(영문) 대구고등법원 2012.12.12.선고 2012나4764 판결

1. Of the judgment of the court of first instance, the part against the Defendants in excess of the following order to pay is revoked, and the Plaintiff’s claim against the Defendants corresponding to the revoked part is dismissed in entirety.

The Defendants shall pay to each Plaintiff KRW 60 million a sum of 5% per annum from March 23, 2012 to December 12, 2012, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's appeal and the defendants' remaining appeals are all dismissed.

3. Of the total litigation costs, 70% is borne by the Plaintiff, and the remainder is borne by the Defendants, respectively.

Purport of claim and appeal

1. Purport of claim

The defendants jointly and severally pay to the plaintiff 20 million won and the amount calculated by the ratio of 20% per annum from the day following the day of final service of the copy of the complaint of this case to the day of full payment.

2. Purport of appeal

A. The plaintiff

Of the judgment of the first instance, the part against the plaintiff falling under the part ordering payment is revoked. The defendants jointly and severally pay to the plaintiff 10 million won and the amount calculated by the ratio of 20% per annum from the day following the day of final transmission of the copy of the complaint of this case to the day of full payment.

B. The Defendants

The part of the judgment of the court of first instance against the defendants shall be revoked, and all of the plaintiff's claims corresponding to the revoked part shall be dismissed.

Reasons

1. Basic facts

A. The Defendants are shareholders (Defendant B and C own 12,600 shares, Defendant D own 4,800 shares, respectively) who own the entire shares of E Co., Ltd. (hereinafter referred to as “E”) (hereinafter referred to as “E”) holding the land of 00:00 00 00 00 00 00 00 00 and 4,800 02 4,000 0 12,000 00 10,000 12,000 12,000 12,000 1,000 1,000 1,000 , and who are in the position of E’s representative director (Defendant B), in-house director (Defendant C, and auditor (Defendant D).

B. As to the instant stocks, etc., the Plaintiff and the Defendants entered into a two-time agreement with the purchase price of KRW 2.2 billion (the intermediate payment of KRW 1.2 billion shall be paid in the manner of acquiring KRW 1.2 billion as is the secured debt amount of KRW 1.2 billion, which was established on the instant real estate owned by E, such as the National Agricultural Cooperative Federation, the debtor, and the maximum debt amount of KRW 1.44 billion, which was established on the instant real estate. As such, the Plaintiff entered into a contract with the Defendants on July 5, 201, including the actual purchase price of stocks, excluding KRW 1.2 billion remaining after E’s debt, and the actual purchase price of stocks was KRW 1.1 billion.1 billion in the contract (hereinafter “the first contract”) signed on September 30, 201 (hereinafter “the second contract”) and the details of the instant contract were the remainder of KRW 2.8 billion as follows.

Real Estate Sale and Stock Transfer Agreement

Real estate sale and purchase, stock transfer and sale contract, and stock transfer and sale: Defendants’ purchase and stock transferee: Plaintiff 1. Real estate and stock exchange corporation E to be sold and sold: The real estate and stock exchange amount: 2.2 billion won;

All

The method of payment for each purchase price ① KRW 200,000,000,000,000 (00 points in the NAC) loan for the establishment of collateral security (00,000,000 won) loan for the real estate in this case, at the same time as the remaining payment, is assumed by the Plaintiff. ③ The remaining amount of KRW 80,00,000 shall be paid up to October 31, 201. The Plaintiff shall pay the Defendants the full payment of the purchase price and take over the hotel, the shares of this case and E rights at the same time. 4. The Defendants’ loan amounting to KRW 70,00,00 (Defendant B and C: 294,000,000,000,000 won, and Defendant D: 112,000,000,0000 won, and if the Plaintiff paid the remainder to the Defendants, the Defendants shall not be deemed to have any assets and authority under the agreement between the Plaintiff and the Defendants, and the Plaintiff’s 1.

C. At the time of the first contract, the Plaintiff agreed to pay the remainder of the instant real estate after obtaining additional loans as collateral, and included the special terms and conditions of the sales contract that “the Defendant shall cooperate with the representative director at the time of the request of the Plaintiff, such as the change of the representative director at the time of loan,” but eventually failed to pay the remainder to the Defendants on the ground that the Plaintiff’s remainder of the loan was unpaid. The Defendant rescinded the first contract on the ground that the Plaintiff’s remainder of the loan was unpaid, but the amount of KRW 100 million paid as the down payment was not confiscated, but was raised as KRW 20 million including the down payment paid as the down payment, and the said special terms and conditions were deleted, and the Plaintiff concluded the instant contract by paying the remainder of the down payment to the Defendants on October 4, 2011.

D. However, the Plaintiff failed to pay the remainder of KRW 800 million until October 31, 201, which is the remaining payment date. On November 11, 201, the Defendants notified the Plaintiff that “if the remainder is not paid by November 30, 201, the contract of this case shall be rescinded.” On November 23, 201 and November 28, 2011, the Plaintiff demanded each of the Defendants to “the additional loans are delayed due to the reasons for the terms and conditions of the instant contract, including the financial statements and the acquisition of shares at financial institutions, and the remaining payment date until the loan is extended,” and the Defendants again notified the Plaintiff of the intent to cancel the contract of this case by no later than December 31, 201, and the Plaintiff still failed to pay the remainder to the Plaintiff by no later than 15 billion (hereinafter “the transfer date notice”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 8, Eul evidence 1 to 5

(2) Each entry and the purport of the whole pleading;

2. The parties' assertion

A. The plaintiff

(1) The Plaintiff received additional loans as collateral and decided to pay the balance of the instant contract, and the Defendants, including E’ representative director, etc. also agreed to cooperate in the additional loan process. Since the Defendants failed to cooperate in the entry book, etc. and failed to pay the balance during the actual loan process, the Defendants are not liable for delay in performing the obligation to pay the remainder to the Plaintiff. In addition, the Defendants issued the notice of termination of the instant contract without performing the Plaintiff’s obligation to pay the ownership transfer registration procedure for the instant real estate in relation to the simultaneous performance of the Plaintiff’s obligation to pay the remainder, and without performing the obligation to pay the ownership transfer registration procedure for the instant real estate and the transfer transfer registration for the instant stocks in relation to the instant stocks, and without providing the performance. Accordingly, the Defendants did not have any validity

Rather, the instant contract was concluded by the Defendants to sell the instant shares to F, a third party, and thus, it was impossible for F to implement the instant contract. Therefore, the Plaintiff cancelled the instant contract through the delivery of a copy of the complaint, and sought the return of the down payment KRW 200 million as the restitution.

(2) Even if the instant contract was rescinded in accordance with the notice of termination of the contract by the Defendants, the agreement for penalty under Article 8 of the instant contract (hereinafter “instant agreement for penalty”) constitutes liquidated damages, and the actual purchase price of the instant contract is merely KRW 300 million at the face value of the instant shares, and thus, the estimated amount of KRW 200 million should be reduced unfairly.

B. The Defendants

(1) The Defendants did not have agreed to cooperate with the Plaintiff’s additional loan. The Defendants received the remainder as stipulated in Article 6 of the instant contract, and only performed the transfer procedure for the instant shares to the Plaintiff or the person designated by the Plaintiff, and do not assume any obligation to implement the transfer procedure for the instant shares at the same time as the Plaintiff’s obligation to pay the remainder. Thus, the instant contract was lawfully rescinded following the Defendants’ delay in payment of the Plaintiff’s obligation to pay the remainder.

(2) The instant penalty agreement constitutes a penalty for breach of contract in light of the details of the agreement, etc., and considering that the actual subject matter of the instant contract is the whole value of E, including the instant real property, the penalty for breach of contract amounting to KRW 200 million is not an amount to be contrary to the public order and good morals, and thus, the entire amount should be attributed to the Defendant. Even if the instant contract is deemed as an estimate for the amount of compensation for breach of contract, the amount of KRW 200,000 should not be reduced because

3. Determination

A. Grounds for cancellation of the instant contract (i.e., cancellation notice by the Defendants)

The plaintiff asserts that the contract of this case was omitted due to the sale of shares to a third party by the defendants on the premise that the notice of termination of contract of this case was not effective, and the defendants asserted that the contract of this case was only made due to the plaintiff's default of the duty to pay the remainder, and therefore, it is first examined whether the contract of this case was cancelled in accordance with the notice of termination of contract of this case.

In addition, the contract of this case was terminated on November 31, 201 and November 28, 201. The plaintiff did not pay the remainder amount of 800 million won until October 31, 201, which is the remainder payment date of the contract of this case. The defendants notified the plaintiff on November 11, 201 that "if the remainder amount is not paid to the plaintiff until November 30, 201, the contract of this case shall be terminated" and the plaintiff did not request the defendants to cancel the contract of this case on November 23, 201 and November 28, 201 that "the remaining payment date is extended by the date of payment for the reasons that the additional payment was delayed by the date of the contract of this case, which is only the financial statements of E, the deficit of the financial institution, and the stock transfer contract of this case." The plaintiff did not request the defendants to cancel the contract of this case for the reasons that the plaintiff did not pay the remainder to the defendants on December 13, 2011."

As to this, the Plaintiff asserted to the effect that there was no delay liability for the Plaintiff since it was impossible for the Defendants to obtain additional loans due to the Defendants’ non- cooperation. Therefore, this part of the Plaintiff’s testimony of witness G of the first instance court, which corresponds thereto, is difficult to believe due to the Plaintiff’s statement in light of the Plaintiff’s protocol No. 1 and No. 1, and it is insufficient to recognize that the above quoted evidence alone has the above obligation to cooperate with the Defendants, and there is no other evidence to acknowledge it. Rather, in the first contract, the Defendants included the contents that “the Defendants must cooperate with the Plaintiff at the request of the Plaintiff, such as the change of the representative director, etc. at the time of the loan,” but it included the contents that “the Defendants shall cooperate with the Plaintiff at the time of the request of the Plaintiff, such as the change of the representative director, etc. at the time of the loan,” since the Plaintiff’s second contract was cancelled on the grounds of the remainder and concluded the instant contract, which is the second contract. Therefore, this part of the Plaintiff’s assertion cannot be accepted without examining.

In addition, the Plaintiff also asserts that the Plaintiff’s obligation to pay the remainder and the Defendants’ obligation to pay the transfer of ownership, etc. on the instant real estate and the obligation to pay the transfer of ownership on the instant stocks are in simultaneous performance relationship. However, insofar as the Defendants did not perform or provide performance, the notice of termination of the instant contract is unlawful.

First, in relation to the duty to implement the procedure for the registration of ownership transfer of real estate, the plaintiff himself claims that the object of this case is only the stocks of this case and is not the real estate of this case, and since the contract of this case does not intend to modify the ownership of the real estate of this case owned by E, the plaintiff's assertion about the duty to implement the procedure for the registration of ownership transfer cannot be accepted without further review.

Next, as seen earlier, Article 6 of the instant contract provides that “if the Plaintiff accepts obligations after paying the remainder to the Defendants, the Defendants shall transfer all E’s assets and authority, and the Plaintiff’s shareholder B, C, and D shall execute the transfer of ownership to the designated entity.” According to the above quoted evidence, the Defendants are insufficient to determine that the Defendants are liable for simultaneous performance of the obligations under the instant contract, including the Plaintiff’s remaining payment and transfer of ownership to the designated entity after the completion of the transfer of ownership, and that the Defendants are not aware of the remaining payment period of 10 months. The Defendants’ remaining payment period and 10 months after the Plaintiff’s request for the extension of the remaining payment period are 10 months. The Defendants’ remaining payment period and 10 months after the date of the instant contract were 10 months prior to the conclusion of the transfer of ownership agreement. However, the Defendants’ remaining payment period and 10 days after the Plaintiff’s request for the extension of the remaining payment period are 10 months prior to the conclusion of the contract. The Plaintiff’s remaining payment period may not be determined by the parties.

Therefore, the plaintiff's assertion of rescission of contract based on the premise that the defendants' notification of rescission of contract of this case is not effective is without merit.

B. Determination as to the assertion of reduction of penalty of this case

(1) The nature of the penalty of this case (=presumed damages)

Ordinary penalty shall be presumed as liquidated damages under Article 398(4) of the Civil Act, but special circumstances should be asserted and proved in order to interpret penalty as penalty for breach of contract (see, e.g., Supreme Court Decisions 2000Da35771, Dec. 8, 2000; 200Da35771, Dec. 8, 2000).

The Defendants asserted that the instant penalty agreement constitutes a penalty for breach of contract. As such, the instant contract provides, “The Defendant compensates twice the down payment in violation of the contract; the Plaintiff becomes null and void a concurrent contract with the loss of the contract deposit; and the Plaintiff does not make a claim for the refund of the down payment in any case.” The instant contract is concluded again after the cancellation of the first contract on July 5, 201 for the reasons for the remainder payment of the Plaintiff’s remainder, as seen earlier. However, the first contract provides that “the Plaintiff shall not make a claim for the refund of the down payment in any case.” However, the first contract provides that “The Plaintiff shall not make a claim for the refund of the down payment in any case.” In addition, the Defendants did not confiscate the first contract, and the instant contract does not include any indirect compulsory performance or damages in addition to the instant contract,” and the Defendant’s assertion that the instant penalty for breach of contract is insufficient to accept the aforementioned part of the evidence, and thus, is not acceptable.

Therefore, it is reasonable to view the agreement of penalty in this case as liquidated damages.

(2) Whether the estimated amount of damages has been reduced or not

In general, in cases where the estimated amount of damages is unfairly excessive, the court may reduce the estimated amount of damages, and the "unfairly excessive cases" refers to cases where it is recognized that the payment of the estimated amount would result in the loss of fairness by imposing unfair pressure on the debtor in light of the general social norms, taking into account all the circumstances such as the creditor and debtor's status, the name and content of the contract, the motive for the liquidated amount of damages, the ratio of estimated amount of damages to the amount of debts, the estimated amount of damages, the estimated amount of damages, and the transaction practices at the time, etc. (see Supreme Court Decision 97Da15371 delivered on July 25, 197, etc.).

In light of the following circumstances, i.e., the instant contract: (a) stated the sales price as KRW 2.2 billion; (b) however, the intermediate payment of KRW 1.2 billion remains intact without permission from E; and (c) the actual sales price of the instant shares among the Defendants was KRW 1.2 billion, excluding the said KRW 1.2 billion; (b) the initial contract deposit was KRW 100 million, but the Plaintiff did not perform its obligation to pay the remainder of the instant contract after the termination of the first contract, and the Plaintiff did not confiscate the down payment of KRW 100 million, instead of forfeiting the said KRW 2.2 billion; (c) the Defendants, after cancelling the instant contract, sold the instant shares to a third party at a rate of KRW 2.15 billion, KRW 25 billion, KRW 2000,000,000, KRW 2500,000, KRW 2500,000, KRW 25,000,000, KRW 25 billion,000.

C. Sub-determination

Therefore, the Defendants are obligated to pay to each of the Plaintiff 60 million won (20 million won - 140 million won) and damages for delay calculated by the rate of 20% per annum as stipulated in the Civil Act from March 23, 2012, which is the day following the last delivery date of the copy of the complaint of this case sought by the Plaintiff, to the Plaintiff, until December 12, 2012, the date when the Defendants dispute over the existence and scope of the said obligation is declared in the first instance trial, and the damages for delay calculated by the rate of 5% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the next day until the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and the remaining claims are dismissed as without merit. Among the judgment of the court of first instance, the part against the defendants ordering payment to the defendants in excess of the above recognition scope is unfair. Thus, it is revoked and the plaintiff's claim corresponding to the revoked part is dismissed. The remaining appeal by the defendants and the plaintiff's appeal are dismissed as all are without merit. It is so decided as per Disposition.