Plaintiff 1 and one other (Law Firm Jeong, Attorney Na-young, Counsel for the plaintiff-appellant)

Defendant 1 and two others (Law Firm Dongin, Attorneys Lee Dong-soo, Counsel for the defendant-appellant)

September 22, 2006

Busan District Court Decision 2003Gahap15559 Delivered on December 17, 2004

1. Of the judgment of the court of first instance, the part against the plaintiffs falling under the following order of payment shall be revoked.

The Defendants jointly and severally pay to the Plaintiffs the amount of KRW 861,00,000 and KRW 396,000,000,000 per annum from July 3, 2002; KRW 110,000 from August 9, 2002; KRW 35,000,000 per annum from July 25, 2003 to November 3, 2006; and KRW 5% per annum from the next day to the date of full payment.

2. The plaintiffs' remaining appeals are dismissed.

3. All costs of the lawsuit are borne by the Defendants.

4. The part on which money is paid under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendants jointly and severally pay to the plaintiffs 861,00,000 won and 396,000,000 won with the amount of 110,000,000 won from July 3, 2002; from August 9, 2002; from 35,000,000 won with the amount of 5% per annum from the day following the day of service of a copy of the complaint of this case until the day of rendering the judgment of the first instance; and from the day of full payment to the day of full payment, 20% per annum from the next day to the day of service of a copy of the complaint of this case.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of arguments as to the fact inquiry of Gap evidence 1-1, 2, Gap evidence 2, 3, Gap evidence 4-4, Gap evidence 5 (Evidence 7), Gap evidence 6-1 through 5, and the court of first instance's Seodaemun branch office, and the purport of the whole arguments.

A. The non-party 2 corporation (hereinafter "non-party 2 corporation") is a co-contractor of the Korea Ginseng Corporation that only entrusts the Korea Ginseng Corporation with the sale of red ginseng beverage products, such as its articles of incorporation, and does not perform any other business activities. Defendant 1 is a major shareholder of the non-party 2 company, Defendant 2, and Defendant 3 is a co-representative of the non-party 2 company.

B. On September 22, 200, Nonparty 2 entered into a consignment sale contract with the Korea Ginseng Corporation to purchase and sell the red ginseng beverage products of its articles of incorporation until September 22, 2001 (hereinafter “entrusted sale contract”). After that, Nonparty 2 and the Korea Ginseng Corporation extended the period of the consignment sale contract on October 9, 2001 until December 31, 2001; however, if Nonparty 2 did not make a written request for the refusal of renewal two months before the expiration date of the contract period, the said contract period is extended by one year from the date following the expiration date, and the renewal contract may not be concluded if the annual business performance of Nonparty 2 was less than 50% of the expected annual expected acceptance amount, barring any special reason, in light of Nonparty 2’s initial scheduled acquisition amount in 2002, KRW 3500,000,000,000,000,000 won, the sales performance of Nonparty 21,2502.

C. Meanwhile, the plaintiffs entered into a contract with the defendants to take over the non-party 2 company around the middle of the non-party 2's business in 2002, and paid 50 million won as the down payment to the defendants on May 15, 2002. On July 2, 2002, the defendants and the defendants entered into a comprehensive contract for taking over the management right for taking over the management right for the non-party 2 company (hereinafter "the contract for taking over the management right of this case") and attached thereto on the same day, and "the consignment sales contract is up to December 31, 2002." With respect to the extension of the contract period, if the Korea Ginseng Corporation unilaterally terminates the consignment sales contract due to reasons (excluding the termination of the contract due to sale) not attributable to the plaintiffs, the original transfer and acquisition contract of this case must become null and void, and paid the remainder of the contract amount to the non-party 200 million won to the defendants on July 3, 2002.

D. However, on January 9, 2003, the Korea Ginseng Corporation notified the Plaintiffs of the consignment sale contract as of December 31, 2002, and did not enter into a consignment sale contract and suspended the supply of red beverage products to Nonparty 2 from the beginning of 2003.

2. The parties' assertion

A. The plaintiffs' assertion

The reason why the Plaintiffs did not take over Nonparty 2 and the consignment sales contract was terminated only for six months and the extension contract was not concluded, is that the Korea Ginseng Corporation planned to convert the method of sale to the early 2002 patrolmen, and the internal policy that does not conclude an extension contract with Nonparty 2 was already established and the Plaintiffs did not properly supply the products requested by the Plaintiffs. As such, the transfer contract of this case is null and void in accordance with the instant agreement, as it was due to reasons not attributable to the Plaintiffs.

Even if not, prior to the conclusion of the transfer and acquisition contract of this case, the Defendants already received verbal notification from the Korea Ginseng Corporation that the consignment contract would be terminated in 2002 and that the extension contract would no longer be concluded, and entered into the transfer and acquisition contract of this case without notifying the Plaintiffs. This is a contract due to the Defendants’ fraud. Thus, the Plaintiffs are revoked by the delivery of the preparatory document dated January 2, 2004. Accordingly, the Defendants are obligated to return the transfer and acquisition price of this case to their original state.

B. The defendants' assertion

The reason why the Korea Ginseng Corporation did not extend the consignment contract with Nonparty 2, but suspended the supply of the red beverage products after the Plaintiffs’ management of Nonparty 2 was due to Nonparty 2’s business performance in 2002, which was less than 50% of the annual expected amount of acceptance. In the event that the Korea Ginseng Corporation did not extend the consignment contract with Nonparty 2 on the ground of a sales depression, this is attributable to the Plaintiffs, and the instant transfer contract is still valid under the instant agreement, and the Defendants are not obliged to return the transfer price, etc. of this case.

3. Determination

(a) Occurrence of duty of restoration;

(1) Issues

As seen earlier, the key issue of the instant case is whether the Korea Ginseng Corporation’s suspension of the supply of red ginseng beverage products with Nonparty 2 on December 31, 2002 without termination and extension of consignment contract with Nonparty 2 (or whether the Defendants entered into the instant transfer or acquisition contract without notifying the Plaintiffs even with prior knowledge of the aforementioned internal policy of the Korea Ginseng Corporation), or not, (ii) whether Nonparty 2 was due to the low business performance in 2002, and thus, it should be viewed first.

(2) Facts of recognition

살피건대, 갑 제4호증의 1 내지 4, 갑 제8, 9호증, 갑 제11호증의 1 내지 3, 갑 제12호증의 1, 2, 갑 제13호증의 8, 10, 갑 제16호증의 1 내지 7, 갑 제17, 18, 20, 21, 23호증의 각 기재, 제1심 증인 장상호, 당심 증인 강석곤, 박흥순의 각 증언, 당심의 원고 2 본인신문결과 및 당심의 KGC판매 주식회사에 대한 사실조회결과에 변론 전체의 취지를 종합하면, ① 한국인삼공사는 소외 1이 2002. 3. 29. 새로이 사장으로 취임한 이후 영세한 위탁판매업체로 인하여 신뢰가 손상되는 등 한국인삼공사의 발전에 장애가 된다는 이유로 유통망 정비의 일환으로 위탁판매업체를 정리한다는 내부방침을 정하고 그 취임사 등을 통하여 이와 같은 취지를 밝힌 다음, 사장 소외 1 및 그 임직원들이 2002. 4. 초순경 취임인사차 방문한 피고 피고 2를 비롯한 업무차 방문한 한울임삼의 임직원들에게 소외 2 회사와는 2002년도 말까지만 위탁판매계약을 유지하고, 더 이상 연장하지 않을 계획임을 구두로 밝힌 사실, ② 한국인삼공사는 그 당시 소외 2 회사 이외에도 소외 5 주식회사, 소외 6 주식회사, 소외 3 주식회사 및 소외 4 주식회사 등 4개 업체와도 위탁판매계약을 체결하고 있었는데, 위 4개 업체 중 사장인 소외 1에게 위탁판매계약을 유지해 달라는 등의 청탁과 함께 12억 상당의 뇌물을 공여한 소외 3 주식회사와 대기업인 소외 4 주식회사 이외의 2개 업체( 소외 5 주식회사, 소외 6 주식회사, 이하 위 2개 업체를 ‘ 소외 5 등 회사’라고 한다.)에 대하여도 위탁판매계약을 종료하기로 하고 소외 2 회사와 같은 계획임을 미리 알린 사실, ③ 이어 한국인삼공사는 2002. 7. 15. 소외 2 회사 및 소외 5 등 회사에 “한국인삼공사와 체결된 위탁판매계약이 2002. 12. 31.자로 종료된다.”라는 취지의 각 통지를 보낸 사실, ④ 이에 원고들이 피고들을 찾아가 한국인삼공사로부터 위와 같은 통지를 받았을 뿐만 아니라 소외 2 회사의 대리점 등이 그 진위를 묻는 등 항의를 받고 있다고 따지자, 피고들은 2002. 7. 18. “위탁판매계약이 2003년도에 연장되지 않음으로 인하여 전국총판, 지사, 대리점 간에 분쟁이 있을 경우 피고 피고 1이 위탁판매계약의 종료와 상관없이 총판 및 지사 등에 물품을 차질없이 공급할 것을 책임진다.”라는 내용의 각서를 작성하여 원고들에게 교부한 사실, ⑤ 원고들은 2002. 9. 27.경 피고들에게 “연장계약이 안 될 시는 원고들의 귀책사유가 아님을 분명히 한다.”라는 내용의 내용증명 우편을 보낸 사실, ⑥ 그 후 원고들은 2002. 9. 6. 한국인삼공사에 홍삼기 50만 캔, 홍삼키커 100만 캔(매입가 합계 금 4억 3,500만 원 상당)을 공급해 줄 것을 요청하였으나, 한국인삼공사는 2002. 9. 14. 원고들에게 “2002. 12. 31.자로 위탁판매계약이 종료됨은 이미 통지한 바와 같으므로, 제품생산은 계약기간 종료 후 재고 문제를 감안하여 추진할 수밖에 없다. 또 원고들이 요청한 150만 캔은 2억 원 이상의 외상채무를 변제하거나 추가 담보가 선행되어야 한다.”라는 취지의 통지를 한 사실, ⑦ 그 후 원고들은 2002. 12. 3. 한국인삼공사에 다시 홍삼기 30만 캔을 공급해 줄 것을 요청하였으나, 한국인삼공사는 2002. 12. 28. 이를 거절하는 취지의 통지를 한 다음(당시 한국인삼공사에는 완제품이나 공캔 재고가 전혀 없었다.), 2003. 1. 9. 원고들에게 “ 소외 2 회사와의 위탁판매계약은 2002. 7. 15.자 통지한 바와 같이 2003. 12. 31.자로 종료되었다.”라는 취지의 통지를 한 사실, ⑧ 한편 한국인삼공사 사장 소외 1은 2003. 1. 2. 신년사를 통해 다시 한번 위탁판매업체를 정리하고 한국인삼공사의 주도로 방문판매업체를 설립하겠다는 뜻을 밝혔고, 한국인삼공사는 2003년에는 소외 2 회사 및 소외 5 등 회사와는 더 이상 위탁판매계약을 체결하지 아니한 사실, ⑨ 그 후 한국인삼공사는 2003. 9. 18.경 자회사로서 방문판매업체인 KGC판매 주식회사를 설립하여 그 회사를 통하여 시중에 홍삼음료 제품을 공급한 사실을 인정할 수 있고, 이에 반하는 제1심 및 당심 증인 오수영의 각 증언 및 당심의 2005. 6. 22.자 한국인삼공사에 대한 사실조회결과는 각 믿지 아니하고, 달리 반증이 없다.

(3) Determination

① According to the above facts, it is reasonable to view that the notice of the termination of the consignment sale contract made by the Korea Ginseng Corporation to Nonparty 2 on July 15, 2002 is written notification to the executives and employees of Defendant 2 and Nonparty 2, which was made orally before that notice, that it would no longer terminate and extend the consignment sale contract as of December 31, 2002. Thus, the consignment sale contract concluded between the Korea Ginseng Corporation and Nonparty 2 was terminated as of December 31, 2002 by the above notice of the Korea Ginseng Corporation. Accordingly, the transfer and acquisition contract of this case was concluded by the Korea Ginseng Corporation unilaterally terminated the consignment sale contract within 13 days after that contract was concluded, and in such a case, null and void pursuant to the agreement of this case as to the effect that it would be null and void.

The defendants' notification of July 15, 200 to the above 202 Korea Ginseng Corporation was merely 13.2% of the annual estimated sales amount of non-party 2 company's 2002 company's 200 billion won, which was issued by the 200 company's 202 company's 200 billion won, and did not give a warning that the annual estimated sales amount of non-party 2 company's 50% of the estimated sales amount will be difficult until December 31, 202, and the termination of the above consignment contract was not notified by the 20 company's 20-2 company's 20-2 company's 10-2 company's 20-2 company's 20-2 company's 20-2 company's 20-2 company's 20-2 company's 20-2 company's 20-7 company's 20-2 company's 20-2 company's 27 company's 20-27 company's 27.

② Furthermore, according to the above facts, even if the transfer and acquisition contract of this case is not null and void, the Defendants concluded the transfer and acquisition contract of this case without notifying the Plaintiffs of the fact that they had already been aware of the above internal policies of the Korea Ginseng Corporation prior to the time of the transfer and acquisition contract of this case. Thus, it was concluded based on the aforementioned deception by the Defendants, and thus, it was legally revoked by being served with the briefs dated January 2, 2004, which contain the Plaintiffs’ intent of revocation.

(3) Therefore, the Defendants are liable to restore to their original status. Accordingly, the Plaintiffs’ above assertion is with reason to look at anywhere, and the Defendants’ above assertion is without merit.

(b) Scope of reinstatement;

Furthermore, with respect to the scope of restitution to be returned to the plaintiffs, the plaintiffs paid 50 million won as down payment on May 15, 2002 under the above contract for transfer and takeover of this case to the defendants, 30 million won as the remainder of the payment on July 3, 2002, and 346 million won as above. In full view of the arguments in Gap evidence 6-7, Gap evidence 7-1 through 4, and Eul evidence 25, the plaintiffs were jointly and severally liable to pay 100 billion won as the total amount of damages on credit to the Korea Ginseng Corporation around June 24, 2002, 30 billion won as the total amount of damages on credit payment of 5 billion won as 5 billion won, and the plaintiffs were jointly and severally liable to pay 30 billion won as the total amount of damages on credit payment of the defendants to the Korea Ginseng Corporation, 50 billion won as the total amount of damages on credit payment of 100 billion won on June 24, 2002.

On the other hand, according to the agreement of this case, the defendants are not obligated to return the above credit goods price of KRW 110 million, which is the net loss caused by the plaintiffs' management performance, and KRW 350 million,50,000,000,000,000 in subrogation following the replacement of the above collateral. Thus, according to the agreement of this case, if the transfer contract of this case becomes null and void under the agreement of this case, it can be acknowledged that the plaintiffs agreed to bear all of the losses if the net loss occurred due to the management performance already occurred. However, this purport is that the plaintiffs bear the net loss caused by the management performance during the non-party 2's management, which is the purport that the plaintiffs bear the net loss caused by the management performance of the non-party 8 and 9. Thus, each of the above payments cannot be concluded to be a net loss caused by the plaintiffs' management, and there is no

4. Conclusion

Therefore, the defendants jointly and severally do the above KRW 861 million and the above KRW 396 million of transfer or acquisition price of this case from July 3, 2002, which is the last payment date, as the plaintiffs seek, and with respect to KRW 110 million of subrogation payment, from August 9, 2002, which is the last payment date, as the plaintiffs seek, with respect to KRW 350 million of subrogation payment due to replacement of the above collateral, from August 9, 2002, and from July 25, 2003, which is obvious on the record that the date of delivery of a copy of complaint of this case sought by the plaintiffs after the above substitute payment date, it is reasonable to dispute about the existence and scope of each obligation of performance by the defendants from July 25, 2003, which is the sentencing date of the court of first instance, and from November 3, 2006, the remaining portion of the plaintiffs' claim for damages for delay can be dismissed as it does not have any reason to dismiss the above part of the plaintiffs's claim for dismissal.

Judges Kim Shin (Presiding Judge)