Crable Co., Ltd. (Law Firm Epex et al., Counsel for the defendant-appellant)

Small Bank Venture Business Co., Ltd. and four others (Law Firm Yang Hun-Ga et al., Counsel for the plaintiff-appellant)

May 4, 2012

Seoul Central District Court Decision 2009Gahap28030 Decided September 10, 2010

1. Of the judgment of the court of first instance, the part of the judgment of the court of first instance regarding Defendant Sof Bank Venture Business, including the Plaintiff’s claim expanded or added at the trial, shall be changed as follows:

A. As to the Plaintiff’s total amount of KRW 6,139,100,000 and its total amount of KRW 2,000 from March 24, 2009 to September 10, 2010, the remainder of KRW 4,139,100,000 per annum until June 29, 2012, and the amount of KRW 20% per annum from the following day to the date of full payment.

B. The plaintiff's remaining main claims against the defendant Sop Bank Ventures Co., Ltd. and the first and second conjunctive claims are all dismissed.

2. The Plaintiff’s appeal against Defendant D.K. Korea Co., Ltd., Defendant 3, Defendant 4, and Defendant 5, as well as the primary claim expanded from the trial, and both the first and second preliminary claims added in the trial are dismissed.

3. The total cost of the lawsuit between the plaintiff and the defendant Sop Bank Ventures shall be divided into three parts, and the remainder shall be borne by the above defendant, and the costs of the lawsuit shall be borne by the plaintiff and the defendant D.M. Korea Co., Ltd., defendant 3, defendant 4, and defendant 5 after the lawsuit between the plaintiff and the defendant 5.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

1. Purport of claim

From April 26, 2006 to the final delivery date of a copy of the complaint of this case, the Defendants paid to each of the Plaintiff 20 billion won with 6% interest per annum and 20% interest per annum from the next day to the day of full payment (the Plaintiff extended the rate of delay damages from the trial to 5% per annum, and added the claim for damages on the ground that the Plaintiff infringed on the title trust agreement combined with the bid qualification transfer contract or the claim under the same business contract).

2. Purport of appeal

(1) The plaintiff

The judgment of the court of first instance is modified as follows. The defendants shall pay to each plaintiff the amount of KRW 20 billion and the amount of KRW 20 billion from April 26, 2006 to the date of the judgment of the court of first instance with respect to the above amount of KRW 2 billion, and the remainder of KRW 18 billion to the date of the judgment of the court of first instance, Defendant D.K. Korea Co., Ltd. (hereinafter "Defendant D. Korea"), Defendant D.K. Co., Ltd. (hereinafter "Defendant D. Korea"), Defendant 3, Defendant 4, and Defendant 5 shall pay to each plaintiff the amount of KRW 20 billion at each rate of KRW 5% per annum from the date of the judgment of the court of first instance until the date of full payment, and 20% per annum from the next day to the date of full payment.

B. Dop Bank Ventures Co., Ltd.

In the judgment of the court of first instance, the part of the judgment against Defendant Stock Company Smallp Bank Venture Business (hereinafter “Defendant Stock Bank”) shall be revoked, and the Plaintiff’s claim corresponding to the revoked part shall be dismissed.

1. Basic facts

A. Status of the parties to the instant case

(1) The Plaintiff’s trade name was changed to the current trade name on April 29, 2010, via Cheongchin Co., Ltd., Cheongchin Co., Ltd., Cheongchin Co., Ltd., Cheongchin Co., Ltd., Cheongchin Inc., Cheongchin and Cheongchin Co., Ltd.

Dohp Bank is a company established for the purpose of operating and managing the funds of the investment association for small and medium enterprises, providing information on business start-up, and arranging and advising on business start-ups. Defendant 3 is the representative director of the defendant small and medium bank, and Defendant 4 is the vice president of the defendant small and medium bank.

【Defendant Drink Korea is a company established for the business purpose of primary timber wholesale and export business. Defendant 5 is currently the representative director of Defendant D Cases Korea and Schina Co., Ltd. (hereinafter “Schina”).

xbh(hereinafter referred to as "bnb") is a company aimed at the manufacture and sale, manufacture and sale, and sale, of the paper, and on the basis of December 2005, the company was holding 14,327,720 shares, 99.94% of the total shares issued by the bnb(hereinafter referred to as "bnb").

B. Submission of a letter of intent to acquire both the plaintiff and defendant Sop Bank's double-use land.

(1) On September 2005, LAW decided to sell all the shares owned by it to a third party, and selected JG Bank N.V. (hereinafter “AB”) as an agent for sale as an agent for sale. Since around that time, LAW (hereinafter “the sale procedure of this case”).

around October 2005, the Plaintiff obtained information that the sale procedure of this case is in progress and decided to participate in the above procedure. Around that time, the Plaintiff entered into an advisory contract with Nonparty 1 on the remuneration of Nonparty 1 and the down payment of KRW 30 million for the Plaintiff’s success in the takeover of a pair of solvents, and paid KRW 30 million for the down payment to Nonparty 1 on November 2005.

Secondly, the Plaintiff and Nonparty 1 determined that the size and awareness of the Plaintiff were lower than those of the competitors intending to participate in the sale procedure of this case, and decided to participate in the sale procedure of this case together with the company with the high designated level in the related industry. On November 2005, Nonparty 1 proposed that Nonparty 2 of Defendant Sop Bank’s regular director of the Defendant Sop Bank did not participate in the sale procedure of this case, and Nonparty 2 accepted Nonparty 1’s proposal. However, Nonparty 1 did not expressly state that the company is the Plaintiff at that time.

x) Accordingly, Defendant Sop Bank was notified on December 1, 2005 that Defendant Sop Bank participated in the sale procedure of this case in full by submitting a letter of intent to take over a pair of solvents to ASEAN on December 1, 2005. On December 8, 2005, Defendant Sop Bank was notified that it had obtained qualification to participate in the tendering procedure by passing a preliminary tender from ASEAN on December 8, 2005.

(v) Nonparty 2 sent the above notification to Nonparty 1 on December 12, 2005, and on December 22, 2005, sent to Nonparty 1 a letter of invitation to the present tender procedure, which was received from ASEAN on the preceding day, by electronic mail.

⑹ 한편, 원고는 2005. 12. 1. 아이엔지에 피고 소프트뱅크와 별도의 인수의향서를 제출하였으나 예비입찰을 통과하지 못하였고, 2005. 12. 22.경 아이엔지에게 인수의향서 제출을 철회한다는 의사를 통보하였다.

⑺ 소외 1은 2005. 12. 28. 당시 원고의 본부장급 임원이던 소외 3(현재는 원고의 대표이사 중 1인이다)과 함께 피고 소프트뱅크의 사무실을 방문하여 소외 2를 만났고, 이 자리에서 소외 2에게 피고 소프트뱅크와 함께 이 사건 매각절차에 참여하고자 하는 회사가 원고임을 밝혔으며, 소외 3, 소외 1, 소외 2는 피고 소프트뱅크가 이 사건 매각절차의 본입찰절차에 참여하는 방식 및 피고 소프트뱅크와 원고와의 관계 등에 대하여 구체적인 논의를 시작하였다.

C. Conclusion, etc. of the instant agreement and sales contract of stocks

(1) On January 10, 2006, according to the above discussions by Nonparty 3, Nonparty 1, and Nonparty 2, the Plaintiff and Defendant Soft Bank entered the first written agreement on the purchase advisory agreement and the management of the association (hereinafter “the first written agreement”) with the main contents as follows. The date of the preparation of the first written agreement in order to account the fees that Defendant Soft Bank would receive from the Plaintiff as the performance of the year 2005.

【First Agreement】

For the acquisition of management rights (hereinafter referred to as "principal transaction") with respect to a pair of available land (hereinafter referred to as "subject company"), Gap (the plaintiff) shall enter into a contract for corporate purchase consultation and an agreement for the management of the association (hereinafter referred to as "consultative agreement") that request the management of the company to Eul (Defendant Sop Bank") as follows:

Article 1 (Service)

For the smooth formation of this transaction, B shall provide A with the following services in good faith:

1. Submission of written intent for acceptance;

2. Vicarious execution of procedures for selecting persons subject to preferential bargaining and concluding contracts for underwriting an target company;

3. Formation and operation of project funds to take over the target company as an executive member;

4. Consultation on the formulation of strategies after corporate acquisition and acquisition;

5. Performance of all other affairs as determined by the consultation with Gap in connection with this transaction.

Article 2 (Mutual Consultation)

A shall cooperate to the maximum extent possible so that the decision-making of A in relation to the nature of this transaction, such as internal strategies, financing schemes, and major decision-making processes, may be carried out in an effective and faithful manner, in order for A to promptly deliver it to B. In addition, A shall provide B with all kinds of information and human resources for a company to which A is recognized, if necessary.

Article 3 (Consultation Contract)

A shall not enter into an advisory contract in contravention of the terms of this advisory contract with the other third party without the written consent of B during the advisory contract period. On the contrary, in the event that the advisory contract is entered into with the other third party with the terms contrary to the terms of this advisory contract, B is not obligated to provide services under Article 1, and as to the damage of B, A is obligated to compensate for the basic remuneration under Article 5(1) until the acquisition of the target company is determined.

Article 4 (Duty of Confidentiality)

All the data relating to this transaction shall be used only for the purposes of this transaction and post management, and both Gap and Eul shall keep any confidential information therefrom for a period of one year after the end of this contract and the end of this contract with respect to third parties. The scope of the relevant data requiring confidentiality shall include the mutually furnished documents, the data, and all the information on plans and decisions related to this transaction.

Article 5 (Service Fees and Payment)

Service fees and fees for the management of the Association related to this case shall be (i) the basic remuneration (excluding value added tax) and the management remuneration for the operation of the Association formed as a result of this transaction, and (ii) the contingent remuneration for the operation of the Association, and shall be paid to Section B by Section A.

1. Basic remuneration shall be KRW 10,000 per month until the decision on whether to accept the company in question is made, and the first payment shall be made at the time of this consulting agreement. The first payment shall thereafter be made on the same day of each month: Provided, That basic remuneration shall not be returned, regardless of whether the company in question acquires it;

2. Management and remuneration for the operation of the association formed by main transactions;

(a) Management remuneration;

(1) Eul, as an executive partner, agrees with Gap and Eul, to receive an amount equivalent to 1.5% of the total amount of investment, if the total amount of investment is less than 20 billion won as an executive partner, and an amount equivalent to 1.5% of the total amount of investment, if the total amount of investment is less than 20 billion won, as an annual management remuneration. Specific details shall be governed by the rules of the Association

(2) The amount under the above paragraph (1) shall be paid at the time of formation of the association with the management remuneration for the first year, and the full amount under the above paragraph (1) shall be paid even if the association is dissolved early before December 31, 2006.

(4) Where a union is dissolved without making an investment in this transaction by the agreement of all the union members, including A and B, an executive member shall refund the principal equivalent to the management and remuneration that the union has received at the time of its formation to the union: Provided, That the actual operation expenses related to the union shall be paid after subtracting the actual operation expenses

Article 6 (Expenses, etc.)

In addition to the remuneration of section 5 above, the actual cost of non-ordinary occurrence (accounting, attorney's service cost, etc.) incurred with the consent of Section 1 as it is deemed necessary for Section 5 to provide services to Section 1 in connection with this transaction shall be paid at the actual cost.

Article 8 (Termination of Contracts)

This advisory contract shall take effect at the same time as name and seal, and shall take effect until Gap and Eul agree on the termination of the contract.

Article 9 (Exemption)

Determinations relating to this transaction shall be determined under the responsibility of Party A. Accordingly, Party B shall be relieved of liability and damages arising or claimed on the basis of the acts performed by Party B for the purpose of the good will of this transaction, unless it is caused by Party B’s gross negligence and intention.

On January 10, 2006, as of the date of the preparation of the first written agreement, she conducted the instant sales procedure against seven companies which passed the preliminary bid. In this case, the Plaintiff’s representative director, Nonparty 4, Nonparty 1, and Nonparty 5’s attorney-at-law, and Nonparty 2 were present on the part of the Defendant Company, and Nonparty 4, Nonparty 3, and Nonparty 3, and Nonparty 7, and Nonparty 2 were present on the part of the Defendant Company’s off-site inspection of the ○○ factory implemented from January 23, 2006 on the part of the Plaintiff Company.

(1) On February 13, 2006, Nonparty 4, 3, and 1 of the Plaintiff’s side prepared a final proposal for the acquisition price of a pair of solvents worth KRW 65.75 billion, and sent it to Nonparty 2 on February 13, 2006. Nonparty 2 sent the said final proposal to ASEAN on the same day.

Around February 17, 2006, Defendant Sop Bank was notified that it was selected as the priority negotiation object of the sale process of this case from ASEAN. From February 20, 2006, from P&C began negotiations between P&C and 3 parties for the purchase of B&C land. The Plaintiff’s 3, Nonparty 1, and Nonparty 5 participated in the negotiations, and Nonparty 2 participated in the Defendant Sop Bank’s side.

(v) On the other hand, the Plaintiff and the Defendant Sop Bank’s terms and conditions of the first agreement on February 24, 2006, except for the following amendments (Article 5), addition (Article 6), and deletion (the former part of Article 9 exemption provisions) as follows, the details of the first agreement on the purchase consultation and the management of the association (hereinafter “instant agreement”) are the same as those of the first agreement, and the details of the first agreement are no longer effective between the parties.

【Agreement of this case】

Article 5 (Service Fees and Payment)

Service fees and fees for the operation of the Union related to this case shall be divided into (i) basic remuneration (excluding value added tax) and the management remuneration for the operation of the Union organized as a result of this transaction, and shall be paid to B.

2. Management and remuneration for the operation of the association formed by main transactions;

(1) B as an executive partner, for a cooperative consisting of the takeovers of a target company, Eul agrees to receive the larger amount of KRW 500 million ( e.g., 500,000) and 2% of the amount of association integrity as management remuneration each year. Specific details shall be governed by the rules of the cooperative.

② As for the management remuneration for the first year, the amount under the above paragraph (1) shall be paid at the time of the formation of the association, and the full amount under the above paragraph (1) shall be paid even if the association is dissolved early on or before December 31, 2006. From January 1, 2007 to the expiration date of the term of the association, the larger amount between 500,000,000 and 2% of the amount of association integrity shall be paid at the end of each year.

Article 6 (Conclusion of Management Contract)

1. Where A acquires the target company, it shall conclude an overseas investment advisory and overseas sales business operator agreement between the target company and B;

2. The contract term of the advisory contract under the above paragraph (1) is as of December 31, 2008.

3. The amount of gold billion won ( 200,000,000) on December 31, 2007 as the service fee of the advisory contract of the above paragraph (1) above shall be paid to Eul on December 31, 2007, and the amount of gold billion ( 300,000,000) on December 31, 2008 shall be paid to Eul.

Article 9 (Exemption)

(A) The determination with respect to this transaction shall be determined under Party A’s responsibility.

⑹ 원고는 2006. 2. 24. 피고 소프트뱅크와 원고가 쌍용제지 인수자금을 조달하지 못할 경우 피고 소프트뱅크에 손해를 배상하기로 하고, 위와 같은 원고의 책임을 담보하기 위하여 원고의 통장에 질권을 설정하기로 하는 취지로 아래와 같은 내용의 「손해배상 확약서 및 통장 질권 설정 동의서」(이하 ‘이 사건 확약서’라 한다)를 작성하였고, 같은 날 주식회사 국민은행(이하 ‘국민은행’이라 한다)에 원고의 국민은행에 대한 예금 채권 중 5억 원을 피고 소프트뱅크에 질권을 설정하는 것에 대하여 승낙하여 줄 것을 의뢰하는 ‘질권 설정 승낙 의뢰서’를 교부하였다.

【Written Promise of this case】

The plaintiff (the plaintiff) consents to the duty to compensate for damages and the establishment of a pledge to the passbook as follows:

Article 1 (Raising of Funds, etc.)

Where a contract for the takeover of a pair of land stock companies (hereinafter referred to as "subject company") is concluded between B and C (hereinafter referred to as "subject company"), the acquisition fund of the subject company shall be borne and raised by A.

Article 2 (Liability for Damages)

1. In a case where the target company was unable to raise the acquisition fund due to a cause attributable to the Party A after the conclusion of this contract, and the claim for damages was filed against Party B due to the failure of the acquisition of the target company to complete this contract, Party A is liable for the total amount

2. Where Byung filed a claim for damages against Eul pursuant to the above Paragraph 1, the attorney-at-law designated by Gap shall perform the negotiations and agreements with Eul at the expense of Gap, and the attorney-at-law shall be entitled to receive the notice of termination of the contract from Byung or withdraw the amount through the execution of the head of the Tong provided under Paragraph 1 of Article 3 at the time when the liability for damages is established, such as the claim for damages from Byung, and pay

Article 3 (Liability Security)

1. In order to secure the responsibilities of A under Article 2 above, a commercial bank deposit passbook in the name of A shall be opened and a pledge passbook shall be provided to B according to the schedule and amount prescribed in the following items (a) and (b).

(a) Geum Doz. 24 February 24, 2006 ( 500,000,000)

(b) No more than 14 April 14, 2006, KRW 1,500,000 ( KRW 1,500,000);

2. At the time of occurrence of the liability for damages of A under Article 2 above, B shall be preserved from the secured amount as the damages, and if any, the remaining amount shall be repaid to A, and it shall be converted into the acquisition fund through the termination of the pledge at the normal rate of payment by a normal schedule.

⑺ 피고 소프트뱅크는 2006. 2. 27. 피앤지와 피고 소프트뱅크가 피앤지로부터 쌍용제지 주식을 인수대금 657억 5,000만 원에 인수하기로 하는 주식매매계약(이하 ‘이 사건 주식매매계약’이라 한다)을 체결하면서 인수대금 지급일을 2006. 4. 17.로 정하였다.

D. Defendant Soft Bank’s notice of termination of the instant agreement and Defendant DDR’s participation in the receipt of a pair of available land by Defendant DDR Korea

(1) On February 27, 2006, the Plaintiff entered into a financial consulting service contract with one securities company (hereinafter “one securities”), and thereafter, discussed ways to raise funds for acquiring shares from one bank and Suhyup Bank through securities. In addition, on February 17, 2006, prior to the conclusion of the instant stock purchase contract, the Plaintiff entered into an investment proposal stating that the Plaintiff shall pay 25 billion won of equity investment out of the total acquisition price; from March 2, 2006 to March 6, 2006, the investment proposal stating that “The Plaintiff shall prepare the amount of equity investment in KRW 7 billion to KRW 8 billion; and from financial institutions’ loans to June 6, 2006, the amount of equity investment shall be KRW 60 billion to KRW 61 billion.”

B. On March 13, 2006, Defendant Bop Bank requested the Plaintiff to obtain voting rights of the shares of the joint-use land from the Plaintiff as a security of the crime of breach of trust on the following grounds: (a) on March 13, 2006, the Plaintiff’s equity investment amount should be at least 15 billion won out of the acquisition price prepared by the Plaintiff; and (b) from March 13, 2006 to March 28, 2006, Defendant Sop Bank requested the Plaintiff to obtain voting rights of the shares of the joint-use land; and (c) on March 28, 2006, the Plaintiff continued discussions on the establishment of a special-purpose corporation (SPC) for acquiring joint-use land and the participation of Defendant Sop Bank in the investment of the Plaintiff. On March 28, 2006, at a meeting held by one bank as of March 20, 2006, the Plaintiff demanded the Plaintiff to provide real estate for rectification as security of the shares.

Defendant 4, the vice president of Defendant Sop Bank, delivered on March 29, 2006 the Plaintiff’s intent that it is difficult to maintain the instant agreement to Nonparty 4 and Nonparty 3, and thereafter the Plaintiff and Defendant Sop Bank’s working-level meetings, etc. were suspended. In addition, Defendant Sop Bank received the basic remuneration of KRW 10 million per month from the Plaintiff from January 2006 to March 2006, which was the first agreement. On March 31, 2006, Defendant Sop Bank issued a tax invoice for return of the said basic remuneration to the Plaintiff.

x) On April 5, 2006, Defendant Sop Bank did not inform the Plaintiff of the fact that the construction contractor and implementer for the purpose of developing real estate could not be the actual acquiring entity of the double-use land. However, although the agreement of this case provides the Plaintiff as the purchaser of the double-use land, it is difficult to realize the purpose of the agreement of this case because it does not have the substance of the association until now. ③ The Plaintiff’s act of borrowing money from the financial institution and offering real estate for double-use as security could cause criminal breach of trust and violation of the Fair Trade Act. In addition, the Plaintiff expressed his intention to terminate the agreement of this case. In addition, the Plaintiff notified the Plaintiff of the existence of the Plaintiff, and the Plaintiff would be the party to the contract of acquiring the double-use land directly, and the Defendant Sop Bank did not provide the Plaintiff with the first notification of the agreement of this case’s withdrawal from the sale procedure of this case and the first notification of the Plaintiff’s selection of whether the Plaintiff will accept the double-use land independently.

(v) On April 7, 2006, the Plaintiff notified Defendant Sof Bank of its intent to urge the implementation of the instant agreement, on the grounds that all preparations were made for the actual implementation of the instant agreement and the stock sales contract. On April 8, 2006, Defendant Sof Bank notified Defendant Sof Bank of its intention to urge the Plaintiff to implement the instant agreement. On April 8, 2006, Defendant Sof Bank notified Defendant Sof Bank of “the method to grant the Plaintiff’s status as a principal agent of the subject transaction.” On April 10, 2006, Defendant sof Bank respondeded that “The Plaintiff was inappropriate for the Plaintiff as the owner of a double-use land, and it was related to the P&C land, the Plaintiff did not sell a double-use land to Defendant Sof Bank.”

⑹ 피고 소프트뱅크는 원고에게 이 사건 약정을 해지한다는 통지를 한 무렵부터 독자적으로 쌍용제지를 인수하기 위한 절차에 착수하였는데, 2006. 4. 14. 쌍용제지 인수의 당사자가 될 특수목적법인으로서 주식회사 에스비크라프트(이하 ‘에스비크라프트’라 한다)를 설립하였고, 같은 날 하나은행에 대출신청을 하면서 ‘쌍용제지 인수 및 합병 일정서’를 제출하였으며, 2006. 4. 21.에는 피고 디케이코리아와 쌍용제지의 인수를 위한 투자계약서를 체결하였다. 위 투자계약에 의하면, 피고 소프트뱅크, 디케이코리아는 쌍용제지 주식의 인수 당사자인 에스비크라프트 지분을 51:49의 비율로 보유하다가 쌍용제지 주식의 인수가 마무리되면 20:80의 비율로 지분 구성을 변경하기로 하였다.

⑺ 이 사건 주식매매계약의 완료일(주식인수대금 지급일)은 공정거래위원회의 기업결합 사전신고 절차 문제로 2006. 4. 17.에서 2006. 4. 27.로 변경되었는데, 하나은행에서 피고 소프트뱅크의 대출신청을 부결함에 따라 피고 소프트뱅크와 피앤지는 이 사건 주식매매계약 완료일을 2006. 5. 26.로 한 차례 더 연기하였다.

⑻ 그 후 피고 소프트뱅크는 2006. 5. 19. 쌍용제지 인수대금 명목으로 에스비크라프트를 차주로 하나은행으로부터 350억 원, 국민은행으로부터 300억 원, 합계 650억 원을 대출받았고, 에스비크라프트는 2006. 5. 26. 위 대출금에다 지분투자금을 합하여 피앤지에 인수대금을 모두 납입하였고, 지분 비율 99.94%에 해당하는 쌍용제지 주식을 취득하였다.

⑼ 에스비크라프트는 2006. 6. 5. 쌍용제지와 에스비크라프트가 쌍용제지에 흡수·합병되는 내용의 합병계약을 체결하였고, 2006. 7. 20.에는 위 합병계약에 따른 합병등기 절차를 마쳤다.

[Evidence] Each statement of Gap evidence Nos. 1 through 32, 41 through 59, 83, Eul evidence Nos. 2 through 5, 12 through 17, 31 through 33, 50, 51 (including a serial number), Non-Party 1 and Non-Party 2’s witness of the first instance trial, and the purport of the whole pleadings

2. Summary of the parties' arguments;

The Plaintiff and the Defendants are arguing (i) the nature of the instant agreement, whether she was lawfully terminated by the Defendant Soft Bank, and whether the Defendants’ liability for damages against the Plaintiff arises and the scope thereof.

A. Summary of the plaintiff's assertion

(1) According to the share purchase agreement of this case, the actual purchaser is the plaintiff, and the defendant Sof Bank merely performed the role of advisory and procedural agency as to the sale procedure of this case while lending the name of the plaintiff to take over a pair of land. Therefore, the agreement of this case constitutes a delegation or consignment under the Civil Act, which is subject to the entrustment of administrative affairs, and also constitutes a consignment under the Commercial Act, and as a result of the acceptance of shares in a pair of land, it also has the nature of the contract as a contract.

Since the grounds for termination of the contract presented by the Defendant Sof Bank at the time of the termination of the instant agreement are different from the facts, Defendant Sof Bank cannot terminate the instant agreement on the ground of the Plaintiff’s nonperformance of obligation. Furthermore, the instant agreement has the nature as the instant contract, and thus, Defendant Sof Bank cannot exercise the right to terminate the instant agreement pursuant to Article 689(1) of the Civil Act, and even if the instant agreement is deemed only a delegation contract, the Plaintiff and Defendant Sof Bank waived waived the exercise of the right to terminate the agreement in advance pursuant to Article 9 of the instant agreement.

Article 689(2) of the Civil Act provides that the termination of Defendant Sof Bank’s contract on April 5, 2006 is unlawful and thus the agreement of this case still remains effective. Defendant Sof Bank shall transfer the right to request the delivery of shares to the Plaintiff, who is the delegated person of the right to request the delivery of shares in respect of the double solvents acquired under its own name, according to the agreement of this case. However, damages caused by the violation of the obligation shall be compensated for damages caused by the violation of the Plaintiff’s right to request the delivery of shares. Even if the exercise of the Defendant’s right to terminate the said right is lawful, Defendant Sof Bank has the duty to compensate for damages under Article 689(2) of the Civil Act

In addition, Defendant 3 and Defendant 4 were the representative director or vice president of Defendant UF Bank, and were engaged in the business affairs of Defendant UF Bank pursuant to the instant agreement, and at the same time infringed upon the Plaintiff’s right to request the delivery of the said shares in the course of business affairs. Defendant DF Bank Korea and Defendant 5 also participated in the said tort. As such, the said Defendants also should compensate the Plaintiff for damages in accordance with Article 750 of the Civil Act, Articles 389(3) and 210 of the Commercial Act.

x) Therefore, the plaintiff is claiming the defendants to pay the amount stated in the claim and the damages for delay as an explicit part of the claim.

B. Summary of the defendants' assertion

(1) According to the instant agreement, the Plaintiff is an investment association. The Plaintiff is responsible for attracting investors and raising funds for the formation of the said investment association. Defendant Sof Bank was engaged in the external participation in the procedure by taking advantage of its reputation and credit. Therefore, the instant agreement constitutes a non-distinct contract for the establishment of an investment association and the acquisition of a pair of solvents. As alleged by the Plaintiff, the instant agreement cannot be deemed as a substantial party to the instant sales contract or a delegation contract for the instant agreement.

Shebly, each member of the union may request dissolution of the union (Article 720 of the Civil Act), and such a request for dissolution takes effect by the unilateral declaration of intent of the parties. The defendant Soft Bank declared its intent to terminate the agreement of this case on the ground of the plaintiff's failure to attract investors and the plaintiff's deception. This constitutes a lawful exercise of the union member's right to claim dissolution under Article 720 of the Civil Act.

If the agreement of this case constitutes a delegation contract, as alleged by the plaintiff, the plaintiff violated the above obligations, even though the agreement of this case constitutes a delegation contract, according to the agreement of this case: ① the duty of due care and cooperation to prevent damage to the external credibility of the defendant Sof Bank; ② the duty to lawfully raise funds for acquiring shares; thus, the defendant Sof Bank has exercised the right to terminate the contract due to the plaintiff's default; and even if not, the delegation contract can be terminated at any time by each party pursuant to Article 689(1) of the Civil Code; therefore, the termination of the contract of this case by the defendant Sof Bank is legitimate.

Article 689(2) of the Civil Act is not applicable inasmuch as Defendant Sof Bank lawfully terminated the instant agreement and the instant agreement becomes null and void. Thus, the Defendants are not liable to the Plaintiff for damages due to nonperformance or tort. Defendant Sof Bank’s rescission of the instant agreement is based on an inevitable cause. As such, the liability for damages pursuant to Article 689(2) of the Civil Act cannot be recognized. Moreover, there is no causation between the damages claimed by the Plaintiff and the termination of the instant agreement.

3. Determination on Defendant Soft Bank’s claim

A. The nature of the instant agreement

(1) First, we examine the nature of the instant agreement between the Plaintiff and Defendant Stock Bank.

According to the evidence of the above facts, in the case of 'the first agreement of this case', the plaintiff's 'the purpose of this agreement is to provide the plaintiff with services such as advice and the operation of the association for the acquisition of the right of management (this transaction). Article 1 of the agreement of this case is to provide the plaintiff with good faith for the smooth formation of the main transaction as a basic duty of the defendant so that the plaintiff's 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the ' the 'the ' the 'the ' the 'the 'the 'the 'the ' the ' the ' the 'the 'the 'the 'the 'the 'the 'the 'the 'the ' the 'the 'the 'the 'the 'the 'the 'the 'the 'the ''the 'the ' the '' the ' the ' defendant will will will.

According to the above facts, the agreement of this case explicitly provides for the subject of acquiring management rights of both banks as "the plaintiff." Since the basic obligation of the defendant small bank pursuant to the agreement of this case was to provide the plaintiff with services, such as the submission of a letter of intent to take over for the plaintiff(s) before the conclusion of the agreement of this case, as long as the defendant small bank submitted the final proposal after the conclusion of the agreement of this case, it cannot be deemed that the provision of services related to the submission of a letter of intent to take over was unrelated to the agreement of this case. The defendant small bank received remuneration from the plaintiff in return for the performance of such obligations, and it is reasonable to acknowledge that the plaintiff would not have any duty to take over management rights of the plaintiff as the subject of the contract of this case, but it is not reasonable to give the plaintiff the opportunity to take over management rights of the plaintiff as the subject of the contract of this case to take over the plaintiff as the subject of the contract of this case, since it was not the subject of the plaintiff's request to take over the management rights of the plaintiff.

On the other hand, although the process of performing the affairs stipulated in the agreement of this case is for the specific purpose of acquiring shares in the dual-use land, delegation itself is different from the contract for completing the entrusted purpose, and thus, it is different from the contract for completing the work. Even if the plaintiff did not accept the dual-use land, the agreement of this case is deemed to be the "Delegation contract" aimed at performing the affairs for acquiring shares in the double-use land, and it cannot be deemed to constitute a contract for construction or a delegation contract combined with a contract for construction.

The Defendants asserted as follows: “The Plaintiff’s intent to accept and submit the letter of intent submitted to ASEAN separate from Defendant Sp Bank, the details of Defendant Sp Bank’s conduct of investment advisory services and the details of Lp Bank’s Lp Bank’s conduct of investment advisory services, and the agreement of this case plans investment associations which are not the Plaintiff to acquire stocks of a pair of solvents, and Defendant Sp Bank did not lend its name to the Plaintiff, and the agreement of this case shall be deemed to fall under the same business agreement, which is agreed that Defendant Sp Bank shall be an investment association that will be formed by the general partner of the company and shall be deemed to fall under the two-party business agreement.” However, considering the facts acknowledged earlier, the Defendants’ assertion is without merit, based on the comprehensive consideration of the following circumstances acknowledged: Gap’s statement Nos. 8, 9, and 32, and evidence Nos. 3 through 7, and the testimony and the overall purport of Nonparty 1’s testimony and pleading by Nonparty 1 as the witness of the first instance trial.

㈎ 원고가 2005. 12. 1. 피고 소프트뱅크와는 별도의 인수의향서를 제출하였고, 위 인수의향서에 피고 소프트뱅크가 아닌 다른 창업투자회사와의 공동인수 추진 계획에 관한 내용이 포함되어 있다고 하더라도, 피고 소프트뱅크가 아이엔지에 최초의 인수의향서를 제출한 무렵에는 원고와 피고 소프트뱅크 사이에 아직 계약 관계가 성립하지 않은 상태였으므로 원고의 입장에서는 별도의 인수의향서를 제출할만한 이유가 있었다고 보이고, 원고가 피고 소프트뱅크와 별도로 인수의향서를 제출한 것만을 이유로 원고를 이 사건 매각절차에서 특별히 불이익하게 취급할 근거도 없으며, 원고가 별도로 제출한 인수의향서에 피고 소프트뱅크가 아닌 다른 창업투자회사와의 공동인수 추진 계획이 기재되어 있었다고 하더라도 이는 어디까지나 이 사건 약정 체결 이전의 일이므로, 위와 같은 사정만으로 원고와 피고 소프트뱅크 사이에 명의대여에 관한 약정이 없었다고 볼 수는 없다.

㈏ 피고들은 “국내 회계법인이 쓰던 기업 인수 자문계약서의 양식을 기계적으로 원용하여 1차 합의서 및 이 사건 약정서를 작성하였고, 그 결과 이 사건 약정에 원고가 쌍용제지의 실질적 인수주체로 인식될 만한 문구가 포함되었다.”고 주장하고 있지만, 위 사유만으로 처분문서에 명백하게 기재된 문언의 의미를 부정할 수 없을 뿐만 아니라, 피고 소프트뱅크는 이 사건 주식매매계약을 앞둔 시점에 원고에게 수수료 인상 등을 요청하면서 원고와의 합의에 따라 1차 합의서에 기재된 문구 중 일부를 추가·삭제·변경하여 이 사건 약정서를 작성하였는바, 이 사건 약정서 작성 당시 종전에 활용되던 기업 인수 자문계약서를 무조건 원용하였다고 볼 수도 없다.

In addition, the Defendants asserted that “Defendant Sof Bank was engaged in business of start-up investment and corporate restructuring by operating only one of its capital stock or the investment funds of a start-up business investment association or a corporate restructuring association organized as a private equity fund for improving corporate structure under the Industrial Development Act, which is a private equity fund for improving corporate structure, and has not been engaged in the business of investment advisory until now, and the Support Act for Small and Medium Enterprise Establishment prohibits a start-up business investment company from acquiring stocks for a third party in its name. Article 43(1) of the same Act prohibits a start-up business investment company from acquiring the stocks in its name.” However, even if Defendant Sof Bank’s internal business experience in Defendant Sof Bank did not constitute a special standard for interpreting the instant agreement by denying the meaning of the objective language inherent in the instant agreement, and it cannot be deemed that there is a regulation related to the name of a small and medium-up business investment company under the Support Act and that it directly affects the validity of the instant agreement between the Plaintiff and Defendant Sof Bank.

㈐ 피고들은 “이름도 들어본 적이 없는 원고에게 투자업계에서 명성을 가진 피고 소프트뱅크와 함께 쌍용제지 인수에 참가할 수 있는 기회를 부여하면서 참가비 개념의 ‘수수료’를 받았던 것이고, 원고가 맡은 투자자 유치와 자금조달업무의 중요성을 고려하고 원고가 그 역할을 제대로 이행하지 않으면 그로 인한 책임을 피고 소프트뱅크가 부담하게 되므로 원고의 진정성을 확인하는 차원에서 원고의 재무상황에 비추어 상당한 액수의 지급책임을 부담하도록 한 것뿐이다.”라고 주장한다. 그러나 피고들 주장 자체로도 피고들은 피고 소프트뱅크가 독자적으로 쌍용제지의 인수주체가 된 것임에도, 별다른 이유 없이 자금조달업무를 제대로 수행할지 여부도 매우 불투명하다는 원고에게 향후 막대한 이익이 기대되는 부동산개발시행권을 사실상 보장하면서까지 쌍용제지 주식 인수를 위한 투자자 유치와 자금조달업무를 맡기고(만일 위와 같은 사실상의 이익을 보장하지 않았다면, 원고가 피고 소프트뱅크를 위하여 자금조달을 한 것이라면서도 수수료까지 지급하기로 한 점을 합리적으로 설명하기 어렵다), 그로 인한 위험은 피고 소프트뱅크가 부담하기로 하였다는 것인데, 피고 소프트뱅크가 독자적으로 쌍용제지 인수업무를 진행하다가 아무런 합리적 이유 없이 위와 같은 위험부담을 부담하면서까지 원고와 이 사건 약정을 체결할 만한 합리적 근거를 도저히 찾기 어렵다.

㈑ 한편, 이 사건 약정은 피고 소프트뱅크의 원고에 대한 용역제공 사항으로 ‘업무집행조합원으로서 쌍용제지 인수를 위한 프로젝트 펀드 결성 및 운용’을 포함하고 있고, 피고 소프트뱅크가 원고로부터 받게 될 용역수수료(보수)로서 ‘조합운용에 대한 관리보수’ 항목이 있으며, 조합이 쌍용제지 인수에 대한 투자를 수행하지 않고 해산할 경우 업무집행조합원은 관리보수를 조합에 반환하는 것으로 정하고 있으나, 이 사건 약정 당시까지 투자조합이 만들어지지 않은 점, 이 사건 약정이 있은 후 불과 3일 후에 체결된 이 사건 주식매매계약의 매수주체는 피고 소프트뱅크인 점, 이 사건 주식매매계약 이후 원고와 피고 소프트뱅크의 실무 논의에서는 특수목적법인을 인수주체로 하기로 한 점(이에 따라 원고는 특수목적법인의 이름으로 금융회사 대출을 추진하였다), 이 사건 약정 해지 후 피고 소프트뱅크도 피고 디케이코리아와 함께 특수목적법인인 에스비크라프트를 신설하여 쌍용제지 주식을 인수한 점 등 이 사건 약정 후의 여러 사정들을 고려할 때, 원고와 피고 소프트뱅크가 이 사건 약정 당시 쌍용제지 주식의 인수주체를 투자조합만으로 예정하고 있었다고 볼 수는 없고, 더 나아가 어떠한 인수형태를 취하더라도 쌍용제지 주식 인수를 위한 자금 조달은 원고가 맡게 되어 있었으며, 피고 소프트뱅크는 원고로부터 보수를 지급받기로 한 것이므로, 쌍용제지 주식의 실질적 인수주체가 원고라는 점에는 변함이 없다.

㈒ 피고들은 “원고가 2006. 3. 13.자 실무 회의에서야 기존의 태도를 바꾸어 스스로 쌍용제지의 인수주체가 되고 싶다는 의향을 밝혔다.”고 주장하나, 이 사건 약정은 ‘기업매수 자문계약’으로서 원고가 쌍용제지를 인수하기 위함임을 명시하고 있는 점을 비롯한 이 사건 약정의 내용, 앞에서 살펴 본 2006. 3. 13.자 회의 이전까지의 이 사건 매수절차 준비 과정(피앤지 경영진의 쌍용제지에 대한 프리젠테이션을 비롯한 피앤지 측, 쌍용제지 측과의 만남의 자리, ○○공장 방문 등에 원고 측이 주도적으로 참가하였다) 및 피고 소프트뱅크가 이 사건 약정의 해지 이후 원고와 피앤지에 보낸 각 통지의 내용들, 특히 피고 소프트뱅크가 2006. 4. 5. 원고에게 이 사건 약정 해지 후의 인수절차 참여에 관하여 두 가지 방안 중 하나를 선택할 것을 요구하면서, 원고가 아무런 선택을 하지 않을 경우에는 ‘이 사건 약정을 체결한 당초의 정신을 존중하여’ 피앤지에게 원고의 존재를 공개하고 원고가 직접 쌍용제지 인수계약의 당사자가 되는 방안을 선택한 것으로 간주하겠다는 내용을 통지한 점 등에 비추어 보면, 피고들의 위 주장은 이유 없다.

On the other hand, on May 18, 201, the Plaintiff asserts, through a preparatory document from May 18, 201, that “If Defendant Sof Bank is the principal agent who independently takes over shares of the two-way, as alleged by the Defendant, the instant agreement constitutes a joint contract for the name transfer of qualification, and thus, Defendant Sof Bank infringes upon the Plaintiff’s claim under the said contract in bad faith, and thus, the Plaintiff shall compensate for damages therefrom, or because Defendant Sof Bank did not perform its obligations under the same contract or the non-title agreement from the same business, or actively infringed the Plaintiff’s claim, and thus, Defendant Sof Bank shall compensate for damages therefrom.” However, as seen earlier, the instant agreement cannot be deemed as a preliminary contract for the acquisition of shares of the two-way, and as long as it cannot be seen as a preliminary contract concluded by the Plaintiff and Defendant Sof Bank without examining the Plaintiff’s respective claims, each of the above agreements is no longer necessary.

B. Determination as to the assertion that the Plaintiff’s termination right and rescission right are exercised due to the Plaintiff’s nonperformance

(1) The grounds for the non-performance of obligation asserted by Defendant Soft Bank

The Defendants asserted that “the Plaintiff violated the duty of due care and cooperation to prevent the damage to the external credibility of Defendant Sof Bank; ② the duty to lawfully raise funds for acquiring shares; and Defendant Sof Bank lawfully terminated or rescinded the instant agreement in accordance with the Plaintiff’s nonperformance of obligation (see, e.g., Supreme Court Decision 2007Da1538, Apr. 2, 2007).” (The Defendant Sof Bank asserts that Defendant Sof Bank shall exercise its right of termination or right of rescission stipulated in the instant agreement; however, there is no evidence to acknowledge that the instant agreement reserved the right of termination

D. Determination as to whether Defendant Soft Bank violated its duty to cooperate in order to prevent damage to its external credibility

㈎ 피고들은 “원고가 피고 소프트뱅크의 대외적 공신력이 훼손되지 않도록 실질적인 인수주체로서 최소한의 자격을 갖추어 있어야 하고, 만약 원고가 인수주체로서의 자격에 흠이 있다면 이를 피고 소프트뱅크에 알릴 의무가 있음에도 이를 위반하여 부동산 개발업체를 배제한다는 피앤지 측의 방침을 피고 소프트뱅크에 알리지 않았다.”고 주장한다.

According to Gap evidence Nos. 13 and Eul evidence Nos. 12 and 24 (including each number), it is inappropriate for the plaintiff to participate in the sale procedure of this case in the real estate developer through the response of April 10, 2006, which was after the termination of the contract of this case. It is recognized that the plaintiff did not clearly indicate that the real estate developer or the construction company will be excluded from the negotiating party, and even if the plaintiff had a real estate developer and the construction company's policies to exclude the real estate developer and the construction company on the side of the P&P, the plaintiff could not have clearly known such fact, and even if the plaintiff did not know that the plaintiff had a duty to inform the plaintiff of the above fact in advance, it cannot be seen that the plaintiff could not have known that the plaintiff had a real estate developer and the construction company of this case.

Therefore, the above assertion by the defendants is without merit.

㈏ 피고들은 “원고가 피고 소프트뱅크와 별도로 인수의향서를 제출하여 예비 입찰절차에서 탈락하고도 이러한 사실을 피고 소프트뱅크에 알리지 않고 이 사건 약정을 체결하였는데, 이와 같은 원고의 행위는 피앤지 측의 정당한 입찰업무를 기망에 의하여 방해하는 것으로서 피고 소프트뱅크의 공신력을 크게 훼손하는 것이다.”라고 주장한다.

However, as seen earlier, since there was no contractual relationship between the Plaintiff and Defendant Stock Bank at the time of submitting the first letter of intent to acquire shares, from the Plaintiff’s standpoint, the Plaintiff’s intent to acquire shares of a pair was deemed to have a motive and reason to separately submit a letter of intent to acquire shares, and prior to the conclusion of the instant agreement, the Plaintiff cannot be deemed to have a duty to inform Defendant Stock Bank of the fact that the Plaintiff participated in the preliminary bidding process. Even if Defendant Stock Bank suffered damage to external reputation and public confidence by failing to notify the Plaintiff of the fact that the Plaintiff was deprived of the preliminary bidding process, it cannot be said that Defendant Stock Bank initially entered into the instant agreement with the Plaintiff, and such circumstance alone is insufficient to deem that the Plaintiff was obligated to do so.

Therefore, the above assertion by the defendants is without merit.

【Judgment as to whether the Plaintiff violated the duty to attract equity investment funds or breached the duty to lawfully raise funds to acquire shares in a pair of land

㈎ 피고들은 “원고가 이 사건 주식매매계약 체결 전에 쌍용제지의 인수대금 중 250억 원의 지분투자금을 조달하기로 하였음에도 이 사건 주식매매계약 후 지분투자금을 70억 원 내지 80억 원으로 낮추는 방안을 통보하는 등 지분투자금의 유치의무를 일방적으로 파기하였고, 나아가 원고는 쌍용제지 주식 인수자금의 대출을 위하여 금융회사에 쌍용제지의 부동산을 담보로 제공하는 방법을 취하였는데, 위와 같이 기업인수에 필요한 자금을 마련하기 위하여 인수자가 피인수회사의 자산을 담보로 제공하는 이른바 ‘LBO(Leveraged Buyout)'방식은 배임죄를 구성하여 형사처벌의 대상이 될 수 있으므로 피고 소프트뱅크가 원고에게 위법성을 지적하였지만, 원고는 위와 같은 위법한 대출방안을 시정하려 하지 않고 강행하였을 뿐만 아니라, 원고가 추진한 대출방안은 그 추진일정상의 문제 및 신용보강방안의 부존재 등으로 실행이 불가능하였는바, 원고는 이 사건 약정에 따른 적법한 방식에 의한 자금조달의무를 이행하지 않았다.”고 주장한다.

㈏ 먼저, 원고가 지분투자금의 유치의무를 일방적으로 파기하였다는 피고들의 주장에 관하여 살펴본다. 원고가 이 사건 주식매매계약 이전에 피고 소프트뱅크에게 지분투자금을 250억 원으로 구성하는 내용의 투자제안서를 보냈다가, 이 사건 주식매매계약 후에는 지분투자금의 규모를 70억 원 내지 80억 원, 금융기관의 대출금을 600억 원 내지 610억 원으로 하여 쌍용제지의 인수대금을 마련한다는 취지의 투자제안서를 보낸 사실은 앞서 인정한 바와 같으나, 더 나아가 원고와 피고 소프트뱅크가 지분투자금의 규모와 비율에 관한 합의가 있었는지에 관하여는 을 제14 내지 16호증의 각 기재만으로는 이를 인정하기에 부족하고 달리 이를 인정할 만한 증거가 없다. 따라서 피고들의 위 주장은 이유 없다.

㈐ 다음으로 원고가 적법한 방법으로 인수자금을 조달할 의무를 위반하였는지에 관하여 살펴본다.

1) The following facts may be acknowledged in full view of Gap's evidence Nos. 8, 9, 20 through 29, 41, 43 through 48, 52, 74, Eul's evidence Nos. 3 through 6, 8, 9, 25, 26, 31, and 32 (including the number number), the testimony of non-party 1 by the witness of the first instance court, the court of first instance and the Suhyup Bank of the first instance, and the whole purport of the arguments and the results of each fact-finding to Han Bank.

① On February 24, 2006, the Plaintiff entered into a financial advisory service agreement, but received a letter of intent to provide loans of KRW 40 billion from Suhyup Bank to raise funds for the joint-use loan, and to provide loans and stock-linked bonds (convertible bonds, bonds with warrant, etc.) within the limit of KRW 15 billion from Han Bank on the 27th of the same month.

② On February 17, 2006, the date of the instant contract for the purchase of shares, the Plaintiff sent to Defendant Sof Bank an investment proposal to the effect that Defendant Sof Bank procures a total of 25 billion won equity investment from the acquiring entity and investors. From March 2, 2006 to the 6th of the same month, the following date of the instant contract for the purchase of shares, the Plaintiff sent to Defendant Sof Bank a written investment proposal to the effect that “it prepares the price for the acquisition of shares by making loans of financial institutions KRW 7 billion to KRW 8 billion, and KRW 60 billion to KRW 61 billion.”

③ On March 13, 2006, Defendant Sop Bank demanded 15 billion won or more as equity investment in financial institutions except loans from financial institutions among the acquisition price prepared by the Plaintiff. In the past, Defendant Sop Bank requested 15 billion won or more as equity investment in the said equity investment instead of the investors (stock companies) who had contacted the Plaintiff.

④ On the other hand, on March 20, 2006, the Plaintiff obtained approval for a loan from one bank to acquire a pair of solvents, and its main contents are as follows.

m. Priority loan conditions plan

● 차주: 인수 시에는 소프트뱅크 출자 SPC ⇒ 인수 후 쌍용제지로 차주 변경

The actual amount of loan: 46 billion won (one bank, 22 billion won, Suhyup Bank: 24 billion won);

● 최종만기: 대출기표일로부터 4년 ⇒ 매년 30억 원 상환(담보자산 매각에 따른 상환 별도)

The actual loan rate: CD (3M) + 3.3%

The actual loan handling fees: 1.0%;

The actual effect of credit reinforcement: Guarantee of first right to benefit as security for the land and building owned after acquisition, first right to benefit as security for the joint-use stocks; senior security for the joint-use stocks;

【Subordinate loan terms and conditions

Doctrine Issuing Company: Security Trust No. 2nd Security Trust with newly established SPC as Borrower

Doz.: Han Bank;

Amount of 15 billion won:

The actual rate of surface interest: 14.25% per annum.

Effective Time: Two years;

Consolidated Credit Reinforcement: Security Trust for the land and buildings owned by him/her after his/her acquisition, shall be offered as security for second priority.

⑤ On March 22, 2006, the Plaintiff drafted a draft of the loan agreement based on the above terms and conditions of the loan approval, and sent it to Defendant Sof Bank by electronic mail.

④ From March 13, 2006 to December 28, 2006, the Plaintiff discussed the establishment of a special purpose corporation (SPC) in the form of acquisition of Defendant Sof Bank and joint-use land, the participation of Defendant Sof Bank’s investment, and the practical development of the acquisition team. At the meeting of March 28, 2006, the Plaintiff pointed out that Defendant Sof Bank may be subject to criminal punishment because the Plaintiff’s loan financing plan constitutes a breach of trust.

7) On March 26, 2006, the Plaintiff sent the draft of the investment contract, which arranged the investment participation issues of Defendant Sof Bank, which was discussed at the working meeting between the two companies. Defendant Sof Bank was sent to the Plaintiff by amending the draft of the investment contract by reflecting the matters agreed upon at the meeting of the Plaintiff on the 28th of the same month. The Plaintiff sent to the effect that on March 29, 2006, Defendant Sof Bank consented to the contents of the said revised investment contract sent by Defendant Sof Bank.

④ On March 29, 2006, the Plaintiff and Defendant Sop Bank ceased negotiations through working meetings, etc., and Defendant Sop Bank commenced the procedure to take over pairs independently from April 5, 2006, which terminated the instant agreement. On April 14, 2006, the Plaintiff and Defendant Sop Bank applied to Han Bank for the loan of the purchase price for pairs in the name of Svip Bank on April 14, 2006, after consultation procedures between the accounting corporation and the law firm.

① On the other hand, on April 14, 2006, the Suhyup Bank received an application for the approval of the loan from the Plaintiff, and approved the loan at the Credit Review Committee on the 25th of the same month (However, as the Plaintiff’s application for the loan was without any acceptance of the said loan, it seems that the loan does not reach the final approval. The loan is to be lent to the above special purpose corporation on April 27, 2006 at a maturity of 2.4 billion won, and is to be lent to the above special purpose corporation on June 15, 2006 at a maturity of 24 billion won. As security for the above loan, the first priority pledge is established on the 20% stocks acquired by the above special purpose corporation, which is delegated by the resolution of the said special purpose corporation, and on the 4th of the above loan, the same amount is set at the maturity of both parties as above, and the structure of the loan is repaid to the borrower as a special purpose loan upon the completion of reduction of capital.

However, the comprehensive opinion of the above letter of loan approval states that "this case is a purchase of loans from a pair of SPEF, and (i) a short-term loan to a borrower, (ii) a short-term loan to a pair of SPEF, and (iii) a joint loan to a borrower, (iv) a joint loan, a contracting company, shall be subject to acquisition, to overcome various problems that may arise in the process of merger, such as merger, and (iv) a loan, and (v) a joint loan, a loan, etc., to a borrower." The joint loan subject to acquisition is deemed to have excellent industrial competitiveness as a single company with the domestic market share of the SP project, and there is no problem in repayment of principal and interest with the financial index, such as financial stability and cash flow."

(10) The date of the completion of the instant sales contract (the date of acquisition price) was changed once on April 27, 2006. On May 26, 2006, when one bank rejected Defendant Sof Bank’s loan application, Defendant Sof Bank and P&C extended once on May 26, 2006 on the date of the completion of the instant sales contract. After that, Defendant Sof Bank extended the period once on May 26, 2006, Defendant Sof Bank borrowed scke from Han Bank as the borrower 35 billion won and 30 billion won from Han Bank as the acquisition price for pair-use land. On May 26, 2006, Defendant Sof Bank received 35 billion won from Han Bank as the borrower, and 30 billion won from Kof Bank as the total amount of equity investment funds of Da S ScCK and 65 billion won from Han F&C to the extent of the aforementioned payment guarantee payment guarantee amount.

On the other hand, the credit review report on the above loan of the national bank contains the following points: (a) the two-use land, the acquiring company, has a stable and continuous business cash creation capacity as the first-class company with the domestic market share of the Clof-type market; (b) the loan difficulties with cash business activities before real estate is sold after the merger; (c) the loan is vulnerable to borrowed funds after mergers; (d) the total acquisition amount reaches 87%; (b) the loan ratio of the total acquisition amount reaches 87%; (c) the compensation for partial expropriation of the factory site due to the expansion of urban planning roads (the final determination of incorporation into a road with 6 billion won) and the compensation for the substitute housing site development (1.9 billion won estimate) and the total 39,500 square meters of the factory site, which is currently being used, is the sale plan, to secure good assets and enhance profitability.

2) In cases where an acquirer uses a loan from a financial company and provides the assets of the acquired company as a collateral (LBO) to raise funds necessary for acquiring a company, the acquired company cannot be deemed to be permitted to provide collateral only for the acquirer because it bears the risk of losing the assets provided as collateral if the main debt is not repaid. It is limited to cases where the acquirer provides consideration equivalent to the risk-bearing due to the secured collateral of the acquired company. If the acquirer arbitrarily provided the assets of the acquired company as collateral without any consideration to the acquired company, then it can be deemed that the acquirer or the third party obtained economic benefits equivalent to the value of the secured assets and suffered economic losses from the acquired company (see Supreme Court Decision 2004Do7027, Nov. 9, 2006). In this case, one bank is also included in a set of special approval for the acquisition of the acquired company, which is an acquisition of the acquired company, without any consideration to the acquired company.

However, the statements in Gap evidence Nos. 82 and Eul evidence Nos. 16, 25 through 27 are insufficient to recognize that the plaintiff tried to give a loan without making any effort to correct the illegality of the above loan scheme, as alleged by the defendants. Rather, according to the above acknowledged facts, the plaintiff was aware that the above loan scheme can be subject to criminal punishment only at the meeting of March 28, 2006, while seeking ways to correct the illegality inherent in the loan approval issued on March 20, 2006, while submitting an application for approval for the loan according to reduction of capital to Suhyup Bank on April 14, 2006, and obtaining approval for the loan deliberation committee on April 25, 2006, and thus, there is no other evidence to acknowledge that the plaintiff could not be deemed to have arbitrarily obtained the loan from the recipient company and provided the acquisition company with any property for the purpose of acquiring the loan as collateral, even if the plaintiff knew that the loan was used as collateral by the recipient company on March 20, 2006.

On the other hand, the Defendants asserted that “the Plaintiff did not obtain the approval of the loan from one bank in addition to the approval of the loan granted on March 20, 2006, and thus, the illegality of the approval of the loan granted on March 20, 2006 was not corrected.” However, as seen earlier, the Plaintiff failed to recognize the illegality of the approval of the loan granted on March 20, 2006 until the meeting was held on March 28, 2006, but thereafter, the Defendants filed an application for the loan to take over the joint use of the loan with the Defendant SF Bank and the Defendant DF Korea established a separate special purpose corporation on April 14, 2006, and thus, it appears that the Han Bank would not accept the separate application for the loan granted on the same basis as the Plaintiff jointly with the Suhyup Bank, but did not seem to have obtained the approval of the loan granted on April 25, 2006.

The Defendants asserted as follows: “The statement of shop site attached to the approval of the lending of the Suhyup Bank on April 25, 2006 stating that the amount of capital reduction for the repayment of the “loan I” that is made by a special purpose corporation as the borrower is prepared by disposing of the assets of the joint-use land; and the “loan II” that is made by the borrower as the borrower constitutes a joint-use agreement and thus constitutes a false-use agreement, and thus, the lending approval of the Suhyup Bank on April 25, 2006 is still illegal.” However, the written opinion of the shop site attached to the approval of the approval for the lending of the Suhyup Bank (Evidence No. 74-3) is that the object of the acquisition is “the share of the loans held by the joint-use bank 99.94%”, and there is no specific evidence that the two parties did not actually dispose of the assets of the loan to repay the loans.”

Therefore, the above assertion by the defendants that the plaintiff did not perform the legitimate financing obligation by recognizing the illegality of the approval of the loan as of March 20, 2006, even though he did not perform such a financing obligation.

㈑ 마지막으로, 원고가 추진한 위 대출방안은 신용보강방안의 부존재 등으로 실행이 불가능하였다는 피고들의 주장에 관하여 살펴본다.

In light of the above fact that Defendant Soft Bank and Defendant Sod Bank can be deemed to constitute a crime of breach of trust, and the fact that Defendant DDR and its representative director provided real estate for two-use purposes as collateral after the merger of sck and sckes. However, according to the above evidence, the Plaintiff completed the basic preparation for receiving loans from one bank to the extent that it would have obtained the approval of loans from the financial company on March 20, 2006 (it is apparent that the Plaintiff could not be deemed to have completed the preparation for obtaining loans from one bank on March 20, 206, even if it is impossible to conclude that the lending method under the approval of loans can constitute a crime of breach of trust. Examining the loan examination report of both banks against the Plaintiff and Defendant Sod Bank, it appears that the Plaintiff could not be deemed to have been aware that the Plaintiff was able to receive loan funds from both banks, as well as the acquisition of the loan funds from the financial company on the basis of its own debt ratio and the acquisition of the loan funds from two companies.

㈒ 결국 이 사건 주식매매계약의 완료일(인수대금 지급일) 이전으로서 피고가 이 사건 약정의 해제를 주장하는 시점에서 원고가 지분투자금 유치의무를 일방적으로 파기하였다거나, 이 사건 주식매매계약에 따른 주식인수자금을 적법하게 조달할 수 없었음을 전제로 하는 피고들의 주장은 모두 이유 없다.

· Sub-determination

Thus, as seen earlier, the argument that Defendant Soft Bank's right to terminate and cancel the contract of this case on the ground that the Plaintiff failed to perform its obligation is without merit.

C. Determination as to the assertion of the right to terminate under Article 689(1) of the Civil Act

(i)The free exercise of the parties’ right to terminate the delegation agreement.

Under the Civil Act, a delegation contract, whether it is a compensatory contract, or a free contract, may be terminated at any time by either party in the nature of a delegation contract based on a special personal trust relationship between both parties (Article 689(1) of the Civil Act). Since the exercise of the right to terminate the contract does not require any special reason, Defendant Soft Bank may freely terminate the instant agreement.

D. Determination as to whether Defendant Soft Bank waived the right to terminate the contract

The Plaintiff asserts that the provision that “the instant agreement takes effect at the same time as name and seal, and is valid until the Plaintiff and Defendant Stock Bank agree on the termination of the contract” in the instant agreement ought to be deemed to have waived the right to terminate at will of Defendant Stock Bank. In addition, the instant agreement concluded for the purpose of borrowing the name of Defendant Stock Bank from the name of Defendant Stock Bank, and if possible, the right to terminate should be deemed to have been waived, taking into account the purpose and background of the instant agreement and the parties’ intent.”

However, since the delegation contract is based on personal trust between the parties, so that the parties can freely terminate the contract, it should be strictly determined as to whether to waive the termination right. However, Article 9 of the instant agreement can only be deemed as providing “the time of the effective effect and the time of the termination of the validity” of the instant agreement, and the mere fact that the title trust contract is combined with the delegation contract or the economic benefits that the delegation contract intends to achieve are high, it cannot be readily concluded that the Plaintiff and the Defendant small-bank renounced the exercise of the right to terminate the instant agreement.

Therefore, the plaintiff's above assertion is without merit.

Article 689(1) of the Civil Code is limited since the agreement in this case is part of the other contractual relationship and includes delegation.

The plaintiff asserts that "the agreement of this case is a contract for the purpose of borrowing the name of the defendant Sof Bank so that the plaintiff can acquire the derivative stocks, and in order to achieve that purpose, the defendant Sof Bank must show the appearance of acquiring the derivative stocks such as the acceptance of the derivative stocks. Thus, the defendant Sof Bank must submit its letter of intent to acquire within the scope of the purpose to solve the problem, and it is merely a conclusion of a delegation contract with the content of carrying out the procedure because the defendant Sof Bank's employees at the time of selecting the subject of preferential negotiation and concluding the contract of underwriting the target company. Therefore, the agreement of this case is a bearer contract combining the name name and delegation, and the delegation exists only with the content of the agreement of this case, so it shall be restricted to exercise of the right to termination under Article 689 (1) of the Civil Act."

In general, since the name lending is permitted to another person to engage in any act using his trade name or name, and thus, it is common for the name borrower to engage in the act to achieve through the name lending. As seen earlier, in the instant agreement aiming at acquiring shares in a two-way land, Defendant Sof Bank does not lend its name only to the Plaintiff, and as such, it is the fact that Defendant Sof Bank deals with the entrusted affairs for the above purpose, it is reasonable to regard the basic nature of the instant agreement as delegation. Therefore, solely on the ground that the instant agreement is combined with the instant agreement, the exercise of the right to terminate the agreement pursuant to Article 689(1) of the Civil Act is not restricted.

Therefore, the plaintiff's above assertion is without merit.

x) Determination as to whether the instant agreement has the nature of the contract, so it is limited to the exercise of the right to terminate under Article 689(1) of the Civil Act

The plaintiff asserts that "the agreement of this case has the nature as a contract because it aims to acquire shares in a pair of land, so it shall be restricted to exercise the right to terminate the contract pursuant to Article 689 (1) of the Civil Code."

As seen earlier, the instant agreement is aimed at acquiring pair of stocks, but it does not aim at completing the work itself, not at carrying out the business affairs entrusted for such purpose, but at completing the business affairs. The basic nature of the instant agreement in that the Plaintiff, even if the Plaintiff failed to participate in the acquisition of pair of stocks, is the process of performing the business affairs for acquiring pair of stocks, and thus, it cannot be deemed that the instant agreement is a contract or that the said contract is combined.

Therefore, the plaintiff's above assertion is without merit.

· Sub-committee theory

Therefore, the instant agreement was lawfully terminated by the Defendant Sof Bank’s declaration of termination on April 5, 2006, which is the mandatary.

D. Determination as to the liability for the nonperformance of obligation by Defendant Sop Bank Company or the liability for damages caused by tort

(1) Determination as to whether the person is liable for damages under a violation of Article 684(2) of the Civil Act

㈎ 이 사건 약정은 피고 소프트뱅크의 2006. 4. 5.자 해지 의사표시에 의하여 장래를 향하여 실효되었으므로, 피고 소프트뱅크는 특별한 사정이 없으면 민법 제684조 제2항 에 따라 원고를 위하여 자기 명의로 취득한 이 사건 주식매매계약에 따른 주식인도청구권을 원고에게 이전할 의무가 있다.

On the other hand, as seen earlier, Defendant Sof Bank notified on April 8, 2006 that “The possibility that Defendant Sof Bank will give the Plaintiff a principal position in the subject transaction” was included in the notice. Such notification can be deemed to include “the purport that Defendant Sof Bank will transfer the right to request the delivery of shares under the instant stock sales contract to the Plaintiff.”

However, Article 11.06 of the Stock Sales Contract provides that the rights pursuant to the instant share sales contract may not be transferred without the consent of the contracting parties. Thus, in the event that the Plaintiff takes over a claim from Defendant Bop Bank, it may set up against the assignee with the knowledge of the existence of a special agreement on the prohibition of assignment of claims, or with gross negligence due to the Plaintiff’s failure to know the existence of such special agreement. The Plaintiff was aware of the existence of a special agreement on the prohibition of transfer under the instant sales contract as the substantial party to the instant share sales contract. On April 10, 206, 2006, the Plaintiff was aware of the existence of a special agreement on the prohibition of transfer of claims under the instant sales contract as the actual party to the instant share sales contract, and if b&C was aware of the fact that the Plaintiff was in relation to the instant non-assignment agreement, it was inappropriate for the Plaintiff to have the right to claim transfer of shares from Defendant Bop Bank.

㈏ 원고는 “피고 소프트뱅크가 민법 제684조 제2항 에 따라 이 사건 주식매매계약에 따른 주식인도청구권을 원고에게 이전하는 방법은 그저 이 사건 주식매매계약의 주식매매대금 지급일까지 가만히 있기만 하였어도 충분하였다. 그럼에도 피고 소프트뱅크가 이 사건 약정에서 정한 비밀유지의무를 위반하면서까지 악의적으로 이 사건 주식매매계약에 따른 쌍용제지의 실질적 인수주체가 원고라는 취지로 통지하면서 고의적으로 민법 제684조 제2항 에서 정한 의무를 위반한 것이다.”라고 주장한다.

However, since the agreement of this case was lawfully terminated by Defendant Sop Bank’s expression of intent of termination on April 5, 2006, it cannot be deemed that Defendant Sop Bank was obligated to pay the purchase price to the Plaintiff with its own contribution on the date of payment of purchase price of the purchase price of the instant shares and acquire the shares of this case and transfer them to the Plaintiff (the Plaintiff would have acquired the instant shares if the Plaintiff paid the purchase price directly on the date of payment stipulated in the share purchase price, but the Plaintiff also did not acquire the instant shares by directly contributing the purchase price). Article 11.06 of the share purchase agreement of this case provides that in order to transfer the rights pursuant to the share purchase agreement of this case, the consent of the other party is necessary. Article 4 of the instant agreement provides that “All data related to this transaction should be used only for the purpose of this transaction and post management, and that the scope of confidential information should be limited to all information related to this transaction, and thus, it can be deemed that the Plaintiff’s right to use the instant shares can not be seen as the transaction related to the Plaintiff Sop Bank’s.

Therefore, the plaintiff's above assertion is without merit.

Determination as to whether the right to request the delivery of shares belonging to the Plaintiff pursuant to Article 101 of the Commercial Code was infringed

원고는 “원고와 피고 소프트뱅크가 체결한 이 사건 약정이 상법 제101조 , 제113조 에서 정한 위탁매매약정이나 준위탁매매약정에 해당하므로, 원고와 피고 소프트뱅크 사이에서는 피고 소프트뱅크가 이 사건 주식매매계약에 따라 취득한 주식인도청구권이 원고에게 곧바로 귀속한다고 보아야 함에도, 피고 소프트뱅크가 위 주식인도청구권을 가로챈 것은 원고의 채권을 침해한 것이어서 불법행위를 구성한다.”고 주장한다.

However, there is no evidence to acknowledge that Defendant Sof Bank had the status as commission agent or quasi-Commission agent, or that Defendant Sof Bank had concluded the instant share sales contract as commission agent. Therefore, the Plaintiff’s above assertion is without merit, based on the premise that Defendant Sof Bank was engaged in the business of arranging the purchase and sale of shares on a double-use basis, or engaged in the business of entrusting the purchase of shares on a dual-use basis.

E. Determination as to the existence of liability for damages under Article 689(2) of the Civil Act

(i)The requirements for the occurrence of liability under section 689(2) of the Civil Act

Even if a party to a delegation contract is able to terminate the delegation contract at any time, if the other party terminates the delegation contract at an unfavorable time, the other party shall compensate for damages incurred therefrom unless the termination is due to unavoidable reasons (Article 689(2) of the Civil Act). Therefore, we examine whether the contract in this case was terminated at an unfavorable time against the other party, without any inevitable reason.

D. Determination as to whether “the other party’s unfavorable time” is “the other party’s disadvantage”

“The time disadvantageous to the other party” under Article 689(2) of the Civil Act refers to the time unfavorable to the other party in relation to the performance of business affairs itself. In particular, in cases where the delegating is subject to the rescission of the contract by the mandatary but it is difficult for the mandator to immediately delegate the affairs to the other party, barring any special circumstance, the time unfavorable to the mandator

However, under the agreement of this case, Defendant Sof Bank was to lend its name to the Plaintiff so that the Plaintiff can take over bareboat stocks, and agreed on behalf of the Plaintiff to provide advice on the sale procedure of this case and to act on behalf of the Plaintiff. The time when Defendant Sof Bank terminated the agreement of this case was designated from the side of the b&C and completed the contract of this case as the priority negotiation subject to the acquisition of balp land from the side of the b&C and completed the contract of this case. As the completion date of the contract of this case was 20 days earlier and 20 days earlier, the Plaintiff was unable to entrust the other party with the procedure of the sale of this case, which is the delegated duty to be handled by Defendant Sof Bank upon the termination of the agreement of this case, so the termination of the agreement of this case by Defendant Sof Bank can be deemed to have been done at a time disadvantageous to the Plaintiff, the other party.

The Defendants asserted that “the time unfavorable to the other party” under Article 689(2) of the Civil Act refers to the time when the delegating person gave up an opportunity to obtain other income by promising to continue to be in a delegation relationship, and the mandatory terminates and thereby the delegating person loses the opportunity to obtain the above income. However, the Plaintiff’s application for participation in the bid for a pair of solvents has been rejected, and thus, Defendant small-line Bank cannot be deemed to have terminated the instant agreement at an unfavorable time of the Plaintiff’s disadvantage.”

However, “the time disadvantageous to the other party” under Article 689(2) of the Civil Act includes not only the grounds as alleged by the Defendants, but also the case where a mandatory terminated by the mandatory but also the mandator is difficult to immediately delegate his business affairs to the other party. As seen earlier, the Plaintiff entered into the instant agreement by borrowing the name of Defendant Sop Bank to utilize the reputation and designation of Defendant Sop Bank, and paid the remuneration to Defendant Sop Bank. However, it is impossible for the Plaintiff to delegate the process of selling this case’s sales, which is delegated by Defendant Sop Bank, to the other party upon termination of the instant agreement. As such, the termination of the instant agreement by Defendant Sop Bank ought to be deemed to be the termination that was made at the time disadvantageous to the other party.

Therefore, the above assertion by the defendants is without merit.

•Judgment as to whether there are unavoidable reasons

Furthermore, we examine whether Defendant Soft Bank’s rescission of the instant agreement was made without any inevitable reason. The term “inevitable reason” under Article 689(2) of the Civil Act refers to cases where a mandatory is difficult to continue conducting business affairs under a delegation contract, or where the content of business affairs requested by a delegating person is unreasonable in terms of social norms.

Although the Plaintiff did not notify the Defendant of this fact even though the Plaintiff submitted a separate letter of intent to take over and did not withdraw from the preliminary bidding procedure, or even if Defendant Bop Bank came to know of the position on the part of the land where the Plaintiff and the real estate developers, such as the Plaintiff, were excluded from the instant agreement, such circumstance is difficult to deem that the Plaintiff entered into the instant agreement by taking advantage of the name of Defendant Bop Bank to use Defendant Bop Bank’s reputation and designation. As long as the Plaintiff, as Defendant Bop Bank, agreed to handle the instant agreement in return for receiving remuneration, it is difficult to deem that such circumstance is “inevitable circumstances” capable of cancelling the instant agreement.

In addition, Defendant Sof Bank was a party to the instant share purchase agreement and bears external responsibilities or risks pursuant to the instant agreement. However, considering such circumstances, Defendant Sof Bank entered into the instant agreement on the condition that it would be paid higher fees and remuneration compared to the first agreement. Upon receiving the Plaintiff’s obligation to compensate for damages as set forth in the instant agreement, Defendant Sof Bank entered into a pledge on the Plaintiff’s deposit claim under the Plaintiff’s name as a security for compensation for damages ( even if Defendant Sof Bank was at risk of not being fully compensated for losses due to lack of financial capacity of the Plaintiff despite the Plaintiff’s promise to compensate for damages, such circumstance is due to the fact that Defendant Sof Bank initially entered into the instant agreement with the Plaintiff, and thus, it cannot be deemed that Defendant Sof Bank’s termination of the instant agreement is an inevitable reason for the termination of the instant agreement.

Meanwhile, as seen earlier, it is difficult to deem that the Plaintiff did not perform its duty to raise funds for the acquisition of a pair of land, as well as that it was impossible to deem that it was impossible to raise funds. Since the Plaintiff, at the meeting of March 28, 2006, knew the illegality of the approval for the loan of March 20 of the same year, according to the records of Defendant Sof Bank, it should have been given to the Plaintiff sufficient period to rectify the illegality of the loan. However, even if Defendant Sof Bank, which was in a delegation relationship under the instant agreement, was discussed on March 29, 2006, as well as on the point that it was difficult for the Plaintiff to unilaterally suspend the above discussions on the grounds that it was difficult for the Plaintiff to enter into a contract for the acquisition of the loan of this case on April 5, 2006, as well as on the point that it was difficult for the Plaintiff to enter into a contract for the acquisition of the loan of this case on the grounds that it would have been in a way that it would not be possible for the Plaintiff 2 to independently acquire the loan of this case.

The Defendants, under the policy of excluding companies which are not able to be aware of the continuity of the business and the continuity of employment, had internal policies to exclude the construction companies or implementing companies, which cannot guarantee this, and the Tranp Bank strongly demanded employment succession to Defendant Bop Bank. The Plaintiff of real estate development business has the purpose of securing profit from the development of the factory site for Tranp Bank. As such, the succession of employment is uncertain, and if employment succession is not made, Defendant Bop Bank bears the duty to pay retirement compensation of at least 20 billion won pursuant to Article 6.16 of the Stock Sales Agreement. In addition, Defendant Bop Bank was an enterprise whose reputation and credit are very important. In addition, Defendant Bop Bank promised employment succession to the labor union of F&C and Tranp Bank, but it is obvious that Defendant Bop Bank’s reputation and reputation were incurred from the conclusion of the agreement and termination of the agreement with the Plaintiff, and thus, Defendant Bop Bank did not have any unavoidable reason to deem that the agreement was concluded with the Plaintiff.

Therefore, since Defendant Soft Bank terminated the instant agreement at a time disadvantageous to the Plaintiff, the delegating without any inevitable reason, it is liable to compensate the Plaintiff for damages in accordance with Article 689(2) of the Civil Act.

F. Scope of damages

(i)Criteria for calculating the amount of damages

In accordance with Article 689(2) of the Civil Act, if a party to a delegation contract is liable for damages to the other party, the scope of compensation would not have been terminated at a reasonable time (see, e.g., Supreme Court Decision 98Da64202, Jun. 9, 200). In the case of this case’s agreement, unlike a general delegation agreement, a delegation agreement combines with a nominal delegation agreement, the purpose of which is to be achieved through the management of delegated affairs would have been performed in the name of a mandatory. In particular, the Plaintiff and Defendant small-line bank entered into the instant agreement with guaranteeing that Defendant small-line bank was paid a reasonable amount of fees and remuneration, instead of using the reputation and designation of Defendant small-line bank in the instant sales procedure. If Defendant small-line bank terminated the instant agreement prior to the completion date of the instant sales contract, it is reasonable to obtain the right to claim the transfer of shares from the Defendants bank without the consent of the two parties to the instant sales contract, in view of the need to acquire the Plaintiff’s shares from the Defendants bank without any justifiable reason for termination of the instant agreement.

원고는 “수임인인 피고 소프트뱅크가 부득이한 사유 없이 위임인인 원고에게 불리한 시기에 이 사건 약정을 해지한 것은 이 사건 주식매매계약에 따른 이익을 가로챈 것이므로, 징벌적 손해배상을 명하여 투자업계 종사자들에게 경종을 울려야 할 것임에도, 오히려 공평의 원칙을 이유로 피고 소프트뱅크의 책임을 제한함으로써 위와 같은 배신행위의 결과에 따른 이익을 피고 소프트뱅크에 귀속하도록 하는 것은 공평의 원칙이나 신의칙에 반하는 결과가 되어 부당하다.”고 주장한다.

However, considering the overall purport of arguments in Gap's evidence Nos. 2, 4, 15, and 16, and Eul evidence Nos. 24 (including numbers), the agreement of this case alone does not provide for how the plaintiff acquires shares in a pair of land and what procedures can be acquired, and thus it is difficult to conclude that all profits pursuant to the share purchase agreement of this case will accrue to the plaintiff (the expression "acquisition of management right for a pair of land" cannot be deemed to have acquired all of the shares in a pair of land). As a party to the share purchase agreement of this case, it is reasonable to view the plaintiff as the party to the share purchase agreement of this case as the party to the share purchase contract of this case, in selecting a purchaser, the seller's ability to manage the pair of land, the purchaser's credit rating, and social reputation, etc. It is reasonable to find that there is no further need to protect the plaintiff's company's interest in the process of the merger and sale agreement of this case as well as to protect the plaintiff's interest in the process of the merger and sale of this case.

【The Specific Damages

The Plaintiff’s losses can be deemed as the profits that the Plaintiff could have obtained from acquiring a pair of shares from the Defendant upon the completion of the instant share sales contract, and the amount calculated by deducting the purchase price of shares to be paid by the Plaintiff.

On the other hand, if there is an example of normal transaction that properly reflects the objective exchange value as to unlisted stocks, the price of the stocks can be calculated by considering the transaction value as the market price. However, if there is no such case, various methods of appraisal such as market value method, net asset value method, profit value method, etc. However, since the relevant laws and regulations governing the method of appraisal of unlisted stocks apply different standards according to their purpose of enactment, it cannot be readily concluded that any one method of appraisal should be applied at all times. The fair price should be calculated by comprehensively taking into account the situation of the relevant company and the characteristics of the relevant business (see Supreme Court Order 2005Ma958, 959, 959, 960, 961, 962, 963, 964, 964, 964, 965, 9666, etc.).

According to the market value appraisal of Non-party 8 in the first instance trial, the value of assets of a pair of land around May 26, 2006 is 134,380,000,000 (the value of assets of a pair of land corresponding to the shares subject to the stock sales contract in this case is 134,308,000,000). Around that time, the profit value calculated by converting the estimated profit and loss for 10 years thereafter into the current value at an adequate rate is 63,263,00,000 (the profit value of a pair of land corresponding to the shares subject to the sales contract in this case is 63,28,000,000,000 won). The profit value of the stock sales contract in this case is 65,75,000,000,000 won adjacent to the above profit value of the stock in this case, and thus, it cannot be viewed that there was an objective method of calculating the profit of the stock sales contract in this case.

Therefore, the value of a pair of lands corresponding to the number of shares of the instant sales contract is assessed as KRW 98,768,00,000 [2] / [3,00,000 + KRW 63,228,000 + KRW 63,228,00,000]. As such, the difference between the share sales price of KRW 65.75 billion according to the instant sales contract is assessed as KRW 33,018,00,000.

However, in light of the purport of the whole evidence as seen earlier, the Plaintiff cannot be the sole owner of the instant shares pursuant to the instant contract for the purchase of shares, and the Plaintiff can only be an affiliated company with which Defendant Sof Bank or Defendant Sof Bank holds more than 50% shares. Defendant Sof Bank concluded an investment contract with Defendant Sof Bank and Defendant Sof Bank to hold shares at the rate of 51:49 on April 14, 2006. Although Defendant Sof Bank did not reach the conclusion of the instant agreement at a disadvantage of the Plaintiff without any inevitable reason, it was difficult for the Plaintiff to separately hold shares at a maximum of 0% of the Plaintiff’s shares in the instant contract for the acquisition of 30% shares, since it was difficult for the Plaintiff to separately hold shares in the instant contract for the acquisition of 40% shares of the Plaintiff sof Bank and Defendant Sof Bank to take account of the legal purpose of the Plaintiff’s acquisition of shares in the instant contract for the purchase of shares 】 (the Plaintiff’s acquisition of shares in excess of 50% of the Plaintiff sof Bank’s shares.

Meanwhile, comprehensively taking account of the Plaintiff’s statement Nos. 4, 6, 7, 29 (including a number of 30.0), and Nonparty 1’s testimony, the Plaintiff shall pay to Nonparty 1 27,500,000 one securities, and shall pay 1,000,000 won to Defendant Small Bank as well as 73,32,630,630, and 60.70,000,000,000,0000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 20,00 won for 6,00.

【Amount to be paid by Defendant Soft Bank

Therefore, from March 24, 2009 on the record that the amount to be paid by Defendant Sof Bank to the Plaintiff is 6,139,100,000 won and the day following the delivery of a copy of the complaint of this case to the Plaintiff (the Plaintiff is liable for damages due to Defendant Sof Bank’s default or tort, on the premise that the Plaintiff is liable for damages due to Defendant Sof Bank’s default or tort, from April 26, 2006 to March 23, 2009, the Plaintiff claimed damages at the rate of 60% per annum for the period from April 26, 2006 to March 20, the delivery of a copy of the complaint of this case to the Plaintiff. However, as seen above, since the date of completion of the sales contract of this case was postponed on May 26, 2006 to the point of 10% prior to the date on which the Plaintiff claimed damages for delay from Defendant Sof Bank’s 200% of the total amount of damages for delay.

G. Determination as to whether the liability for return of unjust enrichment exists

(1) The plaintiff's assertion

The Plaintiff asserted that “The right to request the delivery of shares pursuant to the instant contract pursuant to Article 684(2) of the Civil Act is the right to acquire by the Plaintiff, and thus, the amount equivalent to the difference calculated by deducting acquisition cost from the actual value of the shares held by the Plaintiff is the interest to be attributed to the Plaintiff. However, even though there is no legal ground for acquiring the right to request the delivery of shares pursuant to the instant contract, the Defendant Sof Bank voluntarily acquires the instant agreement while acquiring it, as the Plaintiff’s right to request the delivery of shares, the right to request the delivery of shares, which is the Plaintiff’s property, obtained profits equivalent to the difference calculated by deducting acquisition cost from the actual value of the shares held by the Plaintiff. Accordingly, the Defendant Sof Bank is obliged to pay to the Plaintiff an amount equivalent to the difference calculated by deducting acquisition cost from the actual value of shares held by the shares held by both joint-use pursuant to Article 741 of the

Shed Judgment

According to the share purchase agreement of this case, Defendant Sof Bank acquired shares in accordance with the share purchase agreement of this case. As seen earlier, the right to request the issuance of shares is not possible since it is impossible to transfer shares in accordance with the non-assignment agreement of this case from the beginning date of the initial right to request the delivery of shares. The Plaintiff’s claim for unjust enrichment is the value of shares itself acquired in accordance with the right to request the delivery of shares, not the above right to request the delivery of shares, and there is a separate act of contribution, such as the payment of the purchase price, in order to acquire shares. Therefore, it cannot be viewed that the acquisition of shares in this case is a special purpose company established by Defendant Sof Bank, not the Defendant Sof Bank. Since the acquisition of shares in this case after the termination of the contract of this case is not a special purpose company established by Defendant Sof Bank, it cannot be deemed that the Plaintiff obtained the above profits, and it cannot be viewed that the Plaintiff’s acquisition of shares in this case’s name from the initial special purpose company was a profit to the Plaintiff, as alleged by the Plaintiff.

Therefore, the plaintiff's claim for return of unjust enrichment is without merit.

4. Determination on the claim against Defendant Drink Korea, Defendant 3, Defendant 4, and Defendant 5

The Plaintiff asserts that “Defendant 3 and Defendant 4, as the representative director or vice president of Defendant Sof Bank, infringed the Plaintiff’s right to request the issuance of shares pursuant to the instant agreement while actually performing the business of Defendant Sof Bank pursuant to the instant agreement.” The Plaintiff asserted that “In collusion with Defendant DF Bank’s tort, Defendant DF Bank Korea, and Defendant 5, and Defendant Sof Bank’s tort, thereby infringing the said claim.”

However, the agreement of this case was invalidated by the declaration of intent to terminate the contract on April 5, 2006 of the defendant Sof Bank, and since the defendant Sof Bank did not transfer the right to request the delivery of shares to the plaintiff, it cannot be deemed that there was a cause attributable to the defendant Sof Bank. However, the liability for damages due to termination at the time disadvantageous to the other party is not a cause of default, but there is no evidence to acknowledge the cause attributable to the defendant 3 and the vice president, who is the representative director of the defendant Sof Bank, and the defendant 4, who is the defendant 3 and the vice president, due to a special bad faith or gross negligence. Therefore, the defendant 3 and the defendant 4 cannot be held liable for damages due to default or tort.

In addition, insofar as Defendant Digital Bank Co., Ltd., Defendant 3, and Defendant 4 are not liable for nonperformance or tort, Defendant D Cases Korea and Defendant 5 cannot be deemed to have committed a tort in collusion with the said Defendants. Moreover, it is insufficient to recognize that Defendant D Cases Korea and Defendant 5 committed a tort as alleged by the Plaintiff solely on the respective descriptions of evidence Nos. 60 through 64.

Therefore, the Plaintiff’s claim against Defendant D Cases Korea, Defendant 3, Defendant 4, and Defendant 5 is without merit.

5. Conclusion

Therefore, the plaintiff's main claim against the defendant soft Bank, including the claim extended or added at the trial, shall be accepted within the extent recognized above, and all of the main claim against the defendant Soft Bank and the main claim against the defendant Soft Bank and the first, second and second preliminary claim against the defendant Soft Bank and the first and second preliminary claims against the defendant Soft Bank shall be dismissed. Therefore, the part against the defendant Soft Bank in the judgment of the first instance shall be modified as above, and all of the plaintiff's main claim and additional claims shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Judges Cho Jae-hae (Presiding Judge)