[2] Whether the provisions of the Civil Act concerning the rescission or termination of a contract shall apply to the termination or termination of a contract (negative)

[2] The requirements and effects of the cancellation and termination of an agreement shall be determined by the terms and conditions of the agreement and shall not apply to the provisions of Article 543 of the Civil Code on the cancellation and termination thereof. Thus, whether the lessee may cancel or terminate the order under the contract in question providing the grounds for the cancellation and termination of the agreement, and its validity shall be governed by the terms and conditions of the contract in question between the supplier and the lessee.

1. On the first ground for appeal

A. "Lease of facilities" means a contract under which a facility leasing company (hereinafter referred to as "lease company") newly acquires or leases a specific object selected by a facility user (hereinafter referred to as "user") and takes a direct responsibility for the maintenance and management of such object for a given period without any support for the lessee, and with respect to the disposal of the object after the expiration of that period, (see, e.g., Supreme Court Decisions 84Meu503, 504, Aug. 19, 1986; 94Da23388, Nov. 8, 1994; 95Da51915, Aug. 23, 1996; hereinafter referred to as "lease") provides the user with a duty to provide the object for the delivery of the object, and the company is obligated to provide the object for the delivery of the object to the user by negotiating it with the supplier of the object, and the company is obligated to provide the object for the delivery of the object to the user at the same time under the terms and conditions of the lease.

B. According to the reasoning of the judgment below and the records, the non-party company's construction contract was concluded on February 8, 1994 with the non-party 2, 00 won for the above 70-point software supply contract, 00 won for 70-point software supply contract, 149, 000 won for 70-point software supply contract, 40-point software supply contract, 000 won for 70-point software supply contract, 16,868,000 won for 70-point software supply contract, 00-point 16,000 won for 70-point software supply contract, 000 won for 70-point software supply, 50-point software supply contract, 00 won for 70-point software supply, 50-day software supply contract, 00 won for 70-point software supply, 90-70% of total amount of 60-point software supply, 90-7,000

As such, inasmuch as the Plaintiff, a supplier of a leased object, completed the manufacture of hardware, etc. under the instant order and supplied and installed it at a place designated by the non-party company that is the user, and performed software development services equivalent to about 72% of the total service quantity, the Defendant is obligated to pay the Plaintiff the price of hardware, etc. under the instant order contract and the intermediate payment of software development services. However, in the event that the payment of 'cruel' is made pursuant to Article 2(3) of the instant order contract, the non-party company requires the Defendant to submit a receipt or receipt certificate of goods in the form prescribed by the Defendant. Meanwhile, in light of the special agreement on the method of paying the price of goods under the instant order contract, 561,260,000 won for software development services (30%), 220,504,000 won for intermediate payment (40%), and 165,378,000 won for the remainder of the payment of the purchase price of goods from the Plaintiff company or the intermediate payment for goods, barring special circumstances.

However, according to the facts acknowledged above, the plaintiff completed the manufacture of hardware, etc. and delivered it to the supply place designated by the non-party company, and received a confirmation of completion of inspection of hardware, etc. from the non-party company, and claimed the defendant to pay the price of the above hardware together with the confirmation of completion of inspection of the non-party company on the hardware, etc. Thus, although the above confirmation of completion of inspection is different from its name, it is reasonable to view that it constitutes the receipt of the goods required in Article 2 (3) of the above contract, and therefore, the non-party company fulfilled its duty to submit the certificate of receipt of the goods on the hardware, etc. through the plaintiff. Thus, the plaintiff's claim for payment of the price of the hardware, etc. and the intermediate payment of software development service under the contract of this case cannot

C. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the defendant is not able to respond to the plaintiff's claim since the defendant did not receive a certificate of receipt of goods from the non-party company as to hardware, etc. or software development services, etc., and there are no errors in the misapprehension of legal principles as to the interpretation of disposal documents, the rules of evidence, and the rules of experience. The ground for appeal as to this point is not accepted.

2. On the second ground for appeal

A. According to the reasoning of the judgment below and the records, Article 7 (5) of the contract of this case of this case of provisional attachment, provisional attachment, provisional attachment, application for auction, bankruptcy, settlement, or commencement of company reorganization procedure against the plaintiff or the non-party company may cancel or terminate the contract of this case without notification if there are grounds for the commencement of company reorganization procedure or entry into liquidation. This provision provides for the cancellation or termination under the contract of this case between the parties, and the requirements and effect of such cancellation or termination are determined by the contents of the agreement, and are not subject to the provisions of Article 543 of the Civil Act of this case of cancellation or termination (see, e.g., Supreme Court Decisions 79Da1455, Oct. 30, 1979; 95Da16011, Jul. 30, 1996). Whether the contract of this case of this case of this case of this case can be cancelled or terminated under Article 7 (5) of the contract of this case of this case of this case of this case between the plaintiff and the defendant.

However, under the contract of this case, the defendant may refuse to pay the price under the contract of this case until the non-party receives a certificate of receipt or receipt from the non-party company. However, it can be deemed that the non-party company is not required to submit the above certificate of receipt or receipt of the contract of this case regarding the payment of down payment and intermediate payment out of the price of software development services. In full view of all the circumstances indicated in the record, such as the contents of the contract of this case and the reasons for cancellation or termination under Article 7 (5) of the contract of this case are not directly related to the execution of the contract of this case, it is reasonable to deem that the contract of this case can be cancelled or terminated only if such cancellation or termination occurred before the non-party company receives a certificate of receipt or receipt of the goods from the non-party company, and further, if the non-party company can claim the payment of intermediate payment with respect to the development cost of software which is not required to submit such certificate of receipt or receipt of the goods, it cannot be viewed that the contract of this case is retroactively extinguished.

B. According to the facts duly confirmed by the court below, around December 9, 194, the plaintiff completed the delivery of hardware, etc. under the order of this case, and on February 27, 1995, issued a confirmation of completion of the inspection of hardware, etc. from the non-party company. On March 13, 1995, the plaintiff filed a claim with the defendant for the payment of KRW 348,740,00,00, including hardware, attached with the certificate of completion of the above inspection. The non-party corporation, Dongsung Bank filed an application for provisional seizure against the non-party company's claim for the provisional seizure against the non-party company's claim amounting to KRW 99,349,60,000 against the non-party company for the preservation of the execution of the non-party company's claim amounting to KRW 294,326,000,000 against the non-party company, and the defendant could not receive the order of this case from the defendant until March 8 of this year.

Meanwhile, according to the facts duly established by the court below, 561,260,00 won for software development services at the time of the contract of this case was paid in 165,378,00 won for down payment (30%) 220,504,00 won for intermediate payment (40%) and 165,378,000 won for the remainder payment (30%). On March of the same year, the plaintiff met the requirements for payment of the intermediate payment by conducting software development services to a considerable amount of 72% of the total amount of services, such as analyzing the current situation, completing basic design and detailed design, and completing the development of the program, etc., and thereby satisfying the requirements for payment of the intermediate payment. Accordingly, even if the defendant notified the cancellation of the contract of this case on the ground that the provisional seizure of claims under Article 7(5) of the contract of this case occurred, the obligation to pay the intermediate payment already occurred cannot be deemed retroactively lost, and it is only effective as the termination right to terminate the contract of this case for the future.

C. According to the reasoning of the judgment below, the court below rejected the defendant's defense that the defendant's obligation to pay KRW 348,740,000 and the total of KRW 569,24,000, including hardware, was retroactively extinguished on the ground that provisional attachment against the non-party company, which is the reason for the cancellation of the contract, was the provisional attachment against the non-party company. The court below rejected the defendant's right to cancel the contract of this case on the ground that the defendant's exercise of the defendant's right to cancel the contract of this case is only effective as a termination that terminates only in the future, and it is not effective to retroactively extinguish the obligation to pay the price already occurred. The decision of the court below that the contract of this case was not retroactively extinguished on the ground of the defendant's exercise of the right to cancel the contract of this case, and there is no error in the misapprehension of legal principles or misconception of facts as to the right to cancel the contract of this case, and even if the court below did not affect the conclusion of the judgment.

3. On the third ground for appeal

Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings provides that "when an obligor is deemed to have a reasonable ground for a dispute over the existence and scope of the obligation," the issue of whether the obligation exists or not is unreasonable is related to the fact-finding and evaluation by the court concerning the relevant case (see Supreme Court Decisions 86Meu1876, May 26, 1987; 95Da51960, Feb. 23, 1996; 97Da6988, May 9, 1997, etc.).

In light of the records, the court below is just in holding that the defendant ordered the plaintiff to pay damages for delay at the rate of 25% per annum from the day following the delivery of the copy of the complaint of this case to the day of full payment, and there is no error in the misapprehension of legal principles as pointed out in the ground of appeal. The ground of appeal as to this point is not acceptable.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)