Plaintiff 1 and one other (Attorney Woo-hun, Counsel for the plaintiff-appellant)

Hado Development Co., Ltd.

March 27, 2013

1. The Defendant shall pay to Plaintiff 2 6% interest per annum from June 15, 2011 to May 15, 2013, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff 1's claim and the remaining claims of the plaintiff 2 are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the plaintiff 1 and the defendant is assessed against the above plaintiff, while the part arising between the plaintiff 2 and the defendant is assessed against the above plaintiff, while 5% is assessed against the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 1 987,77,775 won, 121,66,64 won, and 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment (the defendant completely withdrawn the counterclaim against the plaintiffs on February 28, 2003).

1. Basic facts

(a) Promotion, establishment, etc. of a project for the development of a pedestrian road;

1) The Korea Highway Corporation invested approximately KRW 50 billion in investment to build facilities such as rest areas, gas stations, etc. in the Haak-gun, Danjin-gun, Danjin-gun, the Korea Highway Corporation, as well as the one-stage development project, which invested approximately KRW 400 billion in the project and promoted the two-stage development project, including the two-stage hotel, shopping mall, and the ocean theme park, around which the surrounding sea level of the Haak-do was set up. As the 1997 IMF foreign exchange crisis delayed, the Korea Highway Corporation decided to implement the Haak-gun project through inducement of foreign capital.

2) On May 18, 1999, the Korea Highway Corporation selected a consortium with the ECN International Ltd (hereinafter “ECON”) and Hyundai Construction Co., Ltd. (hereinafter “Modern Construction”) as a private business entity, and entered into an agreement on the development project for marine complex tourism resting facilities.

Under the above Convention, the defendant company was established on August 20, 199 (shares ratio: ECON 63.9%, Hyundai Construction 26.1%, and 10% of the Korea Expressway Corporation).

Then, on May 16, 2001, ECON transferred 63.9% of the shares of the Defendant Company to LIP as its subsidiary company, ECON, ECON, an ECON, for Ecron Korea Ltd. Ltd. (hereinafter “EI Pte”).

3) On December 14, 2001, Nonparty 1 was appointed as the representative director of the Defendant Company, and on March 20, 2002, established so-called JK Co., Ltd. (hereinafter “JK”) a so-called so-called JK Co. (hereinafter “JK”) in order to take over the shares of ECON owned by ECON and directly carry out the implementation of the development project. In addition, Nonparty 1 had JK take over 53% of the shares of ECOPP, owned by ECON, and then he was appointed as the representative director on November 26, 2002, and later, on November 27, 2002, had ECOP take over the shares of Defendant Company 26.1% of the shares of Hyundai Construction from Hyundai Construction. Accordingly, Nonparty 1 completely carried out the development project.

Then, in order to raise approximately KRW 40,000,000 for the second stage project cost of the development project of the Korea Development Bank, Nonparty 1 issued corporate bonds and increased the capital of the Defendant Company with the funds therefrom, and it was difficult for the Defendant Company to issue corporate bonds and raise the above project cost. Upon Nonparty 1’s request, the Korea Development Corporation entered into a contract under which the Korea Development Corporation would provide put options from the EPE Pte to the EPO to purchase USD 15,00,000 from the EPE to the Defendant Company’s 90,000,000,000.

4) On the other hand, on June 2004, KR Pte established the Ecron Korea Inc. B.V. (hereinafter “EKI B.V.”), a Netherlands, a corporation of the Netherlands, for the capital investment in the development of the Ncron Korea.

EKI B.V. succeeded to all rights and obligations related to put options from EKS Pte, and then set up a pledge on put options with the stocks of the defendant company owned by EKI B.V., and issued the bonds of USD 83,00,000,000,000,000 (hereinafter “instant bonds”) on February 17, 2005, on May 4, 2009, and on May 17, 2009.

On August 11, 2005, Korea Post and the Korean Teachers' Credit Union acquired the instant corporate bonds by Korea Post and the Korea Teachers' Credit Union, and thereafter, the Korea Social Professionalts LVC (hereinafter referred to as the "Cmat Group") created by the Citro Group global Matts, an affiliate of the Cit securities, purchased the instant corporate bonds from the Korea Post and the Korea Teachers' Credit Union.

As a result, the CKI B.V., a holder of corporate bonds issued by EKI B.V., has a pledge on 90% of the shares of the Defendant Company held by EKI B.V., and if EKI B.V. fails to repay the principal and interest of the above corporate bonds, it is qualified to acquire 90% of the shares of the Defendant Company by exercising the above pledge.

5) On the other hand, EKSB.V., a Netherlands, is a corporation organized by EKR Pte, a Singapore, and is in possession of 100% of its shares. The directors of EKS B.V. are the above EI Pte, Forter Investment Trust, a corporation and trust management company, and Nonparty 1 and Nonparty 2, a Singapore State (hereinafter “Nonindicted 2”).

The shares of EKI Pte, a Singapore, are 58.6% by JK established by Nonparty 1, and the 41.4% by JK, a person who is a Singapore, holding 41.4% by Nonparty 4 as a shareholder. The directors of EKI Pte are Nonparty 4, Nonparty 1, and Nonparty 2. From January 20, 1994, Nonparty 4 was from November 26, 2002, Nonparty 1 was employed as a director of EKI Pte from September 21, 2005 to September 21, 2005.

However, around November 2003, Nonparty 1 borrowed 12 billion won from three affiliate companies of Gyeongnam-si (Seoul Enterprise, Large Asian Leisure Industry Co., Ltd., and Large Construction Co., Ltd.). A pledge was established as to 100% of the JK shares owned by himself as security, but the JK shares were not repaid, and the JK shares were transferred to the above Gyeongnam-si affiliate upon the enforcement of the above pledge on May 2007, and Nonparty 1 was dismissed from the office of the representative director of JK on November 13, 2006. However, for the replacement of the directors, the directors of ESte were not changed according to the Commercial Act that requires 2/3 or more shares, and the Lee Jae-do continued to have the status of directors of ESte.

B. Management status of the defendant company

1) Punishment of Nonparty 1 and resignation of the representative director

A) Nonparty 1, as seen earlier, was appointed as the director and the representative director of the Defendant Company on December 14, 2001, and was reappointed as the director and the representative director on June 25, 2004. In addition, Nonparty 1 was reappointed as the director on June 19, 2007, and was appointed as the representative director on October 12, 2007.

B) However, there was a press report that the Korea Expressway Corporation had concluded a preferential contract with KSI Pte, and the prosecution investigation was conducted from June 2005, and Nonparty 1 was prosecuted on July 29, 2005 due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation). Nonparty 1 was sentenced to three years of imprisonment and four years of suspended execution due to the reason that the act of entering into the above put option contract with the first instance court on February 6, 2006 constitutes an occupational breach of trust against the Defendant company. In addition, on November 23, 2007, the appellate court was also sentenced to imprisonment with prison labor for a period of four years on the ground that the act of acquiring USD 83 million from the investors of the company of this case by taking advantage of the development project on November 23, 2007, and was thus detained by the appellate court. After that, Nonparty 1 appealed the above judgment, but the appeal was dismissed on April 24, 2008.

C) As above, Nonparty 1 continued to maintain the office of director and representative director of the Defendant Company, and was detained on November 23, 2007, and was paid KRW 208,33,350 each month by April 25, 2008 from the date following the date of detention until April 25, 2008. Nonparty 1 resigned from the representative director of the Defendant Company on May 15, 2008.

2) Payment of temporary shareholders’ meeting on May 15, 2008 and retirement consolation benefits to Nonparty 1

A) On February 17, 2003, Plaintiff 1 was appointed as a director of the Defendant Company, who was reappointed on February 17, 2006, and was appointed as a director on June 26, 2009. Plaintiff 2 was appointed as a director on January 15, 2008. Meanwhile, Nonparty 3 was appointed as a director of the Defendant Company on January 15, 2008, and was appointed as a representative director on April 2, 2008.

B) On April 28, 2008, Nonparty 3, as the representative director of the Defendant Company, decided to hold a temporary general meeting of shareholders consisting of the resignation of Nonparty 1’s directors, appointment of a successor director, and payment of retirement allowances for officers. The above board of directors attended the meetings of the Plaintiffs, the Plaintiffs, Nonparty 3, Nonparty 5, and Nonparty 65, who are directors, and passed a resolution with the consent of all of them.

On April 16, 2008, prior to the holding of the above provisional shareholders' meeting, Nonparty 3 instructed Nonparty 7, who is an employee in charge of the fund-related affairs of the defendant company, to conduct a tax review in preparation for the case of paying KRW 1 billion as retirement allowance to Nonparty 1, and made the internal security legitimacy.

C) On May 15, 2008, EKI B.V. holding 90% of the shares of the Defendant Company approved that “the payment of retirement consolation benefits of KRW 1 billion to Nonparty 1 is to be made” at the temporary shareholders’ meeting of the Defendant Company held on May 15, 2008. Accordingly, the above agenda was passed despite the opposition by the Korea Highway Corporation holding 10% of the shares of the Defendant Company.

After that, the Defendant Company paid KRW 1 billion to Nonparty 1, but it could not pay KRW 1 billion with the internal funds of the Defendant Company, and it borrowed KRW 1 billion from the Hadita wave Co., Ltd. that leased and operated a rest area for the Defendant Company.

3) Establishment of a regular general meeting of shareholders and a payment provision of retirement allowances for executives on June 26, 2008

A) Nonparty 3, as the representative director of the Defendant Company, held a board of directors on June 10, 2008 and presented it as an agenda item to enact a provision on payment of retirement allowances for executive officers. The above board of directors adopted a resolution with the consent of all of the Plaintiffs, the directors, and the non-party 3, the non-party 5, and the non-party 65, who attended the meeting,

본문내 포함된 표 제1조[목적] 이 규정은 행담도개발 주식회사(이하 ‘회사’라 한다) 임원의 퇴직금 지급에 관한 사항을 규정함을 목적으로 한다. 제2조[임원의 정의] 본 규정에서 임원이라 함은 주주총회에서 선임된 이사 및 감사를 말하며, 임원 해당 여부 및 지위는 퇴직일을 기준으로 한다. 제3조[퇴직금] ① 회사에 만 1년 이상 근속한 임원으로서 퇴직할 때에는 제5조의 평균임금을 기준으로 임원 퇴직금 지급률(별표)에 의하여 산출한 금액을 퇴직금으로 지급한다. ② 임원이 연임되었을 경우에는 퇴직으로 보지 않고 연임기간을 통산하여 현실적으로 퇴직에 달하였을 때에 퇴직금을 계산 지급한다. 제4조[재직기간의 계산] ① 근속년수는 최초 입사일로부터 퇴직일까지 월력에 의하여 계산된다. ② 근속년수는 1년 미만의 단수가 있을 때에는 월할 계산하며, 1개월 미만의 단수는 1개월로 계산한다. 제5조[평균임금] 평균임금은 퇴직일 이전 3개월간 지급된 기본연봉(매월 지급되는 기본연봉은 연간 기본연봉의 1/12)으로 산정하되, 연봉제를 적용하지 않는 임원은 관계법령에 따른다. 제6조[지급제한] 임원이 본인의 귀책사유로 인하여 주주총회의 해임결의 또는 법원의 해임판결을 받아 퇴직할 경우에는 본 규정에 의한 퇴직금을 지급하지 아니할 수 있다. 제7조[특별퇴직위로금] 다음 각호의 1에 해당하여 퇴임하는 임원에 대해서는 제3조의 퇴직금 외에 잔여임기에 상응하는 보수 범위 내에서 특별퇴직위로금을 가산하여 지급할 수 있으며, 이사회의 결의를 거쳐 지급한다. 1. 업무상 부상, 질병 또는 순직으로 퇴임한 자 2. 재임기간 중 회사에 지대한 공로가 있는 자 3. M＆A의 결과로 퇴직하는 자 부칙 1. 이 규정은 2008년 6월 27일부터 시행하며, 임원퇴직금 지급률은 임원의 근속기간 동안 소급하여 적용한다. ＃별표 임원 퇴직금 지급률 구분(지위) 근속년수 지급률 비고 대표이사 사장 1년 5개월 부사장 1년 4개월 이사 1년 3개월 전무,상무 포함 감사 1년 4개월 주총 별도 결의 요

B) After that, at the general meeting of shareholders of the defendant company held on June 26, 2008, the Korea Highway Corporation opposed to the proposal for the enactment of the regulations on payment of retirement allowances for officers, but the EKI B.V. holding 90% of the shares of the defendant company, which led to the resolution of the enactment of the regulations on payment of retirement allowances for executives.

On October 4, 2010, Nonparty 3 resigned from the representative director of the Defendant Company and received retirement allowance of 607,638,890 won on October 7, 2010 in accordance with the payment provision of retirement allowance for officers.

4) Conclusion, etc. of a new annual salary contract

A) On September 28, 2010, Plaintiff 1 was appointed as the representative director of the Defendant Company.

B) On June 1, 2008, Plaintiff 1 entered into an annual salary contract with the Defendant Company (the representative Nonparty 3) and the Plaintiff 1 to May 31, 2009, stating that “The annual salary of KRW 145,000,000 shall be paid during the contract period from June 1, 2008 to May 31, 2009, and shall be paid on the payment day in equal installments in 1/12 per month.” Plaintiff 2 entered into an annual salary contract with the Defendant Company (the representative Nonparty 1) and “the annual salary of KRW 48,00,000 shall be paid during the contract period from January 15, 2008 to January 14, 2009,” that “The payment shall be made on the payment day in equal installments in 1/12 per month.”

C) However, on September 30, 2010, Plaintiff 1 entered into an annual salary contract with the Defendant Company (the representative Nonparty 3) to the contract period from October 1, 2010 to September 30, 201, that “an annual salary of KRW 188,000,000 shall be paid on the annual salary, and payment shall be made on the monthly salary in 1/12 equal installments.” Plaintiff 2 entered into a contract with the Defendant Company (the representative director) on October 1, 2010 to September 30, 201 that “an annual salary of KRW 80,000,000 shall be paid on the annual salary from October 1, 201 to September 30, 201, and the annual salary of KRW 1/12 per month from September 14, 201 to September 6, 2017 that the highest annual salary of Plaintiff 16% (the Plaintiff Company raised the annual salary from June 16, 2017).

C. Acquisition of the shares of the Defendant Company and the resignation of the Plaintiffs’ directors

1) EKIB.V., the debtor of the instant corporate bonds, was a document and did not make any profit other than the dividend through the implementation of the Defendant Company’s active construction project. However, the Defendant Company’s active construction project was in the status of having been de facto interrupted due to the lack of business funds, and there was no specific project other than the lease of rest area. Moreover, the cumulative deficit of the Defendant Company reached approximately KRW 7.5 billion as of March 31, 2010. Therefore, EKI B.V. did not actually have a way to repay the principal and interest of the instant corporate bonds.

2) Although negotiations with Nonparty 1, Nonparty 3, etc. regarding the termination of the lease contract for rest area between June 23, 2010 and September 2010 with respect to the instant corporate bonds and pedagos, which were concluded from June 23, 2010, it was eventually displayed.

As a result, on October 12, 2010, Cti Group acquired 17,400,000 common shares out of 19,333,34 shares issued by the Defendant Company by exercising a pledge against the corporate bonds of this case, which is a security for the corporate bonds of this case. Accordingly, the Defendant Company was composed of the Cti Group holding 90% of shares issued by the Defendant Company and two shareholders of the Korea Highway Corporation holding 10% of shares issued by the Defendant Company.

3) In addition, at the shareholders’ meeting of the Defendant Company held on November 17, 2010, new directors were appointed, and the Plaintiffs resigned from office on that day.

[Reasons for Recognition] In the absence of dispute, Gap evidence 1, Eul evidence 5-1, 2, 3, 6, 9, 10, 11, Gap evidence 38, 39, Gap evidence 40-1, 2, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 3, Eul evidence 5-1 through 20, Eul evidence 17, Eul evidence 18-2, Eul evidence 21 through 31, Eul evidence 3-1 through 42, Eul evidence 39, 40, 41, 50, 52, 53, and 54-2, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Claims for damages caused by dismissal before the expiration of directors;

A. Summary of the plaintiffs' assertion

Since July 2010, Cti Group holding 90% of the shares of the Defendant Company demanded the resignation of the Plaintiffs from office without justifiable reasons. On October 28, 2010, the Plaintiffs requested a temporary general meeting of shareholders demanding the dismissal of the Plaintiffs, and the Plaintiffs asserted that the Plaintiffs cannot be dismissed from office without justifiable reasons. Nonparty 8, the representative director of Cti Group, and the present representative director of the Defendant Company, were urged to compulsorily dismiss the Plaintiffs at a general meeting of shareholders and be held liable for criminal liability if they do not resign from office without justifiable reasons. The Plaintiffs are forced to be dismissed at a general meeting of shareholders due to the Defendant’s demand similar to the Defendant’s intimidation and are unlikely to receive the future retirement pay, and submit a written resignation to the board of directors on November 17, 2010, which is nothing more than in fact. Ultimately, the Defendant Company requested the Plaintiffs to resign from office without justifiable reasons, and the act of the Defendant Company is unlawful.

Furthermore, the amount of damages suffered by the plaintiffs due to the defendant company's tort is the amount equivalent to regular wages that the plaintiffs could have obtained during the remaining term of office if they had not committed the defendant's tort and the amount equivalent to retirement allowances that could have been earned after the completion of the remaining term of office. Therefore, the defendant

B. Determination

1) The legal relationship between a corporation and a director is a similar delegation relationship based on trust. As such, a director may resign at any time pursuant to Article 689(1) of the Civil Act. Since a director’s resignation is an act of sole act with the other party, such expression of intent reaches the representative of the company and becomes effective at the same time (see, e.g., Supreme Court Decisions 2007Da17109, Sept. 25, 2008; 2009Da31260, Sept. 8, 2011). However, if a company forces a director who has no intention to resign to submit a written resignation without any inevitable reason to have the director prepare and submit a written resignation and accept it, the company has the appearance of resignation only in the form, and in substance, it constitutes dismissal because it terminates the delegated contract relationship prior to the expiration of the term by the unilateral intent of the company.

2) In full view of each of the statements in Gap evidence 2-1, 2, 3, Eul evidence 6 through 13, Eul evidence 49-1, 2, Eul evidence 51-1, and Eul evidence 51-2, the following facts can be acknowledged.

A) On October 12, 2010, the Cmat Group acquired 17,400,000 shares of an ordinary share equivalent to 90% of the total outstanding shares of the Defendant Company through the enforcement of the pledge on October 12, 2010, and then requested the transfer of ownership to Plaintiff 1, the representative director of the Defendant Company at the time, but the Plaintiff 1 rejected the request on the ground that there was no resolution of approval of the board of directors based on Article 10 of the Articles of incorporation.

B) Accordingly, on the basis of theories, precedents of the Supreme Court, etc., Cmat Group asserted that the approval of the board of directors is unnecessary for the acquisition of shares if all shareholders consent is obtained. On October 28, 2010, the Defendant Company, at the time of the transfer of shareholders, filed a request for convening an extraordinary general meeting of shareholders with the purpose of “the removal of three directors (in the case of internal directors and representative directors, Plaintiff 1, Nonparty 4, and Plaintiff 2, who are the director of the company, and Plaintiff 2)” and “the appointment of two directors (in the case of internal directors and Pakistan, Nonparty 8 and other non-executive directors, who are the United States of America)” to the Plaintiff 1, a representative director of the company, at the time of the Defendant Company, who is the representative director of the company, at the time of the transfer of shareholders, was entitled to exercise shareholders’ rights without any change of shareholders. Since the aforementioned existing directors, at the above provisional general meeting of shareholders, made an abnormal remuneration system of the company, such as retirement consolation payment, etc. to the Plaintiff 100 years.

C) After that, on November 10, 2010, Plaintiff 1 held a board of directors and approved the change of the title of the CT Group. The Plaintiffs submitted a letter of resignation on November 17, 2010 that they should resign from the office of director, etc. of the Defendant Company. On that day, the general meeting of shareholders and the board of directors held that Nonparty 8 was appointed as the inside director and the representative director of the Defendant Company, and Nonparty 9 was appointed as the above non-party 9 as other non

D) On November 15, 2010, before submitting the above resignation letter, Plaintiff 1 received 90 million won as part of the retirement pay from Defendant Company, and Plaintiff 2 also received legal advice on the number of years of service years for the calculation of retirement pay from Defendant Company’s employees Nonparty 10.

3) In light of the developments leading up to and after the submission of the resignation statement revealed in the above facts, it is difficult to view that the Plaintiffs submitted the resignation statement inevitably by being unable to force the Defendant company without their intention of resignation, and there is no other evidence to acknowledge this point. Even if Nonparty 8, the representative director of the Defendant company, expressed that he would be forced to dismiss the Plaintiffs at a general meeting of shareholders and be held liable for criminal liability, such circumstance alone is insufficient to readily conclude that: (a) there was a strong pressure to the extent that it can be deemed that the Plaintiffs, who did not intend to resign from office, expressed the business judgment related to the directors' responsibilities or recommended voluntary resignation beyond the degree that they would have been forced to submit the resignation statement to the Plaintiffs; (b) in light of the above facts of recognition, it is reasonable to view the Plaintiffs as the Plaintiffs, even if they did not have any firm will of the Defendant company, which is a major shareholder, with regard to the replacement of directors and liability, or with respect to the employment of the Defendant company, whether they presented the terms and conditions at the time of resignation or not.

4) Therefore, the plaintiffs' claims under the premise that the resignation of the plaintiffs is practically dismissed are without merit, and there is no need to examine further.

3. A claim for unpaid benefits and retirement benefits.

A. The parties' assertion

1) Summary of the plaintiffs' assertion

At the time of the above retirement, the Defendant Company did not pay the Plaintiffs the monthly payment and the retirement allowances according to the provisions on the payment of retirement allowances for executive officers of the Defendant Company.

Plaintiff 1 was employed on February 15, 2002 and worked for 105 months until November 17, 2010. At the time of retirement, Plaintiff 2 worked for 34 months from January 15, 2008 to November 17, 2010, and the annual salary was KRW 80,000 at the time of retirement. In addition, according to the rules on retirement allowances for officers of the Defendant company, the representative director shall pay the wages for 5 months per year for the continuous service year, and the directors shall pay the wages for 3 months per year for the continuous service year.

Therefore, the Defendant is obligated to pay the Plaintiff 1 a retirement allowance of KRW 15,66,66 (18,00,000,000 / 12 months) and retirement allowance of KRW 685,416,66 (12 months x 105 months x 5/12 months x 5/12) and retirement allowance of KRW 6,66,66 (80,000,000 / 12 months) and KRW 56,66,666 (80,000 / 34 months x 3/12) to Plaintiff 2, respectively.

2) The defendant's argument

A) The increase in Plaintiff 1’s salary from October 1, 2010 is null and void as a breach of trust and an abuse of power of representation, which is detrimental to the Defendant Company. Plaintiff 2 conspired to commit an act of breach of trust, such as Plaintiff 1’s increase in salary, or at least knew or could have known that Plaintiff 1’s increase in salary was exercising the representative director’s authority. Thus, Plaintiff 2’s increase in salary is null and void.

Therefore, the Plaintiffs are paid only the amount calculated on a daily basis on November 17, 201, which was the monthly salary for November 2010, based on the retirement day before the increase, by November 17, 201. Plaintiff 1 is 6,753,420 won (the former salary 145,00,000 x 17/365), and Plaintiff 2 is 2,235,620 won (the former salary 48,00,000 x 17/365).

In addition, the Plaintiffs should return to the Defendant Company the amount of compensation for damages or unjust enrichment with respect to the amount equivalent to the amount of invalid benefits (Plaintiff 1,577,340 won, Plaintiff 2,66,670 won, and Plaintiff 2,66,670 won) paid in October 201.

B) The enactment of the provision on payment of retirement allowances for executive officers of this case is null and void as it was established to receive the retirement allowances from the defendant company to the maximum extent possible without any poor financial standing, etc. of the defendant company, under the circumstances where the former management including the plaintiffs clearly predicted the loss of management rights. Therefore, the Plaintiffs’ retirement allowances should be calculated by applying the rate of payment of retirement allowances for one month per one year for continuous service based on the amount of benefits before the increase on October 1, 2010 according to the previous practice. Accordingly, the Plaintiffs’ retirement allowances should be calculated by applying the rate of payment of retirement allowances for one month per one year for continuous service based on the amount of benefits before the increase on October 1, 2010. In such a case, Plaintiff 1’s retirement allowances shall be calculated by applying the rate of payment of retirement allowances for 110,237,980 (12,586,802 x 80 won x 9/12) + (12,586,80 x 366.6) x 1666

Even if the provision on the payment of the retirement allowance for officers of this case is valid, the Plaintiffs’ retirement allowance should be reduced by taking into account the enormous amount of damages, etc. inflicted on the Defendant Company due to breach of trust

B. Determination

1) Whether the provision on payment of retirement pay is invalid

A) As a separate character, a stock company and a shareholder cannot be deemed to be the same person. Thus, if an executive officer of a company acquires pecuniary advantage or causes a third party to obtain such profit by an act in violation of his/her duty, thereby causing loss to the company, the crime of breach of trust shall be established, and it shall not be deemed that there was no loss to the company as the principal, or that there was no intent to commit a crime of breach of trust (see, e.g., Supreme Court Decision 9Do2781, May 26, 2000). In addition, even if the resolution of the board of directors or the general meeting of shareholders was adopted, if the contents of the resolution were an unlawful purpose detrimental to the creditor of the company, it shall not be deemed that the representative director has a duty to act in good faith for the company, and if the representative director committed an act in violation of his/her duty to cause damage to the shareholder or the creditor, the act in breach of trust cannot be justified on the ground that there was a resolution of the board of directors or the general meeting of shareholders (see Supreme Court Decision 2000Do415, etc.).

Meanwhile, according to Article 388 of the Commercial Act, remuneration of a director of a stock company shall be determined by a resolution of the general meeting of shareholders when the amount is not determined by the articles of incorporation. Thus, retirement allowance and retirement compensation for a director is a kind of remuneration to be paid to a retired person from such office in return for the discharge of his/her duties during his/her service and includes remuneration under Article 388 of the Commercial Act (see Supreme Court Decision 2004Da25123, Dec. 10, 2004, etc.). Article 388 of the Commercial Act provides that a director shall determine remuneration of a director by a resolution of the articles of incorporation or the general meeting of shareholders as such, if the director decides his/her remuneration, it might impair the company's capital adequacy by imposing excessive remuneration before pursuing private interests (see Supreme Court Decision 2004Da49570, Nov. 23, 2006).

Therefore, the remuneration of a director must maintain a reasonable proportional relationship with his/her duties and should be reasonable in light of the company's financial status, and when the remuneration of a director is excessive in light of the company's circumstances or business performance, even if a resolution of the general meeting of shareholders was made on such determination, such a resolution cannot be acknowledged in light of the principle of capital adequacy, and if it is recognized that the director concurrently held the position of a shareholder or exercised an unfair influence on the company by taking advantage of his/her position in a position to substantially control the company, such act constitutes a breach of trust against the company as an act that causes unfair outflow of company's property and infringes upon the company's interests.

B) The following facts may be acknowledged in light of the overall purport of the pleadings stated in Gap evidence 10, 25, 43, Eul evidence 4, 19, 27, 39, 40, 41, 43, 50, 52, 52, 65, 66, 67, 68, 69, 70, 71, and Eul evidence 33-1.

① On November 23, 2007, Nonparty 1, the representative director of the Defendant Company, was sentenced to imprisonment with prison labor for four years at Seoul High Court, and thus, it was virtually impossible to promote the two-stage development project even if Nonparty 1 led up to that time. Moreover, the Defendant Company did not engage in any other business that is able to earn profits except for the lease of the instant rest area and collect the rental fee.

② The sales amount, etc. on the income statement of the Defendant Company were as follows. The net loss from April 1, 2007 to March 31, 2008 was KRW 536,876,836 as follows. Moreover, the accumulated loss amount of the Defendant Company as of March 31, 2008 was KRW 7,308,054,552.

(3), 208.4.1 to 31. 208. (10) to 208.4. 1. or from 2008. 1 to 31. 209. (31. 11.) to 231. 209. 5, 231, 219, 2195, 754, 537, 9176, 615, 616, 424, 397, 4387, 4387, 3287, 328, 1993, 193, 194, 197, 1939, 193, 274, 1967, 294, 1967, 297, 2057, 294, 206, 2967, 275, 2967, 2967

(3) The president of the Korea Highway Corporation shall present his opinion as follows in relation to the cases of determining the limit of total remuneration for directors and auditors among the agenda items of the 11th regular general shareholders' meeting

The schedule included in the main text [Opinion of the Korea Road Corporation] Dental Development (Korean Road Corporation) has caused a cumulative loss of KRW 7.5 billion each year as of March 2010, and there is a cumulative loss of KRW 7.5 billion as of the end of 6.1 billion, compared to the sales amount of KRW 6.1 billion, it is necessary to reduce the total amount of remuneration by exceeding the excessive limit of KRW 2.7 billion. In particular, it is necessary to reduce the amount of remuneration of the representative director excessively compared to the ordinary level, and the amount of remuneration of the representative director is five times the amount of remuneration of the general director, and it is necessary to reduce substantially the amount of remuneration of the representative director: KRW 30,500,000,000 won for the average amount of remuneration of the directors of KRW 1.5 billion for the company (unit: 2,700,000,0000,000,0000 won for KRW 305,50,000,000.

④ On August 2010, the Board of Audit and Inspection conducted an audit on the settlement of accounts with the Korea Highway Corporation, and then pointed out that, as of the date of the settlement of accounts in 2009, cumulative losses of KRW 8.1 billion have occurred as of the date of the settlement of accounts in 2009, the Defendant Company paid the personnel expenses of KRW 583,00,000 (annual salary of KRW 100,000,000 for the representative director) to eight executives and 12 employees, even though there are no special duties to entrust the operation of rest areas and gas stations with the operation of gas stations.

⑤ Meanwhile, by June 2008, the Defendant Company did not have any internal regulations that separately set forth detailed matters, such as the grounds, timing, and amount for the payment of retirement consolation benefits to retired executives. However, in practice, the amount of retirement benefits of executives has been calculated based on the payment rate of one month per year for continuous service year.

On April 2, 2008, the non-party 3 taken office as the representative director of the defendant company. After the non-party 1 retires from office as the director and the representative director of the defendant company, the non-party 3 set up a plan to pay one billion won retirement allowance to the non-party 7, who is the fund-raising employee, on April 16, 2008, to pay one billion won retirement allowance to the non-party 1 as retirement allowance, the internal security was properly maintained while ordering the tax review in preparation for the case where the non-party 1 would be paid as retirement allowance. The non-party 3, after the resolution of the board of directors on April 28, 2008, led the resolution that the non-party 1 would pay one billion won retirement allowance from the temporary general meeting of the defendant company held on May 15,

In addition, on June 15, 2008, the non-party 3, as the representative director of the defendant company, promoted the enactment of the rules on payment of retirement allowances for officers, and led the resolution to enact the rules on payment of retirement allowances for officers at the general meeting of shareholders of the defendant company on June 15, 2008.

⑥ At the time of holding a temporary shareholders’ meeting on May 15, 2008, 90% of the shares of the Defendant Company was held by EKI B.V., and EKI Pte held 10% of the shares of EKI B.V.

In addition, Nonparty 1 is the representative director and one stockholder of JK, who initially held 58.6% of the shares of ESI PE, from around May 2007. However, Nonparty 1 was dismissed from office on November 26, 2002, but even until May 15, 2008, as a director of ESP, continued to maintain the status of the director of ESI PEP. The other genetic directors of ESP is Nonparty 4 and there is Nonparty 2. Nonparty 1 appointed Nonparty 2, on behalf of ESP Pte on April 7, 2008, as ESB. Nonparty 2 delegated all rights related to the corporate bonds of this case from ESV on June 18, 2008.

On May 15, 2008, Nonparty 2 attended the temporary general meeting of shareholders of the defendant company held on May 15, 2008 as a representative of KSI B.V., and agreed to the agenda item on which retirement consolation benefits of KRW 1 billion are paid to Nonparty 1, and agreed to the proposal for the enactment of the rules on payment of retirement allowances for officers at the regular general meeting of shareholders of the defendant company held on June 26,

7) However, with respect to the shares of the Defendant Company held by EKI B.V., the CKI B.V. held the pledge right, and at the time, EKIB B.V. had little possibility of repaying the principal and interest of the above corporate bonds. Moreover, as seen above, the Defendant Company did not collect the rental fee of the rest area in this case, but did not have any other profit-making means, and it was virtually impossible for the Defendant Company to carry out the two-stage stage development project. Accordingly, from the end of 2007, the Defendant Company was also promoting Macar International Liber (Maquar International Limited) or M&A with the Honam Company.

During that process, Nonparty 1 and Nonparty 4 demanded Gyeongnam company, etc. to pay 6 billion won or 10 billion won for the sale of the equity and management rights in EkI Pte, which is the mother company of the Defendant company.

C) Comprehensively considering the aforementioned facts and the purport of oral argument as seen earlier, Nonparty 3’s act was difficult to maintain the management performance and financial status of the Defendant Company for the period of the Plaintiff Company’s holding as its representative director. On the other hand, Defendant Company’s directors, including the Plaintiffs, could not make management decisions. Defendant Company has promoted the issue of selling the right to manage the Defendant Company to a third party from the end of 2007, and separately held a pledge right for 90% of the shares of the Defendant Company’s company, which were held by the Plaintiff Company B.V., as well as for the amount of 10% of the shares of the Plaintiff Company’s company’s 20-year retirement allowance to be paid to the Plaintiff Company’s 20-year retirement allowance by holding a 30-year resolution of the Plaintiff Company’s retirement allowance to the extent that it would not have been possible for the Plaintiffs to repay the principal and interest of the company at the time of the above 20-year shareholders’ meeting.

Therefore, the plaintiffs cannot exercise their right to claim retirement allowances against the defendant company based on the above officer retirement allowance payment provision, which is the calculation of their own act of breach of trust.

D) However, as seen earlier, prior to the enactment of the above provision on the payment of retirement allowances for officers, the Defendant Company has paid the retirement allowances of the officers according to the payment rate of one month per year per continuous service year, and the Defendant Company also recognized the payment of retirement allowances according to such payment rate (in this case, a fraction less than one month is deemed to conform to the payment rate of retirement allowances for one month). Accordingly, this part of the Plaintiffs’ assertion is without merit only for the portion exceeding the amount calculated according to the payment rate of one month per year per continuous service year.

3) Whether the increase in salary of October 1, 2010 is valid

A) Comprehensively considering the aforementioned facts and the purport of the entire pleadings, EKIB.V., the debtor of the instant corporate bonds at the time of October 1, 2010, did not have any way to repay the principal and interest of the instant corporate bonds even after the expiration of May 4, 2009. The negotiations related to corporate bonds between the Defendant Company and CTV, which had been underway, have been concluded, and the largest shareholder of the Defendant Company was changed from EKI B.V. to TT group, and its management was sufficiently anticipated to be replaced accordingly. The initial annual salary contract was concluded and the initial annual salary contract remains for a considerable period of 10 days after it was concluded, and there was no reasonable ground to lower the annual salary for the Defendant Company’s cumulative losses at least KRW 7.5 billion, as well as the annual salary contract concluded with the Defendant Company for the purpose of increasing the amount of the Plaintiff Company’s annual salary to the maximum extent possible, regardless of the business progress of the Plaintiff Company or its representative director’s performance (which was concluded with the Defendant Company 1, 201.

Therefore, the annual salary contract that Plaintiff 1 entered into with the Defendant Company (Non-party 3) on September 30, 2010 and the annual salary contract that Plaintiff 2 entered into with the Defendant Company (Representative Director 1) on October 1, 2010 is an act of breach of trust that damages the Defendant Company, and the act that Plaintiff 1 abused the power of representation as the representative director of the Defendant Company shall be deemed null and void.

B) In addition, Article 388 of the Commercial Act provides that a resolution of the general meeting of shareholders shall be made in cases where the company’s articles of incorporation determines or does not provide for the remuneration of directors, and Article 19(1)2 of the Articles of incorporation of the defendant company provides that the determination of directors’ benefits, bonuses, and other remuneration and retirement allowances shall be made with the consent of a majority of the shareholders present at the general meeting of shareholders and at least 1/4 of the total number of issued and outstanding shares. There is no evidence to acknowledge that there was a resolution of the general meeting of shareholders on the annual salary of the plaintiffs. Accordingly, the plaintiffs cannot exercise their right to claim remuneration based on each annual salary contract, and this part of

4) Calculation of the plaintiffs' benefits and retirement allowances

A) According to the above facts of recognition, the Plaintiffs’ salary for October and November of 201 shall be calculated based on the annual salary before the above person’s salary, and the Plaintiffs’ retirement salary shall be calculated based on the previous annual salary before the increase as of October 1, 2010 according to the previous practice, by applying the rate of payment of retirement allowances for one month per one year for continuous service year (the fraction of less than one month shall be calculated as one month).

In this case, Plaintiff 1’s monthly salary is 12,083,33 won (145,00,000 won/12, but less than won; hereinafter the same shall apply). The monthly salary of November 17, 2010, which is the salary of November 17, 2010, is 6,847,222 won (12,083,333 x 17/30). The monthly salary of Plaintiff 2 is 4,00,000 (48,00,000/12), and the monthly salary of Plaintiff 2 is 2,26,6666 won (4,000 x 17/30) (the salary of November 17, 2010).

B) Meanwhile, from February 27, 2003 to November 17, 2010, Plaintiff 1 worked as a director or a representative director for seven years and nine months (On the other hand, according to the entry in subparagraph 14, Plaintiff 1 may be acknowledged as working for the defendant company on February 15, 2002, but the labor relationship of the above Plaintiff that the above Plaintiff worked as a employee of the defendant company was terminated upon the above Plaintiff’s appointment as a director on February 27, 2003, and the above Plaintiff newly established a delegation relationship with the defendant company on the date on which the above Plaintiff was appointed as a director. Accordingly, even if the above Plaintiff was appointed as a director, barring any special circumstance, it cannot be calculated by calculating the number of years of continuous service as a director, including the period during which the Plaintiff was employed as a director, for 0 years and 10 years and 10 years and 10 years and 20 years and 130 months and 10 days and 20 months and 130 months and 130 months and 10 months and 16 months and 2.

Based on these points, the retirement pay of Plaintiff 1 is calculated, KRW 97,547,738 ( note 12,586,805 x 7) + (12,586,805 x 9/12). The retirement pay of Plaintiff 2 is KRW 12,152,75 x 4,1666 x 2 x 4,16666 x 11/12).

C) Therefore, barring any special circumstance, the Defendant Company should pay 104,394,960 won to Plaintiff 1 (the monthly salary of 6,847,222 + retirement allowance of 97,547,738) and KRW 14,419,441 (the monthly salary of 2,266,660 + retirement allowance of 12,152,775) to Plaintiff 2, barring any special circumstance.

5) Offset, etc.

A) Comprehensively taking account of the overall purport of the arguments in the statement No. 32-1 and No. 32-2, Plaintiff 1 received KRW 15,66,670 as the monthly salary for October 2010, and Plaintiff 2 received KRW 6,666,670 as the monthly salary for October 2010.

However, as seen earlier, each annual salary contract on the above salary is null and void as an act of breach of trust prejudicial to the defendant company. Accordingly, the defendant company's 3,583,337 won (15,66,670 won - 12,083,333 won) on the amount of invalid salary out of the amount of wages paid in October 201, and the plaintiff 2,66,670 won (6,66,670 won - 4,000 won) must be returned to the defendant company as unjust enrichment. The defendant company asserted that the above claim for return of unjust enrichment should be offset against the amount on an equal basis with the plaintiffs' claims such as unpaid benefits.

Meanwhile, there is no dispute between the parties on the fact that the Plaintiff 1 received KRW 90 million from the Defendant Company’s retirement allowances, and that the Defendant Company paid KRW 45,000,000,000, in lieu of the lease deposit of the house in which the Plaintiff Company resides, and the said Plaintiff is entitled to deduct or offset the said money from the unpaid benefits and retirement allowances that the Defendant Company would receive from the Defendant Company.

B) Based on these points, when calculating the amount of the plaintiffs' claims, the plaintiff 1's above 104,394,960 won did not remain due to the extinguishment of all of the above repayment or offset, and the plaintiff 2's claims remain only 11,752,771 won (14,419,441 won - 2,66,670 won).

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 2 11,752,771 won and damages for delay calculated at the rate of 6% per annum under the Commercial Act from June 15, 2011 to May 15, 2013, which is the sentencing date of this case, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day of the judgment of this case, which is the day following the day when the copy of the complaint of this case was delivered to the above defendant. Thus, the defendant is obligated to pay to the defendant 2 1,752,771 won and damages for delay calculated at the rate of 6% per annum under the Commercial Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day of the judgment

Judges Kim Young-hoon (Presiding Judge) Lee Jin-Iil

Note 1) The average wage of 12,083,33 won in the immediately preceding three months of retirement + the sum of 6,041,670 won in the month of bonus received in 2010 to 503,472 won in the immediately preceding three months of retirement

Note 2) The average salary of KRW 4,000,000 for the three immediately preceding months of retirement + the aggregate of KRW 166,666 for each month of bonuses received in 2010.