2016Na10369 Liability

주식회사 ◆◆4 ◆

Gwangju et al. omitted

O ○O

Attorney Seo-soo, Counsel for the defendant-appellant in charge

광주광역시◇◇◇◇O◇조합

Gwangju et al. omitted

Representative Directors and Bilateral

Attorney Yang-yang and Attorney Park Jae-hwan in charge

Gwangju District Court Decision 2015Gahap53546 Decided December 24, 2015

June 10, 2016

June 24, 2016

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 791,147,170 won with the amount calculated by the ratio of 6% per annum from the day following the delivery of a copy of the complaint of this case to the day of the pronouncement of the judgment of the first instance, and 20% per annum from the next day to the day of full payment.

1. Basic facts

A. Status of the parties

1) The Plaintiff is a company that runs advertising business, etc. in buses and taxiss.

2) The defendant is an association under Article 53 of the Passenger Transport Service Act established by urban bus companies in Gwangju Metropolitan City.

(b) Conclusion of contracts for urban bus external advertising business;

On September 30, 2008, the Plaintiff and the Defendant concluded a contract for external advertising of urban buses (hereinafter referred to as the “the first advertising contract”) with the condition that the Plaintiff would place ten members of the Defendant’s association at the outside of the city bus operated by the bus company from 2009 to 2011, and that the Plaintiff would pay the user fee to the Defendant.

On May 25, 2009, the Plaintiff and the Defendant entered into an amendment contract with the content of extending the contract term of the instant first advertising contract to 2012 as '2 years'. On December 31, 2012, the term of the contract was extended from '2013' to '2015' (hereinafter referred to as 'the instant second advertising contract', and 'the instant advertising contract' is combined with the instant first advertising contract'). C. The exemption clause, etc. in each of the instant advertising contracts were concluded.

According to each advertising contract of this case, the Plaintiff pays to the Defendant a medium fee based on the number of city buses (hereinafter referred to as the “number of commercial vehicles”) commonly owned by its members, and, even if the sales are reduced due to the attachment of an advertisement on a bus less than the commercial number due to reasons such as the failure of business operation, the Plaintiff shall pay the Defendant the full amount of the media user fee. In addition, all the expenses incurred in the advertisement is borne by the Plaintiff, and even if the advertisement attached to the city bus has been damaged due to the Defendant’s negligence or vehicle accident, the Plaintiff shall restore the advertisement to its original state at its own expense.

On the other hand, when the instant secondary advertising contract changes the business plan of urban buses such as change of routes, replacement of route vehicles, replacement of vehicle vehicles, scrapping, and painting, the Defendant added a provision that the Plaintiff should notify and cooperate with the Plaintiff (Article 14(5)). In addition, each of the instant primary advertising contract and the proviso of Article 2 of the instant amendment contract may adjust the user fee in cases where there is a change in the total number of commercial vehicles or the number of vehicles (type, weight, weight). The period of strike can deduct the amount of the media company fee calculated on a daily basis after mutual agreement.

2. Claims by the parties

A. The plaintiff's assertion

1) As to the damage of media usage fee

A) The primary argument

(1) Violation of duty of disclosure under the good faith principle

Since the issue of bus operation corresponding to the total number of commercial vehicles is the most important content of the contract, the defendant, despite the duty of the good faith to accurately notify the plaintiff of the number of commercial vehicles available to it, did not notify the plaintiff that a bus may be operated under the number of commercial vehicles, such as reduction of the number of vehicles, and reduction of the number of vehicles, during the conclusion of each advertising contract of this case, thereby violating the duty of notification under the good faith and good faith. As a result, the plaintiff suffered damage equivalent to the value of media use equivalent to the difference between the number of city buses actually operated and the number of commercial vehicles.

(2) Failure to perform contractual duties

Although the defendant has a duty to operate a bus with a common number of vehicles in accordance with each advertising contract of this case to allow bus users to access advertisements, the defendant failed to implement the bus by operating the bus with less than the common number due to such reasons as reduction of the number of vehicles and failure to reduce the number of vehicles, etc. As a result, the plaintiff suffered damage equivalent to the value of the vehicle use equivalent to the difference between the number of the city bus actually operated and the number of the common number.

B) Preliminary assertion

Although the first advertising contract of this case and the proviso of Article 2 of the above revised contract provide that if there is a change in the total number of commercial lands, the defendant may adjust the user fee for media use. However, in the process of implementing the first advertising contract of this case and the above revised contract, the defendant did not adjust the user fee for the reduction of the number of buses to the decrease in the number of commercial lands because the bus was operated or associated with the reduction of the number of buses. Such defendant's act constitutes "the act of unreasonably using his/her transactional position" under Article 23 (1) 4 of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Fair Trade Act") because the defendant's act constitutes "the act of unfairly using his/her transactional position and making a transaction with the other party" (hereinafter referred to as "the act of abusing his/her position in trade"). Thus, the defendant is liable for damages equivalent to the value of media use equivalent to the difference in the number of urban buses actually operated to the plaintiff pursuant to Article 56 of the above Act.

2) relating to losses, such as expenses for manufacturing advertisements

In each of the advertising contracts of this case, the defendant decided to restore the advertisements to its original state under the responsibility of the plaintiff even in cases where the advertisements were destroyed due to the defendant's loss, vehicle accident, etc., and since the plaintiff newly produced the advertisements outside the bus due to the change of routes, replacement of street cars, scrapping, color, etc., the plaintiff paid the manufacturing costs of advertisements accordingly. This act of the defendant is against the "disadvantageous provision" among the "act of abuse of position in trade" under Article 23 (1) 4 of the Fair Trade Act since the defendant unfairly used his/her position. Thus, the defendant is liable to compensate the plaintiff for damages such as the cost of manufacturing advertisements, etc. made by the plaintiff pursuant to Article 56 of the above Act.

B. The defendant's assertion

1) As to the damage of media usage fee

A) As to the primary argument

Each advertising contract of this case provides that the plaintiff shall pay the total amount of the media user fee to the defendant, even in cases where the advertisement is attached to a bus less than the commercial number. Thus, the defendant is not obliged to perform the contractual obligation.

B) As to the conjunctive argument

In relation to the plaintiff, the defendant does not have a superior position in trade under the Fair Trade Act, and it is also difficult for the plaintiff to accurately specify the number of urban buses actually operated, taking into account the actual operational situation of the bus industry that makes it difficult for the plaintiff to accurately specify the number of urban buses under the contract of each of the advertisement of this case. Thus, the defendant cannot be deemed to unfairly use the transaction status of "the defendant's own trade by failing to set the fees for the use of the media according to the reduction of the number of commercial vehicles."

2) relating to losses, such as costs of manufacturing advertising materials

Each advertising contract of this case is merely an agreement to bear the costs of producing advertisements in a lump sum in order to prevent unnecessary time and waste of expenses, and the defendant did not conclude an agreement to unfairly use the transactional position of the person himself/herself.

3. Determination

A. As to the damage of media usage fee

1) The primary argument

A) Determination as to the assertion of breach of duty of disclosure under the good faith principle

If it is apparent in light of the empirical rule that the other party to a transaction would not have been notified of certain circumstances in a general transaction, it is obligated to notify the other party of such circumstances in advance in accordance with the principle of good faith. The subject matter of such duty of disclosure can be acknowledged not only by the direct law but also by the general principles of contract, customs, or cooking (see, e.g., Supreme Court Decision 2004Da48515, Oct. 12, 2006).

However, in the instant case, there is no evidence to prove that the Plaintiff would not conclude each of the instant advertising contracts if the Plaintiff received prior notification from the Defendant as to the fact that a bus that cannot be operated on the commercial number due to the reduction of the number of vehicles or the stalves, etc., and there is no evidence to support that the Plaintiff would not conclude each of the instant advertising contracts (or at least around December 31, 2012, the Plaintiff could have known the fact that at least around December 31, 2012, the Plaintiff could have operated a bus that falls short of the commercial number due to the reduction of the number of vehicles or the stalves, etc.). Therefore, the Defendant cannot be deemed to have the obligation to notify such fact to the Defendant. Accordingly, the Plaintiff’s assertion premised

B) Determination on the assertion of non-performance of contractual obligations

As seen in the above basic facts, the Plaintiff agreed to pay the full amount of the user fee for media amounting to the common number even if an advertisement is attached to a bus less than the common number for reasons such as business failure. Therefore, the payment of the full amount of the user fee for media amounting to the common number, not the number of city buses actually operated by the Plaintiff, pursuant to the above agreement, barring special circumstances such as invalidation of such agreement, it is difficult to deem that the Plaintiff caused damage to the Plaintiff (the Plaintiff’s provision stipulating that the full amount of the user fee shall be paid even if an advertisement is attached to a bus less than the common number for reasons of business failure, etc., such as reduction of the number of vehicles, etc., should not be applied to the case of a bus operation which falls short of the common number due to reduction of the number of vehicles, but such assertion is difficult to accept in light of the language and text of the above provision). Accordingly, the Plaintiff

2) Preliminary assertion

A) An enterpriser who is the subject of abuse of trade position must be in a position relatively superior or at least to have a significant impact on the other party’s transactional activity. Whether an enterpriser is in a position should be determined by considering the situation of the market in which the party is placed, the gap in the entire business capacity between the parties, and the characteristics of the goods subject to the transaction (see, e.g., Supreme Court Decision 2007Du20812, Oct. 29, 2009).

However, in the case of this case, there is no evidence to acknowledge that the defendant has such status in relation to the plaintiff.

B) Even if the defendant can be found to be in a position of "transaction superior in relation to the plaintiff," the contract can be concluded by the method of paying the service fee in a lump sum based on the above commercial number, in light of the following: ① the number of buses can vary daily due to the characteristics of the operation of urban buses, such as vehicle accidents, breakdown, scrapping, etc.; ③ the number of buses in the time of actual operation can vary depending on seasonal factors, such as the situation of the operation of bus service, which is difficult to accurately specify the number of buses in the time of actual operation, etc.; ② the complicated procedure is followed by confirming whether each bus company is operating a bus for the settlement of the service fee for the reduced number of buses every day for the settlement of the service fee; ② the service fee for the reduced number of buses may increase; ③ the method of paying the service fee from the date of the first advertisement contract in this case to the contents of the contract, etc., it is difficult to view that the defendant unfairly determined the number of buses in each of the advertising contract in this case to pay the service fee as the number of buses.

C) Therefore, the Plaintiff’s above assertion is without merit.

B. Related to losses, such as expenses for manufacturing advertisements

1) As seen in the above A. 2(a) above, there is no evidence to prove that the defendant is in a superior position to the plaintiff in relation to the plaintiff.

2) Even if the Defendant may recognize that he is in a position of superior to trade in relation to the Plaintiff, ① always exposed to the risks of traffic accidents due to the characteristics of urban buses, and when determining the cost of manufacturing advertising materials by clarifying whether or not the costs of manufacturing advertising materials are negligent for each traffic accident, the Plaintiff and the Defendant appears to have agreed to bear the costs of producing advertising materials en bloc in order to prevent unnecessary time and expenses. ② From the time of the first advertising contract to the effect that the Plaintiff and the Defendant agreed to bear the costs of manufacturing advertising materials en bloc in order to prevent the unnecessary time and expenses, and ② from the time of the first advertising contract to the terms of the contract, it appears that there are reasonable grounds to conclude that the Defendant agreed to bear the costs of producing advertising materials en bloc at each of the advertising contracts of this case. Therefore, it is difficult to view that the Defendant unfairly

3) Therefore, the Plaintiff’s above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Gu meeting (Presiding Judge)

Doese and refinite

Yang Young-hee