(영문) 서울고등법원 2006.2.8.선고 2004나78754 판결

1. The Plaintiff (Counterclaim Defendant)’s appeal against the Defendant (Counterclaim Plaintiff) Kim Jin and the appeal against Defendant 0000, all of which are dismissed.

2. On the basis of the preliminary claim added at the trial, Defendant ○○○○○○, Inc., paid 200,000,000 won to Plaintiff (Counterclaim Defendant) and 20% interest per annum from October 24, 2003 to February 8, 2006, and 20% interest per annum from the next day to the day of full payment.

3. 원고 ( 반소피고 ) 와 피고 ( 반소원고 ) 김도진 사이의 항소이후의 소송비용은 원고 ( 반소피고 ) 의 부담으로 하고, 원고 ( 반소피고 ) 와 피고 주식회사 OOOOO 사이의 항소이후의 소송비용은 이를 3분하여 그 2는 원고 ( 반소피고 ) 의, 나머지는 피고 주식회사 이ㅇㅇㅇㅇ의 각 부담으로 한다 .

4. Paragraph 2 can be provisionally executed.

Purport of claim and appeal

1. Purport of claim

A. Main action

Defendant (Counterclaim Plaintiff, hereinafter “Defendant”) Kim Jin and Defendant ○○, Inc. around the other hand,

○○ (hereinafter referred to as “Defendant Company”) is jointly and severally against Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”)

1,350,00,000 won per annum and 20% per annum from the day after the delivery of a copy of complaint to the day of complete payment.

shall pay the amount by the proportion of the corporation.

Preliminaryly, Defendant Company 200,000,000 won and the copies of the instant complaint against the Plaintiff

The plaintiff shall pay 20% interest per annum from the day after this service to the day of full payment (the plaintiff shall be entitled to 20% interest per annum)

In the first instance, the conjunctive claim was added.

(b) Counterclaim;

The plaintiff served 150,00,000 won on defendant Kim Jin and a copy of the complaint in this case.

It shall pay 20% interest per annum from the date of full payment to the date of full payment.

2. Purport of appeal

The judgment of the first instance shall be revoked, and the same judgment as that of the main claim in the above main claim shall be sought.

Reasons

1. Scope of the deliberation of the political party;

The plaintiff filed a principal lawsuit against the defendants, and against this claim, the defendant Kim Jin filed a counterclaim against the plaintiff for damages, and the court of first instance rendered a judgment dismissing all of the principal lawsuit and the counterclaim claims against the plaintiff, and it is evident that only the plaintiff filed an appeal. Thus, the scope of the party members' trial is limited to the part of the principal lawsuit claims.

2. Basic facts

아래 각 사실은 당사자 사이에 다툼이 없거나, 갑 제1, 2호증, 제13호증의 1 내지 4 , 제15, 21, 52호증, 제54호증의 17, 제57호증의 1 내지 3, 을 제1, 5, 6, 10, 11, 12, 14호증의 각 기재, 갑 제14, 16, 17호증의 각 일부 기재, 제1심 증인 엄ㅇㅇ, 김○○의 각 일부 증언, 피고회사 대표자 정○○의 당사자본인신문결과의 일부에 변론 전체의 취지를 종합하여 보면 이를 인정할 수 있다 .

A. The Plaintiff is a company that engages in the production, planning, and production of movies, and Defendant Kim Jin is a company that engages in the production, planning, and production of movies, and the Defendant Kim Jin is a company that engages in the management of entertainment for entertainers.

B. On January 4, 2003, the Plaintiff and the Defendant Company drafted a film contribution agreement (No. 1) with the Plaintiff, the Defendant Kim Jin-jin and the Defendant Company as the party to the film “Sk-do Cheongk-do” (hereinafter “the film of this case”) in preparation for the Plaintiff’s production, and signed a film contribution agreement (No. 1) with the following contents as the parties. At the time, the Nonparty, the Defendant Company’s husband, the representative director of the Defendant Company, had the authority to act for the Defendant Kim Jin-jin and affixed the seals of Kim Jin-jin at the time of the above agreement (hereinafter “the first contribution agreement”).

Article 1 (Contribution Agreement): Defendant Kim Jin shall contribute to the motion picture of this case as the main conductor during the period of photographing the motion picture of this case, and the Defendant Company shall consent thereto.

Article 2 (Period of Recording: The period of photographing the motion picture of this case shall be from April 1, 2003 to July 31, 2003.

Article 3 (Contribution Fee): The plaintiff shall pay in cash the amount of KRW 250,00,00 to the defendant Kim Jin with the contribution fee of the defendant Kim Jin, and the amount of KRW 150,00,000 shall be paid as down payment by February 28, 2003.

Article 5 (Obligation of Defendant Company and Defendant Kimdo-jin): Defendant Company shall make every effort to comply with the schedule of production of the motion picture of this case in order to ensure that the production of the motion picture of this case does not interfere with the production of the motion picture of this case. Defendant Kimdo-jin shall make the motion picture of this case top priority. Defendant Kimdo-jin shall reimburse twice the down payment in case where he acted in bad faith in the production of the motion picture of this case after the receipt of down payment.

Article 8 (Confidentiality): The plaintiff and the defendant company shall keep confidential any information obtained in relation to the above terms and conditions of the contract, and shall not divulge it before paying the down payment without mutual consultation.

C. Around January 20, 2003, the Plaintiff and Defendant Company entered into an investment contract with the Plaintiff to borrow 200,000,000 won from the Plaintiff (Evidence 5) with respect to the first contribution contract, and the said investment contract includes the content that “where the Defendant Kim Jin’s contribution with respect to the film of this case was not sexually formed (including the case where film contribution is difficult due to personal problems, such as military input and drugs, etc. within the period specified in the contribution contract) the Defendant Company should immediately repay the cash borrowed from the Plaintiff, separate from the amount of compensation for such contribution.”

D. However, at the time of the conclusion of the first contribution contract, as Defendant Kim Jin had been making it difficult for Defendant Kim Jin to contribute to the film of this case for the photographing period as set forth in the first contribution contract due to the delay in the production of "the motion picture with Defendant Kim Jin's contribution" at the time of the conclusion of the first contribution contract, the Plaintiff and the Defendant Company agreed to modify the contents of the said contribution contract as follows and make a new contribution contract (Evidence A No. 2). The Nonparty also affixed the seal of Kim Jin held at the time of the said contract (hereinafter referred to as "the second contribution contract"), while the Defendant Company had the authority to act for Defendant Kim Jin and affixed the seal of Kim Jin at the time of the said contract (hereinafter referred to as "the second contribution contract"), together with the first and second contribution contract).

Article 2 (Period of Recording : Defendant Kim Jin and Defendant Company shall ensure that at least 80 times the number of photographs from June 2003 to November 2003 or that there is no contribution for overlapping three months.

Article 3 (Contribution Fees): The plaintiff shall pay to the defendant Kim Jin total amount of KRW 450,00,000 (the sum of KRW 250,000,000,000, and the above investment amount of KRW 200,000, and KRW 200,000 as specified in the first contribution contract) to the defendant company as the contribution fees of the defendant Kim Jin. The payment of KRW 200,00,000 shall be completed by March 15, 200.

Article 5 (Obligation of Defendant Kim Jin and Defendant Kim Jin) ① The Defendant Company shall make best efforts to comply with the schedule for the production of the motion picture of this case produced by the Plaintiff so that it does not interfere with the production of the motion picture. ② The Defendant Company shall make the motion picture of this case as the first top priority in the production of the motion picture by the Defendant Kim Jin. ④ In a case where the Plaintiff intentionally, after paying the down payment to the Defendant Company, the Defendant Kim Jin in bad faith in the production of the motion picture, he shall be liable therefor, and shall reimburse three times the amount of the contribution. ⑤ In a case where the motion picture of this case, such as the military admission of the Defendant Kim Jin and taking medicine, and other personal and social problems, occur after the down payment, the Defendant Company and the Defendant Kim Jin shall be liable for it, and shall compensate three times the amount of the contribution fee. Meanwhile, the Plaintiff and the Defendant Company concluded a contract to make the contribution as of March 12, 2003, together with the attached document No. 6 of the motion picture contribution as set forth below.

Article 1 (Purpose and Priority Order of Contract): This annexed contract shall take precedence over the instant contribution contract.

Article 2 (Non-Contribution: In the event that the Defendant Company is unable to make contributions to the motion picture of this case due to personal illness, accident, etc. of the Defendant Kimdo-jin, the Plaintiff and the Defendant Company may cancel or terminate the film contribution agreement and this Annex agreement. In this case, the Defendant Company shall be liable to compensate for damages up to the amount of contributions already paid pursuant to the film contribution agreement: Provided, That the Defendant Company shall not be liable to compensate for damages where there is no cause attributable to the Defendant Company

Article 3 (Confidentiality) (1) The Plaintiff and the Defendant Company shall observe the confidentiality of all the information obtained in connection with the subsidiary contract, and shall not divulge it before the renewal of the third party contract with the Defendant Kim Jin without mutual agreement. (2) In the event that film contribution contract is leaked to others than the Plaintiff and the Defendant Company, the Defendant Company does not pay the down payment already paid by the Plaintiff as provided in the second party contribution contract, but the Plaintiff shall pay three times the down payment under Article 3 of the second party contribution contract with the Defendant Company as compensation for damages.

F. The Plaintiff paid to the Defendant Company the sum of KRW 200,00,000,00 on January 23, 2003, and KRW 20,000 on March 11, 2003, and KRW 15,000,000, and KRW 15,000 on March 13, 200, and KRW 65,000 on March 13, 2003, including KRW 65,00,000, and KRW 00 on March 13, 200.

G. However, Defendant Kimdo refused to contribute the motion picture of this case, and around August 29, 2003, Defendant Kim Jin concluded a contribution contract on the Korean type “I” and contributed to the motion picture.

H. Around October 2003, the Plaintiff filed a provisional disposition with the Seoul Central District Court 2003Kahap332 with the Defendant Kimdo-jin to the effect that “The respondent shall not make any contribution to any other film taken by the third party unless the applicant completes the production of the film by making a contribution to “the first Cheongsk-si (Gao) to be taken by the applicant,” after the recording of the motion picture is completed,” but the above court dismissed the above application on December 5, 2003.

3. Plaintiff’s claim against Defendant Kim Jin-jin

A. The parties' assertion (1) The plaintiff lawfully entered into the contract of this case with the defendant Kim Jin, and even if the defendant Kim Jin had no authority to act for the defendant Kim Jin, the defendant Kim Jin had the validity of the contract of this case in accordance with the legal principles of expression agency under Article 126 of the Civil Code, so the defendant Kim Jin refused to perform his duty despite the fact that he had the duty to make a contribution to the film of this case after the completion of the film of "the film with the 's solar emblem in accordance with the contract of this case". Accordingly, the defendant Kim Jin has the obligation to pay 1,350,000 won to the plaintiff jointly and severally with the defendant company in accordance with Article 5 (4) of the contract of second contribution or Article 5 (5) of the contract of this contract of this case.

(2) As to this, Defendant Kim Jin asserts that the Plaintiff entered into the instant contribution contract with the Defendant company, and the Defendant company has no authority to enter into the instant contribution contract on behalf of the Defendant Kim Jin, and there is no justifiable ground to believe that the Defendant company has the authority to act on behalf of the Defendant Kim J in concluding the instant contribution contract, and that the instant contribution contract has no effect on Defendant Kim Jin.

B. Whether to recognize the right of representation of the defendant company

As seen earlier, the Nonparty of the Defendant Company’s right to represent Defendant Kim Jin was affixed to the seals of Defendant Kim Jin held at the time by the Defendant Company, respectively, in the instant contract for contribution. As such, first of all, we examine whether the Defendant Company was authorized to conclude the instant film contribution contract on behalf of Defendant Kim Jin.

(1) Whether the Plaintiff’s comprehensive right of representation under the exclusive contract is asserted (A)

On October 13, 2002, the Plaintiff asserted that Defendant Kim Jin signed an exclusive management agreement with the Defendant Company (hereinafter “exclusive agreement”) and left his seal to the Defendant Company. Accordingly, Defendant Kim Jin granted to the Defendant Company a comprehensive power of representation regarding the conclusion of the contract related to entertainment activities, such as his own film contribution, and the Defendant Company concluded the instant contribution agreement based on its power of representation.

(B) Facts of recognition

The following facts may be acknowledged in light of the overall purport of the arguments in the above-mentioned evidence and the statements in Gap evidence Nos. 5, 6, and 7-1, 2, and 8.

① On October 13, 2002, Defendant Kim Jin entered into an exclusive agreement with the Defendant Company, and drafted a contract containing the following (No. 6).

Article 4 (Duties of Defendant Kim Do-jin): Defendant Kim Do-jin shall not go through a transfer to another country or directly conclude a contribution contract. Even if he/she has directly proposed to Defendant Kim Do-jin, he/she shall consult with and enter into a contract with the Defendant company.

Article 5 (Duties of Defendant Company): Defendant Company shall not force Defendant Kim Jin to contribute works that Defendant Kim Jin does not original.

② After entering into the above contract, Defendant Kim Jin-jin left his seal affixed on the film contribution contract of this case (No. 1 and No. 2) to the Nonparty, who is the actual manager of the Defendant company.

④ On March 21, 2003, Defendant Kim Jin and Defendant Company drafted again the exclusive contract (No. 7 No. 1, No. 7-2) as of March 21, 2003. The main content of the said exclusive contract is as follows.

Article 3(1) In principle, both parties shall participate, except in the case where the parties do not want to make a contract. <3> Defendant Company may not compel Defendant Kim Jin to make a contribution to works that Defendant Kim Jin does not want to do, and the conclusion of a contract and whether to make a contribution to works shall be determined by mutual agreement between Defendant Company and Defendant Kim Jin.

(C) The following are related to the contents of the exclusive agreement entered into between the defendant Kimdo-jin and the defendant company, which appeared in the above facts, and the exclusive management agreement for the artist. In other words, the exclusive management agreement for the artist is as follows: ① negotiation on the terms and conditions of the agreement between the management company or the management company on the artist's contribution and the management fee, etc., coordination of the schedule of contribution, and external public relations, etc., and the artist shall be deemed as a contract with the main contents that the management company or the management company provide entertainment activities only through the management company or the management company and the management company, and the artist bears the obligation not to engage in entertainment activities directly or through the third party; ② Contracts for entertainment activities are primarily aimed at providing the personal benefit of the artist concerned. Thus, even though it is concluded with the management company with the management company, it shall be deemed as a contract with the management company.

Furthermore, in light of the fact that, upon entering into an exclusive contract with a third party, management company, such as the defendant company, has the authority to act for a party artist within the scope of consultation and coordination with the other party regarding the terms and conditions of the contract, methods of performance, etc. regarding the pertinent entertainment activities, it is reasonable to deem that the contract for the benefit of the individual consent of the party artist should be obtained when entering into an exclusive contract with a third party. Accordingly, the defendant Kim Jin entered into an exclusive contract with the defendant company on October 13, 2002, which is merely an exclusive contract with the defendant company, and thus, it should not be permitted to act for the party artist within the scope of consultation and coordination with the other party regarding the terms and conditions of the contract, etc. regarding the pertinent entertainment activities, and even if the defendant Kim Jjin entered into an exclusive contract with a third party, it should not be viewed that the defendant Kim Jjin directly agreed on the other party's own exclusive contract or that it should not be viewed as having been directly contributed by the defendant company.

Ultimately, the Plaintiff’s assertion that the Defendant Company obtained a comprehensive power of attorney to conclude all contracts related to his entertainment activities from Defendant Kim Jin, and that it concluded the instant contribution contract with the Plaintiff based on its comprehensive power of attorney is not acceptable without any further determination as to the Defendant Kim Jin’s argument that the exclusive agreement between the Defendant Company and Kim J was null and void or cancelled. (A) Whether there was an individual power of attorney (A) or not, and the Plaintiff asserts that the Defendant Company obtained a power of attorney to conclude the instant contribution contract from Defendant Kim Jin and concluded the instant agreement with the Plaintiff based on its power of attorney, in light of the following circumstances.

① Defendant Kim Jin-jin was a supervisor with whom he had a pro rata relationship before the conclusion of the instant contract for contribution, and was given scenarios from Nonparty ○○, who was determined by the film supervision of the instant film. On February 2003, Defendant Kim Jin received scenarios from Nonparty ○○ director of the Defendant Company.

② Around January 2003, the Defendant Company paid part of the money that the Defendant Company received as a contribution fee for the film of this case from the Plaintiff to Defendant Kim Jin, while the Defendant Kim Jin also received part of the contribution fee for the film of this case from the Defendant Company with the knowledge of such circumstance.

③ Prior to the preparation of the instant agreement, Defendant Kim Jin had already known the content of the agreement by exchanging opinions on the contribution fee, supervision, and production of the instant film with the Nonparty.

④ In order for the Plaintiff to enter into the second contribution contract, the Plaintiff’s working person found the Defendant company and 203.

3. 10. 에는 피고 김도진이 피고회사에 맡겨 둔 인장을 일시 찾아간 상태였는데, 피고 김도진은 이 사건 영화의 출연계약을 위해 필요하다는 소외인의 부탁에 응하여 자신이 보관하고 있던 인장을 소외인에게 다시 교부하였다 . ( 나 ) 그러나 원고의 위 주장사실에 부합하는 듯한 갑 제3호증, 갑 제14호증, 갑 제16호증의 각 일부 기재, 증인 엄ㅇㅇ의 일부 증언, 피고회사 대표자 본인신문결과 중 일부는 뒤에서 인정하는 사실에 비추어 믿지 아니하고, 갑 제54호증의 9 내지 15의 각 기재만으로는 이를 인정하기에 부족하며, 달리 이를 인정할 증거가 없다 . ( 다 ) 오히려, 앞서 인정한 사실에 의하면, ① 피고회사는 2003. 1. 4. 원고와 사이에 제1차 출연 계약을 체결한 후에, 이와는 별도로 같은 달 20. 경 원고가 피고회사에게 금 200, 000, 000원을 투자하는 내용의 계약을 체결하면서, 피고 김도진을 계약의 당사자로 포함시키지 아니하였고, ② 피고회사는 위 투자계약을 체결함에 있어서, 만일 이 사건 출연계약이 파기되거나 피고 김도진의 출연이 성사되지 않았을 경우에는, 피고회사는 출연료 배상과 별도로 차용금을 즉시 상환하기로 약정함으로써 피고 김도진의 출연이 성사되지 아니할 경우를 상정하고 있었으며, ③ 피고회사와 원고는 제2차 출연계약을 체결함에 있어서 그 계약 내용보다 우선하여 적용하도록 약정한 부속계약을 체결하였는데, 그 부속계약에도 피고 김도진은 계약의 당사자로 포함되어 있지 않았을 뿐만 아니라, 위 부속계약에 의하면, ‘ 김도진이 개인적인 질병, 사고 등으로 이 사건 영화에 대한 출연이 불가능하게 된 경우 원고 및 피고회사는 출연 계약을 해제할 수 있고, 이 경우 피고회사는 이미 지급 받은 출연료를 한도로 하여서만 손해배상 책임을 부담하며, 다만 피고 회사의 귀책사유가 없는 경우에는 손해배상책임을 부담하지 않는다 ' 고 약정 ( 제2조 ) 함으로써, 피고 김도진의 출연이 성사되지 아니할 경우를 상정하고, 그 경우에 피고회사가 부담하여야 할 책임의 범위를 정한 제2차 출연계약 제5조 제5항의 규정 ( 출연료의 3배 배상약정 ) 에 의한 배상금에서 대폭 감경하는 취지로 특약을 하였고, 또한 위 부속계약서에서 원고와 피고회사는 ' 이 건 계약 내용과 관련하여 입수한 제반정보에 대하여 비밀을 준수하며, 상호협의 없이 피고 김도진과의 3자 계약 갱신 시점 이전

In addition to the second contribution contract of this case, the defendant company was scheduled to conclude a new contract with the plaintiff, the defendant company, and the third party contract to which the defendant Kim Jin is the party. ④ On January 22, 2003 and January 23, 2003, the defendant Kim Jin received a total of KRW 150,000,000 from the defendant company. On March 11, 2003, the defendant company transferred KRW 100,000,000 to the new ○○ upon the defendant Kim Jin's request, but at the time, the defendant company was obligated to pay the above money to Kim Jin as the exclusive contract amount and the 'the Dolin', and it cannot be concluded that the above money was paid as the contribution fee of the motion picture of this case, so the defendant company of this case cannot be viewed as accepting the plaintiff's opinion that it did not obtain the above consent.

C. Whether an expression agent under Article 126 of the Civil Code of the defendant company is established (1) plaintiff's assertion

Even if the defendant Kim Jin's right of authority to conclude the contribution contract is not recognized to the defendant Kim Jin's family company, the defendant company had a certain basic power of authority to conclude the contribution contract of the defendant Kim Jin under the exclusive agreement, and held the seal of the defendant Kim J., and the non-party of the defendant company knew that it is necessary to conclude the contract at the time of the second contribution contract, and received the seal from the defendant Kim J., and since the plaintiff confirmed all such facts and concluded the contribution contract of this case with the defendant company, the validity of the contribution contract of this case is asserted to be effective to the defendant Kim J. in accordance with the legal principles of expression agency under Article 126 of the Civil Act.

( 2 ) 판단 ( 가 ) 피고회사가 피고 김도진과의 사이에 전속계약을 체결함으로써 피고 김도진 피고회사에게 자신의 연예활동과 관련한 일정한 범위의 대리권을 수여하였음은 앞서 인정한 바와 같으나, 위에서 살핀 바와 같은 전속 계약관계의 성질에 비추어 볼 때, 피고회사와 피고 김도진 사이에 전속 계약관계가 있었고, 피고 김도진이 자신의 인장을 피고회사에게 맡겨 두고 있었다는 점만으로는, 원고에게 ' 피고회사가 김도진을 대리하여 이 사건 출연계약을 체결할 권한이 있었다고 믿을 만한 정당한 이유 ' 가 있었다고 인정하기에 부족하고, 달리 이를 인정할 증거가 없다 ( 피고회사의 소외인은 제2차 출연계약 체결 당시 계약 체결에 필요하다는 점을 밝히고 피고 김도진으로부터 인장을 교부받았다는 점을 인정할 증거가 없음은 앞서 살핀 바와 같다 ) . ( 나 ) 오히려 ① 갑 제21호증의 기재에 변론 전체의 취지를 종합하여 보면, 원고는 이 사건 출연 계약이 체결되기 훨씬 이전인 2002. 4. 7. 일본국의 주식회사 비트웍스와 사이에 이 사건 영화의 주연배우를 피고 김도진으로 특정하여 일본국 통화 2억엔을 투자받는 내용의 계약을 체결한 사실을 인정할 수 있고 ( 이에 반하는 듯한 갑 제55호증, 제56호증의 1 내지 3의 각 기재는 믿지 아니한다 ), 앞서 인정한 사실에서 나타나는 ② 원고는 영화 제작 · 기획 · 연출 등을 영업으로 하는 회사로서, 앞서 본 바와 같은 연예인에 관한 전속 매니지먼트 계약의 성격에 비추어, 연예인의 영화 출연에 관한 계약 체결에 있어서는 당해 연예인 본인의 출연에 대한 동의가 있었는지 여부를 확인하여야 할 의무도 있다고 보아야 하는 점, ③ 그럼에도 불구하고, 원고는 피고 김도진이 이 사건 영화에 출연하겠다고 동의하였는지 여부 및 제2차 출연 계약과 같이 계약 조건이 변경되는 점에 대하여서도 동의하였는지 여부에 관하여 어떠한 방법으로든 확인을 해 보았다는 사정을 전혀 엿 볼 수 없는 점, ④ 더구나 이 사건 출연 계약과는 별도로 피고 김도진을 제외한 채 원고와 피고회사 사이에서만 투자계약서 ( 을 제5호증 ) 및 부속계약서 ( 을 제6호증 ) 를 작성하여, 피고 김도진의 출연이 성사되지 않을 경우 피고회사가 반환해야 할 금액의 범위, 이 사건 출연 계약 이외에 원고, 피고회사, 피고 김도진 사이에 3자 계약을 체결할 것을 약정하고 있는 점 등에 비추어 보면, 이 사건 출연계약의 체결 당시 원고가 피고회사에게 유효한 대리권이 있다고 믿을 만한 정당한 이유가 있었다고 볼 수 없다 .

D. Sub-determination

Therefore, the defendant company did not have the legitimate power to act on behalf of the defendant Kim Jin as to the conclusion of the contract of contribution in this case, and the expression agency is not constituted. Thus, the plaintiff's claim against the defendant Kim Jin based on the premise that the effective motion picture contribution contract between the plaintiff and the defendant Kim J has been established is without merit without examining the remaining points.

4. Plaintiff’s claim against Defendant Company

A. The plaintiff's assertion

The plaintiff is primarily refusing to contribute the motion picture of this case. ① The defendant company is obligated to compensate the plaintiff for the amount of damages under Article 5(5) of the second contribution contract with the defendant Kimdo Co., Ltd. for the amount of KRW 1,350,000,000, which is three times the amount of the contribution. ② The defendant Kimdo's refusal to contribute does not fall under the grounds stipulated in the above liquidated damages clause, but this does not interfere with the production of motion pictures borne by the defendant company under the contract of this case. The defendant Kimdo's second contribution constitutes a violation of the obligation to make the motion picture of this case top priority. Thus, the defendant company is not liable to return the amount of KRW 525,00,00 (the amount of KRW 200,000,000 paid as the contribution, and the amount of KRW 325,00,000,000 paid as the expense for planning and development of the motion picture of this case to the plaintiff 200,000 won.

B. Whether the defendant company is liable under Article 5(5) of the second contribution contract (1)

In the event that a serious problem occurs in the shooting of movies due to personal reasons, such as military admission and taking drugs, and the occurrence of social problems, after the down payment was made under Article 5(5) of the Second Contract, the defendant company and Kim Jin shall be held responsible for it and compensate for three times the contribution fee."

On the other hand, however, Article 5 (4) of the same contract provides that if the plaintiff intentionally, after paying the down payment to the defendant company, he shall be liable for it and reimburse three times the fees for it. ② The defendant company entered into the instant contribution contract with the plaintiff without obtaining the consent from the defendant Kim Do-jin on the motion picture contribution of this case. ③ The plaintiff prepared the investment contract (Evidence 5) and the subsidiary contract (Evidence 6) by presenting the case where the defendant Kim Do-jin did not contribute to the motion picture of this case. In particular, the subsidiary contract shall prevail over the contract of this case.

The facts set forth above are also recognized.

(2) Determination

As above, in full view of the following facts: (a) Defendant Kim Jin and the Defendant Company separately provides for the grounds for liability owed to the Plaintiff; (b) the background leading up to the conclusion of the instant contribution contract between the Plaintiff and the Defendant Company; and (c) details of other relevant contract, etc., the Defendant Kim J is liable to the Plaintiff in a case where the Defendant Kim Jin refuses or unconscientiously lends film as his own intention; and (b) Article 5(5) of the aforementioned Act provides that the Defendant Kim Jin shall be liable to the Plaintiff in a case where he is unable or difficult to make a contribution due to personal and external circumstances impeding film contribution regardless of the intention of Defendant Kim Jin; and (c) it is reasonable to interpret that not only the Defendant Kim Jin but also the Defendant Company in charge of the relevant entertainment management should be liable for such contribution.

Therefore, the ground for refusing to grant film contributions on the ground that Defendant Kim Jin was a contract concluded against his own will does not constitute "a case where a considerable problem occurs in photographing a film due to other personal reasons, such as military admission, medication, etc. as provided by Article 5 (5) and other cases causing social damage." Thus, the Plaintiff's assertion that the Defendant Kim Jin is liable to the Defendant Company pursuant to the above provision is without merit.

C. Whether the Defendant Company is liable due to nonperformance of obligations under the instant contribution agreement (1)

① When concluding the instant contract on the contribution of Defendant Kimdo-jin to the instant film, the Defendant Company made its best efforts to comply with the schedule for the production of the instant motion picture produced by the Plaintiff to ensure that the production of the motion picture does not interfere with the production of the motion picture, and the Defendant Kimdo-jin agreed to assume the obligation to make the instant motion picture top priority. However, the Defendant Company concluded the instant contribution contract without obtaining the power of representation from Defendant Kimdo-jin, and the Defendant Kimdo-jin refused to contribute to the instant motion picture is recognized earlier.

However, on April 7, 2002, the Plaintiff also entered into a contract with the Defendant Kimdo-jin on April 7, 2002, which was far prior to the conclusion of the instant contract for contribution. The Plaintiff entered into a contract with the Defendant for the investment of KRW 200 million in Japan.

12. When concluding a film contribution affiliated contract, Defendant Kimdo did not include Defendant Kimdo as parties to the contract, and suggested that Defendant Kimdo would not contribute to the film of this case, and that Defendant Kimdo would have planned to conclude a third party contract with Defendant Kimdo. ⑤ Article 2 of the film contribution affiliated contract concluded on March 12, 2003, which was concluded on March 12, 2003, and Article 2 of the film contribution affiliated contract, which was concluded on March 12, 2003, where Defendant Kimdo was unable to contribute the film of this case due to the personal illness, accident, etc. of Defendant Kimdo, the fact that the Defendant company agreed to be liable for damages to the extent of the paid amount

(2) Determination

In full view of the above 3. b. (1) (c) and the fact that the Plaintiff appeared in the nature of the exclusive agreement as seen above and the above recognition facts, when entering into a film contribution contract with the defendant company, and the defendant Kim Jin proposed to enter into a three-party contract including the defendant Kim Jin with the defendant Kim Jin as the first priority of the film of this case, the defendant company's obligation to allow the defendant Kim Jin to give consent to the film of this case or not to interfere with the production of the film" shall not be deemed to have been liable for the defendant Kim Jin to give consent to the film of this case, or for securing the contribution of the defendant Kim Jin, and thus, the defendant company cannot be deemed to have violated the contract of this case. Accordingly, the plaintiff's assertion that the defendant company held the defendant company liable for default on its duty to do so on the premise of this, is without merit.

D. Whether the defendant company is liable under Article 2(4) of the self-investment contract on January 20, 2003 (1)

① On January 4, 2003, the Plaintiff and the Defendant Company entered into the first contribution contract with the Plaintiff to pay KRW 250,000,000 to the Defendant Company in return for the contribution to the instant film. ② On January 20, 2003, the Plaintiff and the Defendant Company agreed that, in relation to the instant film, the Defendant Company shall immediately repay the cash borrowed from the Plaintiff (Article 2(4)), separately from the amount of the contribution, if the contribution of Defendant Kim Jin was not sexually formed, the Defendant Company borrowed KRW 200,00,000 from the Plaintiff (Evidence 5). ③ The Plaintiff and the Defendant Company delayed the production of other movies contributed by Defendant Kim Jin, thereby delaying the production of the film.

12. In entering into the second contribution contract, the Plaintiff, as the Defendant Kimdo’s contribution fee, set the Defendant Company as the contribution fee of KRW 250,00,00,000, and KRW 200,000,000, including the investment fee of KRW 200,000,000 under the said investment contract, and the Plaintiff as the down payment, agreed to pay KRW 200,000,000 to the Defendant Company by March 15, 200, and accordingly, (4).

The plaintiff paid 200,000,000 won to the defendant company by March 15, 2003, and 5 The defendant Kim Jin refused to contribute the motion picture of this case on the ground that the contract of this case was concluded by the defendant company who is not authorized to act on behalf of himself, was concluded by the defendant company. (2) The judgment is as above.

According to the above facts, the plaintiff and the defendant company entered into an investment contract of 200,000,000 won on the premise of the defendant Kim Jin's contribution in the self-investment contract on January 20, 2003. The plaintiff and the defendant company shall include the amount of 200,000,000 won, which is to be invested by the plaintiff in the second contribution contract, in the amount of 450,00,000,000 won, as a contribution fee, and the plaintiff paid 20,00,000,000 won among them to the defendant company. For any reason, since the defendant Kim Jin's motion picture contribution of this case was not made, the defendant company shall return the amount of 20,000,000 won to the plaintiff on the condition that the defendant Kim Jjin should contribute to the film of this case, the defendant company shall return the amount of 20,000 won to the plaintiff on the basis of the second contribution contract.

E. Sub-decision

Therefore, from October 24, 2003, the following day after the delivery date of a copy of the complaint of this case to the plaintiff, the defendant company is obligated to pay 5% per annum under the Civil Act until February 8, 2006 and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of complete payment.

5. Conclusion

Therefore, the plaintiff's claim against the defendant Kim J-jin and the main claim against the defendant company are dismissed as it is without merit. The plaintiff's claim against the defendant Kim J-jin and the main claim against the defendant company added in the trial shall be accepted as it is reasonable in this conclusion. The judgment of the court of first instance that dismissed the plaintiff's claim against the defendant Kim J-jin and the main claim against the defendant company is just, and the plaintiff's appeal against this is all dismissed. However, the plaintiff's conjunctive claim against the defendant company added in the trial shall be accepted as it is so decided as per Disposition.

Judges

Judges Yoon Jae-apon by the presiding judge

Judges Full-time;

Judges Kim Un-hoon

심급 사건

-서울중앙지방법원 2004.9.15.선고 2003가합75843

서울고등법원 2006.2.8.선고 2004나78754

참조조문

-민법

-민법 제126조

-소송촉진 등에 관한 특례법

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