Plaintiff (Attorney Choi Jong-chul et al., Counsel for plaintiff-appellant)

Defendant 1 and four others (Law Firm Space, Attorneys Shin-hee et al., Counsel for the defendant-appellant)

September 18, 2015

1. The Defendants jointly pay to the Plaintiff 549,275,00 won with 5% interest per annum from December 14, 2013 to October 7, 2015, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

2. One-fourth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

3. Paragraph 1 can be provisionally executed.

The Defendants jointly pay to the Plaintiff 802,889,000 won with 5% interest per annum from December 14, 2013 to the service date of a duplicate of the instant complaint, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. On December 1, 2010, the Plaintiff, Defendants, and Nonparty 1 and Nonparty 2 entered into a partnership agreement (hereinafter “instant partnership agreement”) with the content that they would establish a leased corporation and operate a hospital jointly (hereinafter “instant partnership agreement”). The main contents are as follows.

In the event that the new shares of the ○○○○ Hospital are to be disposed of by its partners, the Defendants, the non-party 1 and the non-party 2 shall enter into the agreement. The shareholders of the leased corporation shall be referred to as the president of the hospital. The above plaintiffs, the Defendants, the non-party 1 and the non-party 2 shall establish a rental corporation (○○○) with the same shares in the hospital and shall jointly establish the hospital within 57.5 billion won in the aggregate of the capital stock of the leased corporations and the hospital. The non-party 1 and the non-party 2 shall enter into the agreement of the 5.5 billion won in the transfer of shares in the hospital (the non-party 1 and 5.5 billion won in the transfer of shares in the hospital, the non-party 1 and 5. The non-party 1 and 2 shall have the same shares in the transfer of shares in the hospital. The new shares in the transfer of shares in the hospital shall be 5.5 billion won in proportion to their respective shares in the transfer of shares.

B. The Plaintiff, the Defendants, and Nonparty 1, and Nonparty 2 established the ○○○○○○○, Inc., and purchased land in the name of Seo-gu, Seo-gu, Seo-gu, Seo-gu, ( Address 1 omitted), ( Address 2 omitted), and ( Address 3 omitted) in the name of ○○○○○○○○○○, and then newly constructed the 2nd and the 7nd and the 7nd and the 7nd and the registration of ownership was completed on January 12, 2010.

C. From February 2010, the Plaintiff, the Defendants, and Nonparty 1, and Nonparty 2 began to open ○○○○ Women’s Hospital in the said new building and jointly operate it.

D. On September 26, 2012, Nonparty 1 and Nonparty 2: (a) from the Plaintiff and the Defendants, the Plaintiff and the Defendants paid KRW 2 billion in return for the settlement of shares and equity in possession of ○○○ and ○○○ Women Hospital; and (b) withdrawn from the joint operation relationship between ○○○ and ○○ Women Hospital.

E. On December 12, 2013, the Plaintiff sent to the Defendants a content-certified mail to the effect that “the Plaintiff would withdraw from the partnership with ○○○○○ and ○○○○ Women Hospital,” and thus, returned the shares, and accordingly, sent it to the Defendants, respectively.

【Ground of recognition】 The fact that there is no dispute, Gap's 1 through 5, Gap's 7, and 16, the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff's assertion

On December 13, 2013, the Plaintiff expressed his/her intent to withdraw from the joint operation relationship of ○○○○○○○ and ○○○○○○○○ Women’s Hospital, and ○○○○○ Postnatal Care Center, thereby withdrawing from the joint operation relationship of ○○○○ and ○○ Postnatal Care Center, Inc., and ○○ Postnatal Care Center.

As a result of the settlement following withdrawal, the Defendants shall purchase the shares of ○○○○○○○○ Company owned by the Plaintiff and pay the Plaintiff the purchase price for the said shares. Of the appraised value of the assets and goodwill of ○○○○ Women Hospital and ○○○○○○○○ Postnatal Care Center, the Defendants shall pay the settlement amount equivalent to the Plaintiff’s shares. The amount that the Plaintiff has to receive as the settlement amount from the Defendants is KRW 802,889,000 (= KRW 549,275,000 + + KRW 253,614,00).

1) The price for the shares of ○○○○○ Co., Ltd.: KRW 549,275,00 = 4,309,782,134 (the net asset value of ○○○○○○○○ Co., Ltd. on December 13, 2013) ¡¿ 42,058 Shares (Number of Plaintiffs) ¡À330,000 shares (the total number of ○○○○○○○○○○○), and under KRW 330,000,00 won shall be waived.

2) The appraised value of the shares of ○○○○ Women’s Hospital and ○○○○○ Postnatal Care Center: 253,614,00 won = 1,989,936,061 won (the value of the business rights of ○○ Women’s Hospital) ¡¿ 42,058/330,000 (the Plaintiff’s share ratio) and waivers below 0,000 won.

(A) If a business entity has a profit-making power exceeding the normal profit ratio of the same company, the excess profit-making power shall be assessed, and if the business entity operates the business entity as a partnership and withdraws from the business relationship, the withdrawn member's share in the business entity should be evaluated, as a matter of course, including the business right. Since ○○ Women Hospital gains excess profit-making, the above business right should be considered in calculating the Plaintiff's share, and the provision of Article 9 of the instant business partnership agreement provides that "when the business entity withdraws within five years, the premium shall be waived."

(B) Article 59(2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the continued training of business rights shall be deemed five years in principle. However, in the case of ○○ Women’s Hospital, it is reasonable to regard the continuous training of business rights as at least seven years from the time the Plaintiff withdraws at the time of the Plaintiff’s withdrawal when the Plaintiff withdraws.

B. Defendant’s assertion

As to this, the Defendants asserted that the Plaintiff’s net debt amount of ○○○ Women’s Hospital and ○○○○○ Postnatal Care Center’s 702,982,739 won and KRW 86,035,358 of the net debt amount of ○○ Postnatal Care Center should also be taken into account in assessing the Plaintiff’s shares in ○○○ Postnatal Hospital and ○○ Postnatal Care Center. Since the Plaintiff withdraws from the joint operation relationship with ○○ Preferred to in Article 9 of the instant business agreement before five years elapse from the date of the formation of the instant business agreement, the Plaintiff should not include business rights in calculating the Plaintiff’s ○ Postnatal Women’s Hospital and ○ Postnatal Care Center’s shares.

3. Determination

(a) Occurrence of obligation to pay settled accounts;

1) On December 13, 2013, when the content-certified mail under the foregoing 1- E reaches the Defendants, there is no dispute between the parties that the relationship between the Plaintiff and the Defendants on the joint operation of ○○○○○ and ○○○ Women Hospital, and ○○○○ Postnatal Care Center was terminated.

2) Therefore, the Defendants are obligated to pay to the Plaintiff the purchase price for ○○○○○○○○ Stock Company owned by the Plaintiff following the Plaintiff’s exercise of the Plaintiff’s appraisal right under Articles 3, 8, and 9 of the instant business agreement. The Defendants are obligated to pay to the Plaintiff a balance of the Plaintiff’s equity amount out of the property of ○○○ Women Hospital and ○○○○ Postnatal Care Center assessed as at the time of withdrawal pursuant to Article 719(1

B. Calculation of purchase price of ○○○○○ Stock Company

1) Method of calculating the value of ○○○○○ Stock Company

○○○○○○○ is a non-listed corporation. The market price of non-listed stocks should be assessed on the basis of the market price if there is an example of normal transactions that properly reflects the objective exchange value of the stocks. However, if there is no such example of transactions, considering the overall circumstances such as the purpose of the transaction in question, the situation of the relevant non-listed corporation at the time of the transaction, and the characteristics of the relevant type of business, it should be comprehensively considered (see Supreme Court Decision 2003Da69638, Oct. 28, 2005). The method of appraisal of the value of stocks is consistent with the general corporate value assessment method. The method can be considerably distinguished from the income method, market access method is based on the income derived from business activities of the company. The market access method is based on the comparison with the similar company in the market. The method of appraisal of the value of the assets is a profit-making method [the method of calculating the value of the assets in the market, the method of calculating the profit-making profit-making profit (DF) method, the method of net asset access method].

In the case of ○○○○ shares, there is no evidence to acknowledge the proper transactional practice that properly reflects the objective exchange value or the proper value calculated in accordance with the Income Access Act or the Market Access Act. Moreover, the net asset value method is to calculate the value according to the net asset value method by the most objective method in which an evaluator is less interested, and it does not seem unreasonable in either party. Therefore, the value of ○○○ shares owned by the Plaintiff should be calculated according to the net asset value method.

2) Calculation of the value of ○○○○ Stocks owned by the Plaintiff

A) As of December 13, 2013, the Plaintiff’s exercise of appraisal rights (i.e., 330,000 shares for the total number of ○○○○○○○, Inc. as of December 13, 2013; and (ii) the number of the Plaintiff’s shares among them is 42,05

B) As a result of Nonparty 3’s appraisal, comprehensively taking account of the fact-finding’s overall purport of the pleadings, the net asset value of ○○○○○○, Inc., as of December 31, 2013, is recognized as KRW 4,309,782,134.

C) The share value of ○○○○○○○○, Inc., Ltd., which was calculated by the net asset value method, is KRW 549,275,00 as of December 31, 2013 (i.e., KRW 4,309,782,134 x 42,058 ± 330,000 ± at the Plaintiff’s request, and is presumed to be equivalent to the amount thereof even on December 13, 2013, which was withdrawn from a joint management relationship.

3) Sub-determination

Ultimately, the Defendants jointly have the obligation to pay to the Plaintiff KRW 549,275,00 with the purchase price of shares of ○○○○○○○○○, Inc. owned by the Plaintiff, and damages for delay.

C. Calculation of equity value of ○○○○ Women’s Hospital and ○○○○ Postnatal Care Center

1) Plaintiff’s share ratio

Where a partner withdraws from a cooperative, the calculation due to the withdrawal between the withdrawing person and the remaining person shall be made according to Article 719(1) and (2) of the Civil Act, barring any special circumstance, the amount equivalent to the withdrawing person’s share out of the partnership’s property appraised based on the “the partnership’s property condition at the time of withdrawal” shall be returned to the money. The ratio of the partner’s share shall be calculated based on the “ratio of sharing of profits and losses inside the cooperative” but if the parties do not set the ratio of sharing of profits and losses, it shall be determined in proportion to the value of each partner’s investment in accordance with Article 711 of the Civil Act (see Supreme Court Decision 2008Da41529

On the other hand, Article 7 of the instant business agreement provides that the proportion of distribution of profits and losses of ○○ Women’s Hospital and ○○○○ Postnatal Care Center shall be distributed in proportion to their respective shares of ownership. As seen in the basic facts, the Plaintiff’s shares in ○○○ Women’s Hospital and ○○ Postnatal Care Center are 42,058/330,000, there is no dispute between the parties, and thus, the Plaintiff’s shares in ○○○ Women’s Hospital and ○ Postnatal Care Center are 42,058/30,000.

2) The net asset value of ○○○ Women’s Hospital and ○○ Postnatal Care Center

As a result of the appraiser non-party 3's appraisal, comprehensively taking account of the fact-finding of the above appraiser in this court's fact-finding, the net asset value of ○○○ Women's Hospital as of December 31, 2013 -702,982,739 won, and the net asset value of ○○○○ Child Care Center is -86,035,358 won.

3) Whether a goodwill is included in the calculation of equity value

If a separate agreement is made with respect to the settlement of shares of a withdrawing partner in the course of concluding a partnership agreement between the parties to the agreement, the agreement shall be made, and if there is no such an agreement, the amount equivalent to the shares of the withdrawing partner out of the partnership property assessed on the basis of “the status of the partner’s property at the time of withdrawal” pursuant to the provisions of Article 719(1) and (2) of the Civil Act shall be returned in cash (see, e.g., Supreme Court Decisions 96Da19208, Sept. 6, 1996; 98Da15170, Oct. 27, 1998). In such a case, if a remaining partner continues to conduct a business, the value of the partnership property shall be appraised by the “business price, including the value of business rights,” not by a simple trading price (see Supreme Court Decision 96Da4839, Feb. 14, 199

On the other hand, Article 5 of the ○○ Women’s Hospital’s Primary Business Agreement provides that the first business operation period of the ○○○○○ is five years after the opening of the business, and Article 9 provides that the premium shall be waived and settled upon withdrawal within five years after the opening of the business. ① In particular, operating premium shall be generally used as the transfer of intangible property value, such as trade name, business facilities, non-performing goods, etc., or tangible goods such as business partners, business technology and credit, business know-how or business location, or the cost for use for a certain period of time. Ultimately, operating premium shall be deemed to have been received in consideration of the fact that the business operation premium of the ○○○○ Women’s Hospital is not received in consideration of business rights, which are assessed for excess profit of the company’s company’s company, ② it shall be deemed that the business operation premium of the ○○○ Hospital was maintained for at least five years after the formation of the ○○ Hospital’s business relations, and it shall not be deemed that there is no reason to interpret the above provisions of Article 9 of the 9 of the business agreement.

4) Whether the net debt amount should be considered in calculating the equity value

As seen earlier on December 31, 2013, the net debt amount of ○○○ Women’s Hospital is KRW 702,982,739, and the net debt amount of ○○○○○○ Postnatal Care Center is KRW 86,035,358, or the entire arguments and arguments are comprehensively taken into account, in light of the following circumstances, it is determined that the Plaintiff’s net debt amount of ○○ ○○ Women’s Hospital and ○○ Postnatal Care Center should not be considered in calculating the share value of ○○○ Postnatal Care Center in calculating the share value of ○○○ ○○ ○○ Postnatal Care Center and ○○ Postnatal Care Center.

A) Article 9 of the instant business partnership agreement provides that where ○○○ Women’s Hospital and ○○○ Postnatal Care Center are withdrawn within five years, premium may be waived and the amount equivalent to shares may be borne by palty equivalent to 30% of the pertinent shares in case of withdrawal within two years. In light of the purport of the provision, it appears to be a provision on the premise that the net asset value of ○○○ Women’s Hospital and ○○ Postnatal Care Center except business rights is + (+) value of the net asset value of ○○○ Women’s Hospital and ○○ Postnatal Care Center.

B) The debt of ○○○○○ Women’s Hospital and ○○○○○ Postnatal Care Center is primarily incurred in the process of investment in facilities investment, etc., which eventually serves as the basis for future profit-making including excess profit of ○○○ Women’s Hospital and ○○ Postnatal Care Center, and its debt is expected to be repaid with the above future profit. Therefore, as seen earlier, even if the Plaintiff did not receive settlement of accounts for the goodwill, which is an assessment of excess profit-making power of ○○○ Women’s Hospital and ○○ Postnatal Care Center, if the Plaintiff continues to bear only the debt incurred during the investment process, this would result in a significant unfair consequence and would be unreasonable.

5) Sub-decisions

Ultimately, there is no money to be paid by the Defendants to the Plaintiff as the settlement amount of shares in ○○○ Women’s Hospital and ○○○ Postnatal Care Center.

4. Conclusion

Therefore, the Defendants jointly have a duty to jointly pay to the Plaintiff 549,275,00 won for the purchase price of shares of ○○○○○○○○○○○○○○, which is owned by the Plaintiff, and to pay damages for delay at each rate of 20% per annum under the Civil Act from December 14, 2013, which is the following day after the mail verifying the contents of the above 1- E, including the Plaintiff’s expression of intent to exercise the Plaintiff’s appraisal right to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, a notice day of this decision, which is deemed reasonable to dispute over the existence or scope of the Defendants’ obligation, until October 7, 2015

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Judges Cho Young-hee (Presiding Judge) Kim Jong-hee

(1) As of December 31, 2013, the appraised value of the ○○○ Women Hospital’s goodwill as of December 31, 2013 is KRW 1,549,460,631 in cases where the continued value of the goodwill is deemed five years, KRW 1,989,936,06,061 in cases where deemed seven years, and KRW 2,51,553,776 in cases where deemed ten years. If the appraised value of the goodwill of the ○○○ Women’s Hospital is included in the calculation of the Plaintiff’s share value, the sustainable value of the Plaintiff’s share should be calculated as five years in cases where the continued value of the goodwill is calculated as of December 31, 2013 (1,549,60,631 - 702,982,039 - 86,035,3580,000 won in cases where the Plaintiff’s net value of the ○○○ Hospital is not included in the Plaintiff’s shares.