(영문) 서울고등법원 2010.4.8.선고 2009누25066 판결

1. The defendant shall pay to the plaintiff 81,935,80 won and 5% per annum from September 26, 2009 to March 11, 2010, and 20% per annum from the next day to the day of full payment upon a claim made by exchange in this court.

2. All costs of the lawsuit shall be borne by the Defendant.

Purport of claim and appeal

The plaintiff is ordered as follows (the defendant's refusal to terminate his employment contract with the plaintiff on November 7, 2008).

claim confirmation of invalidity and seeking payment of unpaid benefits by this Court

The change was made to the Corporation).

Reasons

The grounds for this judgment are as follows. Among them, the reasons for the explanation in the part of paragraphs (1) through (c) are as follows: (i) the corresponding part of the judgment of the court of first instance (from the second to the second end) is as stated in the relevant part of the judgment of the court of first instance (from the second to the second end), and therefore, Article 8(2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act, and Article 420 of the Civil Procedure Act shall be cited as it is, and (ii) less than '2-D' shall be

1. Judgment on the Plaintiff’s assertion 2. The Plaintiff’s assertion or relevant statutes is the basis of fact-finding 3. Determination as to the recognition.

(1) Whether a person violates subparagraphs 4 and 8 of the Guidelines for Collection of Works

As seen above, it is recognized that the plaintiff sent the official document of this case to the Lmond on May 30, 2005, which contains the contents that "the National Museum decided to purchase the art of this case", but the plaintiff presented the official document of this case on the condition that the price negotiation should be prior to the above official document. In light of the contents of the official document of this case, it is not likely that the plaintiff would be placed at an unfavorable position in this future price negotiation or bear any legal obligation. The Lmond had already notified the plaintiff on two occasions of whether to purchase the art of this case by May 31, 2005, it is difficult to view that the National Art Gallery of this case had the plaintiff's final promise to purchase the art of this case before the plaintiff's negotiation with the plaintiff and to collect the art gallery of this case." If the plaintiff did not send the official document of this case, it is difficult to see that the plaintiff's final promise to collect and sell it as the result of the deliberation of this case."

(2) The defendant asserts that it is difficult to see that the plaintiff presented the proposal price to the Art Collection Deliberation Committee and determined the purchase price through a sufficient investigation of the price of the art of this case.

The Guidelines for the Collection of Works provides that "the proposing authority and the recommending member shall provide the review data so that a serious review may be conducted by sufficiently examining the nature of the work at the time of proposing and recommending the work, market price, authenticity, and history of the work, etc." The plaintiff presented the review data of the work in this case without presenting objective transaction prices or transaction cases with respect to the work in this case, and subsequent documents and subsequent materials traded by the auction of the work in this case. The subcommittee chief decided to allow the price negotiations to be conducted in order to appropriately purchase the above art work. The plaintiff requested several times to the effect that the price of the art work in this case originally presented at Smond was reduced at a certain rate, and the fact that the plaintiff accepted the above art work by again presenting the lowest price available at Smond, including evidence Nos. 5, Nos. 1 through 45, No. 328, No. 48, No. 528, No. 964, No. 38, Dec. 24, 200

Therefore, in light of the above process of deliberation and the pricing process, it may be difficult to readily conclude that the deliberation materials presented by the Plaintiff sufficiently conform to the extent required by Article 2 of the Guidelines for Collection of Works and that the final purchase price is objectively reasonable.

However, considering the following various circumstances, it is difficult to stipulate that the plaintiff has committed an obvious mistake, such as neglecting his/her duties or violating the regulations in the process of deliberation on whether to collect the art of this case and determining the purchase price.

1 ① It is difficult to objectively and uniformly calculate the price of the art product with a difference of thousands according to the artistic performance and preservation status, even though the quantity is limited global, such as the instant art product.

② Although there is a case in which the work of the artist's "for the purpose of travel" has been transacted through a sale of art works in a foreign country, the work of the artist's value equivalent to the art works in this case has not been found to have been transacted, and then the work of the producer's disposal has not been owned in the Republic of Korea.

In addition, since the art works of this case are limited to only one, there is no market price, and it is not easy for experts to appraise the market price. (No. 44-1, 2)

③ Article 9(1)4 of the Enforcement Decree of the State Contracts Act provides that “If the price stipulated in subparagraphs 1 through 3 of the State Contracts Act is unable to be determined, the estimated price shall be determined on the basis of the appraisal price, the transaction price of similar goods, construction works, services, etc., or the quotation price,” and Article 10 of the Enforcement Rule of the State Contracts Act provides that “The above estimated price is defined as “the price directly received from the other party to the contract or a third party,” and thus, the Plaintiff cannot be deemed unlawful to determine the estimated price on the basis of the appraisal price of the instant art works or the similar transaction actual price, under the circumstances in which the Plaintiff cannot find the appraisal price of the instant art works or the similar transaction actual price

④ The computation of the reasonable price of the work purchased by the Plaintiff cannot be deemed to be solely responsible for the determination of the price of the instant work, which is the affairs of the National Art Gallery’s overall deliberation committee (Article 12(1)2 of the Management Regulations). (3) In light of the facts found before the violation of Article 49 of the Enforcement Rule of the State Contracts Act, it is recognized that the Plaintiff did not clearly understand the substance of the Plaintiff when purchasing the instant art work from Limond, whether the Limond was the director of the work or the agent for concluding the purchase contract, and that the transaction of the said art work was conducted only through the exchange of letters and mail, and that the letter does not specify the contact information such as the mail address and telephone number.

However, it cannot be determined that the substance is unclear because it is registered as a corporation with an office in New York. In the trade of art works abroad, the authenticity and source of the works rather than the position or qualification of the manager of the works, and the channel of display is more important (in case of the trade of art works abroad, it is important that there is a legal authority to sell the art works of this case). Also, the special characteristics of the trade of overseas art works should be taken into account, such as the fact that it seems that the direct face-to-face contract is considerably generalized for the purpose of reducing purchase costs. The plaintiff received letters from Na○○○○, the global authorized authority of the research of the art works of this case after the transaction process of the art works of this case, confirming that the above works of this case were true. Although it was traded by mail, it is difficult for the plaintiff to conclude the contract of art works of this case only on the ground that the contract of this case was purchased through the above process and that it was difficult for the plaintiff to recognize that it violated the provision of Article 49(3) of the State Contracts Act.

(4) Whether the customs law has been violated

In order to verify the authenticity of the instant art works at the Plaintiff’s request, the said art works were brought into the Republic of Korea prior to the conclusion of the final purchase contract, and were stored in the National Art Gallery repair. The fact that the said art works were not reported to the head of the relevant customs office in the process of customs clearance is recognized (Evidence 1, 8, and 9): Provided, That the instant art works are duty-free items, the tariff rate of which is zero percent, and there is no reason not to file a report with the head of the relevant customs office in order to obtain unjust benefits, as well as the transportation and customs clearance of the art works under the provisions on the pre-sale agreement on the delegation of the National Museum for the National Museum for Art. 1,

In light of the fact that it is difficult to deem that the Plaintiff, who is the art gallery, had the intention of violating the Customs Act immediately on the ground that the Plaintiff, by neglecting the duty to confirm in the process of customs clearance of the said art work, could not immediately be deemed to have committed a violation of the Customs Act, it is difficult to hold the Plaintiff liable for the crime of violating the Customs Act solely on the aforementioned basis. (5) Whether the trust relationship, which forms the basis for the instant contract

For the reasons indicated above, the Defendant asserts that the Plaintiff breached the duty of observance and good faith as stipulated under Article 56 of the State Public Officials Act, and that the trust relationship, which forms the basis for the instant contract of employment, was destroyed, was destroyed, as it violated the duty of service as stipulated under Article 7 subparagraph 4 of the Public Officials Regulations.

(1) In this case, a continuous contract, such as the instant employment contract, with the mutual trust between the parties

As such, in a case where one of the parties to a contract during the existence of the contract violates the contractual obligation and thereby the trust relationship, which serves as the basis of the contract, is destroyed, making it difficult to maintain the contractual relationship as it is, it is reasonable to view that the other party can terminate the contract immediately after the termination of the contract to the future (Supreme Court Decision 2002.)

11. 202Du5948 delivered on December 26, 200

However, as seen earlier, it cannot be deemed that there exists any reason to criticize the Plaintiff, except for the Plaintiff’s failure to prevent the Plaintiff from performing duties inappropriate for customs clearance procedures in purchasing the instant art works as the director of the modern Art Gallery. Therefore, the termination of the instant employment contract under the premise that the Plaintiff breached contractual obligations and thus, the fiduciary relationship, which forms the basis of the contract, was destroyed due to the Plaintiff’s breach of contractual obligations, is null and void. Meanwhile, the Plaintiff is not subject to the State Contracts Act, and the Plaintiff asserts that the application of Article 7 subparag. 4 of the Rules on Contracts of Public Officials presented by the Defendant as the basis of termination of the instant employment contract should be excluded from the application of Article 7 subparag. 1 of the State Contracts Act, but its determination is consistent with the first instance judgment of the first instance court, and therefore, it is clear that the Plaintiff is not obliged to pay the Plaintiff remuneration for 10% from the day after the termination of the contract, until 30% of the contract’s total remuneration for 10% after the expiration of the contract.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the ground of its reasoning (the plaintiff's claim of this case was withdrawn from the claim of nullification of the termination of the contract which was originally claimed by the plaintiff due to the exchange change of the lawsuit filed by this court, and the judgment of the court of first instance became null and void)