2015Da223732 All proceeds

1. A;

2. B

1. A new financial investment company;

2. A new capital company;

Seoul High Court Decision 2014Na2026956 Decided June 18, 2015

November 27, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. On April 29, 2008, D Co., Ltd. (hereinafter referred to as D) entered into a stock acquisition agreement with the Defendant New Financial Investment Co., Ltd. (hereinafter referred to as “Defendant New Financial Investment Co., Ltd.”) on the terms of transfer of 2,67 shares to 9,53,490,000 transfer price (hereinafter referred to as “instant stock acquisition agreement”) holding D Co., Ltd. (hereinafter referred to as “Defendant Co., Ltd.). Of the terms and conditions of the contract, Article 2(1) of the said agreement provides that the above acquisition price of 9,53,490,000 won per 67 X Co., Ltd. shall be calculated by adding 375,00,000 = 1,200,125,000, foreign exchange banks shall be liable for the total acquisition price of 3,000 won per share to Defendant Co., Ltd. (hereinafter referred to as “Defendant Co., Ltd.”).

B. On June 30, 2008, Defendant New Capital Co., Ltd. (hereinafter “Defendant New Capital”) purchased 534 shares out of the above 2,667 shares from Defendant New Capital, and succeeded to the rights and obligations of the Defendant under the instant stock acquisition agreement, and D also agreed thereto. Meanwhile, Defendant New Capital Co., Ltd. jointly guaranteed D’s debt to Defendant New Capital at the ratio of the said shares purchase. The Defendant New Capital Co., Ltd. (hereinafter “New Bank”) concluded a gift exchange agreement to sell KRW 1 billion on May 4, 2009 between the date of conclusion of the instant stock acquisition agreement and the due date (hereinafter “instant gift exchange agreement”).

D. The UN exchange rate exceeded 1,100 won on September 26, 2008 and continued to increase over 1,100 won on December 5, 2008, and 100 won per 1,599 won on September 5, 2008. D, C, and F prepared the following confirmations, and reached KRW 1,300 to 1,40 won on April 2009.

E. On April 21, 2009, D, C, and F (hereinafter referred to as "C, etc.") drafted and issued to the Defendants a written confirmation that contains the following (hereinafter referred to as "the instant written confirmation")

(1) Paragraph (3): Article 2 Paragraph (1) of the Stock Transfer Agreement stipulates that the transfer price of the stocks subject to sale shall be KRW 375,000,000 [the transfer price of the stocks subject to sale shall be KRW 9,53,490,000 per 2,67 X = 1,000,125,000 per 2,667, = 1,000,125,000 per 2,67, and foreign exchange banks shall apply the trading standard rate ( KRW 953,23,00 per 10,000) which is the final public notice by the foreign exchange bank on April 14, 208.

(2) Paragraph (4) of this Article: With regard to call options under Article 8 and Article 9 of the Stock Acquisition/In case the transferor exercises put options or the transferee exercises put options, the transferor is required to verify that the amount to be paid pursuant to Articles 8(2) and 9(2) should be calculated on the basis of the foregoing Japanese , and the confirmation person shall affix his/her signature and seal on two copies of this confirmation and send one copy to the receiver, respectively.

F. When exercising put options on July 29, 2010, the Defendants: (a) calculated the acquisition value of put options; (b) calculated the amount of sales of the shares; (c) calculated the amount of KRW 13,743,50,000, applying the amount of KRW 125,000 per exchange rate of KRW 1,374.35,00 at the time of 100,000, the remainder of the 1,374.35,000, as stated in Article 2(1) of the instant stock acquisition agreement, by multiplying the amount of KRW 2,768,029,387, the sum of which is the “16,511,529,387” as stated in Article 2(1) of the instant stock acquisition agreement; and (d) the amount of the guaranteed profits additional to the amount of KRW 9,534,490,00,00 by multiplying the rate of return on guarantee.

Based on other claims and obligations, C and joint and several sureties have completed the settlement.

2. The lower court acknowledged the above facts and acknowledged the following facts. ① The instant stock acquisition agreement was concluded on the basis of Korean currency, not the United Nations, and was actually paid in Korean currency. ② The notice of the Defendants sent to D on May 1, 2009 (Evidence No. 11) was not limited to compensating for exchange losses arising from exchange agreements entered into by the Defendants. ③ The Defendants were not obligated to compensate for exchange losses arising from the conclusion of the instant exchange agreement to D’s new financial investment business in light of the fact that the Defendants did not have an obligation to compensate for the total amount of stock purchase and sale at KRW 00,000,000,000,000,000,000,0000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000.

3. However, the lower court’s determination that it cannot be deemed that C et al. agreed to calculate the purchase price of shares due to the exercise of put options on the basis of the instant confirmation on the basis of “UNFCCC,” not “intelified,” is difficult to accept for the following reasons.

A. As long as the establishment of a disposal document is recognized as authentic, the court shall recognize the existence and content of the declaration of intent in accordance with the language and text stated in the disposal document unless there is any clear and acceptable counter-proof as to the denial of the contents of the document. In a case where there is a conflict of opinion regarding the interpretation of a contract between the parties and the interpretation of the parties expressed in the disposal document is at issue, the court shall reasonably interpret the document in accordance with logical and empirical rules by comprehensively taking into account the contents of the language and text, the motive and circumstance of the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (see, e.g., Supreme Court Decision 2008Da473

B. In full view of the following circumstances, it is reasonable to view that in Paragraph 4 of the written confirmation of this case, the term “the former Japan” refers to “1,00,125,000N” as referred to in Paragraph 3, and accordingly, the Defendants and C agreed to calculate the purchase price of the shares based on “the total amount of put in place options” rather than “the total amount of put in place options” when the Defendants exercise put in place options.

(1) According to the language and text used in the letter of confirmation of this case, the term "Specialized Japan in the upper period" in paragraph (4) of this case cannot be viewed as "B" in paragraph (3) of this case. If "C et al. in the upper period" refers to "1,00,125,000, not "125,000," but "953.23 won per 100,000," as alleged by the plaintiffs, "C et al. in the upper period" in paragraph (3) of this case, it would eventually be deemed that the agreement was made to calculate the purchase price of shares due to the exercise of put option, and there is no change in the terms and conditions stipulated in the contract of this case. However, it cannot be explained that C et al. should separately prepare the confirmation document of this case after one year or more from the conclusion of the contract of this case. Moreover, even if C et al. wanted to calculate the "originalization" based on the confirmation document of this case, it should not be seen as "the exchange rate" or "the exchange rate" as above.

(2) On April 9, 2009, before preparing and delivering the written confirmation of this case, Defendant New Financial Investment Services and Capital Markets (hereinafter “Defendant New Financial Investment Services and Capital Markets”) issued an additional agreement to the effect that “A et al. shall not bear any exchange risk under the gift exchange agreement entered into by the transferee,” and that “A et al. shall not bear any exchange risk under the gift exchange agreement entered into by the transferee,” and “A et al. of this case’s additional agreement to the effect that C et al. shall not bear any exchange risk under the gift exchange agreement entered into on April 21, 2009,” and “A et al. of this case’s additional agreement to the effect that the transferee will not bear any exchange risk under the gift exchange agreement entered into on April 21, 2009,” and “A et al. of this case’s additional agreement to the effect that the Defendants shall be issued 100 days” and “A. of this case’s additional agreement to the same effect.”

In light of the above, the phrase, such as the above "Korean won currency" or "the current Japanese UN currency exchange rate," and "the upper rate of sale and purchase" as seen in the above, should not be used with the phrase and the phrase presented by the Defendants as "former Japan", and furthermore, there is no content that it can be seen that C et al. expressed a clear objection to the draft of the additional agreement in each e-mail between E and C, a financial investment employee, the Defendant new financial investment employee, where the process of preparing the instant written confirmation was revealed, and there is no content that C et al. expressed a clear objection to the draft of the additional agreement, the draft of the additional agreement is more evidence consistent with the conclusion that C et al. agreed to calculate the purchase price of shares due to the exercise of put options based on the basis of "the United Nations".

(3) At the time of settlement, the court below pointed out that only the final settlement amount per item is specified in the settlement amount sent by Defendant New Financial Investment Services and Capital Co., Ltd. to C, and that the exchange rate or its settlement amount is not specified. However, on July 20, 2010, the final settlement date is as follows: ① The settlement date sent by Defendant New Financial Investment Services and Capital Co., Ltd. to C (No. 14-2) on July 20, 2010, which is the last settlement date; ② the purchase and sale amount of shares due to the exercise of put-in options is indicated as UN (10.3 billion won, Defendant New Financial Investment Co., Ltd.; 2.60 billion won, and 12.9 billion won, the total amount of put-in options is clearly indicated as “the principal amount at the time of put-in options; 30.97 billion won,” the principal amount of put-in options is clearly indicated as “the principal amount at the time of put-in options; 40.97 billion won,”.

(4) As pointed out by the court below, calculating the purchase price of shares due to the exercise of put options, the amount of the gold amount is the United Nations; and the amount of the guaranteed profits additional amount is calculated in Korean won, thereby reducing approximately KRW 1.25 million in light of the general financial institution’s business operations. However, it is difficult to say that the calculation of this method is made at will by the Defendants without the consent of C. However, considering the profits that the Defendants acquired through the instant stock acquisition agreement and the close cooperative relationship between the transfer of the final settlement, such as the preparation of the instant confirmation document, even if only the principal is settled based on the UN, the amount of losses incurred by the instant futures exchange agreement is recovered, and thus, only the amount of the guaranteed profits additional charges is settled based on the “originalization”. The Defendants’ assertion is not unreasonable.

(5) In light of the fact that the Defendants and the new BNP Co., Ltd. (hereinafter referred to as the “new BNP”) acquired D’s 4 and 5 occasions of issuance, and that C could have raised a large amount of funds required for the ongoing business due to the Defendants’ entering into the stock acquisition agreement, etc., and that there was a possibility of loss of benefit due to the above privately placed bonds, but the Defendants and the new BNP was deferred by entering into an additional agreement on January 16, 2009 under the condition of implementation of self-rescue plan for the improvement of financial structure and additional security, it is difficult for C, etc., which need close cooperation of the Defendants, to change the standards for calculating the amount of stock purchase price due to the exercise of put options, to bear losses incurred by the instant futures exchange agreement, and to easily refuse the Defendants’ request.

(6) Since July 30, 2010, upon which the final settlement was made, C did not raise any objection to the erroneous calculation of the purchase price of shares due to the exercise of put options, for about three years and six months from the time of filing the instant lawsuit.

C. Nevertheless, the lower court rejected the Defendants’ assertion that the Defendants agreed to calculate the purchase price of shares due to the exercise of put-in options through the instant confirmation form on the basis of “NE” rather than “intelified,” and recognized the Defendants’ return of unjust enrichment as seen earlier based on such determination. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of disposal documents and exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik et al.

Justices Lee Sang-hoon

A person shall be appointed.