2. B

2. The plaintiff's remaining claims against the defendant A and the defendant B are dismissed, respectively.

3. Of the costs of lawsuit, 40% of the portion arising between the Plaintiff and the Defendant Company A shall be borne by the Plaintiff, and the remainder by the said Defendant, respectively, and the portion arising between the Plaintiff and the Defendant B

4. Paragraph 1 can be provisionally executed.

(a) Description of the claim;

The reasons for the claim are as shown in the attached Form 2.b. of the above claim, but the damages claim amounting to KRW 3,143,214,945 of the above claim is not the amount of indemnity but the damages claim due to the non-performance of the contract.

(b) the applicable legal provisions;

Article 208 (3) 2 of the Civil Procedure Act (a judgment made by deemed confession due to a absence of the date for pleading)

C. The dismissed part

The Plaintiff seeks payment of KRW 5,394,015,00 due to the violation of paragraph (2) of the A’s Certificate No. 2, as stated in attached Form 2.(c). (3).

Inasmuch as an agreement on penalty for breach of trust is set to secure the performance of an obligation, the amount of such agreement shall not be reduced by analogical application of Article 398(2) of the Civil Act, as it differs from the scheduled amount of compensation for damages. However, in a case where the penalty agreed in comparison with the interests of creditors arising from the compulsory performance of the obligation is excessively excessive, such an agreement shall be null and void against the public order and good morals (see, e.g., Supreme Court Decision 92Da46905, Mar. 23, 1993). Furthermore, it is reasonable to deem that the violation of mandatory provisions, such as such anti-social legal acts, may be determined ex officio by the court, even if there is no assertion by the parties (see, e.g., Supreme Court Decision 2001Da74322, Oct. 10,

In this case, on March 12, 2013, the Plaintiff awarded a contract to Defendant A Co., Ltd. (hereinafter “Defendant A”) for KRW 11,986,70,000 for construction cost, including value-added tax, for the land-based neighborhood living facilities and new construction of business facilities in Nam-gu Incheon Metropolitan City, and on March 15, 2013, Defendant A and Defendant A and the subcontractor of Defendant A were entitled to use a subcontract for the above construction project, but, except for the case where the Plaintiff’s written approval is granted, Defendant A’s direct payment of the subcontract price to the Plaintiff is not recognized. In the event of the foregoing situation without intention, the Plaintiff agreed to “The Plaintiff shall pay 3% of the total construction price as the penalty to the Plaintiff in cash transfer form to the Plaintiff’s designated account” (Article 1-2, 2-1 and 2-3). The fact that the Plaintiff violated the above provision by directly paying the subcontract price to Defendant A’s sewage business operators at 15 times is recognized.

However, ① The amount of penalty for breach of the above provision exceeds 45% of the total construction price. ② The Plaintiff also provided various provisions on penalty for breach of the contract, as well as penalty for breach of the above provision. The Defendant A, in addition to the penalty for breach of the contract, has to pay the penalty for breach of the contract amounting to KRW 1,198,670,00 due to the voluntary discontinuance of the contract (i.e., KRW 11,986,70,000 x 1%) and the penalty for breach of the contract amounting to KRW 500,000 due to the occupation of the construction site after the cancellation of the contract. ③ In the event the Plaintiff directly paid the construction price to the subcontractor, the amount equivalent to the Plaintiff’s obligation to pay the construction price to the Defendant A ceases to exist, and it is difficult to deem that the contract for breach of the above agreement under the above agreement would be null and void because it excessively exceeds the agreed penalty compared to the Plaintiff’s interest.

Therefore, the plaintiff's claim for this part is dismissed.

D. Sub-determination

Therefore, Defendant A is obligated to pay to the Plaintiff KRW 6,440,54,945 (=400,000 + KRW 3,143,214,945 + KRW 2,397,340,000 + KRW 500,000 + KRW 500,000) and damages for delay calculated annually as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from May 21, 2015 to the date the duplicate of the complaint of this case was served on Defendant A, which is deemed reasonable to dispute about the existence and scope of the above Defendant’s obligation to pay from May 21, 2015 until November 4, 2015, which is the date of this decision, and from the following day to the date of full payment, damages for delay calculated by 15% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

2. Determination as to the claim against the defendant B

A. The plaintiff's assertion

Defendant B, who resigned from the representative director of Defendant A on October 29, 2013, was the actual owner of the above company, and Defendant A was unable to perform all kinds of obligations against the Plaintiff by appropriating (misappropriation, embezzlement) the construction cost received from the Plaintiff. The Plaintiff’s damages are attributable to Defendant B’s tort. As such, Defendant B is liable for damages caused by tort, Defendant B is jointly and severally and severally liable with Defendant A for each of the reasons for the claim.

B. Determination

There is no evidence to acknowledge that Defendant B arbitrarily embezzled the construction cost of Defendant A, or acquired pecuniary benefits by violating his duties as the representative director. Even if Defendant B committed a tort of embezzlement and breach of trust, such tort is liable for damages against Defendant B, and there is no ground to hold the Plaintiff liable for damages due to the tort.

Therefore, the plaintiff's claim against the defendant B is without merit.

3. Conclusion

Therefore, the plaintiff's claim against the defendant A is justified within the above scope of recognition, and the remaining claims against the defendant A and the claims against the defendant B are groundless, and they are dismissed, respectively. It is so decided as per Disposition.

Judges Doz.

Judges Shin Jae-ho

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.