부당이득금
1. Of the judgment of the court of first instance, the part against the defendant in excess of the following amount ordered to be paid shall be revoked.
1. Facts of recognition;
A. The Plaintiff (formerly, “B”) is a company engaging in telecommunications sales business, etc., and the Defendant is a mutual aid association established under Article 38 of the Door-to-Door Sales, etc. Act.
B. On March 29, 2011, the Plaintiff concluded a mutual aid transaction agreement with the Defendant with the period from March 29, 2011 to March 28, 2012. On December 28, 2012, the Plaintiff concluded a mutual aid transaction agreement with the period from January 1, 2013 to December 31, 2013 (hereinafter “instant mutual aid transaction agreement”).
In each mutual-aid transaction agreement, the Plaintiff recognized that the Defendant’s “mutual-aid provisions” and “damage Compensation Terms and Conditions” apply, and Article 26(4) of the Defendant’s Mutual-Aid Regulations (hereinafter “Mutual-Aid Provisions”) provides that “In the event a beneficiary does not issue a deduction number at the time of ordering goods, etc. to the company, a mutual-aid contractor shall pay a penalty of 5% (in the event that an order for non-issuance has occurred within one year from the date of the payment of penalty, 10%) of the amount of the non-issuance order. However, the application of these provisions may be excluded if natural disasters or other unavoidable causes exist.
C. On July 9, 2013, the Defendant discovered that there was a sales without a credit number among the Plaintiff’s sales that occurred from January 2013 to July 2013.
Accordingly, on July 18, 2013, the Defendant sent a written demand to the Plaintiff to pay a penalty of KRW 33,610,500 (hereinafter “instant primary penalty”) equivalent to 5% of the sales amount of KRW 672,210,00,000, out of the Plaintiff’s sales accrued during the said period, to the Plaintiff. On July 26, 2013, the Defendant processed the instant primary penalty against the Defendant on an equal basis with the claim for the return of the security deposit against the Defendant.
On August 9, 2013, the Defendant was a real logistics among the Plaintiff’s sales that occurred from October 2012 to January 2013, 2013, and was a communications sales.