2011Na37287 (Counterclaim) Compensation for damages

대표이사 ■■■

Law Firm ○○○○

○○, ○○, ○○

△△△ Director

Attorney ○○○, ○○, ○○, ○○, ○○, ○○○

Attorney ○○○, ○○○○

(1) The part against the Plaintiff is revoked and the claim of the Plaintiff (Counterclaim Defendant) corresponding to the revoked part is dismissed.

Defendant (Counterclaim Plaintiff) 154, 392, 220 won against Plaintiff (Counterclaim Defendant) and its related thereto. < Amended by Presidential Decree No. 21729, Sep. 2, 2009>

28. From May 23, 2012, 6% per annum and 20% per annum from the next day to the day of full payment.

B. The remainder of the appeal by the Defendant (Counterclaim Plaintiff) against the principal lawsuit is dismissed.

2. A. Defendant (Counterclaim) who falls under the amount of money that orders payment under any of the counterclaims in the judgment of the first instance.

Plaintiff) The part against which the loss occurred shall be revoked.

Plaintiff (Counterclaim Defendant) pays 20,000,000 won to Defendant (Counterclaim Plaintiff) and 6% per annum from March 12, 2010 to May 23, 2012, and 20% per annum from the next day to the day of full payment.

B. The remaining appeal on the counterclaim by the Defendant (Counterclaim Plaintiff) is dismissed.

3. The total costs of the lawsuit shall be five minutes in total, including the principal lawsuit and the counterclaim, and the two minutes shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by the Defendant (Counterclaim Plaintiff).

4. The portion of money to be paid under paragraphs 1 and 2 shall be provisionally executed.

A. Main suit: Defendant (hereinafter “Defendant”) is the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”); hereinafter “Defendant”)

of this case from September 28, 2009 to 308, 896, 720 won and the grounds for the claim and the claim of this case

Until the service date of a written change, 6% per annum and 20% per annum from the next day to the day of complete payment.

D. (The plaintiff reduced the purport of the claim in the trial).

B. Counterclaim: service of a copy of the complaint of this case on the plaintiff's 300,000,000 won to the defendant

It shall pay 20% interest per annum from the day to the day of full payment.

2. Purport of appeal

The main lawsuit: The part against the defendant in the judgment of the first instance against the defendant shall be revoked, and the plaintiff shall be revoked.

The claim is dismissed.

Counterclaim: The part against the defendant, which orders payment under the judgment of the court of first instance;

A. The plaintiff shall serve the defendant 254, 504, 500 won and a copy of the complaint of this case.

It shall pay 20% interest per annum from the day of full payment to the day of full payment.

The reasoning for this part of the Court’s explanation is as follows: “A evidence Nos. 8-1, 2, and 9-1 or 3 of the evidence No. 8-1, 2, and 9-1 or 3 of the evidence No. 9, and the facts of recognition are as stated in the reasoning of the judgment of the first instance except for the addition of a claim; therefore, this part is cited by the main text of

0 Additional Parts

F. Meanwhile, the Defendant issued each tax invoice of KRW 300,00 on September 30, 2008, KRW 00,000 on December 31, 2008, KRW 00,000 on December 31, 2008, KRW 000, and KRW 00 on July 8, 2009 (total KRW 1,740,000,000) to the Plaintiff, and around January 29, 2009, issued a certificate of performance of construction works at KRW 2,00,00,00 upon the Plaintiff’s request.

2. Determination as to the claim on the principal lawsuit

A. Determination as to the cause of the claim for the unpaid construction cost (1)

According to the above facts, the defendant is obligated to pay to the plaintiff the remainder of the construction price and damages for delay of the portion for which the construction payment has not been completed in accordance with the 6th contract of this case, which is the final contract, unless there are special circumstances.

(2) The Defendant’s assertion and determination (A) that the portion of the offering of rebates is invalid (the claim that the payment of rebates is null and void)

In addition to the Plaintiff’s initial contract amount of the construction work of this case 1,461,63,50 won and the first contract amount of the construction work of this case 1,463,50 won and 200 won, 30 won and 60 won and 1,000 won and 60 won and 60 won and 1,00 won and 60 won and 60 won and 1,00 won and 60 won and 1,00 won and 60 won and 60 won and 1,00 won and 60 won and 1,00 won and 60 won and 1,00 won and 60 won and 1,00 won and 60 won and 1,00 won and 60 won and 1,00 won and 60 won and 1,00 won and 60 won and 1,000 won and 1,000 won and 60 won and 200 won and 200 won and 60 won and .

살피건대, 갑 제3호증, 을 제1 내지 7호증의 각 기재와 제1심 증인 ◆◆◆의 증언 , 제1심 및 당심 증인 의 일부 증언, 이 법원의 원고 대표이사 본인신문결과에 변론 전체의 취지를 종합하면, ① 피고는 이 사건 공사와 관련하여 □□□로부터 2008 .

7. 23. Determination of the amount of construction work as KRW 1,291,00,00 (Additional Tax Table) and from the Plaintiff, July 24, 2008.

공사금액을 1, 424, 000, 000원 ( 부가세 별도 ) 으로 정하여 각 견적서를 받았고, 그 후 원고로부터 2008. 7. 29. 공사금액을 1, 300, 000, 000원 ( 부가세 별도 ) 으로 하는 견적서를 다시 받았으며, 2008. 8. 초순경 원고와 사이에 공사금액에 관하여 협의를 한 후 공사대금을 1, 461, 663, 500원 ( 부가세 포함 ) 으로 하는 이 사건 1차 계약서를 작성한 사실, ② 피고 회사의 본부장인 은 원고와의 위 계약서 작성 당시 원고 대표이사 ■■■ 에게 발주처에 지출한 리베이트 및 자신이 피고 회사를 대신하여 지출한 비용 등이 많으니 추후 자료 ( up 계약서 및 up 세금계산서 ) 를 끊어 줄 수 있느냐고 물었고, 이에 ■■■은 의 요구에 맞추어 자료 ( up 계약서 및 up 세금계산서 ) 를 작성해 줄 수 있다고 약속한 사실, ③ 원고와 피고는 2008. 8. 14. 경 공사대금 1, 514, 700, 000원인 2차 계약서보다 공사대금 220, 000, 000 ( 부가가치세 10 % 포함 ) 을 증액하여 원고가 추후 계약서대로 공사대금을 지급받으면 그 중 200, 000, 000원을 피고에게 돌려주기로 하면서 공사대금 1, 734, 700, 000원인 3차 계약서를 작성하였고, 그 다음날인 2008. 8. 15. 채권자를으로, 채무자를 원고로 하여 200, 000, 000원을 시공사에서 토목공사 대금을 지급받은 후 원고가 소소에게 지급하기로 하는 내용의 약정서 ( 을 제2호증 ) 를 작성한 사실을 인정할 수 있다 .

According to the above facts, for the purpose of preparing funds to be used for the appropriation of expenses, etc. paid by the plaintiff and the defendant at the time of concluding the contract for the construction of this case, the plaintiff and the defendant set the construction cost by withdrawing 220,000,000 won more than the actual amount to be paid and return the construction cost to the defendant after the plaintiff received the construction cost. Thus, the contract of this case contains a combination of the agreement to pay the construction cost of KRW 1,780,00,000 (including value-added tax 10%) which the defendant must pay to the plaintiff properly, and the agreement to make the payment of the construction cost of KRW 220,00,000 (including value-added tax 10%) as well as the agreement to make the payment of rebates to the plaintiff as its means of violating the laws and regulations, and it is reasonable to recognize that the act of violation of the law and regulations is contrary to the social order, and thus, it is reasonable to include the legal act in violation of the terms of the law and regulations as a fraudulent act.

However, if a part of a juristic act is null and void, it shall be deemed null and void, but if it is deemed null and void, the remaining part shall not be deemed null and void (Article 137 of the Civil Act). Of the instant contract, the agreement for the payment of construction price and the agreement for the payment of rebates may exist independently only by the agreement for the payment of construction price as separate. As seen earlier, the Plaintiff completed the remaining works except for packing and outstanding construction works in accordance with the instant contract. As seen earlier, as seen earlier, as the Defendant later paid to the Plaintiff a sum of KRW 1,740,00,00 equivalent to the existing construction price, and thus, the agreement for the payment of construction price shall also be null and void even by the agreement for the payment of construction price null and void. Accordingly, among the instant contract, the part of the agreement for the payment of construction price 1,780,000,000 won which the Defendant is obligated to pay to the Plaintiff is still effective.

그러나 나아가, 피고가 피고 주장과 같은 경위로 각 공사대금을 1, 514, 700, 000원으로 증액하는 2차 계약서와 2, 000, 000, 000원으로 증액하는 5차 및 6차 계약서를 작성하였고, 위 200, 000, 000원 외에 추가로 100, 000, 000원을 원고로부터 돌려받기로 약정하였다는 피고 주장사실에 대하여는, 이에 부합하는 증거로는 제1심 및 당심 증인의 증언이 있으나, 이 사건 3차 계약서 작성 당시 원고와 사이에 200, 000, 000원의 반환 약정을 하면서 그 근거로 약정서 ( 을 제2호증 ) 가 작성된 것과 달리 5차 및 6차 계약서에 관하여는 대금을 반환하기로 하는 약정서 등 객관적인 자료가 작성된 바 없는 점, 1차 계약서와 3차 계약서상 공사비차액 273, 036, 500원 ( 1, 734, 700, 000원 - 1, 461, 663, 500원 ) ' 중 200, 000, 000원과 3차 계약서와 5차 및 6차 계약서상 공사비 차액' 265, 300, 000원 ( 2, 000, 000, 000원 - 1, 734, 700, 000원 ) ' 중 100, 000, 000원을 각 돌려받기로 하였다는 것이나, 증액한 공사대금은 실질적으로 차이가 없는데 돌려받는 돈은 3차 계약서 작성시보다 5차 및 6차 계약서 작성시가 훨씬 적어 선뜻 수긍하기가 어려운 점 , 무엇보다도 계약서를 작성하게 된 경위나 원고로부터 돌려받기로 약정하였다는 금액에 관한 소의 진술이 제1심에서부터 당심에 이르기까지 계속하여 번복되고 있는 점 등에 비추어 위 의 증언은 믿기 어렵고, 을 제8, 9호증, 을 제11 내지 26호증 ( 각 가지번호 포함 ) 의 각 기재와 제1심 증인 ▲▲▲의 증언만으로는 피고 주장사실을 인정하기에 부족하며, 달리 이를 인정할 만한 증거가 없으므로, 피고의 이 부분 주장은 받아들이지 않는다 .

Therefore, this part of the defendant's argument is justified within the scope of recognition of the above 20,00,000 won.

(B) The assertion that an act constitutes an act of acting as an agent in breach of trust is null and void.

The defendant company's "On-Site Implementation Director" prepared a contract for construction work in the order above by abusing his power of representation for the purpose of pursuing his own interest against the defendant's interest or will, and such contract constitutes an act of acting as an agent in breach of trust and also cooperates with the plaintiff's intention, which eventually means that the contract for construction work in the case of this case agreed to be KRW 2,00,000,000 is not effective against the defendant.

However, the Defendant initially secured the construction right to the parking lot construction in the old field, and then contracted the construction under the name of the Defendant to the representative director of the Defendant company holding a comprehensive construction license by requesting the above construction work under the name of the Defendant. It is argued that the Defendant permitted the construction work on its own account. Accordingly, the Defendant agreed to receive construction benefits, which are the difference between the construction cost and the construction cost received by the subcontractor, from the Defendant, from this intermediate point of view. At the time of the closing of argument in the trial, the Defendant was performing the construction work on the Defendant’s account, and the Defendant divided part of the profits into 0:4 or 5 with the Defendant’s share of the profits. The Defendant’s assertion that there was no specific share of profits distribution due to mutual trust, and the Defendant’s change in the above assertion that it was difficult to accept the Defendant’s assertion that it did not include any change in the construction cost and any changes in the name of the Defendant’s contract, but it was difficult to find out any changes in the name of the Defendant’s testimony or any changes on the Defendant’s account.

(3) Sub-decisions

Therefore, the amount that the Defendant is practically liable to the Plaintiff is KRW 1,780,00,00 ( KRW 2,00,000, KRW 000, KRW 220,000, KRW 00). Since the Plaintiff failed to complete the construction works equivalent to KRW 105,495,00, the construction works that the Defendant is liable to pay to the Plaintiff are KRW 1,674,50, KRW 500 ( KRW 1,780,000, KRW 00, KRW 105,495, and KRW 500). As such, the Plaintiff received the payment from the Defendant for the instant construction works in excess of KRW 1,740,00, KRW 00, KRW 50, KRW 105, and KRW 500, the Plaintiff’s assertion for the unpaid construction works is without merit.

B. Determination on user fees and measurement and management expenses (1) claims, such as the sn beam beam and a double trial

The Defendant’s failure to pay the construction cost to the Plaintiff by October 27, 2008, which was inevitable for the Plaintiff to suspend construction. The Plaintiff received the total of KRW 1,740,00,000 as construction cost until July 8, 2009, and resumed construction on July 7, 2009, as seen earlier. Accordingly, the instant construction was delayed without any cause attributable to the Plaintiff. Accordingly, the Defendant shall compensate the Plaintiff for damages not using the sn beam beam, the clothes trial, the poppy, and the knick in another construction site during the suspension period, and for damages equivalent to the cost of site management during that period.

그 손해액과 관련하여서는 갑 제10, 11호증의 각 기재, 당심 증인 ▽▽▽의 증언 및 제1심 감정인 ▼▼▼의 감정결과에 의하면, 원고가 구하는 2008. 10. 29. 부터 2009. 7 .

7. Up to 248 days 2) In cases of usage fees, such as the sloping beamline, 142, 092, 220 won, and in cases of measurement and management expenses, 12,300,000 won (per month), x 8.2 months (248/30, a small number of fewer than 1);

(2) Sub-decisions

Therefore, the defendant is obligated to pay to the plaintiff the sum of the user fee and the measurement management fee (142, 092, 220 won + 12,300,000 won) and damages for delay after September 28, 2009, which is the day following the completion of the construction of this case by the plaintiff.

3. Judgment on a counterclaim

A. The defendant's assertion

As the Defendant asserted in the previous suit, since the construction cost of the instant construction project is KRW 1,461,63,50, and as the Plaintiff asserted in the previous suit, the Plaintiff is obligated to pay the Defendant the said construction cost of KRW 1,461,63,63,50, and the remainder of KRW 105,495,50, and KRW 383,832,832,00 ( KRW 1,740,000, KRW 663,500 - KRW 105,495,500, among which the Plaintiff paid to the Defendant, and KRW 300,00,00 in the portion that the Plaintiff had not performed.

B. Determination

In the event that the Plaintiff completed the instant construction, the amount to be actually paid by the Defendant is KRW 1,780,00,000, and the Defendant paid the Plaintiff KRW 1,740,000 as construction cost by July 8, 2009, and the Plaintiff completed the remainder of construction work excluding KRW 105,495,50 as packing and outstanding construction cost.

Therefore, the Plaintiff is obligated to pay damages for delay after March 12, 2010, which is the following day after the delivery of a duplicate of the counterclaim of this case, to the Defendant for the payment of KRW 65,495,50 ( KRW 1,740,00,000, KRW 100 ( KRW 1,780,000, KRW 00 - KRW 105, 495,50) and the following day after the issuance of the duplicate of the counterclaim of this case. (In the Defendant’s assertion, the Plaintiff’s assertion that the Plaintiff would return the construction payment of KRW 200,000,00 among them to the Defendant pursuant to the agreement that the Plaintiff would return the payment of the construction payment of KRW 200,00 pursuant to the agreement that the Plaintiff would return the payment of the construction payment of KRW 20,00,000 to the Defendant, as seen earlier, is null and void, and thus the Defendant’s assertion seeking the payment of KRW 200,00.

4. Conclusion

Therefore, the defendant is obligated to revoke the plaintiff's claim for damages from 154, 392, 20 won and its late payment damages from September 28, 2009 to 20% per annum under the Commercial Act until May 23, 2012, and to pay damages for delay calculated at the rate of 20% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the date of complete payment. Since the plaintiff's claim for damages from 15, 392, 20 won and its late payment damages from 20% per annum from the above judgment to 20% per annum of the judgment against the plaintiff, it is reasonable to revoke the plaintiff's claim for damages from 65,495, 50 won and its late payment damages from 10% per annum from the next day to 20% per annum of the judgment against the plaintiff, and the remaining part of the plaintiff's claim for damages from 20% per annum of the court below to 20% per annum.

Judges Park Jong-chul

Judges Kim Gin-so

The plaintiff alleged that the whole amount was agreed to be returned from the plaintiff later, and if the amount was raised in the first instance, the amount increased.

10,000,000 won is claimed to have agreed to receive a return.

2) The Plaintiff: (a) from August 17, 2009 to September 27, 2009, the sum of usage fees and measurement and management expenses, such as sn beam beam for 42 days from August 17, 2009 to September 27, 2009; (b) 26, 164, 005

(24,064,05 won + 2,100,000 won) filed a claim with the Do, but waived it at the trial.