A.S. Private Equity Fund (LLC, Attorneys Kim Jin-jin et al., Counsel for the defendant-appellant)

아이스텀앤트러스트 주식회사

The same shall apply to plaintiffs and appellees.

KOS Asset Management Co., Ltd and one other (Law Firm KNC et al., Counsel for the plaintiff-appellant)

April 27, 2016

Seoul Central District Court Decision 2014Gahap536191 Decided May 15, 2015

1. Revocation of the first instance judgment.

2. 원고 아이스텀레드사모투자전문회사와 원고 아이스텀앤트러스트 주식회사의 승계참가인의 당심에서 변경된 주위적, 예비적 청구를 모두 기각한다.

3. 소송총비용은 원고 아이스텀레드사모투자전문회사와 원고 아이스텀앤트러스트 주식회사의 승계참가인이 부담한다.

[Claim]

주위적으로, 법무법인(유한) 태평양이 2014. 5. 7. 서울중앙지방법원 2014년 금제9487호로 공탁한 6,418,305,546원에 대한 공탁금출급청구권이 원고 아이스텀레드사모투자전문회사 및 원고 아이스텀앤트러스트 주식회사의 승계참가인에게 있음을 확인한다.

예비적으로, 법무법인(유한) 태평양이 2014. 5. 7. 서울중앙지방법원 2014년 금제9487호로 공탁한 6,418,305,546원 중 38,506,938원에 대한 공탁금출급청구권이 원고 아이스텀레드사모투자전문회사에게 있고, 6,379,798,608원에 대한 공탁금출급청구권이 원고 아이스텀앤트러스트 주식회사의 승계참가인에게 있음을 확인한다.

(원고 아이스텀레드사모투자전문회사가 원고 아이스텀앤트러스트주식회사를 승계참가하고 원고 아이스텀앤트러스트주식회사가 소송에서 탈퇴하면서 원고 아이스텀레드사모투자전문회사와 원고 아이스텀앤트러스트주식회사의 승계참가인은 청구를 변경하였다.)

【Purpose of Appeal】

The part of the judgment of the first instance against the Defendants regarding the conjunctive claim is revoked. The Plaintiffs’ claims against the Defendants are dismissed in entirety.

1. Basic facts

A. The status of the parties to the instant case is as follows:

1) Korea Land Trust Co., Ltd. (hereinafter “Korea Land Trust”) is a financial investment business entity that aims at the trust business under Article 6(1)6 of the Capital Markets Act.

2) 원고 아이스텀레드사모투자전문회사(이하 ‘원고 1회사’라 한다)는 구 간접투자자산 운용업법(2007. 8. 3. 법률 제8635호 자본시장과 금융투자업에 관한 법률 부칙 제2조로 폐지, 이하 같다) 제144조의2 에 의하여 설립된 사모투자전문회사이고, 원고 아이스텀앤트러스트 주식회사(이하 ‘원고 2회사’라 한다)는 구 간접투자자산 운용업법 제144조의9 에 따라 원고 1회사가 설립한 투자목적회사이다.

On December 11, 2015, Plaintiff 2 made a resolution for dissolution by holding a general meeting of shareholders on December 11, 2015. On the same day, the general meeting of shareholders again held a resolution to distribute all claims for payment of the instant deposit to Plaintiff 1, a sole shareholder. On December 14, 2015, Plaintiff 2 sent to the Republic of Korea a letter verifying the purport that Plaintiff 1 transferred the claim for payment of the instant deposit money to Plaintiff 1, and the said mail reached the Republic of Korea on December 15, 2015. Plaintiff 1 succeeded to the instant lawsuit on February 26, 2016 on the ground that Plaintiff 2 succeeded to Plaintiff 2’s claim for payment of the instant deposit.

3) Trst Investment Co., Ltd. (hereinafter “Crst Investment”) is a company that entered into a joint ownership agreement with the Plaintiffs on the stocks of Korea Land Trust.

4) A private equity fund set forth in subparagraph 2 of the crowdfunding ballast (hereinafter referred to as the “PEF”) is a private equity fund established by the crowdfunding investment securities corporation.

5) Defendant can be said to have been engaged in the financial investment business, etc. under the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”). Defendant can be said to have been engaged in the establishment and operation of a private equity fund under the Capital Markets Act.

B. At the time of June 19, 2012, the total number of outstanding shares of the Korea Land Trust was 252,489,230 shares, and the status of holding shares was as follows.

(i) Korea Land Trust: 79 million note ( approximately 31.28%)

2) Plaintiffs: 79,812,167 Shares ( approximately 31.61%, hereinafter “instant shares”)

(iii) Trst Investment: 880,000 ( approximately 3.48%)

C. On June 19, 2012, the Korea Land Trust entered into a share purchase contract with the Securities and Exchange (31.28% of shares) to sell the said shares 79 million shares, and the Securities and Exchange publicly announced the fact that it entered into the said contract. However, in order to acquire the shares of the Korea Land Trust, which is a financial investment business entity at the time, and become a major shareholder, it was subject to the approval of the Financial Services Commission pursuant to Article 23(1) of the former Financial Investment Services and Capital Markets Act (amended by Act No. 12947, Dec. 30, 2014). Therefore, the Securities and Exchange may be a major shareholder of the Korea Land Trust only if the said approval was obtained.

D. On February 1, 2013, the Plaintiffs and the Russ Investment agreed to sell to the Defendants a total of KRW 137,348,858,850 per share of KRW 1,550 per share of 88,612,167 (Share 35.10% + Shares 31.28% + Shares 3.48%) of the Korea Land Trust Shares owned by them, but the contract was not concluded.

E. On March 27, 2013, upon the expiration of the joint possession agreement with the Plaintiffs, Swiftships sold 8.48% shares of Korea Land Trust (3.48% shares) to Nonparty 1 on March 27, 2013. Nonparty 1 again transferred the shares of Korea Land Trust to MK Investment Investment Company (hereinafter “MK Investment Company”) on May 30, 2013. Accordingly, if LPEF holds shares of MK Investment Company upon approval by the Financial Services Commission with respect to the above share purchase and sale agreement, the shares of Korea Land Trust held by the Plaintiffs become the largest shareholder of Korea Land Trust cannot be the largest shareholder of Korea Land Trust.

F. On June 4, 2013, the Plaintiffs drafted a memorandum of understanding that the Defendants, the Social Media Organization (hereinafter “Social Media Organization”) and the Soviet Investment Company (hereinafter “Smiman Investment”) shall sell the instant shares (31.61%) totaling KRW 1,580 per share to KRW 126,103,223,860 per share (Evidence A; hereinafter “instant memorandum of Understanding”). The key contents are as follows.

본문내 포함된 표 양해각서 1.2. 이 사건 양해각서는 원고들로부터 피고들, 소셜미디어구십구, 소미인베스트먼트가 이 사건 주식을 양수하고 한국토지신탁의 경영권을 인수하는 거래(“본거래”)에 관한 주식매매계약의 주요조건을 정하는 것을 목적으로 한다. 2. 이 사건 주식의 양수도 2.1. 이 사건 주식의 양수도대금은 주당 1,580원으로 합계 126,103,223,860원으로 하기로 하며, 피고들, 소셜미디어구십구, 소미인베스트먼트는 직접, 관계회사 또는 피고들, 소셜미디어구십구, 소미인베스트먼트가 제4.1.조에 의하여 설립하는 사모투자전문회사(“PEF")로 하여금 원고들이 보유한 대상주식을 위 양수도대금으로 매수하도록 한다. 2.2. 양수도대금의 지급방법 ○ 보증금: 63억 500만 원, 주식매매계약 체결시 보증금은 계약금으로 대체 ○ 잔금: 제2.1.조 양수도대금 중 보증금(계약금)을 제외한 잔금은 제3.3.조의 본거래 종결일에 지급 3.2. 본거래 종결을 위해 피고들, 소셜미디어구십구, 소미인베스트먼트는 아래 사항을 이행하기로 한다. ○ 피고들, 소셜미디어구십구, 소미인베스트먼트의 이 사건 주식 양수도대금 지급 피고들, 소셜미디어구십구, 소미인베스트먼트는 이 사건 주식 양수도대금을 완납하는데 필요한 자금을 확보하고, 본거래 종결일에 이 사건 주식 양수도대금을 지급하여야 함 ○ 대주주 변경승인 취득 피고들, 소셜미디어구십구, 소미인베스트먼트는 이 사건 양해각서 체결 직후 조속한 시일 내에 한국토지신탁의 대주주가 되기 위한 금융위원회 승인을 얻도록 대주주변경승인신청을 하여야 하고, 제4.3.조의 기한 내에 대주주변경승인이 이루어지도록 하여야 함 4. 주식매매계약의 체결 등 4.1. 피고들, 소셜미디어구십구, 소미인베스트먼트는 직접, 관계회사 또는 자본시장과 금융투자업에 관한 법률에 따라 설립한 사모투자전문회사로 하여금 이 사건 양해각서의 제반 조건에 따른 주식매매계약을 2013. 7. 31.까지 원고들과 체결하도록 하여야 한다. 4.2. 피고들, 소셜미디어구십구, 소미인베스트먼트 또는 사모투자전문회사는 주식매매계약에는 이 사건 양해각서에서 정한 사항의 본질적인 변경 없이 아래에서 정한 내용이 반영되어야 한다는 점에 이의 없이 동의하고 확인한다. (나) 피고들, 소셜미디어구십구, 소미인베스트먼트는, 주식매매계약의 체결일을 기준으로 하여, 원고들에게 다음과 같이 진술 및 보장한다. 만약 다음의 진술 및 보장 사항들 중 허위인 사실이 있는 경우에는, 피고들, 소셜미디어구십구, 소미인베스트먼트는 그로 인하여 발생하는 모든 결과에 대하여 일체의 형태의 책임을 지기로 한다. (ⅴ) 피고들, 소셜미디어구십구, 소미인베스트먼트는, 주식매매계약의 내용 및 매수인들이 원고들로부터 이 사건 주식을 매수하는 거래구조와 관련하여, 충분히 검토하여 주식매매계약을 체결하고 대상주식을 매수하기로 하였음을 인식하고 확인한다. (ⅵ) 피고들, 소셜미디어구십구, 소미인베스트먼트는 본 거래에 의한 이 사건 주식의 취득을 위하여 관련 법령에 의한 승인, 인·허가 등이 필요하다는 것을 인식하고 확인하며 피고들, 소셜미디어구십구, 소미인베스트먼트는 매수인들의 책임 하에 합리적으로 요구되는 범위 내에서 필요한 모든 조치를 취하여 관련 법령에 의하여 필요한 승인, 인·허가 등을 조속히 획득하고 그 결과를 원고들에게 통지하여야 한다. 4.3. 피고들, 소셜미디어구십구, 소미인베스트먼트는 2013. 9. 30.(본항 단서 ⅱ호 또는 제4.4.조에 따라 연장될 경우 연장된 기일, 이하 같다)까지 대주주변경승인을 완료하여야 한다. (이하 생략) 6. 보증금 6.1. 피고들, 소셜미디어구십구, 소미인베스트먼트는 이 사건 양해각서의 체결일에 원고들에게 보증금으로 제2.2.조의 보증금을 예치한다. 6.3. 다음 각 호의 1의 경우 원고들은 즉시 본 양해각서를 해제할 수 있고, 이 경우 본 제2.2.조의 보증금은 위약벌로서 원고들에게 귀속된다. 본 항에 따른 보증금의 귀속은 제6.2.조에 따른 손해배상청구에 영향을 미치지 아니한다. (ⅱ) 제4.3.조 본문의 시한(제4.3.조 단서 ⅱ호 또는 제4.4.조에 따라 연장될 경우 연장된 기일)까지 원고들의 귀책사유가 아닌 사유로 대주주변경승인이 이루어지지 아니하거나 대주주변경승인이 이루어질 수 없음이 명백해진 경우 6.5 피고들, 소셜미디어구십구, 소미인베스트먼트는 원고들과의 합의에 의하여 제2.2.조의 보증금을 에스크로하기로 하며, 세부내용은 에스크로 약정서에서 정하기로 한다.

G. On June 4, 2013, the Plaintiffs, the Defendants, the Social Media Organization, the Soviet Investment, and the Soviet Investment entered into an Scro Agreement with the Pacific (hereinafter “Pacific”) on the deposit of the deposit as stipulated in the instant MOU (Evidence A; hereinafter “instant Ecro arrangement”). Pursuant to the aforementioned Scro agreement, the Defendants deposited the deposit amount of KRW 630,50 million (10% of the deposit amount), the Social Media Organization, and the Soviet Investment’s KRW 5674,50,00 (90% of the deposit amount) in the Pacific (hereinafter “instant deposit”). In accordance with the aforementioned Scro agreement, the Defendants deposited the deposit amount of KRW 630,050,000,000,000 (10% of the deposit amount) with the said KRW 6.5,500,000,000 (hereinafter “instant deposit”).

Article 2 (Deposit Money) of the MOC contained in the main text of this case provides that KRW 6.35 billion shall be deposited in the Pacific, which shall be held by the Defendants, the Social Media Organization, and Soviet Investment to the Pacific. (2) The deposit of this case shall be substituted by the Defendants’ Social Media Organization and Soviet Investment’s Deposit in comparison with the case where the share sales contract is lawful and effective in accordance with the MOU, and shall be substituted by the down payment at the time of the conclusion of the share sales contract. Article 4 (Request for Payment of and Payment of the Deposit) (3) The Plaintiffs cancelled the instant MOU pursuant to Article 6.3 of the MOU, and accordingly, the Plaintiffs’ claim for the payment of the deposit of this case against the Defendants, the Social Media Organization, and Social Media Organization, and Social Media Organization: the Plaintiffs’ claim for payment from the Defendants’ Social Media Organization on the grounds that the deposit belongs to the Plaintiffs; and the Defendants’ Social Media Organization’ Social and Social Media Organization’s notice No. 1 to the Pacific.3.

H. On June 10, 2013, the crowdfunding made a public announcement that it had a share of 8,780,000 (share 34.77% + a share of 31.28% + a share of 3.48%) of the shares of the land trust in Korea as it registered MK Investment as its joint managing partner and incorporated MK Investment into a specially related person (i.e., a situation in which the PPEF becomes the largest shareholder of the land trust in Korea upon approval by the Financial Services Commission with respect to the above share sales contract).

I. On July 24, 2013, in accordance with the instant memorandum of Understanding, KLS Partners Co., Ltd. (hereinafter “KLS Partners”) and Soviet Entertainment were established with a general partner and a joint representative member as a private equity fund (hereinafter “NL”) (Evidence 14-1).

(j) On August 30, 2013, the Plaintiffs and Nativen entered into a share acquisition agreement with the purport of selling the instant shares owned by the Plaintiffs to KRW 126,103,223,860 (the “instant share acquisition agreement” hereinafter referred to as the “instant shares acquisition agreement”) with the content that they sell the instant shares owned by the Plaintiffs at KRW 126,103,223,860. In the instant share acquisition agreement, the Defendants, the Social Media Organization, and the U.S. Human Investment affixed their seals on the purchase agreement of the instant shares as the purchaser.

본문내 포함된 표 주식양수도계약서 이 사건 주식양수도계약은 한국토지신탁의 1대 주주인 원고 2회사 및 원고 2회사의 1대 주주인 원고 1회사와 이니티움 사이에 한국토지신탁 발행 보통주식 79,812,167주(원고 2회사가 보유한 79,333,330주, 원고 1회사가 보유한 478,837주의 합계)의 양수도와 관련하여 2013. 8. 30. 체결한다. 본계약을 체결하기에 앞서 원고들과 피고들, 소셜미디어구십구, 소미인베스트먼트(총칭하여 “매수인 측”)는 2013. 6. 4. 이 사건 주식의 양수도와 관련하여 이 사건 양해각서를 체결하였고, 피고들, 소셜미디어구십구, 소미인베스트먼트는 이 사건 주식의 양수를 위하여 매수인을 설립하였다. 제1조(목적) (1) 이 사건 주식양수도계약은 원고들로부터 이니티움이 이 사건 주식을 양수하고 한국토지신탁의 경영권을 인수하는 거래(“본거래”)의 제반 조건을 정하는 것을 목적으로 한다. (2) 이 사건 주식양수도계약의 체결로서 이 사건 양해각서는 그 효력을 상실한다. 다만, 이 사건 양해각서에서 정하여 원고들 또는 피고들, 소셜미디어구십구, 소미인베스트먼트가 그 의무를 이행하였거나 이 사건 양해각서와 일체로 또는 별도로 합의한 경우 그 이행 및 합의의 효력에는 영향을 미치지 아니한다. 제2조(양수도대금) (1) 이니티움은 이 사건 주식을 1주당 1,580원(총 126,103,223,860원)에 인수하기로 한다. (2) 이니티움은 이 사건 주식양수도계약 체결일에 63억 500만 원을 원고들이 지정하는 은행계좌(시중은행의 보통예금계좌로서 이하, “계약금 예치계좌”)에 납부하여야 한다. 단, 양해각서 제6.5.조 및 원고들, 피고들, 소셜미디어구십구, 소미인베스트먼트, 태평양 사이에 2013. 6. 4. 체결된 이 사건 에스크로약정에 의하여 예치된 이 사건 예치금을 위 에스크로약정에 따라 계속 예치함으로써 이 사건 주식양수도계약상 계약금의 납부에 갈음할 수 있다. 이 경우 피고들, 소셜미디어구십구, 소미인베스트먼트는 이니티움 또는 이니티움이 설립한 투자목적 회사에게 위 예치금 채권을 양도하고, 원고들은 피고들, 소셜미디어구십구, 소미인베스트먼트가 이니티움에게 위 예치금 채권을 양도함에 동의한다. (4) 이니티움은 이니티움이 본계약의 이행을 위하여 설립한 투자목적회사 또는 피고들, 소셜미디어구십구, 소미인베스트먼트로 하여금 본계약을 이행하도록 할 수 있다. 제3조(본거래 종결을 위한 이행사항 및 본거래 종결) (2) 본거래 종결을 위하여 이니티움은 아래 사항을 이행한다. - 이니티움은 대상주식 양수도대금을 완납하는 데 필요한 자금을 확보하고, 본 거래 종결일에 대상주식 양수도대금을 지급하여야 함 - 이니티움은 제4조 제3항의 기한 내에 대주주변경승인이 이루어지도록 하여야 함 제4조(진술 및 보장 등) (2) 이니티움은 본계약의 체결일을 기준으로 하여, 원고들에게 다음과 같이 진술 및 보장한다. 6. 이니티움은 본거래에 의한 대상주식의 취득을 위하여 관련 법령에 의한 승인, 인·허가 등이 필요하다는 것을 인식하고 확인하며 이니티움은 이니티움의 책임 하에 합리적으로 요구되는 범위 내에서 필요한 모든 조치를 취하여 관련 법령에 의하여 필요한 승인, 인·허가 등을 조속히 획득하고 그 결과를 원고들에게 통지하기로 한다. (3) 이니티움은 2013. 9. 30.(본항 단서 (ⅱ)호 또는 제4항에 따라 연장될 경우 연장된 기일, 이하 같다)까지 대주주변경승인을 완료하여야 한다. (이하 생략) (4) 제3항 본문(괄호 부분 제외)의 기일과 관련하여 해당 절차가 진행 중이고 그 종결이 합리적으로 예측 가능할 경우, 당사자들이 상호 협의하여 해당 기일을 2개월의 범위 내에서 연장할 수 있다. 이 경우 원고들은 합리적 사유 없이 해당 기일의 연장을 거부할 수 없다. 본 항에 의하여 연장된 기일에 대하여는 제3항 단서는 적용되지 아니한다. 제5조(해제 및 손해배상) (2) 다음 각 호의 1의 경우 원고들은 즉시 본계약을 해제할 수 있고, 이 경우 계약금(제세공과금을 공제한 발생이자 포함)은 위약벌로서 원고들에게 귀속한다. 본 항에 따른 계약금의 귀속은 제1항에 따른 손해배상청구에 영향을 미치지 아니한다. (i) 제4조 제3항의 시한(제4조 제3항 단서 (ⅱ)호 또는 제4조 제4항에 따라 연장될 경우 연장된 기일)까지 원고들의 귀책사유가 아닌 사유로 대주주변경승인이 이루어지지 아니하거나 대주주변경승인이 이루어질 수 없음이 명백해진 경우 (이하 생략)

(k) On September 5, 2013, Ethnium established Ethnatt Co., Ltd. (hereinafter “ Ethnatt”) as a special purpose company, without distinguishing Ethnat and Ethnatz, and Ethnatt filed an application for the approval of major shareholders with the Financial Services Commission on September 30, 2013. The Plaintiffs and Ethnattium agreed to extend the period for the approval of major shareholders by November 29, 2013 pursuant to Article 4(4) of the instant stock acquisition agreement.

E. On November 27, 2013, the crowdfundingF obtained a major shareholder’s change approval on the acquisition of 79 million shares of the Korea Land Trust owned by the Korea Land Trust (hereinafter “Korea Land Trust”) from the Financial Services Commission on November 27, 2013, and thereby, it became final and conclusive that the NPF could not become the largest shareholder for the acquisition of 31.61% of the shares of this case. The PPF completed the acquisition of shares by paying any balance to the Korea Land Trust on December 4, 2013.

(m) On November 29, 2013, E.I.D. requested the Plaintiff to extend the time limit for the approval of the major shareholder. On December 26, 2013, the Plaintiffs sent a content-certified mail containing a declaration of intent to cancel the instant stock acquisition agreement pursuant to Article 5(2)(i) of the instant stock acquisition agreement on the ground that “the extension of E.I.D. did not obtain the approval of the major shareholder even until November 29, 2013,” and the said mail sent to E.S. Partners and Soar Investment on December 27, 2013.

n. The Plaintiffs filed a claim for the payment of the instant deposit with the Pacific, asserting that the instant share acquisition agreement was rescinded, and the down payment was reverted to the Plaintiffs. However, the Pacific rejected the instant claim on the ground that there is room for dispute, and on May 7, 2014, based on Article 4(4) of the instant Escro Agreement, the Seoul Central District Court Decision 9487No.9487, 6,418,305,546 (i.e., the principal of the instant deposit + interest of KRW 6.5 million + interest of KRW 113,326,846 - Service charges of deposit notice 21,300 (hereinafter “instant deposit”), and the deposited person deposited the deposited person with the “Plaintiff or the Defendants, social media implements, and so on” pursuant to Article 487 of the Civil Act.

A. On June 3, 2015, the Plaintiffs sold the instant shares in KRW 2,100 per share to the KNND Private Equity Funds, MNz comprehensive financial securities companies, UNHD Securities Co., Ltd.

[Ground of recognition] The facts without dispute, Gap evidence Nos. 2 through 11, 14, 15, 19, 20, 31 through 38 (including each number; hereinafter the same shall apply), Eul evidence Nos. 1, 2, 4, 6, 32, 35, and 41, non-party 2's testimony of the first instance court witness, non-party 3 and non-party 4's testimony, the whole purport of the arguments, and the whole purport of the arguments

2. Summary of the parties' arguments

A. The plaintiffs

1) The Plaintiffs, the Defendants, the Social Media Organization, and the Soviet Investment agreed to substitute the instant deposit as the down payment for the instant stock acquisition agreement upon the conclusion of the instant “this contract” through Articles 2.2, 4.2, and 4.2, Paragraph (2) of the Understanding of this case, and Article 3(2) of the instant Ecroman Arrangement. Article 2(2) of the instant stock acquisition agreement also provided that the Ecroman, a purchaser, may substitute the instant deposit for the down payment for the down payment of KRW 6.35 million. As the instant deposit was concluded, the Defendants and the Social Media Organization, and Soviet Investment, signed on the instant stock acquisition agreement as the buyer’s position, did not raise any objection. Ultimately, as the instant stock acquisition agreement was concluded, the instant deposit was replaced by the down payment for the instant stock acquisition agreement.

2) However, E.I.D. failed to obtain the approval of the change of the major shareholder by November 29, 2013. Accordingly, the Plaintiffs revoked the stock acquisition agreement and confiscated the down payment as a penalty on December 27, 2013. Therefore, the right to claim payment of the instant deposit corresponding to the down payment ought to be reverted to the Plaintiffs. In the trial, Plaintiff 1 succeeded to Plaintiff 2, and thus entirely reverted to Plaintiff 1.

B. The Defendants

1) A party to the instant MOU and Escro Agreement is the Plaintiffs, and the other party is the Defendants and the social media Organization, and the U.S. Human Investment. However, either party to the instant share acquisition agreement is still the Plaintiffs, but the other party is Esti.

2) As such, since the parties to the instant memorandum of Understanding and Scro Agreement are different from the parties to the instant share acquisition agreement, in order to substitute the instant deposit as the down payment of the instant share acquisition agreement, the procedure for transferring claims related thereto is necessary. However, the Defendants, the Social Media Organization, and Soviet Investment did not notify the Pacific that the instant deposit was replaced by the down payment of the instant share acquisition agreement, and otherwise, some provisions of the instant MOU or the instant share acquisition agreement cannot be deemed to substitute the instant deposit as the down payment of the instant share acquisition agreement.

3) Therefore, apart from whether the plaintiffs can claim the payment of penalty for breach of contract as stipulated in the instant stock acquisition agreement with respect to E.I.D., the parties to the instant stock acquisition agreement, the deposit of this case is not a down payment under the instant stock acquisition agreement, but the Defendants are not parties to the instant stock acquisition agreement, and thus the Defendants cannot seek confirmation of the existence of the right to claim the payment of the deposit money against the Defendants.

4) The Plaintiffs asserted to the Defendants the claim for the payment of the entire amount of the instant deposit. However, the part of the instant deposit contributed by the Defendants is merely KRW 630,50 million. As to the remainder of the deposit claim, the Defendants’ claim for payment of the payment of the deposit must be confirmed by the Social Media Organization and Soviet Investment other than the Defendants. Therefore, the part exceeding KRW 630,500,000 contributed by the Defendants among the Plaintiffs’ claims against the Defendants is unlawful or groundless.

5) The instant share acquisition agreement was concluded by the Defendants to take over the management rights of the Korea Land Trust. However, after the conclusion of the instant share acquisition agreement, LPEF became the substantial largest shareholder of the Korea Land Trust. Accordingly, even if LPF acquired the instant shares, it became impossible to secure the management rights of the Korea Land Trust. Since the instant share acquisition agreement became impossible to achieve the purpose of the instant share acquisition agreement, and it was terminated without any causes attributable to both parties, the Plaintiffs cannot seek penalty against the Defendants.

6) The phrase “the acquisition of management rights as the largest shareholder of the Korea Land Trust” constitutes an important motive that serves as the basis for the conclusion of the instant stock acquisition agreement. Since the PPF becomes the substantial largest shareholder of the Korea Land Trust, it was virtually impossible for PPF to take over its management rights. Therefore, the Defendants are revoked by an expression of intent by mistake in the instant stock acquisition agreement.

7) The buyer, including the Defendants, made efforts to prevent the crowdfundingF from becoming the largest shareholder of the Korean land trust, and the Plaintiffs did not make any effort to prevent this from becoming the largest shareholder of the Korean land trust. The claim by such Plaintiffs for forfeiture of penalty is in violation of the good faith principle.

3. Determination

A. Whether the deposit of this case was replaced by the down payment under the stock acquisition agreement of this case

Comprehensively taking account of the following circumstances revealed by the above basic facts, it is reasonable to view that the Defendants and the Social Media Organization, and the Soviet Entertainment consented to the transfer of the instant deposit made by them to the Egypt and to substitute the payment of the down payment. That is, it is reasonable to view that the instant deposit was replaced by the down payment of the instant stock acquisition contract between the Defendants, the Defendants and the Social Media Organization, the Soviet Investment, and the Egypt.

① Article 2(2) of the stock acquisition agreement of the instant case provides that “Neman shall pay 6.35 billion won to the account of deposit of down payment designated by the seller on the date of conclusion of the instant stock acquisition agreement. However, by continuing to deposit the instant deposit pursuant to the instant Esc agreement, it may substitute the payment of down payment under the stock acquisition agreement of the instant case. In this case, the buyer shall transfer Escis with the instant deposit claim, and the seller consents to the transfer of the instant deposit claim to Esaton.”

② According to the foregoing provision, the period during which the down payment is due is the date of the conclusion of the instant stock acquisition agreement. This was not only until the date of the instant stock acquisition agreement, but also thereafter, did not separately pay the Plaintiffs the down payment of KRW 6.35 billion to the Plaintiffs. Meanwhile, the instant deposit continued to be deposited in the Pacific, and there was no dispute regarding the unpaid down payment between the Plaintiffs and Ethicals, the Defendants, social media organizations, and small and microhumans.

③ The Defendants, the Social Media Organization, the U.S. Human Investment, participated in the instant share acquisition agreement and affixed a seal on the written contract, and did not raise any objection as to Article 2(2) of the instant share acquisition agreement.

B. Whether there is a benefit to seek confirmation against the Defendants, not the Plaintiffs’ interest in seeking confirmation

If the instant deposit was replaced by the down payment under the stock acquisition agreement of this case, the Defendants asserted to the effect that the instant claim against the Defendants is unlawful, since the Pacific was not the Defendants, but the deposit should have been made by the depositee.

On the other hand, in a lawsuit for confirmation, the benefit of confirmation is recognized only when it is the most effective and appropriate means to obtain a confirmation judgment against the defendant when the plaintiff's right or legal status exists, and to eliminate such apprehension and danger. As long as the Pacific (Pacific) rather than the plaintiffs and Ethye, the defendant and the defendant asserted whether or not the defendant belongs to the right to deposit and payment, the plaintiffs are not entitled to deposit money against the defendant, and therefore only the plaintiffs have the right to claim confirmation as to deposit money. Therefore, the defendants' assertion is without merit.

C. Whether the requirements for forfeiture of penalty for breach of duty are met (1)

1) The part of the plaintiffs' assertion that the contract deposit of this case should be confiscated as a penalty for penalty, because the change of major shareholders did not occur without any cause attributable to the plaintiffs.

A) Article 5(2)(i) of the instant stock acquisition agreement provides that “Where it is apparent that the approval for the change of a major shareholder is not obtained or that the approval for the change of a major shareholder is not possible until the extended date pursuant to Article 4(4), the Plaintiffs may immediately rescind the instant stock acquisition agreement. In such cases, the Plaintiffs are subject to a penalty for breach of contract.” The fact that the approval for the change of a major shareholder was not obtained by November 29, 2013, which is the extended time limit for the transfer of aggregate. The fact that the Plaintiffs cancelled the instant stock acquisition agreement on the grounds that the approval for the change of a major shareholder was not obtained on December 27, 2013.

B) As to this, the Plaintiffs asserted that the penalty clause of the instant share transfer contract belongs to the Plaintiffs without obtaining the approval for change of major shareholders without any causes attributable to the Plaintiffs, and that the instant down payment belongs to the Plaintiffs as a penalty for breach of contract, even though the approval for change of major shareholders was not obtained without any causes attributable to the Defendants, the instant down payment belongs to the Plaintiffs as a penalty for breach of contract.

C) In a case where the amount of damages is predetermined due to a penalty due to nonperformance, the obligee may claim the amount of damages without proving the occurrence of damages and the amount of damages if only the obligor proves the fact of nonperformance. However, barring special circumstances, the obligor may be exempted from liability to pay the estimated amount of damages by asserting and proving that there is no cause attributable to himself/herself (see Supreme Court Decision 2009Da83797, Feb. 25, 2010).

However, as a penalty for breach of contract due to nonperformance, the penalty for breach of contract is deemed to have a punitive function against an obligor’s nonperformance, and thus, constitutes a liability for an obligor’s act and omission and is not in accordance with the details of the obligation, but is held liable for an illegal act. Therefore, it cannot be said that there is a penalty against an obligor who is not a cause attributable to the obligor. Therefore, the existence of a cause attributable to an obligor due to nonperformance is three weeks as the requirements for

Therefore, the Plaintiffs’ primary and conjunctive claims that the penalty clause without any cause attributable to the obligor are valid are not reasonable (in itself, it is evident by the Plaintiffs’ assertion that the Plaintiffs did not claim a penalty as liquidated damages).

2) The part of the plaintiffs' assertion that the contract deposit of this case should be confiscated as a penalty, because the approval of major shareholders was not granted due to the reasons attributable to the defendants.

A) The plaintiffs asserted that the down payment of this case was confiscated to the plaintiffs as a penalty, because the change of major shareholders was not made due to the reasons attributable to the defendants, and this is examined.

B) First, we examine whether the Defendants agreed to implement the major shareholder modification approval by November 29, 2013 in the instant share acquisition agreement, and whether the Defendants failed to implement the agreement due to their own fault.

The fact that Article 6 of the MOU of this case provides that "the defendant, social media organization, and minority entertainment deposits on behalf of the plaintiffs, and if the major shareholder is not approved due to reasons not attributable to the plaintiffs, the deposit shall belong to the plaintiffs due to the penalty against default" is acknowledged as above.

However, as seen earlier, Article 1(2) of the Stock Transfer Agreement provides that “this case’s awareness of understanding shall lose its validity as the conclusion of the instant stock transfer agreement,” Article 2(2) of the same Act provides that “I shall bear the obligation to pay the down payment and substitute for the transfer of the instant deposited bonds,” and Article 3 of the same Act provides that “I shall secure funds necessary to fully pay the purchase price of stocks subject to transfer, pay the purchase price of stocks subject to transfer and make the approval for change of a major shareholder within the time limit, and make the approval for change of a major shareholder be made within the time limit,” so there is no evidence to acknowledge that the Defendants agreed to implement the procedures for change of major shareholder by November 29, 2013 in the instant stock transfer agreement jointly or separately with the Plaintiffs in the instant stock transfer agreement.”

[The fact that the Defendant affixed the instant share acquisition agreement with the social media organization and the Soviet Investment as the purchaser's side is as above. However, according to the above facts of recognition, it appears that the Defendants, the Defendants, the Defendants, the Defendants, the social media organization, the Soviet Investment, and the Pacific, continued to deposit the instant deposited money pursuant to the instant EcC agreement concluded on June 4, 2013 pursuant to the above EcC agreement, and thus, can substitute the payment of the down payment under the instant share acquisition agreement. In this case, the Defendants, social media organization, the Soviet Investment, the Soviet transferred the said deposited money to the Investment Company established by Esct or Estton, and the Plaintiffs agreed to transfer the down payment to the Defendants, social media organization, the Soviet Investment in lieu of the said deposited money to the EcC agreement.]

Therefore, the Defendants’ obligation to implement the procedures for the approval of major shareholders by November 29, 2013 in the instant stock acquisition agreement was borne by the Defendants. The Plaintiffs’ assertion that the Defendants failed to implement the procedures due to the Defendants’ fault is without merit.

(C) Next, while the plaintiffs assume the obligation to implement the procedures for the change of major shareholders, the procedures for the change of major shareholders need to establish funds or secure funds acceptable by the Financial Services Commission. However, the defendants failed to prepare such funds properly and the procedures for the change of major shareholders are not implemented. Thus, the defendants asserted to the effect that the change of major shareholders should not be deemed to have been completed due to the reasons attributable to the defendants.

On the other hand, it is insufficient to recognize that Article 3 of the stock acquisition agreement of this case provides that "the company shall secure funds necessary for the full payment of the purchase price of shares subject to NE, pay the purchase price of shares on the date of the completion of this transaction, and make the approval for the change of a major shareholder within a specified period." As above, it is not sufficient to recognize that the evidence and evidence submitted by the plaintiffs and evidence Nos. 57-3, 63-3, 351, 369, 493 of the evidence No. 57-3, 49, and testimony of non-party 4 of the trial witness alone are responsible for the defendants to be responsible for the plan to establish funds or secure funds to be accepted by the Financial Services Commission in relation to the procedure for the change of the major shareholder in the stock acquisition agreement of this case, and there is no other evidence to find otherwise (the provisions on the procedure for the change of a major shareholder in the Financial Investment Services

[A. According to the statement in Eul evidence No. 6, it is recognized that Eul submitted a financing plan for additional acquisition of 100 million won to the Financial Services Commission when it applied for a change of major shareholders in the assets management and the Financial Services Commission, and among the contents, there is a statement in the purport that KLS partnership intended to contribute KRW 100 million to the plaintiffs. However, there is no evidence to acknowledge that the Defendants agreed to contribute KRW 100 million to KLS partnership, and that NLS did not obtain a change of major shareholders, it is not due to KLS partnership's failure to pay 100 million won to the plaintiffs]

D) Sub-committee

Although the Defendants promised to implement the procedures for approving the change of major shareholders or to establish funds necessary therefor or to secure funds in the instant stock acquisition agreement, it cannot be acknowledged that they failed to perform their obligations due to their own fault, even if Article 5(2)(i) of the instant stock acquisition agreement applies to cases where there is a cause attributable to the Defendants, this part of the Plaintiffs’ primary and conjunctive claims cannot be accepted.

4. Conclusion

Therefore, the plaintiff 1 and the plaintiff 2's succeeding intervenor's primary and conjunctive claims altered in the trial against the defendants against the defendants are all dismissed. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance is revoked and all of the plaintiff 1 and the succeeding intervenor's primary and conjunctive claims are dismissed. It is so decided as per Disposition.

[Article 3 of the stock acquisition agreement of this case provides that if the stock acquisition agreement of this case was concluded in the future, the deposit of this case shall be replaced by the down payment of the stock acquisition agreement of this case. And the defendants transferred the right to claim collection of the deposit of this case to Escro agreement of this case, and the plaintiffs agreed to the above transfer. Thus, the plaintiffs and the defendants should change the agreement of this case or notify the above transfer to Pacific. Nevertheless, the Pacific did not follow the procedure of change or notification, notwithstanding the agreement of this case, the Pacific did not follow the procedure of the change or notification, and the deposited parties and the defendants, social media organization, and small Scro agreement of this case were made to deposit of this case. The plaintiffs did not perform the major shareholder approval procedure as stipulated in the agreement of this case, but the claim party seems to have been deposited as the defendants' deposited to Escro agreement of this case.

However, it is difficult to accept the Plaintiffs’ claim of this case since there is no evidence to acknowledge that the Defendants were liable to implement the procedures for approving the change of a major shareholder in the agreement on the acquisition of the instant shares, and there is no assertion or proof as to the denial of the legal personality of the Plaintiff. However, the Defendants asserted to the effect that if the instant deposit was the down payment of the instant stock acquisition agreement, the rights to the instant deposit are not the Defendants but the rights to the instant deposit. Thus, there may be a question as to whether the Defendants or the Defendants’ subrogation is not a failure to exercise their rights to the instant deposit. This can be resolved by filing a lawsuit against the Plaintiff 1 and the Intervenor of Plaintiff 2 by seeking confirmation that the instant deposit was reverted to the Plaintiff 2 and the Intervenor’s claim for recovery of the deposit money or the claim for recovery against the Plaintiff 2).

[Attachment]

Judges Kim Kim (Presiding Justice)

1) The instant case was agreed to Sk for guaranteeing the payment of penalty under the contractual relationship between the deposited parties, and the deposited money was deposited accordingly. Thus, unlike the lawsuit seeking confirmation of the right to claim the payment of deposit money, the deposited parties asserting that there is a ground for the occurrence of the right to claim the payment of deposit money, should bear their assertion and burden of proof. Therefore, as in the instant lawsuit, as in the case where the Plaintiff filed a claim against the Defendant for penalty on the ground that the requirements were met, the Plaintiff shall assert and prove that the requirements for the imposition of penalty under the instant contract for the acquisition of stocks of this case were satisfied, as alleged in the said lawsuit (see, e.g., Supreme Court Decision 200Do1334, Apr.

(2) In the event that an obligee and an obligor agree to pay the amount of damages even if there is no cause attributable to the obligor in default, etc.

Note 3) The State Civil Code, the General Provisions of Claim (2), the Korean Association of Judicial Administration (2), the Korean Association of Judicial Affairs, the 2013 and 74. “Method of distinguishing between the scheduled amount of damages and the penalty for breach of contract,” the Red Myeon, the study of civil precedents, the 202 and 131. “Method of distinguishing between the scheduled amount of damages and the penalty for breach of contract,” the Red Myeon, the study of civil precedents, the 24th day, the 2002, the 131th day, the 131st day, the date, 52, 201 of the ASEAN, the 645 pages, etc.

4) According to the evidence No. 5, the parties to the case where the period during which the major shareholder modification approval procedure is due is extended by November 29, 2013 are the Plaintiffs and the Auss.