Copi Information and Communications Co., Ltd. (Attorneys Lee Dong-dong et al., Counsel for the plaintiff-appellant)

Modern Information Technology Co., Ltd. (Attorney Ho-sik, Counsel for the plaintiff-appellant)

December 21, 2005

Seoul Central District Court Decision 2004Gahap45603 Delivered on January 14, 2005

1. Revocation of a judgment of the first instance;

2. The plaintiff's primary claim is dismissed.

3. The plaintiff's conjunctive claim added in the trial is dismissed.

4. The total costs of the lawsuit shall be borne by the plaintiff.

1. Purport of claim

Main and Preliminary, the Defendant paid to the Plaintiff the amount of KRW 455,744,30 and the amount of KRW 6% per annum from February 26, 2004 to the delivery date of the instant complaint, and from the next day to the full payment date, the amount of KRW 20% per annum (the Plaintiff claimed for the payment of goods based on the goods contract or the payment guarantee, but added the claim for damages based on the conjunctive tort at the trial).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by taking into account the following facts: Gap evidence 1, Gap evidence 2, Eul evidence 3-1, 2, Eul evidence 4, Eul evidence 1, Eul evidence 2, Eul evidence 3, Eul evidence 4, Eul evidence 5, Eul evidence 6, Eul evidence 7-1, 2, and 3, and non-party 1's testimony as a whole.

가. 피고는 신용협동조합중앙회로부터 전산운영 및 개발장비 구매 프로젝트를 도급받아, 그 중 일부는 주식회사 이아이디비(이하 ‘이아이디비’라고 한다)에게, 일부는 효성인포메이션시스템주식회사(이하 ‘효성’이라 한다)에게 하도급 주었는데, 효성은 주식회사 이노비스(이하 ‘이노비스’라 한다)에게, 이노비스는 이아이디비에게, 이아이디비는 다우기술, 우노, 그 밖에 동인네트웍 등 군소협력업체들에게 다시 하도급을 주었다. 피고로서는 위 프로젝트를 당초 예정보다 저가에 수주하여 적자를 면치 못할 상황이었는데, 협력업체인 이아이디비 측에서 자신들의 거래실적 증대를 위하여 적자를 보더라도 참여하겠다고 하여, 이아이디비에게 추후 다른 프로젝트로 보상해주기로 약속하고 위와 같은 내용의 계약을 체결하게 된 것이다.

B. Accordingly, on September 30, 2003, Edivia received an order from the Defendant stating the item, quantity, price, etc. of the computerized development equipment (the order amount: 414,313,00 won, and value added tax separately), and sent the Plaintiff by changing the name of Edivia to the name of Edivia. On October 8, 2003, the Plaintiff supplied the said computerized development equipment (hereinafter “instant goods”) to the National Federation of Korea designated by the Defendant. Around October 8, 2003, the Defendant’s order and supply contract for Edivia were drafted on December 9, 2003.

C. However, around October 15, 2003, Enobys transferred 634,651,600 won (including value-added tax) to the Korea Development Bank (Seoul branch) and several subcontractors after Enobys were unable to receive payment on the wind that they agreed to the effect, the Defendant, first of all, suspended payment to be paid in the order of “Defendant ? ? ? Enobys ? Enobys ? Enobys ? ? Enobys ? ? Enobys ? Enobys ? ? Enobys” until the issue of assignment of claims of Enobys is resolved.

라. 그 후 구정이 다가와 대금결제를 받지 못한 동인네트웍 등 군소협력업체들이 피고에게 물품대금 지급을 독촉하자, 2004. 1. 16. 피고의 금융사업부 사업부장으로 이 사건 전산개발장비의 운영 및 구매와 관련된 실무를 총괄하고 있던 소외 1 이사와 소외 2 부장은 이노비스가 개입되어 있지 않아 이노비스 채권양도의 영향을 받지 않는 하도급 라인, 즉 ‘피고→이아이디비→원고’의 순서로 지급되어야 할 대금 455,744,300원(발주금액 414,313,000원+부가가치세 41,431,300원)을 아이이디비에게 지급하면서 원고에게 지급하지 말고 그 대신 자금사정이 어려운 군소협력업체들에게 우선 결제하도록 요청하자, 같은 날 위 대금을 지급받은 이아이디비는 당시 원고 및 다우기술 등 일부 업체를 제외하고 동인네트웍 등 군소협력업체들에게 위 대금을 나누어 지급하였다.

E. A tax invoice related to the instant goods transaction was issued by the Plaintiff in the direction of E.I.D.

F. Meanwhile, on the other hand, on January 19, 2004, the defendant's non-party 1 sent to the plaintiff on January 30, 2004 a public notice stating that he promised to pay the price of the goods of this case through Eddif, which is the cooperation company of the defendant, and on February 16, 2004, he sent to the plaintiff a public notice stating that he promised to pay the price of the goods of this case by Eddif, but even until the time, he did not pay the price of goods because the issue of assignment of claims of Edif, was not resolved.

G. After that, the plaintiff's non-party 3 team leader, non-party 4 representative director, non-party 5 director, non-party 6 director, non-party 1 director, and non-party 2 director of the defendant's company and the non-party 5 director of the defendant's company on March 5, 2004 on whether the defendant should guarantee the payment of the goods for the plaintiff and the technology, and the plaintiff's non-party 3 team leader, etc. request the defendant to send a public letter to the defendant on March 8, 2004 that "the defendant guarantees the payment of the goods for the plaintiff and the multilateral technology" shall be sent to the defendant's financial team leader in the name of the defendant, and the plaintiff's non-party 3 team leader and the non-party 4 director of the defendant's company's non-party 6 director and the non-party 2 director shall pay the amount of the goods to the defendant in the order of "the defendant's financial system ? The system ? Q&U.S.".

H. Accordingly, the Defendant’s non-party 1 director reported this to the Defendant’s management, but the Defendant’s management refused to guarantee the payment of the Plaintiff’s goods payment obligation against the Plaintiff, and failed to send the payment guarantee letter to the Plaintiff, and notified the Plaintiff of the content thereof.

I. Meanwhile, at the time of discussion of the above payment guarantee, the payment guarantee for other corporations was a pre-determination of the representative director.

2. Judgment on the main claim

(a) Responsibility as a contracting party;

(1) The plaintiff's assertion

The plaintiff, in direct consultation with the defendant, determines the terms and conditions of all contracts, such as the delivery items, the payment period, the price of goods, and the place of delivery. The defendant's internal circumstances only delivered Edivia with Edivia and delivered Edivia to Edivia again. Thus, the defendant asserts that as a contracting party, the contract party is obligated to pay 45,744,30 won to the plaintiff.

(2) Determination

First of all, in relation to the transaction of the goods in this case, the plaintiff's order is directly sent Ediviy, and the plaintiff's tax invoice is also issued Ediviyyyy, not the defendant. In such a case, the counter party to the contract in this case is shown Ediviyyy, and therefore, in order to directly claim the price of the goods under the contract in this case against the defendant, there must be a separate agreement which permits the defendant's status as the purchaser under the contract in this case or at least to bear the price of the goods in this case, regardless of the name of the order or tax invoice. According to Gap evidence 4, Gap evidence 5, Eul evidence 6, and witness non-party 7 and non-party 4 of the first instance trial and witness non-party 4, consultation on the contract terms at the time of the conclusion of the contract in this case was mainly conducted between the plaintiff's non-party 8 division and the defendant's non-party 2 division, and there is no reason to acknowledge that the contract price in this case was less or less than the above fact that the defendant acquired the price in this case's profit.

(b) Responsibility as a payment guarantor;

(1) The plaintiff's assertion

As the plaintiff could not pay the price of the goods of this case to the plaintiff to the plaintiff through Eddifics, the plaintiff sent several statements to the plaintiff that he would pay the price of the goods of this case through Eddifics, and the non-party 1 director who is in the position of a commercial employer who has been granted a partial comprehensive power of attorney regarding the purchase of the goods of this case and the payment of the price of the goods of this case agreed to guarantee the payment of Eddifics, the defendant guaranteed the payment of the price of the goods of this case to the plaintiff, so the defendant is liable to pay the above price of the goods to the plaintiff as the guarantee for Eddifics.

(2) Determination

In light of the above facts and arguments, it is difficult to consider the following facts as a whole. ① The defendant's statement that the director sent to the plaintiff will pay the price of the goods to the plaintiff through ASEAN. ② On March 5, 2004, the non-party 1 director, who was the head of the financial business division of the defendant, discussed whether the defendant will guarantee the payment of the price of the goods to the plaintiff, up to March 8, 2004." The defendant's right to request the payment of the price of the goods to the plaintiff's non-party 1 to the defendant's company's name is hard to recognize that the non-party 1's director's right to request the payment guarantee of the price of the goods to the non-party 1's company because it is difficult to recognize that the non-party 1's director's right to request the payment guarantee of the price of the goods to the plaintiff's company and the non-party 1's company's non-party 1's non-party 1's non-party 1's non-party 1'

3. Determination on the conjunctive claim

A. The plaintiff's assertion

원고는, 가사 피고의 원고에 대한 이 사건 물품대금채무 또는 지급보증책임이 인정되지 않는다고 하더라도, 피고는 원고에게 그동안 이아이디비를 통하여 이 사건 물품대금을 지급하겠다고 수차례 약속해 왔음에도 불구하고, 피고의 소외 1 이사와 소외 2 부장이 2004. 1. 16. 이아이디비에게 이 사건 물품대금을 지급할테니 이를 원고에게 지급하지 말고 자금사정이 어려운 동인네트웍 등 군소협력업체들에게 곧바로 지급하라고 지시한 후 대금을 입금하였으며, 이아이디비는 같은 날 위 지시에 따라 이 사건 물품대금을 원고가 아닌 위 군소협력업체들에게 지급함으로써, 결과적으로 이아이디비가 원고에게 이 사건 물품대금을 지급하지 못하게 되었는바, 위와 같이 피고의 피용자가 고의로 원고의 이 사건 물품대금 채권의 추심을 방해한 행위는 제3자의 채권침해에 의한 불법행위에 해당된다 할 것이므로, 그 사용자인 피고는 위와 같은 불법행위로 인하여 원고가 입은 손해를 배상할 의무가 있다고 주장한다.

B. Determination

On the other hand, as seen earlier, Nonparty 1 and Nonparty 2, the Defendant’s employee, should not pay the Plaintiff the price for the goods to be paid to the Plaintiff, which is the debtor of the claim for the goods of this case, and requested the military co-operatives having difficulty in financial standing to preferentially pay the Plaintiff the price for the goods of this case. Although the Plaintiff could not collect the claim for the goods of this case, the Plaintiff’s payment of the price for the goods of this case to the above military co-contractor, which is the debtor, was unable. However, insofar as the payment of the above debt to the above military co-contractor, which is the debtor, is a legitimate legal act, as long as it is a legal act, the act of the Defendant’s employee requesting the payment is not illegal, and thus, it cannot be a tort

4. Conclusion

Therefore, the plaintiff's main claim of this case and the conjunctive claim added in the trial shall be dismissed as it is without merit. Since the judgment of the court of first instance on the main claim of this case differs from this conclusion, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's main claim of this case is dismissed, and the plaintiff's conjunctive claim added in the trial is dismissed as per Disposition.

Judges Choi Jin-ok (Presiding Judge)