DJ Development Co., Ltd. (Law Firm Yang & Yang, Attorney Park Gam-do et al., Counsel for defendant-appellant)

Counterclaim Defendant (Re-Counterclaim Plaintiff) (Law Firm Yangyang, Attorney Park Gam-do, Counsel for the plaintiff-appellant)

Defendant (Counterclaim Plaintiff, Counterclaim Defendant) (Law Firm Boll, Attorney Lee Jae-chul, Counsel for the plaintiff-appellant)

September 16, 2014

Cheongju District Court Decision 2013Gahap577 decided November 28, 2013, 2013Gahap584 decided November 28, 2013

1. Of the judgment of the first instance court, the part on the Plaintiff (Counterclaim Defendant), the Defendant (Counterclaim Plaintiff, and the re-Counterclaim Defendant) and the counterclaim Defendant (Re-Counterclaim Defendant), including the main claim and re-Counterclaim added and changed in the trial, shall be changed as follows:

A. The counterclaim and the counterclaim by the Defendant (Counterclaim Plaintiff and the counterclaim Defendant) against the counterclaim Defendant (Counterclaim Plaintiff) are dismissed, respectively.

B. The Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff and re-Counterclaim Defendant) 60 million won with 5% interest per annum from December 7, 2012 to November 11, 2014, and 20% interest per annum from the next day to the day of full payment.

C. The plaintiff (Counterclaim defendant)'s main claim and the remaining counterclaim claims against the plaintiff (Counterclaim plaintiff, counterclaim defendant) are dismissed, respectively.

2. The total costs of the lawsuit incurred between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff, and the Nonparty (Counterclaim Defendant) are assessed against the Plaintiff (Counterclaim Defendant), and the remainder is assessed against the Defendant (Counterclaim Plaintiff, Nonparty Counterclaim Defendant), respectively. The total costs of the lawsuit incurred between the Plaintiff (Counterclaim Plaintiff, Nonparty Counterclaim Plaintiff, and Defendant (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) are assessed against the Plaintiff (Counterclaim Plaintiff, Nonparty Counterclaim Plaintiff, and the part incurred by the counterclaim are assessed against the Plaintiff (Counterclaim Plaintiff, Nonparty Counterclaim Plaintiff), respectively.

3. Paragraph 1-b. above may be provisionally executed.

1. Purport of claim

(a) Main claim;

The Defendant (Counterclaim Plaintiff, Counterclaim Defendant, and hereinafter “Defendant”) shall pay to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 750 million won with interest of 20% per annum from the next day of the delivery of a copy of the claim and the application for change of the cause of the claim as of September 2, 2014 to the day of full payment (with partial reduction of damages for delay in the first instance).

(b) Counterclaim;

The Plaintiff and the counterclaim Defendant (only Counterclaim Plaintiff; hereinafter “Counterclaim Defendant”) jointly and severally pay to the Defendant 1,193,77,979 won and the amount calculated by applying 5% per annum from December 7, 2012 to the service date of a duplicate of the instant counterclaim, and 20% per annum from the next day to the day of full payment (the Defendant withdrawn the conjunctive counterclaim at the trial).

(c) Re-claim;

The defendant shall pay to the counterclaim defendant 750 million won with 20% interest per annum from the day following the delivery of the copy of the claim and the written application for modification of the cause of the claim as of September 2, 2014 of this case to the day of complete payment (the counterclaim defendant raised a second counterclaim for the first time).

2. Purport of appeal

A. The plaintiff

Of the main part of the lawsuit against the defendant in the judgment of the court of first instance, the part against the plaintiff corresponding to the amount ordered to be paid below shall be revoked. The defendant shall pay to the plaintiff 750 million won and the amount calculated by the rate of 20% per annum from the day following the delivery of the copy of the claim as of September 2, 2014 and the application for change of the cause of the claim as of this case to the day of complete payment (the purport of appeal shall also be deemed to have been modified according to the reduction of the plaintiff's claim

B. Defendant

The part of the judgment of the first instance against the counterclaim shall be revoked, and the judgment, such as the purport of the counterclaim, shall be sought.

1. Progress of the case and the object of adjudication;

A. The Plaintiff Company and the Plaintiff 2 filed the instant lawsuit against the Defendant, Defendant 2, and Defendant 3 (hereinafter “Defendant, etc.”). [The Plaintiff Company and the Defendant, etc. sought delivery of each of the lands listed in Articles 1, 2, 3, 4, 5, 7, 8, and 9 of the Attached Land List (hereinafter “each of the lands listed in the Attached Land List”) and each of the construction machinery listed in the Attached Machinery List (hereinafter “each of the instant construction machinery”) and the payment of each of the construction machinery listed in the Attached Land List (hereinafter “each of the instant construction machinery”) against the Defendant, etc., and the Plaintiff 2 sought delivery of each of the lands listed in Articles 6 and 10 of the Attached Land List No. 6 and 10 of the same Act against the Defendant, etc.];

B. During the trial of the first instance, the Defendant filed a counterclaim against the Plaintiff Company and the counterclaim Defendant, and the counterclaim Defendant filed a counterclaim against the Defendant at the first instance trial.

C. Meanwhile, at the trial court, the lawsuits filed against the plaintiff 2, the defendant 2, and the defendant 3 were respectively withdrawn, and the above land and construction machinery claim filed against the defendant of the plaintiff company against the defendant was withdrawn, and the monetary claim was partially reduced as seen earlier.

D. Ultimately, the subject matter of a party member’s judgment is a principal claim for payment of money to the Defendant of the Plaintiff Company, a counterclaim claim against the Defendant Company and the counterclaim Defendant, and a counterclaim claim against the counterclaim Defendant.

2. Basic facts

A. Authorization, permission, etc. of the Plaintiff Company

1) 원고 회사는 2009. 8. 14. 골재채취법 제14조 등에 따라 산림골재채취업, 선별파쇄업자로 등록하였고, 2010. 3.경 충주시장으로부터 별지 토지목록 제2항 기재 토지 등에 대하여 토석채취허가(토석 129,079㎥, 허가기간 2010. 3.경-2019. 12. 30.)를 내용으로 하는 개발행위허가를 받았으며, 2011. 3. 31. 충주시 엄정면 소재 토지 265㏊(이 사건 각 토지 중 일부로 보인다)에 대하여 광업권설정등록(광종명 : 철, 존속기간 : 2011. 4. 1.부터 2031. 3. 31.)을 하였고, 2011. 5. 31. 충청북도지사로부터 별지 토지목록 제1, 2, 4항 기재 각 토지 중 일부에 대하여 위 광업권에 따른 채굴계획인가를, 2011. 7. 21. 충주시장으로부터 별지 토지목록 제1, 3항 기재 각 토지 중 일부에 대하여 광물채취(철)를 목적으로 한 산지일시사용허가를, 2011. 10. 12. 충주시장으로부터 별지 부동산목록 제1, 3항 기재 각 토지 중 일부에 대하여 토석채취허가(토석 9만㎥, 반출기간 2011. 10.-2013. 12. 30.)를 각 받았다.

2) Meanwhile, on October 18, 2011, the Plaintiff Company entered into a contract on the supply of cryptotory with the Typtory Construction Environment Co., Ltd. (hereinafter “Tyltory Environment”) (hereinafter “Typtoryan Environment”), stating that the Plaintiff Company would supply cryptoto the Typtory environment from November 1, 201 to October 31, 2013.

3) Each land and each of the instant construction machinery listed in paragraphs 1, 2, 3, 4, 5, 7, 8, and 9 of the annexed Land List is owned by the Plaintiff Company, and each of the land listed in paragraphs 6 and 10 of the annexed Land List is owned by Plaintiff 2.

B. Conclusion, etc. of the instant sales contract

1) On February 2012, the counterclaim Defendant (a person who has the position of the president as the owner of the Plaintiff Company) and the Defendant drafted a sales contract with the following contents (hereinafter “instant sales contract”). The seller’s column of the instant sales contract is printed as a joint and several surety “non-party to the representative director (the representative director of the Plaintiff Company)” and the Plaintiff Company’s corporate seal is affixed next thereto.

Contract object and location: All the matters concerning the real estate and the right of authorization and permission owned by the Plaintiff Company located in the area other than the ( Address omitted) strict.

(Contract Terms)

1. Sales amount: 3.7 billion won;

2. Contract deposit of KRW 350 million ( KRW 50 million on January 19, 2012, KRW 31 million on January 31, 2012, and KRW 300 million on January 31, 2012).

3. The intermediate payment shall be at least KRW 650 million on February 20, 2012, and at least 70 percent of the monthly production shall be supplied to the factory of Party A (referring to the “Counterclaim Defendant; hereinafter the same shall apply) at the unit price agreed upon in the factory of Party B (referring to the “Counterclaim Defendant”; hereinafter the same shall apply) as the factory of Party A at least 70 percent of the monthly production. The period shall be set off against the intermediate payment (including the supplied aggregate unit) and the remainder, and the period shall be set at one year, and shall be from February 15, 2012 to February 14, 2013. If the balance fails to be paid within the prescribed period, Party A has the authority to seize the amount set-off to Party B (it may be seized by any other person).

4. When the full amount of the purchase price (3.5 billion won) has been deposited from Eul, and the completion of all matters, such as the replacement of a joint and several surety, with respect to the performance bond within tinsan, the guarantee fee shall be succeeded to Eul and shall be transferred to Eul, and all rights and transfer of ownership shall be granted to Eul.

6. All claims and obligations arising before February 16, 2012 shall be subject to Party A’s responsibilities and obligations.

7. In the course of the project in Party A, “Yju-Yan-Yan-Yan-Yan Highway 3 tools and concrete production, aggregate transport,” and “B” are not included in the sales contract, and attached to the termination note of the construction work attached to Party A, and “Yju-Yan-Yan-Yan-Yan-Yan-Yan-Seaking equipment (construction-related equipment, plant, office, etc.) related to the project (production of concrete for the three sections and sections of the Highway

(Operational Matters)

1. All of the powers and operations before the full payment of the purchase price is made shall be administered and managed by A; Eul shall be responsible for the production (noise, vibration, scattering dust, etc.) operation; Eul shall be responsible for the occurrence of civil petitions and accidents; and Eul may cooperate in the matters arising in the course of succession to Eul;

2. With respect to whether or not there is any employee working at the present and any rent equipment, the powders week shall be the employee of Gap for the matters transferred according to the conditions of production and operation by Eul, and monthly salary shall not interfere with the production and operation by making the direct payment by Eul (Provided, That with respect to letter and rent equipment as an employee, this contract shall be made to pay wages and rents directly).

3. Eul shall decide to purchase and approve all inputs used monthly, such as wages, equipment leasing, oil, powders, expendable goods, etc., which occurred in the course of production and operation, in the name of Eul, and to purchase and approve them in the name of Eul, and shall also purchase and approve the cost of expendable goods of one capital and two capitals (the 31st day of each month) by the time of all authorization and permission and transfer of ownership.

4.The generated crushed stone (including mixturess) and landscaping stone (including mix stone) shall have one manager designated by the time of transfer of ownership, and the salaries of Gap employees shall also be paid by the time of transfer of ownership. The electricity charges and various public charges in the name of Gap shall also be paid directly by Eul.

5. He shall cooperate as much as possible in the production of Gap, such as providing the lodging place necessary for production, providing the site, and installing electricity;

6. Eul shall be engaged in production and operation so that it may be conducted within the permitted area related to the removal and blasting in the production and operation, and expenses incurred in production and operation, such as waste disposal matters and damage preventions, arising from the workplace, shall be borne by Eul, and all responsibility for and obligations of all personal and physical accidents resulting from safety accidents in tin acid, and all responsibility for Eul shall be fully responsible (the buyer shall subscribe to insurance for industrial accident and collateral insurance for human resources and equipment);

(Termination of Contract)

1. Where damage is anticipated due to the occurrence of problems, such as public charges, other disposal costs (waste, etc.), lease equipment, credit, etc., arising every month, A may request B to take implementation measures on several occasions, and where B is not implemented, A shall have the authority to seize the amount set off against B;

2. If it is deemed that Party A is unable to produce and operate the tin in accordance with the occurrence of a non-performance of obligation and legal issues, or the unilateral situation of Party B, Party B may notify Party B of the termination of the contract, and Party B shall have the authority to seize the amount which has not been offset by Party B.

3. If any other requirement for termination of a contract arises under ordinary custom, it shall have the authority to seize the amount yet to be offset against B.

(other matters)

1. A shall transfer the authorization and permission right and ownership to B in the event that at least two-thirds of the purchase price and replacement is a joint and several surety of the Seoul Guarantee Insurance and the Seoul Guarantee Insurance Recovery Deposit. In addition, A shall cooperate in the loan-related relationship of B (Provided, That after the loan, B shall first pay the balance of the purchase price of B).

2) From around that time to April 13, 2012, the Defendant paid to the counterclaim Defendant KRW 350 million as the down payment pursuant to the instant sales contract, the intermediate payment, and KRW 250 million as the down payment.

C. Operation (production, supply, etc. of earth and rocks) of the Defendant Company

1) From February 2012, the Defendant collected earth and stones from each of the instant lands in the name of the Plaintiff Company, and supplied them to the factory operated by the counter-Defendant and the third party to the Plaintiff Company, and the third party to the chemical industry, etc. (hereinafter “Japanese Industry”).

2) The sign language environment and the sign language industry remitted each of their earth and stones to the Plaintiff Company’s account in the name of the Plaintiff Company, and the sign language environment and file industry issued a tax invoice in the name of the Plaintiff Company to the file industry;

3) Around July 2012, the Defendant discontinued the production of soil and stones on each of the instant land, and thereafter did not pay the purchase and stones to the counterclaim Defendant under the instant sales contract.

4) On December 5, 2012, the Defendant sent to the Plaintiff Company and the counterclaim Defendant a notice of cancellation of the contract to the effect that, at the time of the conclusion of the instant sales contract, the counterclaim Defendant deceptioned the Defendant regarding the quantity available for collecting earth and rocks on each land of this case, and thereafter refused to transfer the management rights of the Plaintiff Company, the Defendant also refused to transfer the management rights of the Plaintiff Company. Therefore, the instant sales contract was revoked as a declaration of intent by deceiving the Plaintiff. The refund

(d) Imposition, etc. of fines for negligence for viewing and viewing loyalty;

1) On October 2012, Chungcheong viewing was imposed on the Plaintiff Company on the ground that “the Plaintiff Company did not report any change in the permission to collect earth and stones prescribed in the proviso to Article 25(1) of the Mountainous Districts Management Act and Article 24 subparag. 7 of the Enforcement Rule of the same Act, and collected soil and stones in 220,329 cubic meters which are larger than 90,000 cubic meters of the quantity of permission to collect earth and stones,” and the Plaintiff Company paid it on October 31, 2012.

2) On July 17, 2013, the Plaintiff Company obtained permission to collect earth and stones (land and stones 97,000 cubic meters and the period of release from 97,000 cubic meters: From July 17, 2013 to June 30, 2014) on part of the lands listed in paragraphs 1 and 3 of the attached Table of Land from the Chungcheong Mayor.

[Based on Recognition] In the absence of a dispute, entry of Gap's 1 through 4, 16 through 21, 26, 28 through 34, 37, 42 through 44, Eul's 7 through 13, 15, 16, 25 (including various numbers), the result of inquiry into the loyalty market by the court of the first instance, the result of the inquiry into the loyalty market by the court of the first instance, the result of the information submission order by the director of the tax office of the first instance, the purport of the entire pleadings

3. Whether the counterclaim against the counterclaim defendant and the counterclaim defendant is legitimate

Ex officio, in a case that is not a proper necessary co-litigation, it is not allowed to add a party during the course of a lawsuit. This is also applicable to a counterclaim, which is not a proper co-litigation against the plaintiff and the counter-defendant. Thus, the counterclaim against the defendant is illegal, and as long as the counterclaim against the defendant is illegal, the counterclaim against the counter-defendant is also unlawful.

4. Judgment on the main claim

A. The plaintiff company's assertion

1) The subject matter of the instant sales contract is each of the instant land and construction machinery.

2) According to the instant sales contract, the Defendant purchased expenses necessary for the production of earth and stones in the name of the Defendant, and failed to perform all public charges and the Plaintiff Company, despite its duty to pay installment payments for the leased construction machinery, etc., and failed to perform the obligation under the instant sales contract since the end of July 2012, including suspending the production and delivery of earth and stones in each of the instant land, and made clear that the Defendant had no intent to perform its obligation. The instant sales contract was rescinded by being served on the Defendant with a copy of the complaint containing a declaration of intent to rescind the instant sales contract, on the grounds that the copy of the complaint was served on the Defendant.

3) However, the defendant collected earth and stones from each land of this case in the name of the plaintiff company in the name of the plaintiff company and delivered them to the counter-party defendant's factory, a tri-cultural environment, and a chemical industry (total amount of KRW 700,199,057). Not only did the purchase and use of various expendable items necessary for the collection of earth and rocks in the name of the plaintiff company but also did not pay the price (total of KRW 180,267,361), electricity charges (total of KRW 43,396,370), oil prices (total of KRW 116,984,450), and the defendant did not pay the installment payment of the construction machinery owned by the plaintiff company (total of KRW 381,21,281), and the defendant did not pay it to the plaintiff company for the total amount of KRW 30,500,970, total amount of damages for each of the plaintiff company's 260,506.1

4) Meanwhile, after the conclusion of the instant sales contract, the Defendant purchased digging machines, etc. in the name of the Plaintiff Company, and even though the Defendant agreed to pay the down payment, the Defendant transferred other construction machinery owned by the Plaintiff Company instead of paying the down payment of KRW 50 million. Therefore, the Defendant should be deemed to have arbitrarily disposed of the construction machinery owned by the Plaintiff. Therefore, this constitutes tort against the Plaintiff Company and compensate for damages incurred therefrom.

5) However, as a joint and several surety of the instant sales contract, the Plaintiff Company is obligated to return KRW 1,435,092,013 (the total sum of down payment and intermediate payment paid by the Defendant to the Counterclaim Plaintiff) paid to the Defendant following the rescission of the instant sales contract, and the amount equivalent to earth and stones paid by the Defendant to the Counterclaim Defendant’s factory, trilified environment, file industry, etc., which was produced and supplied by the Counterclaim Defendant. Accordingly, the Defendant is obligated to pay the Plaintiff Company a total sum of KRW 1,495,128,746, which was obtained by deducting the above KRW 1,495,092,013 from the total sum of 2,930,220,759, as unjust enrichment or damages, and seek for payment of KRW 750,000 among them and its delay damages.

B. Determination

1) The nature of the instant sales contract and whether to cancel the contract

A) In full view of the parties to the instant sales contract and the contents thereof, and the progress of the implementation thereof, the instant sales contract appears to have been transferred by the counter-party Defendant to the Defendant, but it appears that the Defendant collected soil and stones from each land of this case after taking over part of the right to operate the Plaintiff Company (the part on the production of soil and stones in each land of this case), and supplied them to the counter-party Defendant’s factory (other corporation than the Plaintiff Company) after taking over the right to operate the Plaintiff Company on the collection of soil and stones from each land of this case from July 2012 to July 2012 (i.e., the subject who collected soil and stones from each land of this case from around July 2012 after the conclusion of the instant sales contract, supplied them to the counter-party Defendant’s factory and the third-party environment, file industry, etc.).

B) Meanwhile, according to the facts acknowledged earlier, it appears that the Defendant discontinued the production of earth and stones on each of the instant lands around July 2012, and thereafter did not pay the remainder of the sales contract under the instant sales contract to the counterclaim Defendant. Rather, it appears that the Defendant notified the counterclaim Defendant of the cancellation of the instant sales contract on the ground of deception, and expressed that he did not intend to execute the instant sales contract. Barring any other special circumstances, the instant sales contract appears to have been lawfully rescinded by the delivery of the duplicate of the instant complaint containing a declaration of intent to cancel the contract on the ground of the Defendant’s nonperformance (the instant warden, not the counterclaim Defendant, but the Plaintiff Company’s relationship with the counterclaim Defendant, the Plaintiff Company’s status in the instant sales contract, and the intent of the counterclaim Defendant in the instant sales contract, etc., it appears that the expression of intent to cancel the sales contract on each of the instant land in question was based on the Defendant’s counterclaim’s intent, and it was also difficult to acknowledge that the Defendant did not have any other reason to collect earth and rocks on the ground that there was no reason for the Defendant’s lack of permission to collect soil and rocks.

2) Whether unjust enrichment was established

A) As seen earlier, the subject of collecting and disposing of soil and rocks from February 2012 to July 201 of the same year is not the Defendant but the Plaintiff, and thus, the Plaintiff’s assertion that the Defendant collected earth and rocks from each of the instant land or used and disposed of each of the instant land and construction machinery owned by the Plaintiff is without merit.

B) Meanwhile, under the instant sales contract, even if the Defendant agreed to bear various expenses incurred in collecting earth and stones and the installment payments, etc. of construction machinery owned by the Plaintiff Company in each of the instant land during the operation of the Plaintiff Company against the counterclaim Defendant, the Plaintiff Company paid them or was liable to pay them, each of the above expenses and installments should be borne by the Plaintiff Company. Therefore, the Plaintiff Company cannot be deemed to have suffered damages equivalent to the above expenses and installment payments or the withdrawal of auction without any legal ground. This part of the Plaintiff Company’s assertion is without merit.

C) In addition, there is no evidence to acknowledge whether the Plaintiff Company failed to collect earth and rocks from each land of this case from around August 2012 to November 30, 2013 on the wind that prevents the Defendant from cutting off access roads to each land of this case from around August 2012, and it does not seem that the Defendant obtained any benefit that does not have any legal ground. This part of the Plaintiff Company’s assertion is without merit.

3) Whether tort was established

If the Defendant, as alleged in the Plaintiff Company, purchased construction machinery in the name of the Plaintiff Company while operating the Plaintiff Company and transferred the construction machinery owned by the Plaintiff Company to the seller under the pretext of the down payment, even if there was an agreement between the Defendant and the Plaintiff Company that the down payment should be borne by the Defendant, such transfer cannot be deemed to constitute a tort against the Plaintiff Company, barring any special circumstances (the Plaintiff Company may claim the Defendant to implement the said agreement, but no evidence exists to deem that there was an agreement between the Plaintiff Company’s assertion). This part of the Plaintiff Company’

4) Sub-committee

Ultimately, the plaintiff company's principal claim is without merit.

5. Determination as to the defendant's counterclaim against the plaintiff company

A. The defendant's assertion

1) The instant sales contract is null and void as an unfair juristic act, or is revoked as a result of the deception by the counterclaim Defendant, or was rescinded as a contract which was impossible to perform from the beginning, or was implicitly rescinded, or was rescinded by the counterclaim Defendant due to the delay of the Defendant’s performance.

2) According to the instant sales contract, the Defendant paid down payment of KRW 350 million and intermediate payment of KRW 250 million to the counterclaim Defendant, and paid KRW 10,191,780 for five months (from March, 2012 to July of the same year) of the Bank loans of KRW 200 million. The Defendant produced soil and stones equivalent to KRW 1,032,095,412, and had it deliver or deliver them to the company’s operation of the counterclaim Defendant and the Plaintiff’s business partners, etc. As seen earlier, the instant sales contract was null, void, revoked, or cancelled, and the Defendant obtained profits equivalent to the above amount without any legal grounds, and thereby the Defendant suffered damages equivalent to the above amount. Even if unjust enrichment is not established with respect to the above amount equivalent to the above earth and stones, the Defendant’s total amount of KRW 1,297,466,636, etc. of the instant land was constituted as unjust enrichment.

3) Therefore, the Plaintiff Company, a joint and several surety of the counterclaim Defendant, seeking payment of KRW 1,193,777.979 out of the said amount and its delay damages.

B. Determination on the grounds for the counterclaim

1) As seen earlier, the instant sales contract was rescinded.

2) Scope of unjust enrichment

A) The fact that the Defendant paid KRW 600 million to the counterclaim Defendant as the purchase price pursuant to the instant sales contract is recognized as above. However, there is no evidence to prove that the Defendant paid KRW 10,191,780 for the five-month interest on the loans to the Industrial Bank of Korea of Korea of the Plaintiff Company.

B) Meanwhile, as seen earlier, from February 2012 to July 2012, 2012, the subject who collected earth and stones from each of the instant land and supplied them to the company operating the company or its customer is not the Defendant, but the Plaintiff. Thus, there is no room to deem that the Defendant suffered considerable loss from the collection and supply of earth and stones (in the instant sales contract, there is an agreement under which the Plaintiff company should substitute the purchase price to be paid to the counter-defendant for the soil and stones supplied to the company operating the counter-defendant, and as long as the instant sales contract has been terminated, the Plaintiff company may claim for such earth and stones payment to the counter-defendant company. Moreover, there is no evidence to acknowledge that the Defendant spent expenses related to the collection and supply of earth and stones.

C) Ultimately, the amount to be returned by the counterclaim Defendant to the Defendant is merely KRW 600,000,000,000.

3) Therefore, barring any special circumstance, the Plaintiff Company, a joint and several surety of the counterclaim Defendant under the instant sales contract, has the obligation to pay the above KRW 600 million and its delay damages to the Defendant.

C. Determination on the Plaintiff Company’s assertion

1) The plaintiff company's assertion

A) The sales contract of this case was rescinded as the Defendant’s nonperformance. Section 2 and Paragraph 3 of Article 2 of the sales contract of this case stipulate the amount of the unpaid purchase price at the time of rescission as penalty, and since the amount of the unpaid purchase price at the time is KRW 2,264,907,987, the Defendant is liable for damages equivalent to the above amount to the counterclaim Defendant. Even if the above provision cannot be deemed as the contract for penalty, due to the Defendant’s nonperformance of obligation, the counterclaim Defendant was liable for damages equivalent to the total amount of KRW 2,930,220,759 [the specific details are as stated in the above 4-A and Paragraph 4 of the above 4-A)]. Accordingly, the Defendant is liable for damages against the counterclaim Defendant.

B) The Plaintiff Company is a joint and several surety of the counterclaim Defendant, and is against the Defendant’s claim for return of unjust enrichment against the Plaintiff Company by setting the above damage claim against the counterclaim Defendant, the primary debtor, as the automatic claim.

2) Determination

A) Whether to enter into an agreement for penalty

Article 2. 3 of the termination part of the contract of this case provides that "if the contract of this case is unable to produce and operate tinsan due to the defendant's unilateral circumstances, such as the defendant's default, etc., the counter defendant may notify the termination and seize the balance of the amount of offset purchase price (Paragraph 2), and the counter defendant shall have the authority to seize the amount of offset (Paragraph 3) if the requirements for termination of the contract occur under ordinary custom, the counter defendant shall have the authority to seize the amount of offset (Paragraph 3). However, in light of the form, language and content of each of the above provisions, and the purport of penalty, etc., it is difficult to conclude that the sales contract of this case is determined as penalty if the contract of this case was cancelled due to the defendant's default. There is no other evidence to acknowledge this differently. The plaintiff's assertion in this part is without merit.

B) Whether the actual loss occurred

It is difficult to view that the counterclaim Defendant, who is the principal owner and operator of the Plaintiff Company due to the nonperformance by the Defendant, etc. of the Plaintiff Company’s assertion, suffered damages as alleged in the Plaintiff Company, and there is no other evidence to acknowledge this. This part of the Plaintiff Company’

D. Sub-committee

Therefore, the Plaintiff Company, as unjust enrichment, is obligated to pay to the Defendant the damages for delay calculated at the rate of 5% per annum under the Civil Act from November 11, 2014, which is the date when the Plaintiff Company rendered a substantial judgment, and 20% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, from November 7, 2012, to the date when the Plaintiff Company issues an objection to the existence and scope of its payment obligation, as unjust enrichment, to the Defendant.

6. Conclusion

Therefore, the counterclaim against the defendant and the counterclaim defendant are dismissed, and the defendant's counterclaim against the plaintiff company is accepted within the above scope of recognition, and the remaining counterclaim against the plaintiff company and the main claim against the plaintiff company are dismissed as it is without merit. The part against the plaintiff company, the defendant company, and the counterclaim in the judgment of the court of first instance, including the main claim added and modified in the trial, shall be modified as above. It is so decided as per Disposition.

[Attachment List omitted]

Judges Kim Jong-chul (Presiding Judge)