2015Da215717 Damage, Claim

Korea

Biosastteclosion Co., Ltd.

Seoul Central District Court Decision 2013Na54627 Decided April 7, 2015

May 24, 2016

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

According to the records, Article 18 (1) of the Special Conditions for Quality Management of the Goods Purchase Contract (hereinafter referred to as the "Special Conditions") provides that "a contracting officer or the head of the quality control group shall be liable to repair defects in the goods supplied for a period of one year from the date of delivery" and Article 18 (3) provides that "if the size and quality of the goods supplied are found different from the contents of the contract, the contracting officer or the head of the quality control group shall notify the other party to the contract of such fact and may request the return of substitute supply or the price of the goods in question," and in full view of the overall purport of the above provision, the one-year warranty period as stipulated in Article 18 (1) is not the period applied only to the repair defects under paragraph (1) of the same Article, but also the period of exercise of the right to substitute supply or the return of the price of the goods in question."

Therefore, the court below's rejection of the plaintiff's assertion that the warranty period of one year under Article 18 (1) of the Special Conditions does not apply to the claim for the return of goods under paragraph (3) is just, and there is no error of law by misunderstanding the legal principles as to the requirements for the return of goods price or the warranty period

2. As to the grounds of appeal Nos. 2 and 3

A. As to the plaintiff's assertion that the defendant is liable for non-performance as well as the warranty liability, and that the warranty liability period is not applied in such a case, Article 28 of the Special Conditions provides that the first and third special conditions shall be applied preferentially. Therefore, even if the liability for non-performance conflicts with the warranty liability, it is reasonable to deem that the special conditions shall be applied preferentially to the provisions on non-performance of obligations under the Civil Act as long as the damage incurred in relation to the defects of the disinfection medication in this case is within the scope stipulated in the special conditions, and the plaintiff's liability for damages arising from defects and the liability for damages equivalent to the amount of the goods claimed as compensation for damages and the amount of the verified expenses is all stipulated in special conditions, and the liability is extinguished after the expiration

B. However, the above determination by the court below is difficult to accept for the following reasons. Since a contract to which the State is a party does not differ from a contract between private persons, the provisions of the private law or the court shall be governed by the law, except as otherwise expressly provided for in the law.

Li is likewise applicable (see Supreme Court Decision 2012Da15695 decided Dec. 27, 2012).

In addition, if a seller incurs any loss due to the seller’s failure to supply the goods in accordance with the terms and conditions of the obligation originally agreed upon, the seller is liable for damages due to nonperformance under Article 390 of the Civil Act, and such liability is recognized concurrently with the warranty liability under Article 580 of the Civil Act due to the sale of defective goods (see Supreme Court Decision 2002Da51586, Jul. 22, 2004).

Meanwhile, unless there exist special circumstances to the effect that the special rule is excluded from the application of general liability for nonperformance, liability for nonperformance under Article 390 of the Civil Act shall be deemed concurrently recognized with the liability for nonperformance under the special rule of contract unless there exist special circumstances to the effect that, in cases where the special rule on liability for nonperformance is stipulated in a contract between the parties, the performance sought by the liability for nonperformance is the same as the performance that can be claimed as the liability for warranty under the contract.

C. Examining the reasoning of the judgment below in light of the above legal principles and the records, Article 28 of the Special Conditions in this case is merely to determine the priority order of interpretation in cases where there are parts that conflict with each other among the contents of a contract to be prepared at the time of signing a contract to which the State is a party, and it does not mean that the application of the provisions of the Civil Act, which are not in conflict with and inconsistent with the terms of the contract, shall not be deemed to be collectively excluded. Furthermore, Article 18 of the Special Conditions in the Civil Act provides that the other party’s liability for repair, replacement, or return of the price for the goods supplied by the other party shall be deemed to be a special rule on warranty liability under the Civil Act for one year from the date of delivery. However, in light of the contents of the text and the background of the contract, it cannot be interpreted that the Plaintiff cannot be held liable for damages under Article 390 of the Civil Act in cases where the Defendant fails to fulfill its obligation with intention or negligence, separate from Article 18 of the Special Conditions.

D. Accordingly, the lower court should have deliberated and determined whether the Defendant, which is the requisite for the Plaintiff’s non-performance liability, performed the obligation in this case’s case’s case’s, whether the Defendant had committed an intentional or negligent act on the part of the Defendant, namely, whether the National Archives requested the initial bid in relation to the effect of disinfection, such as the disinfection and killing force of the instant disinfection chemicals, and the content that the Defendant submitted promotion data or test report, etc. to the National Archives and guaranteed them, whether the quality and performance related to the disinfection effect equipped with the disinfection medicine supplied by the Defendant falls short of the quality and performance required, guaranteed by the Defendant, and if incomplete performance is performed, the extent of the amount of damage, etc.

E. Nevertheless, the lower court determined that the Plaintiff’s claim was not accepted solely on the ground that the period of defect liability for one year elapsed from the delivery date as stated in its reasoning. In so doing, it erred by misapprehending the legal doctrine on competition between the defect liability and the liability for nonperformance, thereby adversely affecting the conclusion of the judgment

3. Conclusion

The lower judgment is reversed, and 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 Jae-soo

Justices Kim Yong-deok

Justices Kim In-young

Justices Lee Dong-won