Plaintiff (Law Firm Samyang, Attorneys Noh Jeong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and 2 others (Law Firm Busan, Attorneys Kim Jong-soo et al., Counsel for the defendant-appellant)

May 31, 2012

Busan District Court Decision 2009Da16523 Decided January 26, 201

1. The plaintiff's appeal and the plaintiff's conjunctive claim against the defendant 2 and 3 added in the trial are all dismissed.

2. The costs of the lawsuit after the appeal shall be borne by the Plaintiff.

1. Purport of claim

A. The purport of the claim against Defendant 1 and the primary purport of the claim against Defendant 2 and 3

The defendants jointly and severally pay to the plaintiff 53,155,600 won and the amount of 5% per annum from the delivery date of the complaint of this case to the pronouncement date of the judgment of the trial court, and 20% per annum from the next day to the full payment date of the complaint of this case (the plaintiff reduced the claim in the trial).

B. Preliminary claim against Defendant 2 and 3

On August 208, 2008, between the plaintiff, defendant 2 and 3, it is confirmed that the transfer contract between the plaintiff, defendant 2 and the plaintiff 2 did not exist between the plaintiff and the plaintiff 2 and the plaintiff 3. (The plaintiff added the preliminary claim at the trial).

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff falling under the following order for payment shall be revoked. The defendants jointly and severally pay to the plaintiff 53,155,600 won with 5% interest per annum from the service date of the complaint of this case to the date of this judgment, and 20% interest per annum from the next day to the date of full payment (the plaintiff added the conjunctive claim at the court of first instance as above).

1. Basic facts

A. Transfer of hospital between the Plaintiff and the Defendants

1) On August 15, 2008, between Defendant 1 and Defendant 3, the Plaintiff entered into a contract for the transfer of 00 million won to the said Defendants, with the content that the Plaintiff transferred the instant hospital to the said Defendants at KRW 300 million (hereinafter “instant hospital”). The main contents are as follows (hereinafter “existing transfer contract”).

- - Future -

1. The Plaintiff shall operate the Plaintiff’s name from the date of transfer to the date of incorporation of the said Defendants.

3. After the date of transfer or acquisition, medical insurance premiums were paid by the Plaintiff for the medical care from September 1, 2008 to the medical care premium on August 31, 2008 by the said Defendants.

4. The plaintiff shall transfer all the powers concerning medical insurance to the above Defendants after the date of transfer or takeover to the corporation, and submit all the documents in sending the assignment of claims to the above Defendants under the name of defendant 3.

5. Various debts (national taxes, local taxes, income taxes, public charges, etc.) incurred by operation in the name of the plaintiff before the completion of transfer of name as a corporation after the date of transfer or acquisition shall be settled by the above Defendants.

7. Payment of transfer or acquisition amount;

Down payment: 30 million won per annum on August 20, 2008

Balance: 270 million won on August 31, 2008

2) After that, between Defendant 1 and the transferee of the instant hospital who represented by Defendant 2 and Defendant 3 on August 20, 2008, the Plaintiff entered into a transfer contract with the same content as the existing transfer and acquisition contract (hereinafter “instant transfer and acquisition contract”), except for adding Defendant 2 to the transferee of the instant hospital and partially modifying the agreement, such as the method of paying the price, as follows:

- - Future -

4. Before the transfer of name as a juristic person is completed, the Plaintiff shall transfer all the powers concerning medical insurance to the Defendants, and submit all documents in sending the assignment of name in the name of the Defendants.

7. Payment of transfer or acquisition amount;

Down payment: 30 million won per annum on August 20, 2008

Part payments: 150 million won on August 31, 2008

Any balance: KRW 120 million on September 10, 2008

B. Payment of the defendants' price

The Defendants paid to the Plaintiff the sum of KRW 130 million, including the intermediate payment, KRW 30 million on August 20, 2008, and KRW 100 million on August 29, 2008, which is part of the intermediate payment (hereinafter “contract amount, etc.”).

C. The plaintiff's transfer of insurance benefit claim of the hospital of this case

1) While the Plaintiff was not paid a total of KRW 170 million with the intermediate payment and the remainder by the Defendants (hereinafter “repaid amount, etc.”), on September 22, 2008, the Plaintiff borrowed the name of the borrower who borrowed KRW 300 million from Defendant 1 to repay the remainder and requested the National Health Insurance Corporation to transfer the insurance benefits claim to the said Corporation to repay the remainder. Under the said Defendant’s joint and several surety, the Plaintiff borrowed KRW 300 million from the Nonparty under the said Defendant’s joint and several surety, and thereafter, transferred the amount of KRW 420 million out of the insurance benefits claim against the National Health Insurance Corporation (a total of interest on the borrowed principal) after September 15, 2008, to the Nonparty, and then notified the National Health Insurance Corporation of the transfer.

2) On September 25, 2008, the Plaintiff received 300 million won borrowed from the Nonparty, and among them, 170 million won out of them had the balance, etc. under the transfer/acquisition agreement of this case, the Plaintiff drafted a receipt to Defendant 1 that all of the remainder was received, and the remainder KRW 130 million was returned to the said Defendant.

D. The plaintiff's repayment of borrowed money

Since Defendant 1 did not repay the above loan, on May 6, 2010, the Plaintiff agreed with the Nonparty on the debt exemption after being appropriated as insurance benefit claim against the instant hospital to the Nonparty and repaid the remainder and interest.

[Ground of recognition] Facts without dispute, Gap's statements, Gap's evidence Nos. 1 through 3, 5, 8, 9, 11, 12, 14, 15, Eul's evidence Nos. 1 and 2, and the purport of the whole pleadings

2. The plaintiff's ground of claim

A. Grounds for the claim against the defendant 1 and the primary claims against the defendant 2 and 3

1) The Defendants concluded the above transfer and acquisition contract by deceiving the Plaintiff even though they did not have the intent and ability to accept the instant hospital at the time of the transfer and acquisition contract. Since the above transfer and acquisition contract was concluded by deception, it is revoked by the delivery of the complaint of this case.

2) Even if not, according to the instant transfer and acquisition contract, the Defendants established a medical corporation, settled debts, and did not comply with the obligation to take over the instant hospital until now, but did not pay the price under the said transfer and acquisition contract. Thus, the said transfer and acquisition contract is rescinded through the delivery of the complaint of this case due to delay in performance.

3) In addition, the Defendants established a medical corporation from the beginning, and did not have any intent and ability to take over the instant hospital by settling accounts for liabilities, and thus, the instant transfer and acquisition agreement is null and void as it is impossible to realize, or the said transfer and acquisition agreement is unilaterally favorable to the Defendants, and the said transfer and acquisition agreement imposes excessive obligations on the Plaintiff, which is contrary to the concept of justice and thus, it is null and void by Article 103 of the Civil Act.

4) Therefore, the Defendants are jointly and severally liable to return to the Plaintiff the sum of KRW 53,155,600,000 received by the Defendants, including KRW 38,155,600, and the amount equivalent to the market price of medical equipment brought by the Defendants.

B. Preliminary cause of claim against the defendant 2 and 3

1) On August 20, 2008, Defendant 1 entered into the instant transfer agreement with the Plaintiff upon being delegated by Defendant 2 and 3.

2) After that, Defendant 1 borrowed KRW 300 million from the Nonparty for the payment of the price for the instant transfer and acquisition contract, and caused the Plaintiff to transfer the insurance benefit claim against the National Health Insurance Corporation of the instant hospital to the Nonparty. If Defendant 2 and 3 did not delegate the authority to Defendant 1 regarding the said monetary loan and the disposal of the insurance benefit claim, the conclusion of the instant transfer and acquisition contract may also be deemed not to have been delegated.

3) Therefore, the instant transfer and acquisition contract between the Plaintiff, Defendant 2 and Defendant 3 is nonexistent, and thus, the existence of such contract is confirmed.

3. The judgment of this Court

A. Determination as to the claim against Defendant 1 and the primary claim against Defendant 2 and 3

1) The assertion for revocation by deception

Only the descriptions of the evidence Nos. 4, 5-1, 2, and 18-1, 2, 19-1, 2, and 20-1 through 4 of the evidence Nos. 19-1, 2, and 20-1 of the evidence No. 19-4 are insufficient to recognize the fact that the Defendants deceiving the Plaintiff and let the Plaintiff enter into the contract of this case by deceiving the Plaintiff, and there is no other evidence to prove otherwise.

Therefore, the plaintiff's assertion that the transfer and acquisition contract of this case should be cancelled on the ground that it was concluded by deception is without merit.

2) Claim for cancellation of a contract

A) Non-performance of the obligation to take over the instant hospital

According to the facts acknowledged above, the defendants established a medical corporation in accordance with the transfer contract of this case, settled all the obligations of the hospital of this case after the date of transfer and acquisition, and are obligated to take over the above hospital, and according to the evidence No. 1-2, No. 4, and No. 5-1 and No. 2 of the evidence No. 1-1, No. 1-2, No. 4, and No. 5-2, it can be acknowledged that the plaintiff has demanded the above obligations to the defendants, unless there are special circumstances. Thus, the defendants delay the above obligations to take over the hospital.

However, when each party's obligations are related with each other's obligations under bilateral contract with a quid pro quo meaning, one party can exercise a defense of simultaneous performance so that one party may refuse to perform his/her obligations if the other party claims performance of his/her obligations without performing his/her obligations or providing performance (see Supreme Court Decision 98Da53899 delivered on April 23, 199). In such a case, even if the due date for performance of one party's obligations arrives, the other party is not liable for the delay of performance even if the other party fails to perform his/her obligations until the other party performs his/her obligations, and such effect does not necessarily result in the exercise of a defense of simultaneous performance (see Supreme Court Decision 2001Da3764 delivered on July 10, 201).

In the instant case, Defendant 3, at Defendant 1’s request, transferred the insurance benefit claim against the National Health Insurance Corporation of the instant hospital to the Nonparty without agreement with the remaining Defendants, and violated the duty under the transfer and acquisition contract of the instant hospital, and thus, the Plaintiff asserted that the contract cannot be rescinded on the ground that the Defendants’ obligation to accept the said hospital was delayed. Therefore, it is problematic whether the Plaintiff’s transfer of the insurance benefit claim as above violates the duty under the transfer and acquisition contract of the said hospital.

As to this, the Plaintiff asserted that Defendant 1 borrowed KRW 300 million from the Nonparty, and caused the Plaintiff to transfer the insurance benefit claim of the instant hospital to the Nonparty for its payment. As to all legal acts related to the instant transfer/acquisition agreement, including this, the remaining Defendants comprehensively granted the right of representation to Defendant 1. Even if the Plaintiff did not grant the right of representation for domestic affairs, there is justifiable reason to believe that the Plaintiff trusted Defendant 1 as having the right of representation, and thus, the Plaintiff’s transfer of the insurance benefit claim is not in violation of the instant transfer/acquisition agreement.

According to each of the evidence Nos. 2-4 and 8 of this case, it can be acknowledged that only Defendant 1 signed and sealed as a guarantor at the time when the Plaintiff prepared a loan certificate to the Nonparty. Thus, it is difficult to view that Defendant 1 borrowed money from the Nonparty on behalf of Defendant 2 and 3 and caused the Plaintiff to transfer the insurance benefit claim, and there is no other evidence to acknowledge otherwise.

In addition, even if Defendant 1 committed the above act on behalf of Defendant 2 and 3, as to whether or not Defendant 2 and 3 granted the power of representation on behalf of Defendant 2 and 3, the fact that Defendant 1 entered into the transfer and acquisition contract of this case with the Plaintiff upon delegation from Defendant 2 and 3 is as seen earlier. According to the evidence No. 19-2, No. 3-1, No. 3-2, and No. 5-1 through No. 5-6, Defendant 3 entered into an employment contract with Defendant 1 and No. 2 to serve as an oriental medical doctor at the hospital to be established by the above Defendants, and concluded an employment contract with the above Defendants on August 19, 2008, with the Nonparty’s view to the fact that the Plaintiff filed the lawsuit of this case, and the Nonparty’s transfer and acquisition of shares to Defendant 1 and the Nonparty’s transfer and acquisition of shares to each of the above Defendants’ transfer and acquisition of shares to the Plaintiff 1 and the Nonparty’s transfer and acquisition of shares.

Furthermore, even if Defendant 1 did not have authority to act as proxy for Defendant 2 and 3 under Article 126 of the Civil Act as to whether the insurance benefit claim of the hospital of this case affects the non-party, as alleged by the plaintiff, Defendant 1 dealt with the leading work from the conclusion of the above transfer and acquisition contract to the payment of the down payment, etc., as seen by the plaintiff, even though he was delegated by Defendant 2 and 3, the above facts and the purport of the whole pleadings as stated in the evidence No. 15-1 to No. 6 are revealed. In other words, borrowing KRW 300 million from the non-party is an act of bearing an obligation for the amount exceeding KRW 170 million of the price of the transfer and acquisition contract of this case, and it is difficult to view that Defendant 1 had the non-party transfer the insurance benefit claim of the hospital of this case to the non-party, and it is difficult to view that the above transfer and acquisition contract of this case changed the important contents of the transfer and acquisition contract of this case to the non-party, and there is no justifiable reason to recognize that it is another disposal act of the defendant 2.

Therefore, the Plaintiff’s transfer of insurance benefit claims to the non-party violates the obligations under the instant transfer and acquisition agreement, and the Plaintiff cannot rescind the instant transfer and acquisition agreement on the ground that the Defendants’ obligations, i.e., establishing a medical corporation and settling all debts of the instant hospital, delayed the obligation to take over the hospital after establishing the medical corporation and settling all debts of the hospital.

B) Failure to pay the price under the transfer contract of this case

The Plaintiff received KRW 100 million from the Defendants as part of the intermediate payment on August 20, 2008, and KRW 300 million from the Nonparty on August 29, 2008, respectively, and received KRW 170 million from the Nonparty on September 25, 2008, and returned the remainder KRW 130 million to Defendant 1 as the remainder, etc., and the above borrowed money was not actually borrowed by the Plaintiff, but borrowed by Defendant 1 under the Plaintiff’s name. According to the above facts acknowledged, the Plaintiff received the payment under the transfer contract of this case from the Defendants in full.

As to this, the plaintiff argued that the defendant 1 collected KRW 130 million on September 25, 2008, and that the above defendant did not pay the above loan to the non-party and the plaintiff paid it at all. However, according to the above facts, the above KRW 130 million was not returned to the plaintiff, but paid the balance of the loan borrowed from the non-party, and the above KRW 170 million was received as the balance from the above defendant 1 borrowed the loan under the plaintiff's name, not from the plaintiff actually borrowed the loan, and even if the plaintiff paid the loan to the non-party, this is due to the provision of the loan, and the plaintiff's exercise of the right to reimbursement against the above defendant, separate from the exercise of the right to reimbursement against the above defendant, the above assertion cannot be accepted.

In addition, even if the Plaintiff did not receive the payment from the Defendants under the transfer contract of this case, as seen earlier, the Plaintiff failed to perform its duty to transfer the insurance benefits claim to the National Health Insurance Corporation of the instant hospital to the Defendants, and the Plaintiff’s duty to pay the remainder and pay consideration to the Defendants, and thus, the Plaintiff’s relation is recognized in relation to the performance of the duty to pay the remainder and pay consideration to the Defendants. Therefore, the Plaintiff cannot cancel the transfer contract of this case

Therefore, the plaintiff's assertion that the transfer and acquisition contract of this case must be cancelled due to the defendants' default is without merit.

3) Claim for invalidity of a contract

First of all, since the Defendants established a medical corporation from the beginning, and did not have the intent and ability to take over the instant hospital by settling debts, the transfer contract of this case is impossible to realize, and there is no evidence to prove that the Defendants’ establishment of a medical corporation was impossible from the beginning. Thus, the above assertion is without merit.

Next, as to the assertion that the transfer and acquisition contract of this case is null and void under Article 103 of the Civil Act because the contract of this case unilaterally provides for the defendants only favorable to the defendants and imposes excessive obligations on the plaintiff, it is contrary to the concept of justice or seriously limits individual freedom. Thus, the content of the transfer and acquisition contract of this case alone alone is merely favorable to the defendants, and it cannot be deemed that the contract of this case is unilaterally favorable to the defendants, and it cannot be deemed that the plaintiff imposes excessive obligations on the plaintiff. Thus, the above assertion is without merit.

Therefore, the Plaintiff’s assertion that the transfer and acquisition contract of this case is null and void is without merit.

B. Determination on the conjunctive claim against Defendant 2 and 3

If it is not recognized that Defendant 2 and 3 delegated the authority to dispose of the claim for monetary rent and insurance benefits as seen earlier by Defendant 1, the Plaintiff asserts that there was no delegation of the above transfer and acquisition agreement, but Defendant 1 entered into the transfer and acquisition agreement between the Plaintiff with the delegation from Defendant 2 and 3 is the same as recognized earlier. Therefore, the Plaintiff’s assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is all dismissed due to the reasons, and the judgment of the court of first instance which dismissed the plaintiff's claim against the defendant 1 and the main claim against the defendant 2 and 3 is just in conclusion. Thus, the plaintiff's appeal and the main claim against the defendant 2 and 3 added in the court of first instance are dismissed as they are without merit.

Judge Kang Young (Presiding Judge) (Presiding Judge)