2016Na2056128 (Lawsuit for the Revocation of an Arbitral Award)

2016Na2056135 Judgment (Counterclaim)

The Central Market Merchants' Association

Gangnam-gu Co., Ltd.

Seoul Central District Court Decision 2015Da5316965 (main office) decided July 29, 2016, and 2016dan5015498 (Counterclaim) decided by the Seoul Central District Court (Counterclaim)

March 17, 2017

April 14, 2017

1. All appeals filed by the Plaintiff (Counterclaim Defendant) are dismissed.

2. The costs of appeal shall be borne by the Plaintiff (Counterclaim Defendant).

【Main Office】

With respect to the case of No. 1411-059 of the Commercial Arbitration of the KCAB between the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) and the Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”), the arbitral award stated in the attached Form shall be revoked on June 24, 2015 by the Tribunal.

【Counterclaim】

Any compulsory execution under the above arbitral award shall be permitted.

Purport of appeal

The judgment of the first instance shall be revoked.

An arbitral award stated in the purport of the complaint shall be revoked.

The defendant's counterclaim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as follows, except for the part concerning the plaintiff's first argument as to "as to the fifth to sixth to seventh, third to sixth, the court's fifth decision of the court of first instance" (see, e.g., Supreme Court Decision 420 of the Civil Procedure Act). As such, the part concerning the plaintiff's first argument is cited by the court of first instance

【Supplementary Use】

A) In a case where a party to a contract has prepared a prior contract under certain forms in order to conclude a contract with a majority of other parties, and enters into a contract by presenting it to either party, individual negotiations (or interest) as to a specific provision with the other party.

(A) If the other party has an opportunity to adjust his/her own interest by following the opportunity, the specific provision shall be deemed an individual agreement not subject to the regulation of the Regulation of Standardized Contracts Act. In order to deem that there has been an individual negotiation, even though the result of the negotiation does not necessarily appear in the form of changing the content of a specific provision, it is necessary to change the content by exercising influence after sufficiently reviewing and considering the relevant specific provision on an equal footing with the other party, rather than bound by the content of the contract prepared by the parties, at least by the other party to the contract (see Supreme Court Decision 2009Da105383, Sept. 9, 2010).

B) It is insufficient to recognize that the testimony of Gap evidence Nos. 1 and 6 and Gap witness of the first instance court is a standardized contract prepared in advance by the defendant to enter into a contract with a large number of other parties. There is no other evidence to acknowledge it.

Rather, in full view of the aforementioned evidence and evidence Nos. 2 and 3, the overall purport of the pleadings, the instant contract is not included in the ESCO investment performance led by the Energy Management Corporation. The Defendant prepared a draft of the instant contract by editing an energy-saving performance and standard form contract used in ESCO investment projects for financial transaction convenience, and requested a review to A, a witness of the first instance trial, who is the Plaintiff’s practical business. After the review, A completed a review, and the Defendant’s employees B entered into the contract, and the contract was concluded as the draft of the instant contract, and the △△△△ was reported to and decided by the Plaintiff’s board of directors and the Chairperson.

In addition, according to the evidence above, △△△ Contract consists of 12 provisions, and the contents of the contract are not significantly or complicated, and △△△△ case does not seem to be considerably or complicated.

The plaintiff including the defendant

No evidence exists to deem that the Plaintiff did not have the same status as the Defendant when concluding the instant contract, such as the selection of the Defendant as a contracting party by comparing the said competitors.

In full view of the above circumstances, even if the contract of this case was concluded on the draft of the contract prepared by the defendant, the plaintiff, as the plaintiff, had sufficient opportunity to adjust the plaintiff's own interests by negotiating (or negotiating) the contents of the contract of this case individually with the defendant. Thus, it is reasonable to view the contract of this case as an individual agreement, not a standardized contract subject to the Regulation of Standardized Contracts Act.

Therefore, the plaintiff's first argument is rejected.

2. Conclusion

Therefore, the judgment of the first instance court is legitimate, and all appeals filed by the plaintiff against the principal lawsuit and counterclaim are dismissed as it is without merit.

Judges of the presiding judge;

Judge Choi Young-young

Judges Jeon Soo-soo

Arbitral Award

1. The Plaintiff (Counterclaim Defendant, Respondent) pays 110,000,000 won to the Defendant (Counterclaim Plaintiff, applicant, and applicant) and 6% interest per annum from April 11, 2014 to the date of full payment.

2. The defendant (Counterclaim plaintiff, applicant)'s remaining claims are dismissed.

3. The arbitration costs (783,303) shall be three minutes and one (261,1) out of them shall be borne by the Defendant (Counterclaim Plaintiff, Claimant, Claimant), and the remainder 2 (52,202) by the Plaintiff (Counterclaim Defendant, Respondent). Reference Amount (22,202)

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.