defendant was subsequently established. In addition, there is no evidence to support that the Plaintiff and F limited the establishment of a charnel of Charnel on the instant memorandum of Understanding to F, or that the Defendant agreed to invalidate the agreement on the instant memorandum of Understanding when the Defendant’s representative is changed.

5) Inasmuch as it cannot be readily concluded that the instant MOU imposes the obligation on the parties to conclude this contract, even if the Defendant or F did not proceed with a separate agreement procedure to determine the time and time of use of a charnel house with the Plaintiff, matters concerning emotional control, matters concerning road usage fees, etc., it cannot be said that the Defendant or F failed to perform the obligation under the instant MOU.

Even if the letter of understanding of this case is scheduled to enter into this contract, the specific park building plan for the establishment of a charnel at the time of the preparation of the letter of understanding of this case does not have become final and conclusive, and the defendant is able to enter into this contract after being designated as the implementer of a charnel after the completion of the park building plan. In addition, on August 31, 2010, the defendant was subject to the disposition of cancellation on August 31, 2010, by filing a revocation lawsuit against this case and filed a revocation lawsuit against this case on April 9, 2015, and could not be known that the defendant could not proceed with the negotiations for the establishment of this contract with the plaintiff on June 18, 2015, which is about two months after the revocation lawsuit against the disposition of this case became final and conclusive. Accordingly, the defendant cannot be said to have been able to enter into this contract due to the reason that the defendant did not perform its obligation on the part of this case.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.