[2] Whether the provisions and legal principles of the private law apply to the state contract as they are (affirmative in principle) and the scope of the "debt arising from the commercial act" to which the commercial statutory interest rate under Article 54 of the Commercial Act applies

[2] The essential content of a State contract is, except as otherwise expressly provided for in the statutes, the provisions of the private law or the principles of law apply as they are, except for the cases where there is no difference between contracts between private persons. Meanwhile, the term “debt arising from commercial activity” to which the statutory interest rate of commercial under Article 54 of the Commercial Act applies includes not only the obligation directly arising from commercial activity but also the obligation recognized as identical or modified, and also the obligation arising from the act that constitutes a commercial activity for both parties as well as the obligation arising from the act that constitutes a commercial activity

1. Regarding ground of appeal No. 1

A. According to the reasoning of the judgment below, the court below acknowledged the facts based on the adopted evidence, and determined that the non-party to the Army Headquarters inspector was negligent in neglecting his duty of care as an inspector in inspecting the goods of this case, and that such mistake contributed to the occurrence and expansion of damage caused by the defect of the goods of this case.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on negligence of creditors.

B. Meanwhile, in a case where the amount of damages due to the debtor’s nonperformance of obligation is set out in a contract between the parties, even if there is negligence on the part of the creditor in the occurrence and expansion of damages due to the nonperformance of obligation, even if there is negligence on the part of the creditor, the creditor may not set off the amount of damages on the ground of negligence by the creditor, by taking account of all the circumstances such as the obligor’s negligence and the circumstances surrounding the breach of the contract (see, e.g., Supreme Court Decisions 9Da57126, Jan. 25, 2002; 2009Da92142, Oct. 13, 201).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning based on its adopted evidence, and presumed that Article 10 (4) of the Special Conditions for the Contract of this case was scheduled to compensate for damages caused by the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”)’s nonperformance of the duty to pay the estimated amount of compensation for damages agreed upon to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) by refusing the repair of defects or the demand for replacement supply of the Army Headquarters, and by failing to perform the obligation, it was presumed that the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) was liable to pay the estimated amount of compensation for damages. However, since the estimated amount of compensation for damages cannot be deemed unreasonable, it cannot be reduced pursuant to Article 398 (2) of the Civil Act. However, the occurrence and expansion of damages caused by the Plaintiff’s nonperformance contributed to the Nonparty’s breach of the duty to pay the duty of care to the inspector of the Army Headquarters at

However, according to the above legal principles, even if there is negligence on the part of the defendant in the occurrence and expansion of damages in the event that the plaintiff is liable to pay the agreed amount of compensation for damages due to the failure to perform the obligation under the contract of this case against the defendant, it cannot be said that the amount of compensation for damages can be reduced by taking this into account, and it cannot be offset by negligence based on

Nevertheless, the court below calculated the amount of damages to be paid to the defendant according to the estimate of damages as stipulated in the contract of this case, and set a comparative negligence with the defendant's negligence. In this regard, the court below erred by misapprehending the legal principles on limitation of damages liability, which affected the conclusion of the judgment. The ground of appeal assigning this error

2. Regarding ground of appeal No. 2

Except as otherwise provided for in statutes, the essential content of the State contract is different from a contract between private persons, and thus, the provisions of the private law or the principles of law apply as they are (see Supreme Court Decision 95Da11436, Apr. 26, 1996). Meanwhile, the term “debts arising from commercial activity” to which the statutory interest rate of commercial activities is applied under Article 54 of the Commercial Act includes not only the obligation directly arising from the commercial activity, but also the obligation arising from the act that constitutes a commercial activity as well as the obligation that is identical or is modified thereto. Both parties include not only the obligation arising from the act that is a commercial activity but also the obligation that is arising

In light of the aforementioned legal principles and records, the instant contract constitutes a commercial activity conducted by the Plaintiff, which is a merchant, and the Defendant exercises the right to claim damages arising from the Plaintiff’s nonperformance of obligations under the instant contract. Therefore, 6% per annum, which is a commercial statutory interest rate, should be applied to

Nevertheless, the court below ordered the payment of damages for delay calculated at the rate of 5% per annum by applying the civil statutory rate. In so doing, the court below erred by misapprehending the legal principles on the application of the commercial statutory rate. The ground of appeal assigning this error is with merit.

3. Conclusion

The part of the lower judgment against the Defendant regarding the counterclaim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)