2015 Ghana 123136 Transportation charges

Mag Forest Co., Ltd.

A Stock Company

2016,7.21

August 18, 2016

1. The defendant shall pay to the plaintiff 17,646,357 won with 15% interest per annum from June 30, 2016 to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is a company that carries on petroleum products and petroleum chemical products sales and transportation business, and the Defendant is a company that carries on liquefied petroleum gas (LPG) charging business against the taxi located in the port of distribution.

B. On October 30, 2006, the Plaintiff entered into a LPG transport contract (hereinafter “instant transport contract”) with the Defendant (the representative director at that time). The content of the contract is to transport liquefied petroleum gas to the place designated by the Defendant using freight cars, and the Defendant pays liquefied petroleum gas transport charges to the place designated by the Defendant. The contract provisions related to the instant issue are as follows.

Article 9 (Term of Contract)

1) This Agreement shall be five years from the date of the contract.

In any of the following cases, the defendant and the plaintiff may unilaterally cancel the contract under Article 14 (Termination of the Contract):

1) When the Defendant intentionally delays the carriage of cargo under this Agreement or fails to carry out the smooth carriage of cargo due to other reasons

2) When the terms of this Agreement have been breached

3) At the time of termination and completion of the contract period, the defendant and the plaintiff must notify in writing that they will terminate the contract, and the time of notification shall be automatically extended.

* A vehicle engineer shall not arbitrarily transport other substances. The Plaintiff: (a) had a ground-based engineer C take charge of transporting liquefied petroleum gas in accordance with the instant transport contract; (b) at the time of entering into the instant transport contract, the Defendant entered into a liquefied petroleum gas supply contract with a foreign corporation (E1; hereinafter referred to as “the foreign corporation”); (c) agreed to be supplied with liquefied petroleum gas only from the foreign corporation. Accordingly, C transported liquefied petroleum gas of the original factory.

D. However, from November 2008 to September 2009, D, who was appointed as the Defendant’s representative director due to B’s successor, ordered C to transport liquefied petroleum gas, such as E, Jin-U special, and LAB, in addition to E, Jin-U.S. products, and L, according to that direction, C transported liquefied petroleum gas, which is not the products of this source, to 671,930t, not the products of this source.

E. Although the instant transport contract is not terminated in the middle and the original contract term expires, the Plaintiff continued to transport liquefied petroleum gas even after October 30, 201, because the contract term was automatically extended without entering into a new transport contract and without giving notice of refusal to extend it before the original contract term expires.

F. B, on January 19, 2015, was appointed again by the Defendant’s representative director. On April 9, 2015, the Defendant notified the Plaintiff that “On May 30, 2015, the Plaintiff transported other products although the Plaintiff should transport only the said products, and thus, the instant transport contract was terminated as of May 30, 2015,” and the Defendant entrusted another company with the transportation of liquefied petroleum gas from May 31, 2015.

G. Meanwhile, for one year prior to the termination of the instant transport contract by the Defendant (from June 1, 2014 to May 30, 2015), the sum of monthly transport charges that the Defendant received from the Defendant is KRW 125,703,222. The Plaintiff collected 8% of the monthly transport charges of a paper-based engineer C as transport charges, and collected KRW 20,000 per month, and the remainder of the transport charges were paid to C. Since the Defendant failed to seek transport goods after the notice of termination, C sold the paper-based vehicle and terminated the land-based contract.

[Reasons for Recognition] The facts without dispute, Gap 1 through 5, Eul 1 to 7, Eul 1 to 9, the witness C and F's testimony, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The contract of this case is the expiration date of October 30, 2016, as the contract term has been extended automatically by five years due to the automatic extension of the contract term. However, due to the fact that the Defendant unlawfully notified the termination of the contract of this case, the Plaintiff suffered damages equivalent to the transportation commission and the payment fee for the remainder of the contract term. The Defendant is liable to compensate the Plaintiff for the said damages.

B. Defendant’s assertion

Since the termination of the contract by the defendant is lawful as follows, there is no liability for damages to the defendant.

1) The Plaintiff’s ground for termination of the contract, in collusion with D, violates the contract by transporting liquefied petroleum gas, other than the two products, which constitutes grounds for termination of the contract.

2) Although the contract term of the instant transport contract was automatically extended, the contract term of the instant transport contract is not extended to five years, but the contract term is a contract with no fixed term of contract, and the Defendant may terminate the instant transport contract at any time, notwithstanding the existence of grounds for termination.

3. Determination

A. Existence of liability for damages

1) It is reasonable to regard the extended contract period as five years, which is extended automatically from the instant contract of carriage to the automatic extension of the contract. The grounds are as follows.

A) Article 10 subparag. 3 of the transport contract of this case provides that the contract shall be automatically extended if the party fails to notify the refusal of the extension of the contract by two months prior to the expiration of the contract term. Barring special circumstances where the content of the extended contract is otherwise stipulated by law and the contract, the contract shall be deemed to have been concluded under the same conditions as the contract before the renewal. If not, the renewed contract term may not be determined. As long as the renewed contract term is one of the contract terms, it shall be deemed as the same as the other contract term. Thus, the contract term renewed under the transport contract of this case is five years such as the original contract term.

B) The Civil Act provides for special provisions that regard a contract term as to a lease on a deposit basis, a lease agreement, or an employment contract as a contract term may be terminated at any time (Articles 312, 638, and 662 of the Civil Act). However, since these provisions are applicable to a contract with no stipulation on the renewal of the contract, the above provisions of the Civil Act, which stipulate the automatic renewal of the contract, cannot be applied by analogy as they are, cannot be applied. Rather, the Civil Act takes into account legal stability by setting a grace period at the time of the termination where the contract is implicitly renewed (Articles 312, 313, 638, 635, 662, and 60 of the Civil Act). However, if one of the parties to the contract appears to have arbitrarily terminated the contract under the contract of this case, there is no grace period on the validity of the termination, and thus, the interest of the other party may be infringed (Article 14 subparagraph 3 of the contract of this case).

Although there is room, the termination at this time is terminated by the reasons of Article 14 (1) and (2), it cannot be applied to the voluntary termination of the extended contract.

C) There is no evidence to prove that there was a discussion about the renewal of the contract between the Plaintiff and the Defendant until three years have passed since the contract of this case was automatically extended.

This is to confirm that the contract term automatically extended is five years.

2) Whether termination of the contract is lawful

가) 이 사건 운송계약에서 "차량기사는 임의로 타 물질을 운송하지 못한다."라고 규정하고 있는데, C가 피고 대표이사의 지시로 이원 제품이 아닌 다른 회사의 액화석유가스를 운송한 것이 '임의로 운송한 것에 해당한다고 볼 수 없다(C가 D와 '공모'하여 다른 회사 제품을 운송하였다는 피고의 주장에 부합하는 증인 F의 증언은 일개 운송기사에 불과한 C의 지위를 고려할 때 믿을 수 없다.). 또 C가 운송한 다른 회사의 제품 역시 이원 제품과 마찬가지로 액화석유가스이므로 다른 회사 제품이라는 이유만으로 '타 물질'을 운송하였다고 볼 수 없고, 설령 피고 주장과 같이 다른 회사의 제품이 이원 제품보다 품질이 나빴다고 하더라도 '타 물질'로 보기 어렵다. 따라서 피고의 계약해지는 적법하지 않다.

B) The Defendant’s termination of the contract is not legitimate even if it is not problematic whether the transport of the products of another company of C constitutes the cause for termination of the contract. In principle, it is not permissible for the Defendant to terminate the automatic extension contract for the reason for termination that occurred during the original contract period. As recognized by the Defendant, D to transport the liquefied petroleum gas of another company, not the original product, and sell the products to the Defendant’s members to the Defendant’s members around June, 2010, was widely known to the Defendant’s members, and thus, the Defendant could cancel the contract from that time. The circumstance that D’s representative director’s term of office was up to December 31, 2014 is nothing more than the Defendant’s internal situation. Therefore, it cannot be justified for the Defendant to cancel the contract extended for the reason that the contract was automatically extended for the transport of the products of another company of C issued within the original contract period

3) Default

As above, since the defendant illegally terminated the contract of this case and did not perform the contract, the defendant is liable to compensate the plaintiff for damages due to the nonperformance of obligation.

B. Damages

The Plaintiff may obtain the income of 17 months (from May 31, 2015 to October 30, 2016) of the remainder of the contract term extended if the Defendant had not fulfilled his/her obligation, as extended (from May 31, 2015 to the period from October 30, 2016) in the aggregate of transportation commission and C’s land admission fee (=17,646,357 won (i.e., transportation commission for one year before termination) + 28%) + monthly admission fee for 200,00 won). However, it is reasonable to deem that the Plaintiff sustained losses due to the Defendant’s nonperformance of obligation due to its failure to obtain such income.

4. Conclusion

The Defendant is obligated to pay damages for delay calculated at the rate of 15% per annum from June 30, 2016 to the day of full payment, which is the day following the delivery of the Plaintiff’s claim of this case and the written application for modification of the cause of the claim.

Judges Park Jong-young