2014 Gohap 33215 (Counterclaim) damages

2. The Plaintiff (Counterclaim Defendant)’s remaining principal claim and the Defendant (Counterclaim Plaintiff)’s counterclaim are dismissed, respectively.

3. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).

4. Paragraph 1 can be provisionally executed.

Counterclaim: The plaintiff's counterclaim: 6% per annum for KRW 2,03,861,286 and for KRW 783,497,785 from October 1, 2013; 225,417,206 from November 1, 2013; 105,675,570 from March 1, 2014; 32,956,327 won from June 1, 2014; 791,147,848 won from the following day to the date of delivery of a duplicate of each of the counterclaim; 20% per annum for KRW 5,516,57,570 from the day of complete payment; and 10% per annum for KRW 5,50 from the day of complete payment to the day of complete payment; 20% per annum for KRW 16,514 from the day of complete payment; and 20% per annum for the plaintiff's counterclaim to the day of complete payment.

1. Basic facts

A. Status of the parties

The plaintiff is a company that aims at manufacturing electricity and electronic parts products, and the defendant is a company that aims at manufacturing electronic parts.

B. Conclusion and implementation of the instant supply contract

1) In May 2012, the Defendant ordered production of fugitive preventive films (ASF 1) to the Plaintiff. The Defendant provided the Plaintiff with special films produced in Japanese U.S. Doi and Doama, which are the raw materials of fugitive preventive films, etc., and the Plaintiff made use of the special films provided to the Plaintiff and agreed to supply them to the Defendant (hereinafter “instant supply contract”).

The fugitive prevention film of this case shall have the function to protect the free angle from being protruding in the event of damage to the liquid glass of a mobile phone because it is attached to a mobile phone fluort, and shall not be in the face of film, ice fluor, gluor, etc., and shall meet all the standards set forth in the supply contract of this case, such as the defendant's work guide, etc.

2) From May 2012 to October 2013, the Plaintiff supplied the Defendant with 29,418,331,350 won in accordance with the instant supply contract (including value-added tax), the amount equivalent to 29,418,331,350 won (i.e., 1930 Brought/T20, i9300 Docom, i9500 Docom, i9502), and the Defendant paid the Plaintiff the amount of 23,727,116,840 won (i.e., 29,418, 331,350 won (i.e., the amount of 29,418, 387, 783, 868 won), the amount of damages settlement due to defects, 303,430,642 won).

3) In accordance with the instant supply contract between August 2013 and October 2013, the Plaintiff intended to supply the Defendant with 1,362,417,175 won (including value-added tax) of the instant fugitive preventive film (i.e., the number of 43,150, 19295 Blue and Formtius 43,150, 19300 Dcomdo 43,056, 1950Black 302,294). However, the Defendant did not accept it on the ground that there was a defect in the quality of the fugitive preventive film.

C. Circumstances, etc. of returning the fugitive preventive film of the instant case

1) In accordance with the instant supply contract, the Defendant exported the instant fugitive film supplied by the Plaintiff to non-EL (Biel) companies and sirens (LMA) companies in China (hereinafter referred to as the “instant Chinese companies”), and the instant Chinese companies engaged in the operation of the instant fugitive prevention film supplied by the Defendant to the mobile phone glass plate (2). The instant Chinese companies classified the instant fugitive prevention film into the instant fugitive prevention film into the mobile phone glass plate. The said Chinese companies separately classified the instant fugitive in the course of its process, and then finally determined the “RMA” through consultation with the Defendant, and the final “RMA” was recovered from the Defendant.

2) As to the part determined as the "RMA" before the combination with the pertinent Chinese company, the Defendant set the amount calculated by adding the price for the pertinent product to the "RMA" and the price for the pertinent product to 10% or 20% of the price for the pertinent product to the "RMA", taking into account the process of the combination and the cost invested to dismantle it again, and as to the portion determined as the "RMA", the Defendant set the amount of damages for each "RMA".

3) The Defendant set the amount of damages for the portion determined as “RMA” out of the instant fugitives, which were supplied by the Plaintiff from May 2012 to July 2013, 2013 exported to the instant Chinese companies, at KRW 4,387,783,868. Accordingly, the Defendant deducted the Plaintiff from the amount of goods under the instant supply contract the amount of damages calculated as KRW 4,387,783,868.

【Ground for recognition】 The fact that there has been no dispute, Gap’s evidence 7 (including paper numbers; hereinafter the same shall apply), 8, 13, 14, 16, 17, 19, 20, Eul’s evidence 3 through 14, 16, 17, 18, 19, 21 through 44, and the purport of the whole pleadings and arguments

2. Determination as to the cause of the principal claim

A. The plaintiff's assertion

1) Although the Plaintiff supplied the Defendant with the instant 28,425,091,761 won pursuant to the instant supply contract between May 2012 and October 2013, the Defendant only paid 22,753,606,960 won to the Plaintiff as the price for the goods. Thus, the Defendant is obligated to pay the Plaintiff the amount of KRW 5,671,484,801 (i.e., the total price for the goods supplied to the Defendant 28,425,091,761 - the total price for the goods supplied to the Defendant 22,753,606,960) and delay damages therefrom.

2) From August 2013 to October 2013 of the same year, the Plaintiff intended to supply the Defendant with 1,362,417,175 won in accordance with the instant supply contract (i.e., the number of 43,150, 43,056, 1930 Duo 43,050, 1950 Baccck 302,294). However, the Defendant did not accept it on the ground that there is a problem in the quality of fugitive film subject to the above supply, and the Plaintiff completed all preparations so that all defective parts of the fugitive film subject to the above supply can be supplied. Accordingly, the Defendant is obligated to take over the fugitive film from the Plaintiff, and pay the Plaintiff the price for the goods, and delay damages therefrom.

B. Determination as to the claim for the purchase price of goods in the part of fugitive prevention film supplied by the Defendant

The defendant provided the defendant with 29,418,331,350 won for fugitives of this case, and the defendant paid 23,727,116,840 won to the plaintiff as the price for goods related to fugitives of the above supplied fugitives of fugitives of 29,418,331,350 won, as seen earlier. Thus, the defendant is liable to pay 5,671,484,801 won as the price for goods related to fugitives of fugitives of supplied by the plaintiff, as claimed by the plaintiff.

C. Determination as to the claim for the purchase price of the portion of fugitive preventive film not accepted by the Defendant

1) Relevant legal principles

The so-called "production supply contract" in which one of the parties agrees to supply goods made of his own use of his own materials according to the order of the other party and the other party shall pay the price for the production. Since the so-called "production supply contract" has the nature of contract and the nature of sale and contract in terms of supply, it applies to sale and purchase where an article to be manufactured and supplied under a contract is a substitute for an article to be manufactured and supplied under a specific order, but where an article is a substitute for a specific order, the provision on sale and purchase shall apply to the article concerned with the supply of the article, which has the nature of the contract as an object of the contract, and the assertion and burden of proving the completion of the work in the contract for the supply of the article is against "contractor demanding the payment of the price for the completed work," and it is insufficient to say that the last process of the original scheduled to be completed by the contract for the supply of the article has completed the construction of the main structure as agreed, and therefore, the contractor claiming the payment of the remuneration for the production of the article has the performance and structure of 2016.

2) Determination

In light of the above legal principles, the supply contract of this case is a contract for production and supply of films to prevent scattering of a certain spath according to the defendant's order by using special films provided by the plaintiff from the defendant, and it is an incidental object to meet the demand of a specific client. As such, the supply contract of this case is an incidental object to meet the demand of a specific client. Thus, the contract of this case must be governed by the legal principles on contract. Accordingly, as the plaintiff claiming the payment of remuneration, as well as the fact that the main structure of the subject matter is constructed as agreed upon, and has the performance generally required by social norms.

In light of the following circumstances: ① around October 2013, the Defendant: (a) conducted an investigation into the existence of defects, etc. of the instant products from the Plaintiff in order to take over 19295 BPY 43,150; (b) the Plaintiff refused to take over the entire product; (c) the Defendant supplied 9300 Damo 43,056 to the Plaintiff’s 9-I film and 5-I-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U.

D. Sub-determination

Therefore, barring special circumstances, the Defendant is obligated to pay the Plaintiff KRW 5,671,484,801 for the price of goods and delay damages therefor.

3. Judgment on the defendant's defense and counterclaim

A. Determination as to the settlement of accounts, etc.

1) Defendant’s defense

The Plaintiff was found to have "RMA" among the instant fugitives supplied to the Defendant pursuant to the instant supply contract between May 2012 and July 2013. The amount of damages was set at KRW 4,387,783,868 as the amount of damages. Accordingly, the Plaintiff and the Defendant agreed to settle the said amount of damages from the amount of goods to be paid by the Plaintiff according to the instant supply contract. As such, the Defendant did not have a duty to refund KRW 4,387,783,868, the amount of damages to the Plaintiff, which the Defendant should pay to the Plaintiff according to the instant supply contract.

2) Determination

In full view of the following circumstances, which are acknowledged as a whole, ① a considerable number of "RMAs" have occurred since the Defendant was supplied with the Plaintiff according to the supply contract of this case and exported to the Chinese company of this case; ② the Defendant collected all of the goods in question from "RMAs" and notified the Plaintiff of the fact; ③ the Plaintiff demanded the Defendant to pay the unpaid goods for "RMAs" on or before December 9, 2013; ③ the above content certification shows that the Defendant paid the remaining amount of KRW 1,303,430,642, which is the remainder after deducting the 'RMAs' amount from July 2013 to July 7, 2013; ④ the Plaintiff appears to have settled damages from 30 years to 30 years from 30 years from 207 to 208 years from 208, up to 30 years from 30 years from 207, and the Defendant adjusted the amount of damages from 30 years to 2087 days from 208.7.

In this regard, from the point of view that it is difficult for the Plaintiff to immediately suspend the transaction with the Defendant, the Plaintiff only received the remaining payment from the Plaintiff after closing the tax invoice for the damage compensation of the “RMA” and deducting the price for the return of the “RMA” portion. Thus, it cannot be deemed that there was a settlement agreement between the Plaintiff and the Defendant, and even if there was a settlement agreement, the Defendant reached the settlement agreement without providing the Plaintiff with specific content, quantity, and explanatory materials of the “RMA”. Thus, the Plaintiff’s assertion that the settlement agreement was cancelled on the ground of the Plaintiff’s mistake was made. As seen earlier, there was a mutual settlement agreement on the “RMA” damage compensation between May 2012 and July 2013 between the Plaintiff and the Defendant. The submitted evidence alone is insufficient to acknowledge that the Plaintiff and the Defendant reached a settlement agreement on the “RMA” damage compensation without any error. Therefore, the Plaintiff’s assertion on this ground is without merit.

Ultimately, the Plaintiff’s claim for the price of goods against the Defendant remains 29,418,331,350 won (amounted to KRW 23,727,116,840 + damages amounted to KRW 4,387,783,868 according to the “RMA”).

B. Determination on the counterclaim and counterclaim

1) The defendant's assertion

In accordance with the supply contract of this case, part of the green dust prevention films supplied to the defendant under the supply contract of this case was determined as 'RMA' and the total amount of 7,725,075,798 won was determined as 'the damages amount of 7,387,783,868 won from June 2012 to July 2013, the plaintiff and the defendant were fully settled with respect to 4,387,783,868 won of 'RMA's damages amount of 'the damages amount of 3,337,291,930 won was still not settled. Thus, the plaintiff is obligated to pay 3,37,291,930 won to the defendant under the above 'RMA', 1,303,4642 won to the defendant, 2031,3836,2938,2938,300 won and damages damages amount of 'the damages amount of 'the damages amount to the defendant's payment amount to the defendant.'

2) Determination

A) Determination on the existence of automatic claims and the cause of counterclaim

(1) Occurrence of damages liability

(A) In light of the following circumstances acknowledged by comprehensively taking account of the evidence mentioned above, the Plaintiff supplied the Defendant with defective fugitive preventive films, even though it was obligated to supply the Defendant with the performance set forth in the instant supply contract. Accordingly, the Defendant suffered damages, such as receiving a large number of “RMA” products from the instant Chinese company from September 2013 to September 2014, and thus, the Plaintiff is liable to compensate the Defendant for damages caused by the nonperformance of the obligation.

① In order to determine whether there is any defect in fugitive film of this case manufactured by the Plaintiff, the Defendant and the instant Chinese company first selected defective products by conducting a sampling inspection in accordance with the standards for import (distribution) inspection of fugitives supplied by the Plaintiff, and if there is no error in the result of the inspection, the products are exported to the instant Chinese company, and the said Chinese company, which imported the said products, inspected the defect of each product. Once the passing rate is more than 95%, the sampling external inspection is conducted, and the sampling external inspection is conducted, and the passing rate is more than 60%, and the sampling joint work is conducted, and the pass rate is more than 60%, and the quantity of the products is re-scheduled, and the defective products are selected from the whole quantity, and the process of removing defective products is conducted by transferring the fugitives combined with the mobile phone glass plate after the combination process (hereinafter referred to as “the defect of this case”).

② The part of the “RMA” found before the combination process was conducted is classified as the defect itself of the fugitive prevention film itself. The part of the “RMA” found after the combination process is divided into the part which was confirmed as the defect of fugitive prevention film itself through the sampling inspection every day and the part which was confirmed as the error in the combination process of the Chinese companies in this case. After consultation about the rate at the end of every month, the part which was found as the defect of the entire “RMA” in accordance with the prescribed ratio is classified as the part which was caused by the defect of the entire “RMA” itself.

③ The Defendant classified the “RMA” and notified the Plaintiff of the content of the instant fugitive prevention film that was returned from the instant Chinese company, and the Plaintiff confirmed that the amount of damages caused by the “RMA products” was determined.

④ The Plaintiff entered into the instant supply contract with the Defendant with the knowledge of the transaction structure between the Defendant and the instant Chinese company. From June 2012 to July 2013, the Plaintiff settled down KRW 4,387,783,868 as compensation for damages with respect to the products determined to be “RMA” according to the instant defect inspection process, etc.

⑤ The Defendant was returned from September 2013 to September 2014 due to the discovery of a considerable number of defects in external appearance, investment rate, etc. during the process of examining the instant defects among the films produced and supplied by the Plaintiff from the instant Chinese companies.

(B) As to this, the Plaintiff asserts that: (a) if the Plaintiff did not find any particular defect at the time of supplying the Defendant with fugitives, the Plaintiff fulfilled its obligation under the instant supply contract; and (b) the Defendant’s subsequent export of fugitives supplied from the Plaintiff to the Chinese company of this case should take all the risk burden of the Defendant; (b) as to the part of the Plaintiff’s manufacture, the Defendant is fully responsible for all the Defendant; and (b) as to the part of the instant Chinese company, even though the Plaintiff was liable to compensate for damages to the Defendant’s defect in fugitives itself after the export of fugitives against the Defendant’s Chinese company of this case, it cannot be classified as “RMA” due to the defect in the Scatterings itself after the process; and (c) as to the part of the instant Chinese company after the process, the Plaintiff did not have any obligation to compensate for damages to the part of MA after the process.

In light of the following circumstances, i.e., (i) it is difficult to properly determine whether there is a defect by examining the primary defect of the defendant due to the characteristics, quantity, characteristics, etc. of the transaction structure in determining whether or not there is a defect in fugitive preventive film of this case, (ii) it is difficult to determine whether or not there is a defect in the fugitive preventive film of this case; (iii) the defendant and the Chinese company of this case regarding the "RMA" portion that was confirmed after the combination of processes by classifying the specific scope of liability by classifying the quantity of the "RMA" product of this case through sampling; and (iv) after checking the plaintiff's products under the name of the defendant, it is difficult to consider the negligence, and there is no evidence to acknowledge that there is a defect that the plaintiff supplied the defendant for the prevention of scattering of this case only before the combination process, and there is no evidence to acknowledge that there is a defect that the plaintiff supplied for the defendant.

(2) Scope of damages

(A) As to the portion determined as "RMA 2" between the Chinese company of this case, the defendant set the aggregate amount of 10% or 20% of the price of the pertinent product to 3rd 5th 2th 7th 6th 6th 7th 6th 206th 7th 206th 7th 206th 7th 206th 206th 206th 206th 206th 9th 206th 206th 206th 206th 7th 206th 206th 206th 206th 7th 196th 206th 206th 196th 206th 206th 206th 3th 206th 206th 206th 206th 204th 209

(b) Limitation of liability

However, the following circumstances, which are acknowledged as a whole based on the evidence as seen earlier, such as ① the occurrence and degree of defects may vary depending on the method and period of storage. Since the Plaintiff supplied the Defendant with the fugitive prevention film, the Defendant is fully responsible for the storage and management of the fugitive prevention film, and the Defendant and Chinese companies exported the fugitive prevention film to the Chinese companies of this case. ② As for the part of the DR discovered after the Gohap process, it is not clearly distinguishable from whether it was due to the defect in the Scattering prevention film itself, and whether it was caused due to the mistake in the process after the Gohap process, it is assumed that the ratio could be more detailed, such as the method of investigation by actively participating in the process of examining the defects after the Gohap process. ③ Since the Plaintiff’s 20% of the Plaintiff’s fault ratio was adjusted in accordance with the above agreement between the Defendant and the above Chinese companies, it is reasonable to deem that the Plaintiff’s 20% of the damages caused by the Plaintiff’s fault increase in the process and the damages caused by the Defendant’s fault.

(C) Sub-determination

Therefore, as seen earlier, the Defendant’s damage arising from the “RMA” that was confirmed between September 2013 and September 2014 was KRW 3,337,291,928, and the amount calculated by deducting 80% equivalent to the Defendant’s fault ratio from the said amount of damage is KRW 667,458,385 won (i.e., KRW 3,337,291,928 x KRW 20% x KRW 20%, and KRW 367,458,3855 as compensation for damage).

B)For offset, indication of intent of offset, and scope of offset;

(1) Relevant legal principles

The purpose of the offset system is to facilitate and fairly deal with both claims and obligations by settling accounts with claims and obligations in conflict with each other (Article 667(3) of the Civil Act). Thus, even if the automatic claim and the passive claim, which can be the object of offset, are in a simultaneous performance relationship, if it is not necessary to perform each other in reality, there is no risk of disadvantage due to offset, and permission of offset can be resolved simply between the obligation and obligations in a simultaneous performance relationship, barring special circumstances (see, e.g., Supreme Court Decision 2004Da54633, Jul. 28, 2006).

(2) Determination

In light of the aforementioned legal principles as seen earlier, the Plaintiff’s claim for the instant goods price claim against the Defendant and the Defendant’s claim for damages of this case against the Plaintiff are deemed to have a simultaneous performance relationship. Thus, the Defendant’s claim for damages as the automatic claim and the Defendant’s claim for damages of this case were in a set-off position on March 31, 2014, which included the Plaintiff’s claim for set-off with the Defendant’s claim for the aforementioned goods price claim as the passive claim. Since both claims were in a simultaneous performance relationship, it is clear that both claims were in a set-off position on March 31, 2014, which were served on the Plaintiff on March 28, 2014, and without any need to calculate damages. Accordingly, the Defendant’s claim for the goods price amount to be paid to the Plaintiff is 635,972,257 won (=1,303,430,642 won), and damages for delay are remaining within the scope of the Defendant’s defense as to this case’s claim.

C) Sub-decision

Therefore, the defendant is obligated to pay damages for delay calculated at the rate of 635,972,257 won remaining after offsetting the claim for damages of this case against the plaintiff as the claim for damages of this case and 635,972,257 won after the plaintiff supplied the defendant with the last fugitive prevention film in accordance with the supply contract of this case, and the defendant is obligated to pay damages for delay calculated at the rate of 6% per annum under the Commercial Act from December 1, 2013 to October 22, 2015, which is the date the decision is rendered, and 20% per annum under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, etc., from the next day to the date of full payment. The defendant's counterclaim claim against the plaintiff on the premise that the remaining money remains after deducting the amount of the plaintiff's claim for damages from the amount of the "

4. Conclusion

Therefore, the plaintiff's claim of the principal lawsuit is accepted within the above scope of recognition, and the remaining claims of the plaintiff and the defendant's counterclaim are dismissed as they are without merit. It is so decided as per Disposition.

Judges Scaria

Judges Park Jong-soo

(2) The process of attaching films to prevent flying on a mobile phone glass plate;