(영문) 서울고등법원 2017.10.27.선고 2017나2026261 판결

The judgment of the first instance is revoked. It is confirmed that the contractual relationship under the exclusive agreement between the plaintiff and the defendant on December 18, 2010 entered into between the plaintiff and the defendant does not continue to exist at present.

Reasons

1. Basic facts

A. The Plaintiff, a Chinese national, is an artist with 12 man-made Group C (C; hereinafter hereinafter hereinafter 'C'), who is a man-made group, and the Defendant is an entertainment agent and a variety of sound recording and production companies established for the purpose of entertainment agency business.

B. At the time of December 18, 2010, the Plaintiff entered into an exclusive agreement with the Defendant that the Defendant would manage and act on behalf of the Plaintiff’s entertainment activities (hereinafter “instant exclusive agreement”). On the same day, the Plaintiff and the Defendant agreed to the effect that the contract needs to be maintained for a longer period than the contract term under the instant exclusive agreement for the Plaintiff’s overseas entertainment activities (seven years) and agreed to extend the said contract term for more than three years.

C. Group C, to which the Plaintiff belongs, sold 'D' around April 9, 2012, and sold 'D', and sold 'D'. A group C consisting of six members who are Korean nationals, namely, E who mainly work in Korea, four members who are Chinese nationals, and two members who are Korean nationals, and F (the Plaintiff is a member of F) who mainly work in China, and worked in China, respectively, as a group of Korean and China, and a group of 12 members who work together.

D. The Plaintiff expressed his/her intent to withdraw from C around April 2015, and thereafter, sold sound records on July 23, 2015 in China, and held an entertainment activity on August 23, 2015.

[Grounds for Recognition] The facts without dispute, Gap evidence 1, 2, Eul evidence 16 (including Serial number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Judgment as to the primary cause of claim

A. Summary of the plaintiff's assertion

The instant exclusive contract is null and void pursuant to Article 6, 8, 9, and 11 of the Act on the Regulation of Terms and Conditions (hereinafter referred to as the “Standard Contract Regulation Act”), which is unfairly unfavorable to the Plaintiff for the following reasons and has lost fairness contrary to the principle of good faith, or is null and void as a violation of Article 103 of the Civil Act.

1) The instant exclusive contract was concluded by the Defendant based on the Defendant’s unilateral intent in absolute superior position.

2) The instant exclusive contract is excessively long-term, and includes the provision for extension of the contract term, which is disadvantageous to the Plaintiff, and it unfairly limits the Plaintiff’s right to terminate the contract by strengthening the requirements for termination of the contract. In addition, the scope of application of the instant exclusive contract is not only the global area, but also the Plaintiff is excessively comprehensively comprehensively comprehensive, such as obtaining the Defendant’s consent, even in the case of literary and artistic creation activities unrelated to C’s group activities.

3) The instant exclusive contract plans an excessive penalty for breach of contract, and such an agreement of penalty for breach of contract only applies to the Plaintiff and does not apply to the Defendant.

4) The relationship between the plaintiff and the defendant is similar to a kind of employment relationship, and the defendant does not guarantee the exclusive contract amount or basic pay to the plaintiff.

5) The provision on the distribution of revenue under the instant exclusive contract is unfair as it considerably loses balance.

B. Determination

In light of the following circumstances, the evidence and evidence stated above as well as evidence Nos. 8, 9, and 29, which are acknowledged by comprehensively considering the purport of the entire pleadings, it is difficult to view the instant exclusive contract as being unfairly disadvantageous to the Plaintiff and thus constituting a juristic act that has lost fairness in violation of the principle of trust and good faith, and there is no other evidence to acknowledge otherwise. Therefore, the Plaintiff’s assertion that the instant exclusive contract is null and void in violation of Article 103 of the Act on

1) Whether the process of concluding the instant exclusive contract is unfair

At the time of entering into the instant exclusive agreement, the Plaintiff was a minor as 17 years of age. However, as seen earlier, the Plaintiff entered into the instant exclusive agreement with the Defendant while his father was present, and there was no circumstance that the Plaintiff entered into such agreement against his own will in the process.

2) Contract term related

A) The Plaintiff entered into the instant exclusive agreement on December 18, 2010 and concluded the instant exclusive agreement on April 9, 2012, after a two-year period of practice, and thereafter on April 9, 2012, and thus, the total contract period under the said exclusive agreement is 12 years (2 years of practice, + 7 years of basic contract period + 3 years of contract period extended for overseas activities), and the said period is somewhat long-term.

B) However, in order for a new artist to successfully engage in entertainment activities, it is necessary to provide a full-time support and effort with the Defendant, and during which the entertainment planning company has made a lot of early investment costs as an entertainment planning company. The necessity of the entertainment planning company to set a certain exclusive period between the artist and the entertainment planning company is acceptable in order to recover such investment costs. In addition, it is determined that such exclusive period has the role of inducing the entertainment planning company to make an investment.

C) The Fair Trade Commission comprehensively considered the characteristics of the entertainment management business and prepared and published a standard exclusive contract for popular culture artists (centered center) through a sufficient process of gathering opinions through a conference and interview, etc. The above standard exclusive contract is basically not limited to the contract term itself in consideration of the fact that the entertainment planning company systematically discover and fosters the number of new authorizations and that the contract period exceeding 10 years is also necessary to create profits. However, even if the contract period exceeds 7 years, it is determined that the number may be easily terminated if there is a justifiable reason, a long-term contract is also possible according to a separate agreement.

D) Meanwhile, the instant exclusive contract is subject to the ten-year contract period even in cases where the Plaintiff is unable to carry on the land within five years from the date of conclusion of the contract, and the contract period may be extended to a maximum of 15 years. However, in cases where the Plaintiff is unable to carry on the land, the Defendant cannot receive any profit after paying the Plaintiff’s expenses for the Plaintiff’s education, etc., and thus, it is difficult to readily conclude that the instant exclusive contract is an unfavorable agreement to the Plaintiff only.

E) Therefore, in full view of the above circumstances, the term of contract stipulated in the instant exclusive agreement and its affiliated agreements, taking into account the Plaintiff’s plans for overseas expansion, does not appear to be unfairly long-term to infringe the Plaintiff’s fundamental rights.

F) The Plaintiff asserts that the provision of the extension of the contract term under the instant exclusive agreement (Article 5(5)) or the provision that strengthened the requirements for termination of the contract (Article 19(1)) is unjust. However, if the contract term is extended due to the Defendant’s reason, the Plaintiff may terminate the instant exclusive agreement pursuant to Article 19 of the instant exclusive agreement, and the provisions that strengthen the requirements for termination of the contract apply to both the Plaintiff and the Defendant, and thus, the instant exclusive agreement cannot be deemed unfair on the grounds of such reason.

3) relating to the scope of the contract

The Plaintiff asserts that the scope of the instant exclusive contract is too comprehensive. However, the standard exclusive contract published by the Fair Trade Commission sets forth the scope of the contract as a global area, and includes creative activities, such as literature and art, etc. with respect to the scope of entertainment activities. Moreover, the instant exclusive contract was concluded by promising the Plaintiff’s overseas activities, and the specific scope and media, etc. may be separately determined by the Plaintiff and the Defendant’s agreement. Therefore, it is difficult to readily conclude that the content of the contract is too comprehensive (Article 3(2)).

4) As to the penalty provisions

A) Article 19(2) of the instant exclusive contract provides that, even though the Defendant faithfully performs the contractual obligation, in addition to damages for violation of the contractual terms for the purpose of unilaterally destroying the contract during the contract period, the amount calculated by multiplying the average monthly sales for the immediately preceding two years as at the time of termination of the contract by the number of months of the remaining contract period as a penalty for breach of contract.

B) While planning companies engaged in entertainment management business like the Defendant invested considerable time and expenses in order to discover and foster new authorization water, it is extremely small to create profits by obtaining public recognition. Therefore, from the standpoint of the entertainment planning company, where a successful artist who invested a long time and considerable expenses and obtained public recognition from the position of the entertainment planning company causes a significant loss, while it is difficult to prove the specific amount of damages, and it is difficult to receive appropriate compensation for damages. For this reason, it is recognized that the entertainment planning company, such as the Defendant, entered into an exclusive contract with the artist, to prepare sanctions against the nonperformance of the obligation of the artist in advance.

C) The standard binding contract published by the Fair Trade Commission also has a penal provision for an artist’s unilateral default of obligations by reflecting the aforementioned circumstances, and its content is the same as the penal provision for an exclusive contract of this case.

D) Under the instant exclusive contract, the penalty for breach of contract takes place only when the Plaintiff violated the contractual terms for the purpose of unilaterally destroying the contract, and the amount of penalty for breach of contract decreases as the remaining contract term has decreased.

E) The Plaintiff is a matter that only the cause attributable to the Plaintiff is scheduled to be punished for penalty. However, even if there is no agreement on penalty for negligence attributable to the Defendant, the Plaintiff may be liable for damages against the Defendant’s nonperformance of obligation, and Article 19(1) of the instant exclusive agreement provides that the Plaintiff shall compensate for the damages incurred to the Plaintiff due to the Defendant’s breach

F) Therefore, in full view of the above circumstances, a penalty for breach of contract due to a cause attributable to the Plaintiff under the instant exclusive agreement cannot be deemed unfairly excessive or unfair.

5) Regarding the guarantee of exclusive contract payments and basic pay

As seen below 3-b. 1), the instant exclusive contract has the nature of “a bearer contract similar to delegation,” and it is difficult to view the relationship between the Plaintiff and the Defendant as similar to the employment relationship with which one-way command and subsidiary relationship is one-way. In addition, where a new artist who entered into an exclusive contract invests considerable time and expenses in order to discover and foster a new artist, and where an artist who entered into an exclusive contract is not in a cost for investment or who fails to obtain a seal after a cover, he/she should bear the relevant losses, but the Plaintiff does not bear any separate expenses. Therefore, it cannot be deemed unjust on the ground that the Defendant did not pay the exclusive contract amount to the Plaintiff or did not guarantee the basic salary.

6) Related to profit distribution, etc.

A) According to the instant exclusive contract, the Defendant developed trademarks, designs, and other similar intellectual property rights by using any content that indicates the identity of the Plaintiff, such as the Plaintiff’s name and photograph during the contract period, and has the right to apply, register, or use such content in Korea and abroad (Article 9(1)). In relation to the Plaintiff, content including music, etc. planned, developed, and produced by the Defendant is attributed to the Defendant, and the right necessary for the use of content including the Plaintiff’s performance is automatically granted to the Defendant at the same time as the occurrence of the occurrence of the Plaintiff’s performance (Article 12(1)). It cannot be said that it is unreasonable to have the Defendant reverted to the right to content that is performed as part of entertainment activities based on

Even in the standard continuous contract published by the Fair Trade Commission, the content developed and produced by the entertainment planning company in relation to the artist during the contract period is attributed to the entertainment planning company, and the right necessary for the use of the content that includes the performance of the artist is granted to the entertainment planning company automatically at the same time.

B) In relation to the distribution of profits, the instant exclusive agreement: (a) once the Defendant received all profits from the instant exclusive agreement, and then distributes 2 to 5% of the Defendant’s sales revenue generated from tangible storage and recycling media, such as records, etc.; (b) profits from digital file format, such as sound sources and images, shall be 10% of the net profit; (c) profits from overseas revenue; (d) 50% of the net profit (in the case of a group, 60%); and (e) profits from entertainment activation and advertising photography publication, etc., 50% of the net profit (in the case of a group, 60% of the net profit); and (e) in the case of a group, the above profits shall be equally divided according to the number of its members (see Articles 14 and 2, and the table of profit distribution).

As to tangible media, 2-5% of the sales amount is rarely small. However, according to the instant exclusive contract, the Defendant’s input of all the sound records and video production costs, and the Defendant’s collection of the above costs if the sound records are not sold more than a certain amount, while the Defendant is obliged to distribute part of the sales amount to the Plaintiff even if the sound records were sold, even if they did not yield profits, so such distribution rate cannot be deemed disadvantageous to the Plaintiff.

Even in the case of other matters for which profit distribution has been made on the basis of net profit, the defendant's original

All expenses incurred in intentional entertainment activities are borne by the Plaintiff, and the standards for allocation of the most unfavorable to the Plaintiff are 10% of net profit as profit for digital content, and for other profits, the profit distribution rate of 50 to 60% is set. Furthermore, even if the final amount received by the Plaintiff decreases due to the equal division according to the number of members of the group, it is a result inevitably resulting from the group activities. Taking full account of the above circumstances, the agreement on the distribution of profit for the instant exclusive agreement does not seem to be unreasonably unfavorable to the Plaintiff.

C) Meanwhile, the Plaintiff asserts to the effect that the ratio of profit distribution between the Plaintiff and the Defendant does not change during the contract period. However, if the ratio of profit distribution determined at the time of concluding the contract is reasonable and fair, the ratio does not change according to the contract period, and it does not in itself be deemed unfair.

3. Judgment on the conjunctive cause of claim

A. Summary of the plaintiff's assertion

1) Since the instant exclusive contract is an anonymous contract that has the nature of delegation or delegation, it is possible to apply Article 689(1) of the Civil Act and voluntarily.

2) However, the Defendant unilaterally operated the Schedule without disregarding the Plaintiff’s intention or health condition, and did not observe the settlement period every half-yearly in settling profits, and did not comply with the demand to present specific settlement data. Accordingly, the Plaintiff’s trust relationship with the Defendant is completely broken down.

3) Accordingly, the Plaintiff terminated the instant exclusive agreement by serving the duplicate of the instant complaint. Therefore, the instant exclusive agreement between the Plaintiff and the Defendant is no longer effective.

B. Determination

1) In light of the above facts, the exclusive contract of this case is basically based on the fact that the defendant is entrusted with the management business related to entertainment activities by the plaintiff and faithfully performs the management business related to entertainment activities. Thus, one of the parties has the nature of delegation contract (Article 680 of the Civil Act) established by the other party to entrust the management business to the other party and the other party to consent thereto. However, in addition, the defendant has characteristics different from the typical delegation contract stipulated in the Civil Act, such as where all income generated in relation to entertainment activities are received in return for the management of business affairs, and part of the remainder after deducting the expenses is paid to the other party on a specified day of each month. Thus, the legal nature of the exclusive contract of this case is not a typical delegation contract under the Civil Act, not a typical delegation contract under the Civil Act, but a similar intangible contract. Therefore, each party can terminate the contract at any time, contrary to the delegation contract under the Civil Act based on the special personal trust relationship between both parties, since the exclusive contract of this case is strongly connected with the defendant's interest in the continuation of the parties, in particular management and revenue settlement.

Ultimately, we cannot accept the Plaintiff’s assertion that the instant exclusive contract is voluntarily terminated in accordance with Article 689(1) of the Civil Act.

2) Meanwhile, the exclusive obligation borne by an artist under the instant exclusive agreement cannot be entirely and alternative, and by its nature, the maintenance of high-level trust relationship between the contracting parties is an essential element in order to achieve the purpose of the contract. Therefore, compelling an artist to engage in exclusive activities against his/her own free will even in a case where such trust relationship has been broken is over, and thus, is contrary to the modern cultural concept and the ideology of personality respect, and thus, an artist may terminate the exclusive management agreement if such trust relationship is broken.

However, according to the following circumstances, the Plaintiff may not terminate the instant exclusive contract on the ground of failure in trust with the Defendant, according to the following circumstances, which are acknowledged as comprehensively taking account of the overall purport of the pleadings as set forth in the evidence No. 2 and No. 46, the Plaintiff’s assertion on this part is without merit.

A) The written evidence Nos. 7, 8, 11, 12, and 14 submitted by the Plaintiff alone is insufficient to recognize the fact that the Defendant did not sufficiently guarantee the Plaintiff’s activities under the instant exclusive agreement, that the Defendant controlled the Plaintiff’s personal activities, or unilaterally provided the Plaintiff’s opinion or health status, etc., or that the Plaintiff was unfairly discriminated with other members of the same group, and there is no other evidence to acknowledge this otherwise.

B) The Defendant settled the Plaintiff’s profits accrued from the date of the year 2012 from the date of the waste disposal, to December 31, 2012, with respect to the profits accrued from January 1, 2013 to December 31, 2013, with respect to the profits accrued from February 21, 2014; and from January 1, 2014 to December 31, 2013, with respect to the profits accrued from January 30, 2014 to June 30, 2014, and paid the portion reverted to the Plaintiff after obtaining confirmation from the Plaintiff.

C) According to the annexed agreements as stipulated in Articles 14(4) and 14(3) of the instant exclusive agreement, the Defendant decided to make an annual settlement, but as seen earlier, the Defendant made an annual settlement in 2012 and 2013. However, at the time, it appears that there was no much profit to be distributed as the initial stage of C’s activities, and that the Plaintiff received profits without raising any objection thereto.

D) Therefore, the above circumstance alone does not seem to have led to the failure of trust between the plaintiff and the defendant. Meanwhile, although the plaintiff demanded the defendant to present specific settlement data, it is alleged that the plaintiff refused it, there is no evidence to acknowledge it.

4. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit. The judgment of the court of first instance is just because it is based on this conclusion, and the plaintiff's appeal is dismissed.

Judges

Judges Lee Sung-sung

Judges Kim Young-gu

Judges Park Jae-soo

Note tin

1) According to the purport of Gap evidence Nos. 2, 13, and Eul evidence Nos. 9 and the entire arguments, the instant exclusive contract was concluded by the defendant, who prepared a contract in advance in a certain form, to conclude a contract with a large number of artist visitors, and presented it to the plaintiff. It is deemed that the contract constitutes a standardized contract subject to the Act on the Regulation of Terms and Conditions. The defendant asserted that the plaintiff had an opportunity to adjust his interests by means of an individual negotiation or interest with respect to the provisions of the instant exclusive contract, but there is no evidence to acknowledge it (see Supreme Court Decision 2008Da16950, Jul. 10, 2008).