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Reasons
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(영문) 서울중앙지방법원 2018.07.06 2017가합549938
계약금반환 및 위약금 청구의 소
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1. The plaintiff's claim is dismissed.

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

Reasons

1. Basic facts

A. On April 2015, B Co., Ltd. (hereinafter “B”) (the parent company of the Defendant) acquired 40% of the shares of C Co., Ltd. (hereinafter “D”) and became D’s major shareholders, regardless of whether it was before or after the change, and E and F, an executive officer of B, were registered as D’s director.

On the other hand, upon the decision of B, D lent KRW 300 million to Sico&W (hereinafter “Siroco loan”), and 48.8% of the shares of G Co., Ltd (hereinafter “G”) (325,667 shares, par value of KRW 5,000; hereinafter “instant shares”) acquired KRW 1.570 million.

Since then, B sold 1/3 of the D shares held by it on December 2016 to individual investors, and sold 40,000 of the remaining D shares held by H companies (hereinafter “H”) on February 23, 2017.

Accordingly, D convened an extraordinary general meeting of shareholders on March 2017 and appointed I, J, and K as a director, who is the representative of H, and E and F who were existing directors have resigned.

B. The Defendant and D agreed to purchase D shares from B and, at the same time, request B to arrange investment cases that fall directly related to D’s business (game distribution business) among investment cases that B had been conducted through D as a major shareholder.

Accordingly, the Defendant, upon receipt of the instructions from B, entered into a performance agreement with L on March 21, 2017, on which the Defendant, instead of the Defendant’s transfer of the instant shares from D, set off the price that the Defendant would have to pay to D and the Defendant’s payment of the principal and interest of the Defendant’s loan claims against D (hereinafter “instant performance agreement”).

According to the instant performance agreement, Defendant and D are KRW 2,019,657,470 (i.e., the principal amount of KRW 19,657,470) of the Defendant’s loan claims against D on March 31, 2017 (i.e., the principal amount of KRW 19,657,470) and KRW 360 million.

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