Ulil Co., Ltd. (Law Firm Sejong, Attorneys Cho Yong-ho et al., Counsel for the plaintiff-appellant)

Uniform Prospective Co., Ltd. (Law Firm Dakel, Attorney Na Sung-sung, Counsel for defendant-appellant)

April 3, 2009

Chuncheon District Court Decision 2006Gahap578 decided July 17, 2008, 2008Gahap222 decided July 17, 2008

1. The part against the plaintiff (Counterclaim defendant) corresponding to the money ordered to be paid additionally below among the part against the principal lawsuit of the judgment of the court of first instance shall be revoked.

The Defendant-Counterclaim Plaintiff (Counterclaim Defendant) shall pay to the Plaintiff (Counterclaim Defendant) 358,884,33 won with 5% interest per annum from September 13, 2006 to December 4, 2009, and 20% interest per annum from the next day to the date of full payment.

2. The remaining appeal by the Plaintiff (Counterclaim Defendant) is dismissed.

3. Of the total costs of the lawsuit, 20% of the cost incurred by the principal lawsuit shall be borne by the Defendant (Counterclaim Plaintiff) and the remainder by the Plaintiff (Counterclaim Defendant) respectively.

4. The portion to be paid with the amount under paragraph (1) may be provisionally executed.

1. Purport of claim

The principal lawsuit: Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) shall pay 2,832,320,697 won to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) at the rate of 20% per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment (the Plaintiff filed a claim for damages equivalent to the damages arising from the cancellation of the contract and the interest arising from the cancellation of the contract, or the interest arising from the cancellation of the contract, and added the claim for damages pursuant to Article 756 of the Civil Act as the conjunctive claim, which came to the first instance trial.)

Counterclaim: The plaintiff removed a temporary building on the ground of 1,626.61 square meters connected in order of each point of 1,2,3,4,55, and 1,626.61 square meters in the ship connecting each point of 1,626 square meters in the attached drawing among 1,2,3,4,54 square meters in 183-4 miscellaneous land in the same Ri, and 183-5 miscellaneous land in the same Ri, 183-5 miscellaneous land in the same Ri, 4,955 square meters, from among 1,2,3,4,555 square meters in the same Ri, the plaintiff removed a temporary building on the ground of 1,626.6 square meters in the same city of Gangwon-gun, Gangwon-do, and the delivery of each land (the court of first instance accepted the

2. Purport of appeal

Of the part concerning the main lawsuit of the judgment of the court of first instance, the part against the plaintiff corresponding to the amount ordered to be additionally paid shall be revoked. The defendant shall pay to the plaintiff 1,438,281,523 won with 20% interest per annum from the day after the delivery of the copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

(a) Details, etc. of concluding the contract;

(1) Most of the 1st century, Jinsung-gun, Jinsung-gun, Jinsung-gun, Minsan 28, Minsan 29, Minsan 32 owned by the State (National Forest Service). Of these, some of the above grounds are set up by the Ministry of National Defense and the long-term prospect for unification leased by the Korean Veterans Association, which is the

(2) On April 14, 2005, the non-party 2 and 3 (hereinafter "non-party 2 and 3") concluded a new sales contract with the defendant on April 14, 2005, under which the non-party 2 et al. leased approximately 1,000 square meters of the parking lot site in the Geum River-gu Incheon Metropolitan City from the defendant for a period of 30 years, and the non-party 2 et al. newly constructed the Red City Museum (hereinafter "the museum of this case") at the expense of the non-party 2 et al., and the non-party 2 et al. operated and managed the museum of this case. Under his responsibility, the defendant issued a single admission ticket in a museum and paid 50% of revenues to the non-party 2 et al. (hereinafter "non-party 4 contract of April 14, 2005"), but it was impossible to newly construct the museum of this case on the same ground as the non-party 2 and the non-party 2-1-party 5.

(3) Accordingly, the non-party 2 and the defendant shall again construct the museum of this case on the ground of the 1,2,3,4,54 square meters of the Magjin-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri, 183-5 square meters of 4,955 square meters of 183-5 square meters of the same Ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri (which is located between the Unification Prospecter Office and the roadway; hereinafter referred to as the "real estate of this case"), which had completed the construction report of a temporary building in the name of the defendant on the ground of this case on July 4, 2005, and had the museum newly exhibit the mineral of this case on the ground of this case purchased in sequence around November 1, 26166.

(4) Meanwhile, on October 10, 2005, Nonparty 2 established the Plaintiff Company and the representative director thereof for the operation of the instant museum’s business. On December 3, 2005, the Plaintiff entered into a contract on the entrusted operation of the instant museum with the Defendant on December 3, 2005, but partly modified the contents thereof, and entered into an entrusted management contract with the Defendant on December 28, 2005 (hereinafter “instant contract”). According to the instant contract, the contract period shall be 30 years in principle, and the Defendant, in entrusted management with the instant museum, issued a single admission ticket that allows both the unification outlook unit and the museum’s admission to collect admission fees, and collected the remainder after deducting 30% of the title of the museum’s management and operation expenses, ③ the demonstration operation period from January 1, 2006 to March 20, 2006; and ③ the period of operation of the museum from March 16, 2006 to March 16, 2007.

B. The situation before and after the conclusion of the instant contract

(1) On March 196, 1996, pursuant to the "Ordinance on the Management of the Village Management and Recreation Site, etc. of Gosung-gun", Gosung-gun was designated as a village management and recreation site. A contract for the collection of cleaning expenses between the defendant and the defendant under Article 5 of the above Ordinance was entered into with the defendant to issue admission tickets in the name of Gosung-gun and require the defendant to collect the cleaning expenses prescribed in Article 10 of the above Ordinance from visitors, and paid the full amount of the fixed amount of the consignment subsidy (35% in the year 1996, 40% in the year 197, 1997, and 30% in the year 2003 through 2004).

(2) The Defendant: (a) requested from the from January 1, 2004 to increase the consignment fee under the consignment collection contract to the Gosung-gun on several occasions on the ground of business deterioration when the unification observation region tourists decreased due to the Geum River-si tourism; (b) however, from November 2005, the Defendant could not negotiate with the Gosung-gun until November 2005. Accordingly, Nonparty 1 (the Nonparty of the judgment of the Supreme Court) who is the former representative director of the Defendant was notified on November 18, 2005 that “the withdrawal of the consent to the designation of the non-designated tourist destination and the termination of the consignment collection contract” was refused to issue an admission ticket under the name of Gosung-gun-gun from December 1, 2005; and (c) on the other hand, even if the unification observation team was not designated as a tourist destination under the Tourism Promotion Act, it was decided that it is possible for the representative director to collect the admission fee under Article 64 of the Tourism Promotion Act in the name of the Defendant.

(3) Since December 5, 2005, the head of Sungsung-gun urged the Defendant to suspend voluntary issuance of admission tickets and illegal collection of admission fees from around December 5, 2005. On December 27, 2005, Nonparty 1, the former representative director of the Defendant, requested the Gosung Police Station to investigate the fact of “voluntary issuance of securities, voluntary collection of admission fees to tourist resorts, etc.” and filed a criminal complaint on March 10, 2006.

C. Operating circumstances, etc. of the instant museum

(1) From January 1, 2006 to July 31, 2006, the museum of this case was operated in the temporary opening form. From January 1, 2006 to May 29, 2006, the Defendant issued a single admission ticket (the total of KRW 2,000 and KRW 3,000,00,000 for each person, plus KRW 3,000,000) by raising admission fees from May 30 to July 7, 2006, the Defendant issued a single admission ticket (the total of KRW 3,00,000 and KRW 2,000,000 per person per person per person per museum). The Defendant issued a separate admission ticket on July 20, 206 to 30,700, respectively.

(2) On the other hand, the museum of this case, around October 23, 2006, was destroyed due to the strong wind and storm fright, and e.g., e., e., e., e., e., e., e., e., red sea., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., g., e., e., e., e., e., e., e., e., e.,

[Reasons for Recognition] Unsatisfy, Gap evidence 1-1, 2, 2-2, Gap evidence 3, 4-1, 2-5-1 through 4, Gap evidence 7, Gap evidence 8, 10-1, 2, Gap evidence 12, 13, 14, Gap evidence 15-1 through 8, Gap evidence 30, Gap evidence 32-1 through 11, Gap evidence 36, Gap evidence 46-1, 2, 3, Eul evidence 47, Gap evidence 48-1, 3, Eul evidence 3, Eul evidence 49, Eul evidence 3, Eul evidence 8, 9, 10, Eul evidence 11-1, 2, Eul evidence 15-1, non-party 1-2, Eul evidence 1-5, non-party 1-1, evidence 5-1, evidence 1-1, and evidence 1-2, evidence 1-5, and evidence 1-1-5.

2. Related statutes;

[Waste Control Act (amended by Act No. 8371 of April 11, 2007)]

Article 13 (Disposal, etc. of Domestic Wastes)

(1) The head of a Si/Gun/Gu shall collect, transport and dispose of household wastes discharged from his/her jurisdiction: Provided, That areas designated by the head of a Si/Gun/Gu shall be excluded as prescribed by Ordinance

(2) The head of a Si/Gun/Gu may require a person prescribed by Presidential Decree to vicariously collect, transport, or dispose of goods under paragraph (1), as prescribed by Municipal Ordinance of the relevant local government.

(3) In collecting, transporting, and disposing of domestic wastes, the head of a Si/Gun/Gu may collect fees, as prescribed by municipal ordinance of the relevant local government.

[Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 252 on October 25, 2007)]

* Designation of Areas Excluded from Management of Domestic Wastes)

(1) When the head of a Si/Gun/Gu designates an area that may be excluded from an area subject to collection, transportation, and disposal of domestic wastes (hereinafter referred to as "area excluded from the management of domestic wastes") pursuant to the proviso to Article 13 (1) of the Act, he/she shall do so for any of the following areas:

1. An area where the number of households is less than 50;

2. An area, such as mountain, sewage, island, etc. where it is impracticable to collect and transport domestic wastes due to the difficulty of vehicle access, etc.;

(2) The head of a Si/Gun/Gu may fully or partially cancel the designation of a bathing beach, national park, etc. or other similar areas where many people gather within a certain period from among areas designated as an area excluded from domestic waste management pursuant to the provisions of paragraph (1), limited to the period during which the number of users gather.

【Municipal Ordinance on Management of High Military Village Management and Recreation Site, etc.】

* Purpose)

The purpose of this Ordinance is to contribute to the protection of the natural environment and the prevention of pollution by prescribing the management and other necessary matters of mountain valleys, etc. (hereinafter referred to as "village management recreation areas, etc.") that require special management from among the domestic waste management areas pursuant to Article 13 (1) and (3) of the Wastes Control Act and Article 9 (2) of the Enforcement Rule of the same Act.

* The definitions of terms used in this Ordinance are as follows:

1. The term "village management, resort support, etc." means any area that needs to be managed corresponding to a tourist destination among areas not designated as a national, Do, Gun park or tourist resort under the Natural Parks Act or the Tourism Promotion Act;

2. The term "cleaning expenses and facility use fees" means the expenses necessary for the maintenance and management of public facilities installed in the Gun or village and for the disposal of domestic wastes as prescribed in subparagraph 2 of Article 2 of the Wastes Control Act;

* Designation)

(1) A village management and resort site, etc. shall be designated by the head of a Gun pursuant to Article 9 (2) of the Enforcement Rule of the Wastes

Article *5 (Management)

(2) The site and public facilities for a village management and resort site, etc. may be fully or partially entrusted to a village or individual, as prescribed by the head of a Gun.

(3) In cases of entrusted management, expenses for the management may be borne by the entrusted manager and an amount equivalent to not more than 60/100 of the collected fees may be granted to the entrusted manager.

Article 10 (cleaning Expenses)

(1) The head of a Gun may collect cleaning expenses for village management and recreation areas, etc. designated pursuant to Article 3 to maintain and manage public facilities, to preserve the natural environment and to prevent pollution, and the collection period shall be the period referred to in Article 3 (2).

* Collection of cleaning costs and facility usage charges)

The collection of cleaning expenses and facility use fees under Articles 10 and 10-2 shall be governed by each of the following subparagraphs:

1. Cleaning expenses and charges for the use of facilities shall be collected directly from visitors at the entrance of a village management and resort site, etc. and a receipt shall be issued (hereinafter referred to as “receipt”);

2. The head of a Gun may collect cleaning expenses and charges for the use of facilities from the head of a Gun or designate a manager on entrustment.

[ Tourism Promotion Act (amended by Act No. 8343 of April 11, 2007)]

Article *2 (Definitions)

The definitions of terms used in this Act shall be as follows:

6. The term “tourist resort” means a place which is provided with natural or cultural sightseeing resources, in which the basic facilities for tourists are installed, and which is designated under this Act;

Article 64 (Collection and Use of Admission Fees, etc.*

(1) Every person who executes a formation project, building or other installation in a tourist destination, etc. may collect an admission fee from those who enter the tourist destination, etc. and fees for viewing or using from those who see or use the tourist facilities.

(2) The scope of persons subject to collection of admission fees, admission fees or usage fees under paragraph (1) and the amount thereof shall be determined by the head of a Si/Gun/Gu.

3. Determination on the main claim

A. The plaintiff's assertion

(1) Under the contract of this case, the defendant issued a single admission ticket of the museum of this case and collected 30% of the admission fee of 30% of the total admission fee of 40,347,400 won, and refused to pay the plaintiff 70% of the revenue of the museum admission fee of this case on the ground that 30% of the revenue of the museum admission fee of this case was opposed to the issuance of a single admission ticket. Thus, the above obligation of the defendant is deemed to have become non-performance of the above obligation after delivery of a copy of the complaint of this case on the ground of the defendant's non-performance of obligation. Accordingly, the defendant is not obliged to recover 150,347,40 won from the defendant's operation of the museum of this case and 30,000 won after deducting 33,00,000 won of the admission fee of this case from 30,000 won, 20,000 won of the total amount of 27,19,4714,27.

(2) On the other hand, since the issuance of a single admission ticket is entirely impossible and thus the contract of this case is null and void, the plaintiff entered into the contract of this case with the defendant's trust that he would issue a single admission ticket and invested a huge amount of expenses for the construction of the museum of this case, so the defendant is obligated to compensate the plaintiff for the trust interest.

B. Determination

(1) Claim for damages equivalent to restitution due to cancellation of a contract and performance profit

㈎ 앞서 본 인정사실에서 알 수 있는 다음과 같은 사정, 즉 ① 소외 2 등과 피고 사이의 2005. 4. 14.자 계약으로부터 이 사건 계약에 이르기까지 각 계약이 단일입장권발행을 전제로 하고 있는 점, ② 이 사건 박물관이 위치한 강원 고성군 북부 지역은 통일전망대를 주된 관광자원의 하나로 하고 있는 데다가, 이 사건 박물관은 통일전망대로부터 수 킬로미터 정도 떨어진 매표소 부근에 위치하고 있어 통일전망대와 박물관에 대해 별개의 입장권을 발행한다면 단일입장권을 발행하는 경우에 비해 그 입장료 수입은 현저히 줄어들 것으로 보이는 점{갑 30호증의 기재에 의하면, 실제로 박물관 입장료를 대인 2,000원으로 하여 단일입장권을 발행한 때인 2006. 6. 한달 동안의 입장료 수입이 금 37,215,200원(1일 평균 입장료 수입은 금 1,240,506원)인 반면, 박물관 입장료를 대인 2,000원으로 하여 별도로 입장권을 발행한 때인 2006. 7. 14.부터 같은 달 31.까지의 입장료 수입은 금 932,000원(1일 평균 입장료 수입은 금 51,777원)에 불과함을 알 수 있다} 등에 비추어 볼 때, 피고가 단일입장권을 발행하여 입장료를 통합징수한 후 그 중 박물관 입장료에 해당하는 부분의 수입을 원고에게 지급하는 것은 이 사건 계약에 따라 피고가 부담하는 주된 의무라고 할 것이다.

However, the following circumstances revealed in the above facts and relevant laws, i.e., ① the area where the prospect for unification is located belongs to the village management and recreation site designated by the high-level head of Gun. Thus, it is possible for persons visiting the above area to collect the entrance fees in the name of cleaning expenses pursuant to the relevant Acts and subordinate statutes, such as the Wastes Control Act. However, since the above area is not designated as a tourist destination under the Tourism Promotion Act, it is impossible to collect the entrance fees under the Tourism Promotion Act, and there is no legal basis to deem that the defendant and anyone who are not the above area can collect the entrance fees lawfully from the visitors to the above area. ② Since the above museum is not designated as a village management and recreation site, it is impossible to collect the entrance fees in the name of cleaning expenses from the high-level head of Gun or the person entrusted by him to the above area. Therefore, it is clear that the contract of this case was concluded that the defendant's uniform collection of the entrance fees from private enterprises with the prospect for unification (the prospect for uniforming location) and the defendant's uniform collection of the entrance fees.

㈏ 따라서, 원고의 첫 번째 주장 중 이 사건 계약이 피고의 책임있는 사유로 후발적 이행불능이 되었고 원고의 계약해제의 의사표시에 따라 적법하게 해제되었음을 전제로, 이 사건 박물관 건립비용 등의 원상회복 및 이행이익 상당의 손해배상을 구하는 부분은 받아들일 수 없다. 다만, 원고의 위 주장 중 계약해제에 따른 원상회복의무의 일환으로서 피고가 이미 수령한 입장료 수입의 반환을 구하는 주장에는 이 사건 계약이 무효인 경우에 그 부당이득반환을 구하는 주장이 포함되어 있다고 볼 수 있으므로, 아래에서는 이에 대하여 본다.

㈐ 갑 30호증, 을 5, 6호증의 1, 2의 각 기재와 제1심 증인 소외 5의 증언에 변론의 전취지를 더하여 보면, 피고는 2006. 1. 1.부터 2006. 7. 31.까지 사이에 이 사건 박물관을 운영하면서 금 150,347,400원의 박물관 입장료 수입을 얻고, 그 중 금 36,105,590원을 원고에게 지급한 사실이 인정되므로, 피고는 원고에게 그 차액 상당을 부당이득으로서 반환하여야 할 것이다(이에 대하여 피고는 ‘2005. 12. 28.부터 2006. 5.까지의 입장료 수입에 대하여는 2006. 7.경 원고측 대리인 소외 5와 피고 사이에 금 40,000,000원만을 지급하기로 합의하였다‘는 취지로 주장하나, 을 5호증의 1, 을 13호증, 을 14호증의 1, 2의 각 기재와 제1심 증인 소외 5, 1의 각 증언만으로는 이를 인정하기에 부족하고, 달리 이를 인정할 만한 증거가 없으므로, 위 주장은 받아들일 수 없다).

However, in light of the fact that the defendant has been sufficiently presumed to have spent the management expenses while entirely performing the entrusted operation of the museum of this case during the above period, the expenses must be deducted within the scope of the above unjust enrichment, and as seen above, it is reasonable to view the management expenses as 30% of the admission fees even if the contract of this case is null and void and the contract of this case is not automatically deducted. Thus, the defendant is obligated to pay to the plaintiff the amount of 69,137,590 won (=150,347,400 won 】 0.7 - 36,105,590 won) as a performance of the obligation to return unjust enrichment 】 0.7 - 36,590 won, and the legal interest or delay damages thereon.

(2) Claim for damages equivalent to trust interests

㈎ 손해배상책임의 발생

The following circumstances revealed in the facts of recognition as seen earlier, namely, ① since 196, the Defendant concluded a contract on the consignment collection of cleaning expenses and collected the admission fees under the name of cleaning expenses. Thus, it is clear that the unification outlook unit admission fees was aware of the fact that the cleaning expenses under the relevant Acts and subordinate statutes, such as the Wastes Control Act, etc. ② When the Defendant was confused with the Sung-gun around the increase of the consignment subsidies, the Defendant issued an admission ticket under the name of the representative director under the Tourism Promotion Act without any legal basis from December 1, 2005, under the pretext that it would collect the admission fees under the name of the Defendant’s representative director from December 5, 2005, the transfer of the instant contract, and ③ from December 5, 2005, the Defendant’s representative director’s issuance of the admission tickets under the name of the Defendant’s representative director, which was unlawful, and it is reasonable to deem the Defendant to have known, or could not have known, the Defendant’s duty to request for the investigation of Nonparty 1’s profits at the time of the instant contract.

As to this, the defendant argued to the effect that "the plaintiff should also investigate and examine various circumstances suitable for the size of his investment, and if so, it is possible to easily verify the part of the single admission ticket. In particular, since the term "cleaning expenses" was written in the admission ticket originally issued by the defendant, the plaintiff could have confirmed that the admission fee collected by the defendant was cleaning expenses pursuant to the ordinances of the High Military, so even the plaintiff could have been negligent in failing to verify the possibility of issuing a single admission ticket in advance." According to Gap evidence No. 5-4, the defendant's statement stated the phrase "cleaning expenses" under the phrase "admission ticket" issued by the defendant prior to the contract of this case, but the issue of a single admission ticket belongs to the dominant or dangerous area of the defendant, in principle, the defendant's representative director, who is the right holder, cannot be seen as bearing any duty to investigate or verify the possibility of issuing a single admission ticket under the name of the defendant's representative director, and the defendant's testimony cannot be seen as being impossible before the contract of this case No. 15.

㈏ 손해배상의 범위

In addition to Gap 9, 11, 16, 17, 18, 19, 20, 21, 22, 23, 25, 27, 29, 40, and 44 each statement of evidence (including each number in the case of additional numbers) and the testimony of non-party 3, 5, and 1 of the first instance trial witness of the court of first instance for the performance of the contract of this case, the fact that the remainder of the expenses incurred by the plaintiff except for the purchase costs of minerals can be recognized as the sum of the expenses paid by the plaintiff for the performance of the contract of this case as stated in the separate sheet of expenditure (the amount stated in the separate sheet shall be the amount recognized as reflecting the same contents as the non-statement statement as to the amount stated in Gap 44). The fact that the amount equivalent to 58,300,000 won among the minerals purchased by the plaintiff for operation of the museum of this case has been destroyed as seen earlier.

In conclusion, the total amount of losses suffered by the Plaintiff due to reliance on the validity of the instant contract is KRW 1,38,284,90 (gold KRW 1,329,984,90 + KRW 58,00). The Plaintiff sought damages for the total amount of mineral purchase cost, but it cannot be deemed that the damages incurred to the Plaintiff, other than the destroyed mineral, have been realized unless there are special circumstances). As seen earlier, the Plaintiff received KRW 1,029,40,567 from the Defendant’s primary claim for damages for the damages of KRW 1,38,84,90 (see, e.g., Supreme Court Decision 70Da167, Oct. 23, 206). Accordingly, the Defendant cannot be deemed liable for damages from the Defendant’s primary claim for damages of KRW 758,833,90, Oct. 27, 206 (see, e.g., Supreme Court Decision 2007Da167567, supra.).

4. Conclusion

Therefore, as to the plaintiff, 428,021,923 won (amounting to 69,137,590 won + 358,84,333 won) and 69,137,590 won, which is the winning amount in the first instance judgment, shall be revoked, and as to the existence and scope of the defendant's obligation to perform, 5% per annum under the Civil Act from September 13, 2006 to July 17, 2008, 208, which is the date when the copy of the complaint is served, it is reasonable to dispute about the existence and scope of the defendant's obligation to perform, 358,84,333 won, which is an additional amount in the second instance judgment, and the remaining part of the appeal shall be dismissed within 10% per annum from the next day to the date when the next day is fully paid. Thus, the plaintiff's claim for additional interest or delay damages shall be dismissed within 20% per annum of the above judgment.

[Attachment]

Judges Gangnam-gu (Presiding Judge)