A. The defendant shall pay to the plaintiff 214,963,200 won with 6% interest per annum from December 22, 2004 to January 15, 2009 and 20% interest per annum from January 16, 2009 to the day of full payment.

B. The plaintiff's remaining claims are dismissed.

2. The total costs of a lawsuit shall be three-minutes, and such two-minutes shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. The above paragraph 1(a) may be provisionally executed.

The defendant shall pay to the plaintiff 528,90 US dollars and 6% interest per annum from December 22, 2004 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 428,900 US dollars and 6% interest per annum from December 22, 2004 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

Defendant: The part against Defendant in the judgment of the first instance court is revoked, and the Plaintiff’s claim corresponding to the revocation part is dismissed.

The following facts may be acknowledged if there is no dispute between the parties, or if the purport of the whole pleadings is added to the statements in Gap evidence 1 through 29, Eul evidence 3 and 4:

A. Status of the parties

The plaintiff is a company that has its head office in Switzerland and engages in the business of purchasing non-ferrous metal, ingot metal, steel products, etc. in the world market and selling them to the steel companies in Western Europe, and the defendant is a company that imports non-ferrous metal, ingot metal, steel products, etc. from China, Russia, etc. and sells them again to Korea and overseas.

(b)the transactions between the plaintiff and the defendant on May 31, 2004;

(1) On May 27, 2004, the Defendant sent to the Plaintiff the e-mail that the Defendant may supply Pulrobden 200M.T. (c) to USD 31.90 per kilogramn (clobden refer to USD 31.90 per kilogramn included in Pulrobn) by July 2004.

(2) On the same day, the Plaintiff, upon receipt of this, sent to the Defendant a written confirmation of purchase with the following content: (a) purchase of Plobden of at least 65% of Plobden at USD 31.90 per kilogramn per M.T.

Price Conditions: EXW Rotterdam (referring to the conditions of departure delivery delivered to the Plaintiff from the Defendant’s warehouse in Rotterdam), and the payment of EU customs duties except value-added tax.

Period of time: the second half of July 2004

Payment: After conditional transfer and presentation of all documents

Dispute Resolution: All the disputes shall be settled by arbitration in accordance with the rules of MTA (MTA) in the United Kingdom.

Terms and conditions (Buer's Terms and Conditions) shall apply to the buyer and lapply

(3) On May 31, 2004, the Defendant, upon receipt of the said written purchase confirmation, prepared and sent a sales contract with the amount, price, and due date identical to the said written purchase confirmation and with the following conditions added thereto:

Subject-matter: Slobden of at least 60% of Slobden

Quantity: Quantity and amount of shipment are allowed to be excessive or deficient within 10 per cent.

Transshipped or divided shipment: Non-permission

Payment: Payment for telegraph transfer after delivery of each copy of commercial invoice, quality and weight confirmation, and certificate of origin by facsimile;

Dispute Settlement: Settlement by arbitration from Korean Commercial Arbitration Board in Seoul

(4) On August 4, 2004, the Plaintiff received the price from the Rotterdam warehouse on August 4, 2004, and paid the price to the Defendant on the same day, without any further discussion as to the portion whose parliamentary indication is not identical as above, and thereby, the said transaction was concluded.

(c)the transactions between the plaintiff and the defendant on July 7, 2004;

(1) On July 7, 2004, the Defendant offered to the Plaintiff a sales contract with the following content that the Plaintiff will supply Puindon 200M.T. at USD 34.50 per kilogramn kilogramn to USD 34.50 per kilogramn or to the first order of August 2004.

Subject-matter: Slobden of at least 60% of Slobden

Quantity and amount: Quantity and amount of shipment shall be excessive or deficient within 10 per cent.

Transshipped or divided shipment: Non-permission

Payment: Transfer of 100% of the total exchange within three days from the date of issuance of the conditional delivery certificate issued in the warehouse;

Dispute Settlement: Settlement by arbitration from Korean Commercial Arbitration Board in Seoul

(2) On the same day, the Plaintiff sent to the Defendant a written confirmation of purchase with the following content that the Plaintiff would purchase the same object at the same price and the due date as the conditions presented.

Quantity: 20M.T.

Payment: After conditional transfer and presentation of all documents

Dispute Settlement: All disputes shall be settled by arbitration in accordance with the rules of the MTA in London.

the terms of the buyer are applied.

(3) On September 2, 2004, the Plaintiff, without additional discussions as to the disagreement in declaration of intention, paid to the Defendant the amount corresponding to the Plobden 20M.T. 200, and received the aforesaid Plobden from the Rotterdam warehouse at that time, was terminated.

D. The transaction of the plaintiff and the defendant in this case

(1) On August 23, 2004, the Defendant offered to the Plaintiff a sales contract (contract number: KS-EX040823/FW-EM239) containing the following contents: (a) the Defendant offered to supply Plubden 40.50 US$ 41.50 per kilogrambden (price, customs duty payment, and tax unpaid conditions in a Rotterdam warehouse) to the Plaintiff at least 60% of the Mlubden content.

Subject matter: Plubden of not less than 60%, not more than Libden of not more than 1.50%, not more than Gui (Cu)0%, not more than 0.50% of carbon (C), not more than 0.50% of sulfur (S), not more than 0.10%, not more than 0.05% of man (P).

Quantity and amount: Quantity and amount of shipment shall be excessive or deficient within 10 per cent.

Period during which the obligations are met: 10.10

Transshipped or divided shipment: Non-permission

Payment: Transfer of 100% of the total exchange within three days from the date of issuance of the conditional delivery certificate issued in the warehouse;

Dispute Settlement: Settlement by arbitration from Korean Commercial Arbitration Board in Seoul

(2) On the same day, the Plaintiff sent to the Defendant a written confirmation of purchase with the following content to purchase the said object.

Quantity: 40M.T., Price: US$ 41.50 per kilogrambden

Price Conditions: Payment of EU Customs Duties except for EXW Rotterdam and Value-Added Tax

Period during which the obligations are met: 10.10

Payment: After conditional transfer and presentation of all documents

Dispute Settlement: All disputes shall be settled by arbitration in accordance with the rules established by MTA in the United Kingdom in accordance with UNCITRAL.

The conditions of the buyer are applied.

(3) On October 22, 2004, the Defendant sent the commercial invoice to the Plaintiff stating the contract number of the above sales contract to the Plaintiff. The content of the commercial invoice is to supply USD 456,118.20 of the content as above to the Plaintiff.

(4) On November 25, 2004, the Plaintiff accepted the above Parobden 18MT, and received conditional transfer confirmation, and on November 26, 2004, remitted USD 446,022.68 to the Defendant on November 26, 2004. The amount of remittance differs from the amount of commercial invoice is because there was a settlement amount of USD 10,095.52 to be received by the Plaintiff from the Defendant in the previous transaction.

(5) On December 3, 2004, the Plaintiff informed the Defendant of the second shipment in relation to the above contract. Accordingly, the Defendant, on the same day, has caused disruptions to the shipment schedule on the grounds that the quality of raw materials supplied in China was bad, etc.

(6) On December 10, 2004, the representative director of the defendant requested on December 10, 2004 that the plaintiff delayed shipment, but it is difficult to supply it due to increase in the price of the raw materials so as to supply the remaining quantity as the original price and purchase the additional quantity of the representative container at USD 85 per kilogramn.

(7) On December 15, 2004, the Plaintiff, on the ground that it is difficult for the Plaintiff to accept the above proposal, delivered the remaining quantity to the Defendant in the Rotterdam warehouse by December 20, 2004, and supplied the additional purchase amount to USD 75 per Mabden kilogram. The Defendant, on the day of the receipt of the above reply, reached the extent of USD 90, and accordingly, requested the Plaintiff to accept the above proposal on December 10, 204.

(8) However, the Plaintiff rejected the Defendant’s above proposal and received the Plaintiff’s proposal on December 15, 2004 or demanded the Plaintiff to perform the original contract.

(9) On December 17, 2004, the Plaintiff requested the Defendant to load and verify Plobden 20M.T, which was not performed on December 20, 2004, by December 20, 2004, and notified the Defendant that the Plaintiff should make a substitute sale in order to implement the sales contract entered into with a third party based on the contract with the Defendant.

(10) On December 20, 2004, the defendant sent notice to the plaintiff that the remaining 20M.T. is able to secure the volume of the goods as a result of the business discontinuance by the customer in relation to 20M.T. on the remaining 20M.T. under the above contract, and that the price of the raw materials sobden at present has increased. Thus, if a container is additionally purchased at US$ 90 per kilogrambden, a container may be supplied for the remainder 20M.T. under the above contract.

(11) On December 21, 2004, the plaintiff notified the defendant that he will execute a substitute trade since he could not accept the defendant's proposal.

(12) On December 21, 2004, the Plaintiff purchased from the non-party company 65% of the content of Mabden from the non-party company 24M.T. 24mbden at USD 84.50 per kilogramum.

(13) On January 24, 2005, the Plaintiff filed a claim with the Defendant for the payment of USD 528,900 as compensation for damages, equivalent to the difference between the purchase price under the contract with the Defendant and the purchase price by the Nonparty Company.

(e) Increase in the price of Plobden;

The change in the international price of Sbden of 60% and 65 through 70% at each time of the above transactions shall be as follows:

【Plobden Price Table (price unit shall US US dollars)】

본문내 포함된 표 일자 몰리브덴 함량 60% 몰리브덴 함량 65-70% 최저가 최고가 최저가 최고가 2004. 4. 21. 31 33 38 41 2004. 5. 26. 24 27 32.5 34.5 2004. 7. 7. 32 36 40 44 2004. 8. 13. 38 41 46 48 2004. 10. 29. 56 59 ？ ？ 2004. 11. 3. 56 59 70 72 2004. 12. 15. 71 74 88 91 2004. 12. 22. 72 75 90 93

2. Applicable law of the instant case

Since this case is a dispute over a legal relationship with foreign elements, there is no evidence to acknowledge that there was an agreement on the governing law between the plaintiff and the defendant as to the governing law applicable to this case, the law of the Republic of Korea with the principal office of the defendant, who is the transferor presumed to have the most closely connected with the contract between the parties under Article 26 (2) 1 of the Private International Law, shall be the governing law.

3. The assertion and judgment

A. Summary of the parties' assertion

(1) The plaintiff asserts that the defendant may supply the remainder of the Plobden 200.T. by December 2004, and the defendant concluded a contract to resell them to the consumers in France and the United Kingdom, but the defendant ultimately entered into a contract to purchase higher prices with the non-party company without choice for the execution of the sales contract entered into with the above consumers on the wind that did not perform the above contract. Thus, the defendant shall compensate the plaintiff for 528,90 US dollars 528,90 [200 x 43 (84.50 - 41.50) x 61.50%], which is the difference between the price stipulated in the purchase contract with the above non-party company and the price that the defendant supplied to the plaintiff.

(2) As to this, the Defendant did not agree with the terms and conditions set forth in the above-mentioned 1-D, the Defendant did not enter into an agreement with the Plaintiff that sold Perobden 40M.T.. However, the Defendant’s mistake that the contract was concluded and supplied 18M.T. or delivered part of the contract to the Plaintiff, taking into account the future transactional relationship with the Plaintiff. Thus, the Defendant is not obligated to additionally supply Perobn in 200MT., and even if not, the Defendant does not have any obligation to additionally supply Perobn in 65% of the Merobn content that the Plaintiff purchased as a substitute, and since Perobn’s 60% of the Perobn content originally agreed to be supplied by the Defendant cannot be deemed to have caused damage to the Plaintiff. Meanwhile, even if the Plaintiff suffered damage, the amount of damage that the Defendant should compensate for should be calculated as the initial amount of 25% or 200 U.S. price during the original due period.

B. Determination

(1) Whether the instant contract was concluded

(A) According to the facts stated in the above 1-D, the sales contract dated August 23, 2004, sent by the Defendant, and the purchase confirmation on the same day sent by the Plaintiff, provided that the subject matter, quantity, price, and due date (However, the Plaintiff’s purchase confirmation does not indicate that the quantity and amount are in excess of 10% or less within the limit of 10%) are agreed upon by each other, but the remaining conditions, excluding them, are without agreement on the terms and conditions of payment, namely, the time and time of settlement of the dispute, the method of resolving the

(B) In order to establish a contract as a matter of principle, in order to ensure that there is a need and objective agreement between the parties to agree on the matters expressed in their expression of intent, all of them must be the same. On the other hand, even if the parties are not the "important point" and the objective element of the contract, when the parties have expressed their intent to be the requirements for the formation of the contract with a significant significance thereto, the contract shall be deemed lawful and effective. However, even if there is a mutual agreement on the important point of the contract and the agreement alone does not interfere with the formation of the contract, it is reasonable to deem that the contract was concluded only with the parties in light of the circumstances before and after the contract, in case where it is deemed that the parties have expressed their intent to enter into the contract with a limited content in view of the fact that there is no legal hindrance to the formation of the contract, even if there is no mutual agreement on the important point of the contract and the agreement on the matters

(C) In this case, the Health Unit, although there was no agreement between the parties on the terms and conditions of payment, method of resolution of disputes, transshipment and whether shipment was permitted, such matters can be supplemented by transaction practices between the parties or the provisions of the law applicable to the above contract, and there was an agreement on the subject matter, quantity, price and due period, which can be deemed the most important factor in the above contract. Although the due date is extended, the defendant provided the plaintiff 18MT, and paid the plaintiff 18MT without any objection and the corresponding payment. The plaintiff and the defendant traded Perobn over two times before the transaction in this case and did not reach an agreement on the remaining matters, the plaintiff provided Perobn for the supply of Perobn and paid the price to the defendant within the extent of the price and due date, and the plaintiff did not have agreed on the terms and conditions of the above contract as stated above, and thus, it is not reasonable to conclude that the contract was valid for the plaintiff's purchaser and the defendant agreed on the terms and conditions of the above contract in this case.

(D) Even if the contract of this case was effective, the defendant's sales contract dated August 23, 2004 rejected a divisional shipment. However, the defendant first delivered 18M.T. and received it without objection, so long as the plaintiff received it, the contract of this case was terminated in accordance with the above conditions of non-permission of the divided shipment.

However, according to the above facts, even if the condition of non-permission of the divisional shipment is difficult to be deemed as effective in the contract of this case, and even if the content of the contract of this case is dealt with, the condition that the non-permission of the divisional shipment may refuse to provide counter-performance on the condition that it is inserted for protecting the buyer's interest. The seller who made the divisional shipment against the above condition does not grant the right to refuse the remaining performance on the ground that the above condition exists. The above argument is without merit.

(2) The nature of the instant contract

(A) According to the above facts, since Plobden continued to increase the price of raw materials after May 2004, the price of which is considerably high, it is the object of the contract in this case. The Plaintiff, the buyer, purchased the Plobn for resale to the company conducting international trade in raw materials. The Defendant also concluded the contract in this case on the premise that it should import and resell Plobn from China. In this case, the Plaintiff, the buyer, in consultation with the seller to acquire the imported raw materials at the most favorable point in view of the inventory quantity, demand and supply situation, international and domestic price trends, the number of shipping goods from the place of shipment to the place of discharge, the expected price at the time of delivery of raw materials, and the Defendant, the seller, also, was also the object of the contract in this case by examining the inventory quantity of the raw materials to be supplied, the supply situation at the place of origin, the international price trends, etc., and thus, there is a concern that the Defendant would have made a significant probability in determining the original price and the execution date of the contract.

In full view of the foregoing circumstances, it is reasonable to deem that the instant contract constitutes a conclusive term transaction as stipulated in Article 68 of the Commercial Act, in which the purpose of the contract can not be achieved unless the contract is performed within the period agreed upon by the parties’ declaration of intent. Therefore, insofar as the Defendant did not deliver the said Plobden by the end of October 2004, the agreed due date during which the Plaintiff was not immediately demanded its performance, the Plaintiff does not have any obligation to accept the said goods, and the instant contract should be deemed to have been rescinded accordingly.

(B) However, as seen earlier, the fact that the Defendant delivered Slobden on November 25, 2004 to the effect that part of the instant contract was performed on November 25, 2004 after the above due date, and the Plaintiff received it without objection, and that there was discussions on the implementation of the remaining quantity as stipulated in the instant contract between the original and the Defendant until December 2004 was discussed. However, it is insufficient to recognize that both parties to the instant contract were to have concluded the instant contract with the recognition of the contract as the contract that was not the final sale contract, but the contract was not the execution and receipt that was performed under the mutual needs under the conditions that there was no legal obligation or receipt due to the rescission.

(3) The defendant's liability and scope of damages

(A) As seen above, the instant contract was rescinded upon the lapse of the due date due to the Defendant’s fault. As such, the Defendant is liable to compensate the Plaintiff for compensatory damages for the amount equivalent to the market price of Pubden, the amount of which is 60% of the amount of Mubden at the time of the rescission.

Accordingly, in calculating the amount of damages to be paid by the defendant, the amount of damages to be paid by the defendant shall be US$192,000 [=20,000 kilogram US$16 (20,000 US dollars at the end of October 28, 2004 - US$ 57.50%) x 60% of the unit price of the contract of this case x 60% of the amount of the contract of this case ] and Article 394 of the Civil Act, which provides damages for non-performance of obligation, shall compensate in cash unless there is any other declaration of intention. The money stipulated in the above provision of this Act refers to Korean currency, and thus, the claim for damages due to non-performance of obligation cannot be deemed as foreign currency designated claims (Supreme Court Decision 2003Da12083, Jul. 28, 2005). The defendant shall be liable for damages to US$160,1290,000 won converted from the above contract of this case to US dollars 16.

(B) The Plaintiff asserts that the difference between the price and the price stipulated in the instant contract is damages, since the Plaintiff purchased the substitute from the non-party company to USD 84.50 per kilogramn kilogramn due to the Defendant’s nonperformance of obligation.

However, as to the plaintiff's assertion that the Plobden's 60% of the 60% of the Mabden's content and its flobden's 65% of the 65% of the 65% of the flobden's content are the same item as substitute for each other, it is insufficient to recognize it only by the descriptions of Gap 30, 35, and Gap 36's 1 through 4. There is no other evidence. Rather, in light of the price difference between Plobden's 60% of the flobden's 65 through 70% of the flobden's flobden's flobden's flobden's flobden's f5% of the 65% of the 65% of the flobden's flobden's flobden's flobden's flobden's floen's f.

(C) In international trade of raw materials, such as Plobden, the Defendant entered into a contract with a contract performance guarantee equivalent to 2 to 5% of the purchase price, taking into account the fact that the price fluctuation is severe. Even if not expressly stipulated in the contract, it is a practice that only 2 to 5% of the purchase price should be paid as compensation for damages at the same time as the contract performance guarantee clause is specified in the contract performance guarantee clause. Thus, the Defendant asserts that the Defendant’s liability should be limited to the above scope. However, even if the above contract performance guarantee clause is not specified on the sole basis of the statement in 1 to 5 of evidence 2, it is insufficient to acknowledge the above assertion that it is a practice to compensate only damages within the above scope, and there is no other evidence to acknowledge it otherwise.

(D) The Defendant asserts that the amount of damages should be calculated on the basis of the 18M.T., on the ground that there exists a provision allowing a shortage of 10% in quantity, but even if the provision allowing an excess of 10% in quantity and amount was incorporated into the content of the instant contract, it is difficult to deem that the Defendant’s supply of an object was not a breach of contract within the scope permitted under the foregoing provision, and that the Plaintiff cannot assert nonperformance on the ground that it was not a breach of contract, and that it is the minimum amount of damages to be applied in the event that

(E) In addition, the Defendant asserts that the due date of the instant case was set only October 2004, and thus, the average price which forms the basis for the assessment of damages should be the average price on October 2004. However, in a case where only the due date was set as October 2004, barring special circumstances, deeming the due date to be complied with if it met only by the end of October 2004, barring special circumstances, is in accord with the empirical rule. Therefore, the due date which serves as the basis for the assessment of nonperformance should be deemed to be the end of October 2004, and therefore, the said assertion is without merit.

(f) Lastly, the defendant asserts that the defendant did not perform the contract of this case as the international price of Plobden rapidly increased, and that such increase in the price could not have been predicted by the defendant, which constitutes a special damage or a reduction in the amount of damages in consideration of such circumstances.

However, even if the market price of the object at the time of cancellation was increased compared with that at the time of the conclusion of the contract, the scope of the compensatory liability shall be based on the market price of the object at the time of the cancellation of the contract and shall not be deemed special damage (see Supreme Court Decision 92Da20163, May 27, 1993). Further, the mediation trade with the defendant, such as the defendant, always concludes a contract by predicting the change of the price of raw materials and determining the price in accordance therewith, and the change in the price is a day in the raw materials market, and the price is 60% of the price is a Pulbden’s 56% of the Mulbden content at the time of the execution of the contract in this case, even if the price has increased from USD 38 (minimum standard; hereinafter the same shall apply) to USD 47% at the time of the due date, it is difficult to view that there is a

(4) The theory of lawsuit

Therefore, the defendant is obligated to pay to the plaintiff 214,963,200 won and damages for delay at the rate of 6% per annum under the Commercial Act from December 22, 2004 to January 15, 2009, which is the date when the judgment of the court is rendered by the court below, and from January 16, 2009 to the date when full payment is made, 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the above scope of recognition and the remaining claims are dismissed as there is no ground. Since the judgment of the court of first instance is unfair with some different conclusions, it is so decided as per Disposition by accepting part of the plaintiff's appeal and changing the judgment of the court of first instance as above.

Judges Choi Jae-sik (Presiding Judge)