Plaintiff 1 and two others (Law Firm Taedong, Attorneys Lee Dong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm continental Aju et al., Counsel for the defendant-appellant)

October 11, 2013

Seoul Central District Court Decision 201Gahap33776 Decided December 15, 2011

1. All appeals by the Defendants against the Plaintiffs are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The defendants jointly and severally pay to the plaintiffs 14,60,000,000 won with 5% interest per annum from January 20, 2007 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiffs' claims against the defendants are dismissed in entirety.

1. Basic facts

가. 소외 1(대판:소외인)과 피고 1은 2005. 10.경 공동으로 투자하여 코스닥 상장업체인 주식회사 이비티네트웍스(이하 ‘이비티’라 한다)와 그 자회사인 주식회사 에이트픽스(이하 ‘에이트픽스’라 한다)의 주식을 매수한 후 위 회사들을 경영하기로 합의하였다.

B. Accordingly, Nonparty 1 and Defendant 1 established Cheongcheon D&C Co., Ltd. (hereinafter “Cheongcheon D&C”), and invested in the method of lending money to Cheongcheon D&C, and Cheongcheon D&C became able to exercise the right of management for E&C by purchasing E&C’s shares. At the time, Cheongcheon D&C’s shares were 60,000 shares. At the time, the total number of shares issued was 60,000 shares were 30,000 shares under the name of the Plaintiffs, and Defendant 1 and Defendant 2 respectively owned 30,000 shares under their own and Defendant 2’s name.

C. At the first time, Defendant 1 exercised the right of management of the non-party 1 (the non-party 1) and Defendant 1 agreed on July 21, 2006 that the non-party 1 (the non-party 1: the non-party 1) should exercise the right of management, and entered into a management agreement with the following contents (hereinafter “instant joint management agreement”).

Article 3 (Methods of Joint Investment and Company Operation) A (the method of Operation for Foreign Investment and Company A) and B (Defendant 1) shall make joint investments in the following ways in order to achieve the objectives of this Investment Project and shall cooperate with and manage this Company (the cost and traffic) in cooperation:

1. The Company A shall administer general management, and the following important decision-making shall be conducted by A with the consent of B:

1. Issuance of stocks and bonds;

2. Merger and acquisition of the company;

3. Changes in capital.

4. Matters to be published by this company;

5. Other matters important for the management of the company.

(2) All additional funds required for the management and normalization of this company shall be jointly invested by Gap and Eul.

(3) In principle, Gap and Eul shall have equal rights as major shareholders, and the equity ratio in this company shall be equally maintained in any case.

Article 5 (Distribution and Settlement of Profits)

① Since shares of shares are equal in promoting this Investment Project, Gap and Eul are to be distributed according to the agreed ratio (50%:50%) with Gap and Eul with respect to profits accruing except for all expenses.

(2) Where this company becomes normal or corporate transfer or takeover by transfer becomes smooth, Gap and Eul shall allocate the ordinary profits to the company at the same rate set forth in paragraph (1) above.

Article 6 (Matters under Special Agreement)

1. The overall management interest rate for the Company A shall be eight months from the date this Agreement is concluded, and where a temporary owner is held within eight months, A and B shall be recommended and appointed from the temporary owner to the same number of board of directors, and the representative director shall also be recommended and appointed, respectively. A shall continue to manage the temporary owner for a period of six (1) years even after the organization of the board of directors.

D. However, as the management of the E-ti is difficult, and there was a conflict of opinion on the plan for normalization of E-ti between Non-party 1 (the counter-party) and Defendant 1, the non-party 1 (the counter-party 1) and Defendant 1 were unable to make an important decision on E-ti management, and the non-party 1 (the counter-party 1) and the non-party 1 decided to organize the partnership.

E. Accordingly, the non-party 1 (the non-party 1) and the defendants (the defendant 2's representative) who represented the plaintiffs shall transfer to the other party the claims of KRW 5,345,640,000 of the Cheongcheon D&C's 30,000 shares and the claims of KRW 5,345,640,00 against Cheongcheon D&C's shares on December 13, 2006, to the other party, and shall transfer one's management rights to the other party, and the transferee of the shares and the claims shall be determined by a bidding method (hereinafter "the agreement of this case"). The main contents are as follows.

Article 1 (Purpose of Agreement)

The purpose of this Agreement is to clarify rights and obligations between Gap and Eul in relation to the governance structure of Cheongcheon D&C and Cheongcheon D&C, which are jointly controlled by Eul (the plaintiffs) and Eul (the defendants) in a direct and indirect manner.

Article 3 (Agreement on Corporate Governance)

(1) A and B, in accordance with the structure and procedure described in Appendix 1. Pursuant to the structure and procedure of the structure and procedure, acquire claims against B and B’s Cheongcheon C&C stocks and Cheongcheon C&C stocks and claims against B&C.

(2) The date and time and place of tendering in connection with the preceding paragraphs shall be:

1. Date of bidding: December 13, 2006;

2. Tender place: a place agreed upon by the parties in Gangnam-gu.

Article 5 (Cooperation, etc. in Major Management Matters, etc. of Disaster and Traffic)

(1) A and B shall actively cooperate in the following measures implemented by the parties determined to be a transferee pursuant to the tender set forth in Article 3 for the smooth implementation of major management conditions of the Ethti and Ethropic as set forth in the following subparagraphs. Such cooperation includes the consent of the respective directors recommended by A (the directors recommended by A: Nonparty 2, Nonparty 3, and directors recommended by B: Nonparty 4, Nonparty 5, Nonparty 6, and Nonparty 7):

1. Cooperation in the procedures for the reduction of capital and capital increase with consideration:

The voting rights should be exercised so that capital reduction and capital increase consideration can be made at the board of directors and shareholders' meeting related to the capital reduction and capital increase consideration.

2. Cooperation in the procedures for issuing new stocks for consideration for traffic:

The board of directors should exercise their voting rights to issue new shares with respect to the issue of new shares issued by Ethical services.

(2) A Party that has been determined as a transferee under the tender listed in Article III of the Agreement shall give the other party or his/her designated person an opportunity to participate in the capital increase equivalent to 30 percent of the total amount of the capital increase when the capital increase is increased, to the extent permitted by the relevant laws and regulations in the case of each first and second capital increase conducted after this Agreement.

Article 7 (Statement and Guarantee)

1. A’s statement and guarantee;

- There is no security, pledge, or any other charge or restriction on the shares of Cheongcheon C&C held by Gap.

- A did not transfer, provide security, or take any other measures with respect to claims against Cheongcheon C&C held by B.

Article 9 (Cancellation of Contracts)

(1) If Party A or B violates or fails to comply with the provisions of this Agreement, the other party may demand correction thereof from the party to the violation. If the party to the violation fails to correct the violation or non-performance within five (5) business days after the date on which the other party requested correction, the other party may rescind the agreement. If this agreement is rescinded, the contract for stock trade, etc. attached to Annex 2. shall also be automatically rescinded.

(2) The rescission of this Agreement does not affect a claim for damages.

(3) The effect of the rescission of this Agreement is limited to the present Agreement and the share purchase and sale agreement, etc., and it does not affect the present advisory agreement entered into with Cheongcheon C&C as an adviser.

Article 10 (Compensation for Damages and Aggravated Punishment)

(1) If Gap and Eul violated the terms of this Agreement and inflicted damages on one of the parties to this Agreement, they shall compensate for the entire amount of damages.

(3) If this agreement is rescinded pursuant to the provisions of paragraph (1) of Article 9 of this Agreement, the party which provided the cause of the rescission shall pay to the other party the sum of 300,000,000,000 won in penalty in addition to the damages referred to in the preceding paragraph within ten (10) business days from the date of receipt of the notice of the cancellation of the agreement.

Article 11 (Other Matters)

(5) The Parties may not refuse the implementation of this Agreement and/or a share sale contract for reasons other than those set forth in this Agreement and/or a share sale contract (in the case of a tax investigation, etc. on non-performance).

A. A plan for acquisition limit on Cheongcheon C&C stocks, etc.

4. Selection method of successful bidder:

(1) Where there is a difference between the tender A and B:

(i) A contract for stock sale, etc. in Form 2. A contract for stock sale, etc. in Form 2. is deemed to have been concluded on the date of bidding, where the bid price entered by the transferee is the acquisition price for the claim of KRW 30,000 of the transferor and the claim of KRW 5,345,640,000 of the transferor's amount of claim against Cheongcheon C&C held by the transferor.

2. A share purchase and sale contract;

Article 1 (Purpose)

The purpose of this Agreement is to acquire bonds of an amount equivalent to KRW 30,000,000 (5,345,640,000) of KRW 5,345,640,000 for the transferor’s Cheongcheon-C&C stocks held by the transferor (hereinafter “the object of acquisition”).

Article 2 (Payment for Transfer Price)

The price for acquisition by transfer of an object shall be the bid price presented by the transferee.

Article 3 (Methods, Timing, etc. for Payment of Price for Acquisition by Transfer)

(1) On the following day of this contract, the transferee shall pay to the transferor an amount equivalent to 30% of the purchase price as down payment, and the settlement date shall be entered in the face value of the balance (70% of the purchase price) on January 13, 2007, and the issuer and the guarantor shall deliver to the transferor the Notarial Deed of Promissory Notes as follows:

- In the case that the plaintiffs are assignee: the construction of an office in charge of the settlement of disputes, the non-party 1 of the guarantor (the counter-party):

- In the case that the Defendants are assignee: the issuer-affiliated merger corporation, Defendant 1 of the guarantor

Article 4 (Cancellation of Contracts, Compensation for Damages, and Penalty for Breach of Contract)

(1) Notwithstanding the fact that one of the parties has violated this contract and the other party has notified the other party to correct the violation within a specified period of time on the seven business days, the other party may rescind this contract if the violation has not been corrected.

(2) In the event that an agreement entered into on 13 December 2006 is rescinded, this agreement shall also be automatically rescinded.

(3) If the assignee or transferor, in violation of the terms of this Agreement, has inflicted damage on one of the parties to this Agreement, he shall compensate the entire amount of the damage.

(4) If the contract is terminated due to a cause attributable to either of the parties, the party providing the cause for the rescission shall pay to the other party the amount equal to the above acquisition in addition to the compensation under the preceding paragraph within ten (10) business days from the date of receipt of the notification of the rescission of the contract.

C. Accordingly, on December 13, 2006, the Plaintiffs and the Defendants prepared and submitted a tender stating their intent to purchase all stocks and bonds held by the other party, and legal advisers opened and disclosed them at the presence of the Plaintiffs and the Defendants. The Plaintiffs entered KRW 5.1 billion in each bid, and the Defendants entered more than KRW 5.8 billion in each bid, and eventually, the Defendants were the assignee of stocks and bonds under the instant agreement and the said share purchase contract (hereinafter “instant share purchase contract”). The Plaintiffs were the transferor, respectively.

D. However, on December 14, 2006, the Defendants, who became the assignee, did not deliver a notarial deed of down payment and promissory note payment, the down payment date, and on December 15, 2006, Defendant 1 notified the Plaintiffs of the fact that the creditors of the amount of KRW 5.34,564 million against Cheongcheon C&C were a third party, not the Plaintiffs, of the fact that there was an error in the part on the important premise of the instant agreement, and that the acquisition by transfer cannot be paid on the ground that there was an error in the part on the important premise of the instant agreement

E. On December 15, 2006, the Western Law Firm representing the plaintiffs sent a notice to the defendants demanding the performance of the obligation to pay the price, and notified the above obligation to pay the price within seven business days from the date of arrival of the above notice that the agreement of this case and the contract for sales of stocks was rescinded without any separate notice.

F. On December 22, 2006, the Defendants sent a notice to the Plaintiffs on December 22, 2006, as the response to the above cancellation notice, that even if the Plaintiffs delivered the down payment and promissory note, it is impossible to give notice of transfer by the fixed date, because it is obvious that it is a violation of Article 7 of the Agreement, and thus, the agreement in this case is cancelled.

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 3, 5, Eul's 1 through 3, and 5 (including paper numbers), non-party 8's testimony and pleading as a whole.

2. Determination on this safety defense

A. The defendants' assertion

1) On August 8, 2007, Defendant 1: (a) ordered the non-party 1 (the non-party 1) to issue new shares to four directors, including non-party 8, non-party 2, directors, and non-party 9, appointed by himself in violation of the instant joint management agreement; (b) around September 20, 207, the non-party 1 issued new shares to 37 directors, including non-N&A partnership; and (c) on October 5, 2007, the non-party 4 and non-party 5 recommended by the non-party 11, the non-party 12, the non-party 13, the non-party 14, and the non-party 15, the non-party 4, and the non-party 5, the non-party 4, and the non-party 5, thereby causing damage to the existing shareholders of the Seoul District Prosecutors' Office (the non-party 1, the non-party 191).

2) At the time of the above complaint, Defendant 1 appointed two U&W as the complainant, and the law firm two U&W prepared a complaint on behalf of Defendant 1 on behalf of the defendant 1 and received it to the Seoul Central District Prosecutors’ Office.

3) However, the Plaintiffs delegated the instant lawsuit agency to a law firm 2-B, thereby filing the instant lawsuit and conducting litigation on behalf of the Plaintiffs. The Plaintiffs’ act of litigation by a law firm 2-B, who represented the Plaintiffs, is null and void as it violates the delegation limitation provisions under Article 31(1)1 of the Attorney-at-Law Act.

4) Therefore, the instant lawsuit, which was filed by two P&W on behalf of the Plaintiffs, is unlawful as it was filed by the attorney under the absence of his/her power of attorney.

B. Determination

1) Article 31 subparagraph 1 of the Attorney-at-Law Act prohibits an attorney from performing his/her duties in cases where the other party to a case consented to the acceptance of an award from one of the parties to the case. The reason why an attorney-at-law performs his/her duties in connection with such a case is that the attorney-at-law trusts the attorney-at-law and acts in favor of himself/herself and reflects the trust of one of the parties to the case, and thus, the attorney-at-law cannot perform his/her duties in such cases. Therefore, in order to apply Article 31 subparagraph 1 of the Attorney-at-law Act, there is no relationship between the same subject matter of lawsuit and the civil case, but the case in which the attorney-at-law participated is identical to one of the parties to the case. Whether the case is identical should be determined by whether the substance of the dispute is identical (see Supreme Court Decision 2003Da41791, Nov. 28, 2003).

2) According to the health stand, Eul evidence Nos. 15 through 17, and the fact finding about the Seoul Central District Prosecutor’s Office in the trial of the party, Defendant 1, as his agent around January 201, filed a complaint against Nonparty 1 (in the form of occupational breach of trust, etc.) due to the fact of suspicion as alleged by the Defendants, on the ground that, although Defendant 1 (in the form of Nonparty 1) was appointed as his agent and filed a complaint against Nonparty 1 (in the form of occupational breach of trust as alleged by the Defendants, he did not comply with the request of an investigative agency for an investigation to which the complainant was brought, and accordingly, submitted a letter of withdrawal of the complaint, and on the ground that it constitutes a case in which it is impossible to hear the complainant’s statement, the fact that the dismissal of the complaint was issued against Nonparty 1 (in the form of Nonparty 1) on March 9, 2011. In

In comparison with the facts charged as to the above accusation case and the cause of the claim in this case, the above accusation case is subject to the separate act of Nonparty 1 (the party against whom the agreement in this case and the contract for the sale of stocks, etc. was cancelled, and it cannot be said that the facts constituting the basis of this case and its parties and the dispute were identical.

3) However, in the first instance court, the Defendants asserted that, in violation of the joint management agreement of this case, Nonparty 1 (the person in the second instance) suffered damages by Defendant 1 due to Defendant 1’s occupational breach of trust, such as the facts suspected of the above accusation case, and subsequently, in this case, the Defendants’ act of Nonparty 1 (the person in the second instance: the person in the second instance) was the basis of the dispute, and thereby, examined whether the lawsuit of this case is unlawful.

The aforementioned preliminary counterclaim by the Defendants asserts his claim as a defense for litigation on the condition that the plaintiffs' claim is recognized. Therefore, even if the legal representative was involved in the facts forming the basis of the plaintiff's claim as a defense for offset, the effect of the limitation on duty performance under Article 31 (1) 1 of the Attorney-at-law Act of two U.S.B, a law firm of two U.S., is limited to the litigation for the existence of the opposing claim asserted by Defendant 1 after the offset defense, and it does not affect the previous litigation for the recognition of the existence of the plaintiffs' claim, in particular, the filing of the lawsuit in this case.

4) In addition, it is reasonable to view that the procedural acts conducted by the Defendants on behalf of the Plaintiffs are cured after the Defendants’ offset defense, as well as the procedural acts conducted by the Defendants on behalf of the Defendants, since the Defendants were resigned from the trial by the Plaintiffs’ attorney at the trial, and the law firm representative was newly appointed as the attorney of the Plaintiffs and used all the procedural acts by the law firm two L&W.

5) Therefore, the Defendants’ aforementioned assertion, based on the premise that the effect of the limitation on the duty of two U&W under Article 31 (1) 1 of the Attorney-at-Law Act is not reached against the filing of the instant lawsuit, is without merit.

3. Judgment on the merits

A. Rescission of the instant agreement and occurrence of a duty to pay penalty for breach of contract

According to the facts found in the above facts, the defendants failed to perform all the obligations to acquire claims against Cheongcheon C&C stocks and Cheongcheon D&C according to the agreement of this case, and to deliver a notarial deed of promissory note equivalent to the down payment and the balance amount under the stock transaction contract of this case, although they were obligated to deliver a notarial deed, and the agreement of this case was not corrected despite the plaintiffs' request for correction. Thus, it is reasonable to view that the agreement of this case and the agreement of stock purchase and sale, etc. of this case were cancelled on or around December 22, 2006, which was presumed to have arrived at the date when the plaintiffs' notice of cancellation was received.

Therefore, the Defendants are jointly and severally liable to pay to the Plaintiffs penalty of penalty of KRW 3 billion under Article 10(3) of the Agreement, penalty of KRW 11.6 billion under Article 4(4) of the Agreement on Trade, etc. of Stocks (=5.8 billion x 2) and damages for delay from January 20, 2007, which is ten business days after the date of the above cancellation.

B. Determination of the defendants' assertion

1. The plaintiffs' non-existence of claim

The defendants asserted that the actual parties to the agreement of this case and the share purchase and sale contract of this case are the non-party 1 (the non-party 1) and the defendant 1, and that the plaintiffs and the defendant 2 merely have the right to claim penalty under the agreement of this case and the share purchase and sale contract of this case.

In light of the above facts, the agreement of this case and the share purchase and sale contract of this case were made in order to adjust the partnership between the non-party 1 (the counter-party 1) and the defendant 1. However, since the plaintiffs and the defendants hold shares of Cheongcheon D&C established for the partnership business, the above agreement of this case and the share purchase and sale contract of this case were made in the names of the plaintiffs and the defendants considering that the legal effect of the above share purchase and sale belongs to the plaintiffs and the defendants. ② The non-party 1 (the counter-party 1) is the plaintiffs, and the defendant 1 clearly expressed that the legal party of the agreement of this case and the share purchase and sale contract of this case was the plaintiffs and the defendants by participating in the conclusion of the share purchase and sale contract of this case as the representative of the defendant 2. ③ The plaintiffs and the defendant 2 did not raise any objection against the existence of the above power of representation and its legal effect. Thus, it is reasonable to deem that the agreement of this case and the agreement of this case were reached between the plaintiffs and the defendants.

Therefore, the above assertion by the Defendants cannot be accepted.

(ii) Nullity of cancellation;

A) Non-existence of power of notice of cancellation

The Defendants asserted that, on their behalf of the Plaintiffs, the notice of cancellation of the agreement in this case was null and void, since the Western Law Firm, which notified the Defendants on December 15, 2006, was not delegated by Nonparty 1 (Outboard Person) or the Plaintiffs with the authority to notify the cancellation of the agreement in this case.

The plaintiffs are the parties to the agreement of this case. In full view of the purport of the entire arguments in the statements in Gap evidence Nos. 4 and Eul evidence Nos. 6 through 8, it is reasonable to conclude that, at the time of the agreement of this case, the Seocheon Law Firm was involved in the agreement of this case and bidding process on behalf of the defendants, and Cheongcheon D&C entered into a legal consultation contract with Seocheon Law Firm and Law Firm continental Partnership. Accordingly, according to the above facts of recognition, it is reasonable to conclude that Seocheon Law Firm was authorized by the plaintiffs to act on behalf of the plaintiffs in the agreement of this case and the above power of attorney includes the authority to notify the cancellation thereof. Thus, the above assertion by the defendants is without merit.

B) Prohibition of voluntary rescission pursuant to Article 565(1) of the Civil Act

The Defendants asserted that the instant contract for stock sale, etc. of this case is the contract for the payment of down payment and the remainder payment, and that the contract for the payment of down payment is the contract for down payment which requires the delivery of money and other valuables, and thus, the contract for the down payment is not established unless the remainder or all of the down payment is paid. Thus, the Plaintiffs cannot cancel the instant contract for stock sale, etc. of this case which is the principal contract at will pursuant to Article 565(1) of the Civil Act, and the Plaintiffs’ peremptory notice of performance and notification of cancellation on December 15, 2006 are only effective as the contract for the payment of down payment, and it is not effective as the notification of cancellation for

However, the above assertion by the defendants is premised on the cancellation of the agreement of this case and the share sale contract of this case at will pursuant to Article 565 (1) of the Civil Code. However, the plaintiffs are to cancel the agreement pursuant to Article 544 of the Civil Code or the agreement on the ground of the defendants' non-performance of obligation. Thus, the above argument is without merit without

C) Absence of providing counter-performance

The Defendants asserted that the Plaintiffs did not provide the Plaintiffs with the notification of transfer of Cheongcheon C&C shares and the completion and receipt of the application for change of title, the notification and receipt of the assignment of claims to Cheongcheon C&C, the notification and receipt of the notification, the notification of receipt of the representative director of Cheongcheon C&C, the preparation and receipt of the documents necessary for the registration of the resignation of officers on the Plaintiffs, and the notification of the convocation and receipt of the meetings of the Cheongcheon C&C board. Thus,

On the other hand, the above assertion is premised on the defendants' obligation to pay the price and the plaintiffs' obligation to provide the above performance together. However, in light of the provisions of Article 3 of the Agreement on the Purchase of Stocks, etc. without any condition or restriction, the takeover of the defendants' obligation to pay the price and the plaintiffs' obligation to provide the above performance cannot be deemed to be a simultaneous performance relationship, and there is no other evidence to acknowledge it. Thus, the above assertion by the defendants is without merit.

As to this, the Defendants asserted that even if the Defendants’ obligation to pay in advance is the obligation to pay in advance, there were special circumstances where the Defendants could have acquired management rights of Cheongcheon C&C stocks or E&T from the Plaintiffs. Thus, in light of the principle of equity and good faith, the Plaintiffs, under the principle of equity and good faith, may rescind the agreement in this case and the contract for purchase and sale of stocks only after completion of preparation to transfer the above stocks and management rights at any time to the Defendants, and notification of the purport to that effect to that effect, and giving notice to that effect. However, there is no evidence to acknowledge that the above special circumstances asserted by the Defendants exist objectively. Thus,

3) Absence of cause attributable to the Plaintiff

The Defendants asserted that, as the creditors of the claim against Cheongcheon L&C held by the Plaintiffs are not the Plaintiffs, but the Defendants refused to pay the purchase price, the Defendants asserted that the agreement in this case and the cancellation of the share purchase and sale contract are not attributable to the violation of Article 7 subparagraph 1 of the Agreement, and thus, the Defendants, who did not have any cause attributable to the violation of Article 7 subparagraph 1 of the Agreement, are not obligated to pay the penalty.

Then, according to the evidence Nos. 4-1 and 2, it is recognized that 5 billion won was remitted to Cheongcheon C&C on December 21, 2005. However, if the evidence Nos. 6, 9, 11-1, 13-2, 4-1, and 2 can be acknowledged by adding the whole purport of pleadings to the statement Nos. 6, 1, 500,000,000,000,000,000 won was transferred to 1,000,000,000,000,000 won was transferred to 5,000,000,000,000 won was transferred to 5,000,000,000 won was delivered to 1,000,0000,000 won was delivered to 5,000,0000 won was delivered to 1,50,000,000 won.

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

4) Cancellation of the agreement of this case and the agreement of stock sale, etc.

The defendants asserted that, around December 2006, the non-party 1 (the non-party 1) had no bid in accordance with the agreement of this case against the defendant 1, and suggested that the non-party 1 had a full force in the normalization and sale of the management of the non-party 1 and the traffic, and that the defendant 1 had agreed that the bid was not made in accordance with the agreement of this case by oral acceptance of the proposal of this case. Thus, the agreement of this case and the agreement of the purchase and sale of the shares of this case attached thereto was cancelled by the agreement of the end of December 2006.

According to the evidence Nos. 7 and 8 of this case, the plaintiffs sent to the defendants a content-certified mail on December 28, 2006, after the notice of cancellation of this case's agreement, to the effect that the defendants' non-performance of this case's agreement was attributable to the defendants. On August 31, 2007, the defendants asserted that the defendants failed to comply with the agreement of this case and urged the performance of this case and failed to comply with it, and notified the defendants to take legal measures. ② According to the evidence No. 9 of this case, the non-party No. 1 (the non-party No. 1 (the non-party No. 1) sent to the defendant No. 1 of May 2, 2008 a notice stating that it will take legal procedures on the ground that the non-party No. 1 (the non-party No. 1) did not pay the penalty and damages claims, and there is no reason to acknowledge the defendants' testimony No. 13 and No. 14 and the non-party No. 4 and the non-party No. 16's. 16).

The Defendants asserted that, even if there was no explicit agreement on cancellation, it was difficult for the Plaintiffs to give notice of cancellation, and that there was no provision of performance. Nonparty 1 and Defendant 1 made a verbal agreement with the third party to purchase Cheongcheon C&C stocks and made efforts to sell the said stocks, and Nonparty 1 (the Nonparty 1: the Nonparty 3) took part in the management of this case on January 26, 2007 with the consent of the resolution of reduction of capital at the temporary shareholders’ meeting of this non-party 1 (the Nonparty 4:00). The Defendants did not leave the lawsuit of this case from May 2, 2008 to April 7, 201, and thus, the agreement of this case and the agreement of purchase and sale of stocks of this case were not explicitly cancelled, and it is difficult to acknowledge that the agreement of this case and the agreement of purchase and sale of stocks of this case had been cancelled after the lapse of their respective obligation to sell and sell the stocks of this case. However, it is not necessary to acknowledge that the agreement of this case and the agreement of the Defendants 1000.

5) Exclusion from the application of Article 10 of the instant agreement

The defendants asserted that Article 3 (1) of the Agreement of this case provides for the obligation to acquire stocks and claims of Cheongcheon C&C, and that the non-party 1 (the non-party 1) and the defendant 1 fulfilled the above obligation by entering into the stock transaction contract of this case on December 13, 2006, the above obligation is not applicable to the penalty provision of Article 10 of the Agreement, and the defendants merely failed to perform the obligation stipulated in the contract of this case. Thus, they asserted that the above obligation to pay penalty for breach of contract stipulated in Article 4 of the Agreement of this case is limited to the obligation to pay penalty for breach of contract of this case.

On the other hand, the agreement of this case aims to liquidate between the plaintiffs and the defendants as to the governance structure of the BB and Eth Pacific, and its major management cooperation obligation is for the BB and Eth Pacific, and its purpose and contents are different from the agreement of this case for the transfer of ownership of stocks and bonds, so it is reasonable to deem that the defendants' act is not only the contract of the instant stocks, etc. but also the contract of the instant stocks, etc. but also the contract of the instant case for the transfer of ownership of the stocks and bonds. However, it is reasonable to deem that the defendants' act is liable to pay penalty for breach of contract under Article 3 of the agreement of this case. However, the performance of the obligation to acquire bonds of BB and C&C is not completed only by the conclusion of the agreement of the instant stock sale contract, etc., but also must be paid for the purchase price. Thus, the defendants' failure to pay the purchase price constitutes not only the stock sale contract of this case but also the non-performance of the agreement of this case.

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

6) Nullity of a penalty agreement

A) The Defendants asserted that the contract of this case and the contract of the purchase and sale of stocks requires the delivery of money and other valuables, as well as the contract of down payment which requires the delivery of money and other valuables, the contract does not take effect as a contract of penalty for penalty for penalty for penalty for penalty, and that the contract of penalty for penalty for penalty for violation of the contract of this case does not take effect. The Defendants asserted that the contract of penalty for penalty for violation of the contract of this case and the contract of purchase and sale of stocks did not take effect since there was no number of penalty for penalty for violation of the contract

However, the penalty agreement does not require the delivery of money or other valuables, but is a shot contract which takes effect only by the agreement. Thus, the above assertion by the defendants is without merit.

B) Violation of public order and good morals

The Defendants asserted that the part of the penalty amount exceeding KRW 290 million, which exceeds KRW 580,000,000,000,000,000 for the acquisition of the contract of the purchase and sale of the shares of this case, is excessively unreasonable compared to the interests of the creditors resulting from the enforcement of the obligation, and thus, is invalid against the public order and good morals.

In light of the following: ① (a) in a situation in which it is impossible to make any decision due to a conflict of opinions between partners despite the business difficulties at the time, there was a need to adjust the partnership promptly and clearly; and (b) in light of the fact that the non-party 1 (the non-party 1) at the time and the defendant 1 were in serious danger and need to secure the implementation of the agreement of this case and the contract of stock purchase and sale, etc. of this case, it is difficult to view that the non-party 1 (the non-party 1) and the non-party 1 were in need of the means to secure the implementation of the agreement of this case and the contract of stock purchase and sale, etc. of this case, the non-party 1 (the non-party 1) who

7) Reduction of estimated amount of damages

The Defendants asserted that the penalty for breach of contract under the agreement of this case and the contract for stock purchase and sale should be deemed as the liquidated damages. However, in light of the circumstances that the Plaintiffs still hold in possession of Cheongcheon D&C shares and claims against Cheongcheon D&C, the amount should be reduced unfairly because of its excessive amount.

In light of the fact that the purpose of the penalty is to enforce the implementation of the parties, it is difficult to regard the penalty as liquidated damages, and there is no evidence to acknowledge it differently. Thus, the above assertion by the Defendants is without merit.

8) Invalidation

The Defendants asserted that the Plaintiffs’ claim for penalty against breach of contract was invalidated on the grounds that: (a) the Plaintiffs expressed their intent contrary to the above exercise of rights, such as filing a joint representative director with Defendant 1 on April 20, 2007, with the lapse of four years and five months after December 15, 2006; and (b) Defendant 1 or Defendants, as the Defendants, have a legitimate expectation that the Plaintiffs would not exercise the above rights; and (c) the Plaintiffs’ claim for penalty against breach of contract was invalidated.

In light of the above facts, even after December 15, 2006, the plaintiffs notified the defendants that they will take measures to urge the implementation of the agreement of this case and take legal procedures several times, and the agreement of this case is for the liquidation following the termination of a partnership relationship between the non-party 1 (the non-party 1) and the defendant 1, and as long as the agreement of this case was cancelled, the plaintiffs have no choice but to continue the management of this case. In light of the above facts of the defendants' assertion, it is insufficient to recognize that the plaintiffs expressed their intent against the exercise of rights or there was a legitimate expectation that the plaintiffs would not exercise their rights, and there is no other assertion or proof as to the circumstances that can be recognized otherwise.

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

C. Determination as to the defendants' defense of offset

1) Set-off against damage liability due to nonperformance

A) The defendants' assertion

(1) According to Article 3 of the instant joint management agreement, although the decision-making process related to the management of the company is carried out with Defendant 1’s consent, and the share ratio of the company is equally maintained, Nonparty 1 (the non-party in the counter-party in the counter-party in the counter-party in the counter-party in the counter-party in the counter-party in the counter-party in the counter-party in the share ratio without Defendant 1’s consent, the non-party 1 (the non-party in the counter-party in the counter-party in the counter-party in the counter-party in the counter-party in the counter-party in the counter-party in the counter-party in the counter-party in the counter-party in the counter-party in the counter-party in the non-

(2) According to Article 5 of the instant joint management agreement, even though Defendant 1 and Nonparty 1 (the Nonparty 1: the Nonparty 1) were obligated to distribute the investment amount recovered through the sale of e-mail, etc. at an equal ratio, Nonparty 1 (the Nonparty 1: the Nonparty 1) violated the said obligation by taking the account of the difference between the transfer price of management and the transfer price.

(3) The amount of damages suffered by Defendant 1 due to Nonparty 1’s breach of the above obligations by Nonparty 1 (SOB) is the amount equivalent to 1/2 of the management premium that Nonparty 1 (SOB) acquired by Nonparty 1 (SO) in succession to an investment company with no management right (hereinafter “unlimited investment”) and a non-T&A partnership. Thus, Nonparty 1 (SOB) is liable to compensate Defendant 1 for the above damages incurred by Defendant 1 due to the said nonperformance.

(4) The plaintiffs merely lend the names to the non-party 1 (the non-party 1) (the non-party 1). Accordingly, the defendant 1 offsets the defendant's claim against the non-party 1 (the counter-party 1) by the above damage claim against the non-party 1.

B) Determination

(1) When disputes arise between Defendant 1 and Nonparty 1 (OB) due to the joint management of Cheongcheon D&C, the agreement in this case was reached for the purpose of arranging the partnership. According to the statement No. 1-1 of evidence A, the purpose of the agreement in this case is to clarify the relationship between the plaintiffs and the defendants with respect to the governance structure of Cheongcheon D&C and Cheongcheon D&C jointly controlled by the plaintiffs and the defendants in direct and indirect manner, and according to the above facts of recognition, the agreement in this case is deemed to be an agreement on the termination of the partnership relationship between the plaintiffs 1 and the non-party 1 (OBS) and the method of liquidation on the premise of the invalidation of the joint management agreement in this case. Therefore, the agreement in this case is null and void with the agreement in this case without any reason, on the premise that the joint management agreement in this case still remains valid.

(2) Even if the joint management agreement of this case is valid, it is difficult to deem that Non-party 1 (the counter-party 1 (the counter-party 1) managed the shares issued by the non-party 1 (the counter-party 1) because the non-party 1 (the counter-party 1) transferred the right of management of the non-party 1 (the counter-party 1) with the right of management of the non-party 1 (the counter-party 1).

(3) Therefore, Defendant 1’s claim for damages against the Plaintiffs or Nonparty 1 (the Nonparty 1) cannot be deemed to exist, and the Defendants’ claim for offset against the damages is without merit.

2) Set-off against a penalty claim

The Defendants, on December 14, 2006, notified the cancellation of the instant agreement on December 22, 2006, inasmuch as Defendant 1 demanded correction of violation of the statement and guarantee under Article 7 subparag. 1 of the instant agreement to the Plaintiffs or Nonparty 1 (the Nonparty Nonparty 1) on December 14, 2006, the Plaintiffs failed to comply with it, and thus, notified the cancellation of the instant agreement. As such, the instant agreement was cancelled due to the reasons attributable to the Plaintiffs, and the Defendants asserted that the Defendants have a claim of KRW 3 billion against the Plaintiffs, and accordingly, the offset is based on the equal

On the other hand, there is no evidence to prove that the plaintiffs violated the obligation to make statements and guarantee under Article 7 subparagraph 1 of the instant agreement. Thus, the above offset defense based on the premise that the plaintiffs violated this obligation is without merit.

4. Conclusion

Therefore, the defendants are jointly and severally liable to pay to the plaintiffs 14.6 billion won and the delivery date of a copy of the complaint of this case from January 20, 2007 to July 4, 201, and Defendant 2 to June 10, 201, respectively, 5% per annum under each Civil Act, and 20% per annum under each Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Thus, the plaintiffs' claims against the defendants are justified, and the judgment of the court of first instance is just, and it is so decided as per Disposition by the assent.

Judges Sung Sung-song (Presiding Judge)