2013 Gohap 40813 Claim for the Payment upon Termination

Nonghyup Bank Inc.

1. Korea;

2. The Busan National University of Law;

December 17, 2014

January 7, 2015

1. Defendant Republic of Korea shall pay to the Plaintiff 43,917,803,110 won as well as 41,194,015,267 won per annum from October 11, 2012 to the day of complete payment, and simultaneously pay to the Plaintiff 43,917,803,110 won per annum.

2. The plaintiff's remaining claims against the defendant's Republic of Korea and the claims against the defendant's Association of Busan National University are dismissed, respectively.

3. Of the costs of lawsuit, 1/2 of the portion arising between the Plaintiff and the Defendant Republic of Korea is assessed against the Plaintiff, and the remainder is assessed against the Defendant Republic of Korea, and between the Plaintiff and the Defendant Busan National University Association.

4. Paragraph 1 can be provisionally executed.

The Defendants jointly and severally pay to the Plaintiff 43,917,803,110 won and 41,194,015,267 won among them shall be paid 18% per annum from October 11, 2012 to the delivery date of a copy of the instant complaint, and 20% per annum from the next day to the day of full payment.

1. Basic facts

(a) Establishment and public announcement of a master plan for public-private partnership facilities projects;

1) On December 7, 2005, the president of the Busan National University was designated by the former Ministry of Education and Human Resources Development as the competent authority in charge of the establishment and operation of the FOI of the FO Cultural Center of Busan National University (hereinafter “instant project”).

2) On December 21, 2005, the president of the Busan National University, on the basis of the Act on Private Participation in Infrastructure (hereinafter “Private Investment Act”), established and publicly announced a master plan for the establishment and operation of the Korea National University Culture Center (hereinafter “the master plan of this case”). On March 17, 2006, the president of the Busan National University, on the basis of the Act on Private Participation in Infrastructure (hereinafter “Private Investment Act”), selected as priority negotiation partners and concluded a concession agreement for the establishment, operation, and management of the Korea National University Culture Center (hereinafter “the concession agreement of this case”).

B. The main contents of the instant concession agreement concluded with the head of Busan National University on June 1, 2006 by the president of Busan National University are as follows.

-Article 6 (Reversion of Facility Ownership, etc.)

(1) The ownership of the facility shall revert to the competent authority upon completion of construction, and the competent authority shall grant the concessionaire the rights and legal status of the concessionaire under this Convention, at the same time as completion of construction. The total project cost under Article 12 (Total Project Costs and Total Private Investment Costs) shall be KRW 99,976,000,000, the total private investment cost shall be KRW 110,446, and the details thereof shall be as specified in attached Table 3. The total private investment cost other than the total project cost may be adjusted by the concessionaire in consultation with the competent authority.

Article 46 (Non-Financial Support)

(4) The competent authority shall actively cooperate with a project operator and a lender with regard to the conclusion of a loan agreement (including a re-loan agreement) necessary for the execution of the principal project, the execution of loan, the management of loan, etc.

Article 48 (Grounds for Disqualification of Project Implementer and Management thereof)

1. The following reasons are recognized as reasons attributable to the project operator in the interpretation of this Convention: 2. In the event of failure to perform the obligations of the project operator under this Convention without any justifiable reason or in the event of defective construction of the project facilities:

3. Where a bankruptcy is declared against a project operator by a final judgment of a court;

5. Where the project implementer fails to commence construction works within the period specified in the implementation plan, or where the implementation of the project is considerably delayed compared to the schedule of the scheduled process after the commencement of the construction works;

Article 53 (Termination of International Convention) (1) - Where any cause attributable to a concessionaire prescribed in Article 48 occurs, the competent authority shall cancel this agreement in writing and may cancel the designation of the concessionaire or cancel the management and operation rights and take other necessary measures, such as cancelling the designation of the concessionaire pursuant to the Private Investment Act.

Article 54 (Payment Method of Payment at Time of Termination) (1) The competent authority shall pay to the project implementer the terminated payment calculated under Article 55 (Determination of Contract Price of Termination and Purchase) of this Convention: Provided, That if the project implementer has any outstanding principal and interest on the date of termination among the amounts raised under the loan contracts, which are concerned, as of the date of termination, the competent authority may directly pay such unpaid principal and interest to the creditor under the loan contracts (which shall be included). If the payable amount at the time of termination is not paid within 30 days from the date of calculation of the terminated payment, the competent authority shall pay the unpaid amount by adding an amount calculated by multiplying the agreed interest rate under the loan contracts with the financial institution from the day following the expiration of 30 days from the date of calculation

(2) The competent authority may set off the amount to be paid by the concessionaire under this Convention and the amount to be paid by the concessionaire, in addition to the offset rights which may be held under related Acts and subordinate statutes or otherwise, after notifying the project executor

Article 55 (Determination of Payment at Time of Termination and Purchase Price)

(1) The parties to the agreement shall determine the time limit of termination in accordance with the attached Table 5 (Advanced Payment) by agreement within 30 days from the effective date of the termination.

(2) Where an agreement under paragraph (1) is not reached, a specialized institution shall be designated by the agreement between the parties to calculate the temporary payment for termination.

Article 56 (Effect at Time of Termination of Convention)

(1) If this agreement is terminated in accordance with the provisions of Article 53, the project facilities shall immediately belong to the competent authority at the time of termination, the project operator’s rights, powers, etc. and the period for the establishment of management and operation rights shall also be terminated.

(2) If the competent authority decides to succeed to a contract to which the concessionaire is a party, the concessionaire shall take all necessary measures to ensure that succession to the contract is made to the competent authority within the reasonable period as soon as possible. If it is not referred to arbitration by agreement of the parties to the Convention under Article 61 (Settlement of Disputes), the agreement on the dispute under this Convention shall be

Article 65 (Modification of Instruction for Proposal)

Matters not otherwise provided for in this Convention shall be governed by the provisions of relevant Acts and subordinate statutes, such as public-private partnership, and the instruction for proposal, and matters different from the instruction for proposal in the contents of this Convention shall be deemed to have been modified in accordance with

§ 66 (Change of Convention) (1) This Convention shall only be amended or supplemented by a written agreement signed (or signed and sealed) by the parties to the Convention.

The management and operation rights under attached Table 5 (Termination Payment) during the period of the establishment of management and operation rights not to be calculated on the basis of the depreciation amount of the speculative private investment fund and the current amount of future profit, but the payment level shall be calculated by differentiated by reasons attributable to it.

* Payment in addition to the sales tax imposed on the termination payment by Government

A person shall be appointed.

The balance of the agreed redemption account for the interest on construction deducted from total private investment expenses: Depreciation of the donated private investment fund by the fixed rate method with the content of the establishment period of management and operation rights (30 years) for the management and operation right for the donated private investment fund.

(c) Conclusion of loan agreements with a project implementer;

1) In order to raise funds necessary for the instant project, F&C Co., Ltd. (hereinafter referred to as “F&C”), which is a project implementer, was loaned KRW 40 billion on March 21, 2007, with an interest rate of KRW 7.5% per annum from one Capital Co., Ltd. on March 21, 2007 and on March 21, 2010, respectively (hereinafter referred to as “instant loan agreement”).

2) Since F&C began with the instant project and completed the construction of the building listed in the separate sheet on February 5, 2009 (hereinafter “instant building”). On February 16, 2009, F&C obtained approval for the use of the instant building from the head of the Busan National University, and obtained the right to manage and operate the instant building on April 2, 2009.

3) F&C was unable to repay the principal amount of KRW 40 billion and interest until March 21, 2010, which is the due date of the original loan agreement of this case. In order to solve this problem, F&C, the head of the Busan National University and F&C, a competent authority, had been seeking a new lender to lend KRW 40 billion, which was in progress with the Plaintiff around June 2010.

(d) Conclusion of modified loan agreements, etc.;

1) On October 14, 2010, the Plaintiff entered into a modified loan agreement on the establishment and operation of the Korea Development Bank of Busan National University (hereinafter referred to as the “instant loan agreement”) with the Korea Development Bank of Korea on October 14, 2010 (hereinafter referred to as the “Korea Development Bank”). In acquiring the instant previous loan agreement, the Plaintiff provided F&C loans at a rate of 40 billion won at an annual interest rate of 8.4% by paying 40 billion won to one Capital Co., Ltd. while taking over the instant previous loan agreement. The key contents of the instant loan agreement are as follows.

-The Borrower shall pay interest calculated at a fixed interest rate for the Loan every six months (6) months from the date of the completion of the transfer agreement (including interest, overdue interest and fees) to the full repayment of the amount withdrawn from the date of the full repayment of the loan. If the Borrower in Section 2 (Late Interest) fails to repay or pay all or part of other obligations, such as the principal, interest, fees, etc. of the Loan due (including due date, loss of due interest or other reasons) due and due under this agreement and any other finance-related contract, the Borrower shall pay interest calculated at the interest rate of 18% (18%) per annum for the period from the following day of the due date until the full payment of the amount due (including the due date) to the due date (12 (Reasons for Default).

The causes falling under any of the following subparagraphs under this Agreement shall constitute the causes for nonperformance:

(a)Paragraph 2 ( Results of Default) of this Agreement, a funding contract, a security contract to which the borrower is a party, and any other amount payable under the finance-related contract is not paid on the date of payment;

(A) If any of the above causes for default occurs, the agency may take the following measures in accordance with the written instruction of the lender:

An acting financial institution may, by notifying the borrower, declare that the principal and interest of loans and all amounts to be paid by the borrower to the lender and the acting financial institution under this Agreement are due and payable immediately because the borrower has lost the benefit of time.

2) At the time of the instant loan agreement, the Plaintiff focused on securing the principal and interest of loan at Busan National University, and, based on the instant concession agreement on October 14, 2010, the Plaintiff drafted an agreement on the amendment of the concession agreement (additional) regarding the construction and operation of the Korea National University Culture Center and the BTO Private Investment Project, which was established by the Busan National University on October 14, 2010. The Plaintiff, the head of the Busan National University, the head of the Busan National University, and the F&C, based on the instant concession agreement and the instant amendment (additional) agreement (Additional) agreement regarding the construction and operation of the Korea National University Culture Center and the instant BTO Private Investment Project (hereinafter “the instant secondary supplementary agreement”).

3) The terms of the concession agreement (additional) agreement and the second supplementary agreement in this case are as follows.

The Convention on the Amendment of the concession agreement: With respect to the detailed methods and procedures for the payment of Articles 46 (Non-Financial Support) and 55 (Determination of Method of Payment and Purchase Price at Time of Termination) of the execution cooperation agreed to actively cooperate if necessary in connection with the conclusion of a loan contract (including a re-loan contract) between a project operator and a lender, the execution of loan, management of loan, etc. by the lender, the competent authority may make an agreement separate from the concessionaire and the lender (or the acting financial institution of the lender) to make such agreement.

Matters concerning early termination under Article 53 of the concession agreement of Article 3 of the second supplementary agreement

(1) If the lender has notified the competent authority in writing of the occurrence of the event of default stipulated in the gold loan agreement, the cause for the occurrence of the event shall be deemed to have occurred under the concession agreement at the time of receipt of such notification by the competent authority, and accordingly, the competent authority may terminate the concession agreement: Provided, That if the concession agreement is not terminated by 30 days after the receipt of the notification by the said lender (hereinafter referred to as the “period for exercise of the right of termination”), the concession agreement shall be deemed to have been terminated on the date of exercise of the right of termination.

(2) Notwithstanding the provisions of paragraph (1), where the competent authority and/or the concessionaire proposes to the lender the repayment of the principle of loan under the lending agreement, such as the presentation of alternative concessionaire, the financial support plan of the competent authority and/or the presentation of a new financing structure, etc., and the lender consents thereto, if the consent of the lender is made within the above period, the concession agreement shall be deemed not to have been terminated, and if it is made after the above period, the effect of the terminated concession agreement shall be deemed to have been retroactively restored.

(3) Where the concession agreement is terminated, the competent authority may succeed to the rights, obligations and status (including the obligation to return the lease deposit) of the concessionaire as a lessor for the lessee of the facilities subject to the project without taking any separate measures, and where succession is made, the competent authority shall become effective upon notification to the concessionaire by the concessionaire.

Article 4 Matters concerning the payment of the payment for earlier termination under Article 54 of the concession agreement

2.(1) If the concession agreement has been terminated pursuant to the provisions of this Agreement and/or the concession agreement in the condition that the outstanding principal and interest of the concessionaire under the loan agreement remains as of the date of termination of the contract, the competent authority shall recognize that the lender is a person with the authority to apply the payment at the time of termination in the first order of priority in light of the order of mortgage on the management and operation rights, and accordingly pay the payment at the time of termination calculated pursuant to this Article and Article 55 of the concession agreement to the account in the name of the concessionaire specified in the loan agreement. The lender may appropriate the payment at the time of termination in accordance with the loan agreement for the repayment of the outstanding principal and interest of the loan, and the concessionaire shall not raise any objection against the matters directly paid to the lender by the competent authority without any condition.

(2) The competent authority shall exclude the offset under Article 54(2) of the concession agreement against the competent authority under Article 54(2) of the relevant Acts and subordinate statutes and the concession agreement, if the payment of the terminating payment to the lender is appropriated for the repayment of the outstanding principal and interest of the loan to the lender due to the payment at the time of termination of the contract.

(3) In making the payment upon termination under this Article 2, 1 and 2, the competent authority shall make the payment upon termination within 30 days from the date of termination of the concession agreement under Article 3 (1).

When the concessionaire terminates the concession agreement pursuant to this Agreement and the concession agreement pursuant to the concession agreement in order to secure the secured obligation to the lender of the concessionaire under the loan agreement, the concessionaire shall establish a neighboring pledge for the lender against the claim for the payment at the time of termination to be paid by the competent authority. In such cases, the amount of the secured obligation of the said neighboring pledge shall be the amount payable at the time of termination, and the competent authority shall conclude this agreement and obtain a fixed date under this agreement in lieu of the consent for the establishment of the said pledge right.

4) On September 28, 2009, the president of the Busan National University prepared a written confirmation (hereinafter referred to as the "written confirmation") with the consent of the board of directors of the Busan National University on October 14, 2010 in order to secure the principal and interest of the Plaintiff. The main contents of the confirmation are as follows. - With regard to the application and interpretation of Article 4(2) of the Supplementary Project Arrangement, the right to offset, which is stipulated to be excluded from offset under Article 4(1) of the offset, includes the right to offset related to the rental deposit, such as small amount lease deposit, related to the instant business.

3. In the event that it is not possible or delayed to pay the payment at the time of termination to the lender under Article 4 of the Supplementary Project Agreement, the competent authority may confirm that the payment at the time of termination to the budget of the Government is to be made within the time limit set forth in Article 4-2 of the Supplementary Project Agreement with the own budget of the Busan University.

(d) Termination of a concession agreement due to delay in payment of interest of EffC;

1) On April 16, 2012, the fourth payment date under the instant loan agreement, F&C paid only KRW 270,631,078, out of the amount of KRW 1,684,601,740 as agreed upon on April 16, 2012, the Plaintiff issued to Busan University the “Notice of the occurrence of the cause of the nonperformance of the instant concession agreement or the creation of the creation of the funding plan” on the grounds of Article 12 of the instant loan agreement and Article 3(1) and Article 3(2) of the instant second supplementary agreement.

2) On May 17, 2012, the head of Busan National University and Korea Development Bank C&C did not present a plan to repay the principal and interest of loan until May 17, 2012 after the lapse of 30 days from the date of receipt of such notice to the Plaintiff, and on May 18, 2012, the management of the investment trust, which is the Plaintiff’s agent financial institution, was terminated of the instant concession agreement pursuant to Article 3(1) of the 2nd Supplementary Arrangement, ② shall calculate the termination amount pursuant to Article 4 of the instant concession agreement and the 2nd Supplementary Arrangement, and notify the Korea Investment Trust, a representative financial institution, of the payment of the outstanding principal and interest of K&C by June 18, 2012. ③ When the payment of the principal and interest of K&C is impossible or delayed at the time of termination, the Plaintiff has the right to directly pay the outstanding principal and interest of K&C at the time of termination.

3) After the notice of termination, the president of the Busan National University submitted data on June 20, 2012 on the measures to resolve the cause of nonperformance, but the Plaintiff did not consent thereto.

[Reasons for Recognition] Facts without dispute, Gap's 1 through 11, 14, 15, 17 through 22, Eul's entries and the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

Since F&C did not perform its obligation under the instant loan agreement and the Plaintiff notified the Defendants that the instant concession agreement was terminated, the instant concession agreement was terminated due to the cause attributable to F&C, the concessionaire. Therefore, the Defendants are jointly and severally liable to pay the Plaintiff the principal and interest of the loan and the damages for delay to the Plaintiff, who is a pledgee, within the scope of the amount payable at the time of termination.

B. Determination

The following facts are as seen earlier:

(1) In the event that F&C does not pay the interest of the instant loan agreement at the due date, it constitutes a cause for nonperformance as stipulated in the instant loan agreement. In the event that the Plaintiff notified the head of Busan National University of the occurrence of a cause for nonperformance as stipulated in the instant loan agreement, the president of Busan National University determined that F&C may terminate the instant concession agreement by deeming that F&C’s cause for nonperformance as stipulated in the instant loan agreement occurred to F&C as at the time of receipt

② In the second supplementary agreement of this case, the instant concession agreement was concluded to be terminated on the date of fraud on which the termination right was exercised unless the concession agreement was terminated by 30 days after the date when the president of Busan National University received the Plaintiff’s notice (hereinafter “the date when the right of termination was exercised”).

③ Upon the termination of the instant concession agreement, the president of the Busan National University agreed to calculate the amount of termination payment and notify the Plaintiff of the amount of termination payment calculated pursuant to Article 55 of the instant concession agreement and the calculation method thereof.

④ In the event the instant concession agreement is terminated with the existence of the principal and interest of the instant loan agreement, the president of the Busan National University recognized that the Plaintiff was the first right holder with respect to the payment upon termination and agreed to pay the payment upon termination directly to the Plaintiff.

In addition, there was a cause for nonperformance as stipulated in the loan agreement in this case due to the KNWC’s failure to pay the interest agreed to the Plaintiff on April 16, 2012. The Plaintiff’s notification to the President of Busan National University on the same day that the cause for nonperformance occurred, and the President of Busan National University did not terminate the concession agreement in this case until 30 days have passed from the date of receipt of the notification.

According to the above facts, the concession agreement of this case was terminated by the second supplementary agreement of this case on May 17, 2012 after the lapse of 2012, 4, 16, and 30 days from May 17, 2012, which was notified by the president of the Busan National University of the occurrence of a cause for non-performance stipulated in the loan agreement of this case. Accordingly, the Defendants are obligated to pay to F&C the termination payment as stipulated in the concession agreement of this case, and the amount equivalent to the principal and interest of non-payment of the loan agreement of this case out of the termination payment is obligated to pay directly to the Plaintiff pursuant to the second supplementary agreement of this case.

3. The defendants' assertion

A. The assertion that the second supplementary agreement of this case was not the concession agreement

According to Article 2 subparagraph 6 of the Private Investment Act, the concession agreement refers to the contract between the competent authority and the person intending to conduct the private investment project on the terms and conditions for the implementation of the concession agreement. Thus, the second supplementary agreement between the competent authority and the third party including the lender, other than the lender, does not constitute the concession agreement as provided in the Private Investment Act. The building of this case shall be managed and operated in accordance with the concession agreement (Article 24 of the Private Investment Act). The second supplementary agreement of this case cannot be determined on the management and operation of the building of this case because it does not fall under the concession agreement. Thus, the second supplementary agreement of this case is invalid even if it is newly determined on the termination of the concession agreement.

B. According to the second supplementary agreement in which the competent authority becomes null and void due to lack of discretion on the competent authority for early termination of the concession agreement, if the lender notifies the competent authority of the occurrence of the nonperformance of the obligations stipulated in the loan agreement in this case, the competent authority shall terminate the concession agreement in this case within 30 days. If the competent authority does not terminate the concession agreement within 30 days, the concession agreement shall be automatically terminated and the competent authority shall not have discretion on the termination of the concession agreement. The second supplementary agreement in this case, which provides for the deprivation of discretion of the competent authority on the termination of the concession agreement and the termination of the concession agreement by the will of the lender, shall not be effective in light of the purport of the provisions of the

(c) The assertion that it is invalid in violation of the Enforcement Decree of the Private Investment Act.

According to Articles 22(2) and 23(3) of the Enforcement Decree of the Act on Private Participation, the grounds for amending the concession agreement are limited. The instant secondary supplementary agreement is concluded to secure loans when the concessionaire receives a loan to use it for the scheduled project cost or operating expenses to be borne entirely by the concessionaire. Therefore, the instant secondary supplementary agreement is null and void as it does not constitute a ground for amending the concession agreement under the Enforcement Decree of the Act on Private Participation, even though it does not have any ground for amending the concession agreement under the Enforcement Decree of the said Act.

(d) The assertion that it is null and void in violation of the instruction for proposal.

On December 21, 2005, the competent authority specified the fact that there was no financial support from the State or Busan University while establishing and publicly announcing the instant master plan. The instant secondary supplementary agreement is null and void by including the content of transferring the burden of total project cost and operating expenses to the Defendant Republic of Korea.

E. The second supplementary agreement on the assertion that the act of breach of trust actively participated and invalid constitutes an act of acting as an agent in breach of trust against the Defendants by the president of Busan National University, and also the Plaintiff, the other party to the agreement, knew or could have known such circumstances, and thus, the second supplementary agreement is null and void in light of Article 107 of the Civil Act.

F. In light of the Administrative Procedures Act, in order for the claim that the concession agreement was not terminated to be terminated earlier, an administrative disposition should be taken to cancel the designation of the concessionaire with respect to F&C, and such administrative disposition should be taken in writing, and the reasons for the disposition should be specified. However, since the Republic of Korea did not take an administrative disposition to cancel the designation of the concessionaire with respect to F&C, the concession agreement of this case was not terminated.

G. The assertion that the advance payment upon termination is groundless by law.

The National Finance Act, the State Property Act, the Commodity Management Act, and the Act on Contracts to Which the State is a Party provide for strict procedures such as obtaining a resolution or consent from the National Assembly when the Republic of Korea assumes an act of assuming obligations or bears a guaranteed obligation. However, there is no content related to the advance payment upon termination (which is based on the right of purchase) under the Private Investment Act and the Enforcement Decree thereof. Accordingly, there is no legal basis for the advance payment upon which the Plaintiff seeks payment to the Republic of Korea

H. The subject of the payment upon termination is the subject of the payment upon termination under the instant concession agreement, not the Defendant Republic of Korea, but the competent authority. As such, Defendant Republic of Korea is not obliged to pay the termination upon termination to the Plaintiff.

4. Judgment on the defendants' assertion

A. Determination as to the assertion that the second supplementary agreement of this case was not the concession agreement

The concession agreement means the contract between the competent authority and a person who intends to conduct a private investment project concerning the conditions for the implementation of the project (Article 2 subparagraph 6 of the Private Investment Act), and infrastructure created or installed by a private investment project shall be managed and operated in accordance with the concession agreement.

(Article 24 of the Private Investment Act). Therefore, the management and operation of the building of this case should be determined by the concession agreement, and the matters concerning the termination of the second supplementary agreement of this case concerning the management and operation of the building of this case shall be determined by the concession agreement, since they are matters concerning the management and operation of the building of this case.

Therefore, the following facts are acknowledged in light of each of the statements in Gap evidence Nos. 1, 3, and 4 as to whether the second supplementary agreement of this case constitutes a concession agreement.

① At the time of the conclusion of the instant concession agreement, the head of Busan National University and Eff&C, the concessionaire, who is the competent authority, agreed to amend the concession agreement in accordance with the written agreement signed by the competent authority and the concessionaire (Article 66(1) of the concession agreement).

On October 14, 2010, with respect to the detailed methods and procedures, etc. of the matters related to Articles 46, 54, and 55 of the concession agreement, the competent authority and KAWC prepared in writing an agreement on the amendment (additional) of the concession agreement, which includes that "it may be implemented by entering into an agreement separate from the concessionaire and the lender (and the lender's financial institution)" and signed each of them.

According to the above facts, at the time of conclusion of the instant concession agreement, the agreement was concluded on the procedure of amendment on the premise that the contents of the concession agreement can be modified, and the agreement was prepared on the basis of such agreement that the lender may participate on the basis of the agreement, and accordingly, the second supplementary agreement in which the lender participated was prepared on the basis of the agreement. Thus, the second supplementary agreement in this case becomes the content of the concession agreement regardless of its name.

Therefore, this part of the defendants' assertion that the second supplementary agreement of this case is not a concession agreement and thus violates Article 24 of the Public-Private Partnerships Act is without merit.

B. Determination on the assertion that the termination of the concession agreement is null and void by deprived of discretion

In full view of the overall purport of the pleadings in evidence Nos. 1, 3, and 4, where a lender notifies the competent authority in writing of the occurrence of a cause for non-performance as prescribed by the loan agreement of this case, the competent authority may terminate the concession agreement at the time of receipt of such cause for non-performance, and where the concession agreement is not terminated within 30 days from the date of receipt of the notification of the lender, the competent authority may acknowledge the fact that the concession agreement was terminated on the date of exercise of the right (However, the same shall not apply where the competent authority or the concessionaire proposes to the lender a plan for repayment of the principal and interest of loan or for recovery of the cause for non-performance of the obligation, and the lender consents thereto).

According to the above facts, if the concessionaire fails to perform his obligation to the lender, the concession agreement in this case is terminated regardless of the intention of the competent authority, unless the lender reaches an agreement on the recovery plan for the cause of default. In this case, if the competent authority is deprived of discretion to decide whether to terminate the concession agreement, it can be seen that such agreement is null and void, and the concession agreement in this case is close to the administrative contract, and the agreement on the termination and termination payment due to the reasons attributable to the concessionaire is basically a judicial nature, as the agreement on termination due to the default under the Civil Act and the settlement agreement or the liquidated amount of damages due to the reasons not falling under the grounds for invalidation as prescribed by the Acts and subordinate statutes. Thus, it cannot be deemed null and void on the sole ground that it is disadvantageous to one party (if the concessionaire fails to pay the principal and interest of the loan agreed to the lender, and causes for default as prescribed by the loan agreement in this case have occurred, such circumstance becomes worse. However, if the financial status of the concessionaire becomes worse, even if the competent authority has no discretion to cancel the concession agreement, it seems null and void.

Article 22(2) of the Enforcement Decree of the Public-Private Partnerships Act provides that the total project cost stipulated in the concession agreement may be modified, and Article 23(3) of the Enforcement Decree of the Public-Private Partnerships Act provides that if a concessionaire allows another person to use infrastructure facilities, the user fee to be paid to him/her may be adjusted. The second supplementary agreement of this case is null and void on the ground that the concessionaire entered into an agreement necessary for securing the claim of the lender’s principal and interest of the loan when entering into the loan agreement of this case, and it is not an agreement on total project cost or user fee stipulated in Articles 22(2) and 23(3)

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

D. Determination on the assertion that the invalidation is null and void in violation of the instant basic plan

Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 1, 4, and Eul evidence Nos. 1, the basic condition of May 1, 1 of the instant basic plan provides only the project site at Busan University and the project implementer constructed the instant building at his own expense and recover the investment cost from the management and operation ability granted to the project implementer. Thus, the State or Busan University does not provide financial support, such as operational revenue guarantee. In addition, if it is inevitable for the management and operation period due to the change of the plan, natural disaster, etc. of the Busan University, the project implementer’s compensation for the investment cost is determined through mutual consultation in consideration of the investment cost, depreciation, and remaining value of the facility. According to Article 4(1) of the instant secondary supplementary agreement, if the concession agreement is terminated due to reasons other than the project implementer’s causes (such as government liability, force majeure, etc.), the competent authority agreed to adjust the responsibility to pay the outstanding loan at the time of termination and to reimburse the shortage.

In light of the above facts, the provision on early termination and termination payment under the second supplementary agreement of this case cannot be deemed to have violated the basic plan of this case. Even if the amendment of the basic plan constitutes a violation thereof, the basic plan of this case can be amended under the concession agreement of this case (Article 65). The second supplementary agreement of this case also includes the contents of the concession agreement of this case as seen earlier. Thus, the second supplementary agreement of this case cannot be deemed to be null and void because some of the contents of the second supplementary agreement of this case differs from the contents of the basic plan. Rather, the basic plan of this case is deemed to have been modified in accordance with the concession agreement.

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

E. The allegation that the act of breach of trust was null and void - The defendant Busan National University, the already established person's expression of intention not to be the representative and the other party's actual intent was in breach of trust for his own interest or a third party's interest against his own interest or will, even if the other party knew or could have known that the other party's act was in breach of trust, the principal does not bear any responsibility for the act of the representative under the analogical interpretation of the proviso of Article 107 (1) of the Civil Act. Whether the other party knew or could have known that he was not the intention of expressing the representative's intention should be reasonably determined based on objective circumstances (see Supreme Court Decision 98Da39602 delivered on January 15, 199), and the process of forming the expression of intention between the representative and the other party's expression of intention, the contents thereof, and the effect that the other party appeared as a result of the expression of intention, and each of the following facts is acknowledged in full view of the purport of the entire pleadings

① At the time of the instant concession agreement, the Defendant was the subject of the payment for the termination of the contract, but the Defendant Busan National University also became the subject of the payment for the termination of the contract by the second supplementary agreement and the confirmation document of the instant case.

② The Plaintiff, the lender, due to the instant secondary supplementary agreement, issuance of confirmation certificate, and resolution of the board of directors of the Defendant Busan National University, has the right to terminate the concession agreement even if the Plaintiff is not a party to the concession agreement, and the Plaintiff acquired the right to preferentially pay the entire principal and interest of the instant case with the payment at the time of termination when the concession agreement is terminated.

(3) The Busan National University established the purpose of Busan National University is to contribute to the improvement of educational environment by subsidizing the expenses required for the expansion of urgent educational facilities, school operation, etc. which can not be resolved at the expense of the founder of the university. The purpose of the Association is to supplement and expand the insufficient facilities of the school, to support the research expenses of the school staff, to operate the school and to support the expenses necessary for the operation and educational activities of the school. It is an organization with unique interest, separate from the Busan National University and the

④ The Busan National University Association is not a party to the instant concession agreement and loan agreement, but is not a direct interested party.

⑤ In fact, it is difficult to deem that the Defendant and the Busan National University’s clan established with the Republic of Korea to pay the advance payment for termination with the Defendant’s Republic of Korea to guarantee the Defendant’s obligation of loans to the Plaintiff of F&C, which is the project implementer. This is in line with the purpose or interest of the Committee on the Establishment of Busan National University.

(6) If the working group of the defendant Busan National University pays money exceeding 40 billion won at a time, it seems that the working group of the defendant Busan National University should divert the existing budget, or reduce or discontinue any project that is being promoted or intended to be promoted, considering the size of the project and the characteristics of the accounting of the working group.

According to the above facts, the conclusion of the second supplementary agreement of this case constitutes an act of acting as an agent in breach of trust with the defendant's University and the defendant's Association. In addition, considering the overall purport of the arguments in the evidence Nos. 20, 33, 39, 56, 142, and 168 of this case, it is recognized that the contents of the second supplementary agreement of this case are the same as the contents of the second supplementary agreement of this case, and that if the Republic of Korea delays the payment of the payment of the payment at termination, it is recognized that the plaintiff was made at the request of the plaintiff, and the plaintiff was aware or could have known of the act of acting as an agent in breach of trust with the defendant's Federation of the Busan National University.

Therefore, the second supplementary agreement and written confirmation of this case constitute an act of acting as an agent in breach of trust by the president of the Busan National University, and also the plaintiff was aware of such circumstances. As such, among the second supplementary agreement and written confirmation, the agreement to bear the payment upon the termination of the contract is null and void.

Therefore, this part of the argument is with merit.

F. The assertion that the act of breach of trust is actively taken part and null and void - In full view of the following facts, the following facts are acknowledged, taking into account the following facts: (a) Defendant Republic of Korea, as the principal agent operating the Busan National University, acquired the ownership of the newly constructed light sports hall, 12 engineering hall, and sufficiently sufficient underground parking lot (as a result of appraiser A’s appraisal conducted by this court upon the Defendant’s request for appraisal), the construction cost calculated based on the design plan is approximately KRW 62.5 billion, approximately KRW 22.1 billion, KRW 22.1 billion, KRW 8.4.6 billion, and KRW 8.4 billion, the Plaintiff’s right to early cancellation was immediately extinguished, etc.

② Since Defendant Republic of Korea was in the position to be liable for the payment upon termination under the instant concession agreement from the beginning, it did not assume the obligation to pay the payment upon termination of the contract anew under the instant secondary supplementary agreement (the provision on the payment upon termination is also included in the annual plan formulated by the Minister of Strategy and Finance in accordance with Article 7 of the Public-Private Partnerships Act and Article 5 of the Enforcement Decree thereof). In addition, from the time when the first concession agreement was concluded on June 1, 2006, there was an agreement that the competent authority may directly pay the payment upon termination to creditors under the loan agreement of the concessionaire.

(3) Since 2008, K&C continued capital erosion, in 2009, total capital was KRW 6.982 billion. On March 21, 2010, if the instant loan agreement was not made, it would have been practically impossible to continue the business since that time, and Defendant Republic of Korea would have been requesting the head of Busan National University to terminate the instant concession agreement on August 3, 2010 (the agent financial institution of the instant previous loan was requesting the head of Busan National University to pay the termination of the instant concession agreement). Accordingly, Defendant Republic of Korea, despite the fact that the payment period for the termination of the instant loan agreement was postponed for about 2 years due to the instant loan agreement, has been reduced to the termination of the instant loan agreement at around 14 billion won due to the Plaintiff’s non-performance of its discretionary authority’s exercise of discretionary authority. However, the Plaintiff’s management and operation of the instant loan agreement at the end of the instant agreement, however, did not have been recognized as a set-off by the competent authority.

In light of the fact that it is difficult to see that the right to intervene by the lender to exercise the right to terminate the contract under certain conditions, such as the nonperformance of the obligation by the project implementer, is legally prohibited, and that it is difficult to see that the conclusion of the instant secondary arrangement is an act of acting as an agent in breach of trust against the Defendant Republic of Korea. Therefore, this part of the allegation by the Defendant Republic of Korea is without merit.

In full view of the purport of the arguments, evidence No. 1 of the instant concession agreement provides that "the competent authority may cancel the instant agreement after notifying the concessionaire in writing, and take necessary measures, such as cancelling the designation of the concessionaire or cancelling the management and operation rights, pursuant to the Private Investment Act." According to the above facts, upon entering into the instant concession agreement, the agreement was concluded separately for the cancellation of the concession agreement and the cancellation of the designation of the concessionaire or the establishment of management and operation rights, which are administrative disposition under the provisions of the Private Investment Act, at the time of entering into the instant concession agreement. Thus, the Defendant Republic of Korea’s above assertion on the premise that the termination of the concession agreement itself constitutes administrative disposition is without merit (According to the Defendant Republic of Korea’s assertion, despite the fact that Article 53(2) and (3) of the instant concession agreement provides for the cancellation of termination by the concessionaire and the cancellation by both parties due to other causes, it is concluded that the concessionaire did not terminate the concession agreement and only Defendant Republic of Korea has the right to cancel the concession agreement. Therefore, the above assertion by Defendant Republic of Korea

H. Determination as to the assertion that there is no resolution or consent of the National Assembly or no legal basis

First, in the case of the instant private investment project, since the State acquired the ownership of a building newly built as a project and completed the registration of ownership preservation in the name of the State before March 2009, it seems reasonable that the project implementer, who invested capital, is obligated to return the profits acquired by acquiring the ownership of a business facility when the contract is terminated. In light of the contents of Article 3 of the letter of confirmation, etc., it is reasonable to deem that the payment of the termination payment of the instant case is made within the scope of the State’s budget. Therefore, there is no ground to deem that the National Assembly’s decision or consent should be obtained separately in imposing the obligation

In addition, Article 92 of the National Finance Act provides that "the State shall obtain the consent of the National Assembly in advance when it intends to bear a guarantee obligation." Thus, it is difficult to view that the obligation to pay the termination payment to the plaintiff of the defendant Republic of Korea is a guarantee obligation, and it is merely a direct payment of the termination payment to the plaintiff as the pledgee of the project implementer as a creditor of the project implementer. Furthermore, as long as the defendant Republic of Korea is a party to a contract and concluded a contract, it cannot deny the obligation under the contract of the defendant Republic of Korea on the ground that there is no legal ground for the content of the contract, unless it violates the laws and regulations. Thus, the obligation to pay the termination payment upon termination of the contract of the defendant Republic of Korea under the concession agreement of this case and the second supplementary agreement of this case does not exist under the provisions of the Enforcement Decree

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

I. Determination of the payer

In the instant concession agreement and the instant secondary supplementary agreement, there is no dispute between the parties who are not the Defendant Republic of Korea as the payer of the payment upon termination, or the overall purport of pleadings as to the evidence Nos. 1 and 4. The issue of whether the Defendant Republic of Korea bears the payment upon termination is a matter of interpretation of the intention of the parties indicated in the instant concession agreement. The interpretation should be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the content of the text, motive and circumstance of the agreement, the objective to achieve the agreement, the genuine intent of the parties, etc. (see Supreme Court Decision 2013Da3423, Nov. 28, 2013). In light of the evidence and the purport of the entire pleadings No. 16, the Busan National University president does not belong to the competent administrative authority as the principal agent of the development of the instant building, which is the Plaintiff’s establishment of the instant building and the Plaintiff’s establishment of the Republic of Korea under the title of the Plaintiff’s ownership rights and obligations as the principal agent of the development of the instant case.

Therefore, this part of the defendant's assertion that the defendant's Republic of Korea is not the subject of payment upon termination is without merit.

5. Payment after termination and the principal and interest of a plaintiff;

Since Defendant Republic of Korea is obligated to directly pay the Plaintiff the principal and interest of the Plaintiff out of the termination payment under the concession agreement of this case, it will examine the Plaintiff’s principal and interest of the loan and the amount of the termination payment.

A. The Plaintiff’s principal and interest of L&C shall pay interest calculated at the rate of 8.4% per annum on the outstanding principal and interest of the loan every six months from the date of the instant loan agreement, and if L&C is unable to pay all or part of its obligations, such as the principal and interest of the loan, the due date, it shall be agreed to pay overdue interest calculated at the rate of 18% per annum on the payable amount from the day following the due date until the due date until the total amount of the payable amount is paid. The fact that L&C paid the Plaintiff the amount entered on the date stated below by L&C as the date stated below can be acknowledged by either party or by taking into account all the arguments stated in the evidence No. 2

The principal and interest of the plaintiff due to the above recognition shall be as specified in the following calculation table:

(Calculation of Principal and Interest of Loans)

A person shall be appointed.

B. The facts that the instant concession agreement was terminated due to the cause attributable to K&C are as seen earlier. In such a case, there is no dispute between the parties to the agreement to pay the amount of the money paid according to the fixed rate method with the content of 30 years for the K&C funds.

The plaintiff asserts that F&C's M&C's M&C's M&C's M&C's M&C's M&C's M&C's 106.67 billion won, and the defendant Republic of Korea asserts that F&C's M&C's M&C's M&C's M&C's 100.123 million

Even if the amount is equivalent to KRW 10,10,23,000,000,000 won as alleged by Defendant Korea, if the amount is paid according to the fixed rate method with the lapse of 30 years from February 16, 2009, the approval date for use of the instant building from February 16, 2009 to May 17, 2012, when the instant concession agreement was terminated, it is clear in calculating the amount significantly exceeding KRW 43,917,803.10,00, the Plaintiff’s principal and interest of the instant loan (Therefore, the argument about Defendant Korea’s M&C’s M&C’s investment fund is not examined further).

C. Sub-committee

Therefore, Defendant Republic of Korea is obligated to pay damages for delay to the Plaintiff for the total amount of KRW 43,917,803,110 of the Plaintiff’s principal and interest of KRW 41,194,015,267 of the principal and interest of KRW 41,194,015,267.

6. Determination on Defendant Republic of Korea’s defense

(a) Concurrent performance defense;

Defendant Republic of Korea: (a) upon termination of the instant concession agreement, the concessionaire’s rights to manage and operate the instant building and the right to manage and operate the instant building are immediately extinguished; (b) the concessionaire is obligated to transfer the instant building to Defendant Republic of Korea; and (c) the Defendant Republic of Korea is in a simultaneous performance relationship with the obligation to pay the payment upon termination of the instant concession agreement; and therefore, (d) Defendant Republic of Korea is unable to respond to the Plaintiff’s claim from

In the event that the concession agreement of this case is terminated in full view of the purport of the entire pleadings in the statement No. 1, No. 1, No. 170, No. 170-1, and No. 2 of this case, the rights of the concessionaire for the business facilities shall be extinguished. The concessionaire may recognize the fact that the concessionaire, together with the person designated by the competent authority, performs an actual inspection of the business facilities

In light of the above facts, the duty to pay the payment upon termination of the Defendant’s Republic of Korea and the duty to deliver the instant building by F&C, the concessionaire, all of the duty to deliver the instant building upon termination of the instant concession agreement, each of the above duties is recognized as a performance-related relationship, and thus simultaneously is related to each other.

Therefore, Defendant Republic of Korea may not accept the Plaintiff’s request until the instant building is delivered. Thus, Defendant Republic of Korea’s simultaneous performance defense is justified.

B. Determination on the assertion of unjust enrichment deduction

Defendant Republic of Korea asserts that since the user fees received by the concessionaire while operating the building of this case after the termination of the concession agreement of this case, Defendant Republic of Korea should be deducted from the amount of order payment to the concessionaire.

On the other hand, Defendant Republic of Korea’s aforementioned claim constitutes an assertion that EffC’s claim for return of unjust enrichment against Defendant C&C is offset against the amount equal to that of F&C’s payment claim at the time of termination of F&C’s claim against Defendant Republic of Korea. However, in full view of the overall purport of the arguments in the evidence Nos. 1, 3, and 4, Defendant Republic of Korea may recognize the fact that Defendant Republic of Korea renounced its right to offset the amount that the F&C should be paid from F&C, as the amount that Defendant Republic of Korea should pay from the lender, upon termination

According to the above facts, even if Defendant Republic of Korea has a claim for return of unjust enrichment against C&C, it cannot be exercised by waiver of the right of set-off in relation to the Plaintiff, and the above assertion by Defendant Republic of Korea is without merit.

C. Sub-committee

Therefore, Defendant Republic of Korea is obliged to pay to the Plaintiff interest calculated at the rate of 18% per annum pursuant to the instant loan agreement for KRW 43,917,803,110 among the Plaintiff and KRW 41,194,015,267 from October 11, 2012 to the date of complete payment (as long as the building is in a simultaneous performance relationship, it is reasonable to deem that Article 3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings does not apply to the statutory damages for delay under Article 3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings).

7. Conclusion

Therefore, the plaintiff's claim against the defendant's Republic of Korea shall be accepted within the scope of the above recognition with merit, and the claim against the defendant's establishment of Busan National University shall be dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, the senior judge;

Judges Kim Tae-jin

Judges Lee Jae-in

1) Btild-Transfer-OO: Ownership, if infrastructure is completed, shall belong to the State or a local government, but the project operator shall be the project operator, only if such ownership belongs to the State or a local government;

The method of a private investment project in which the rights to manage and operate the fixed period of facilities may be granted to take profits;

2) According to Article 2 subparag. 56 of the Convention, parties to the agreement refers to competent authorities and project executors.

3) There shall be interest in arrears of 18% per annum on this amount.

4) 41,413,971,662 won ¡¿ 0.18x 16 days/365 days;