(영문) 서울중앙지방법원 2012.12.13.선고 2012가합6450 판결

1. The defendant shall pay to the plaintiff 76,757,740 won with 5% interest per annum from February 7, 2012 to December 13, 2012, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. 2/5 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant.

4. Paragraph 1 can be provisionally executed.

Purport of claim

Defendant’s delivery of KRW 132,127,860 to the Plaintiff and a copy of the instant complaint to the Plaintiff

C. It shall pay 20% interest per annum from the date of full payment.

Reasons

1. Facts of recognition;

A. The plaintiff is a company with the purpose of refining and selling petroleum, and the defendant is Chuncheon City* * cotton

*** L***** - - ○○ gas station in the trade name of ○○, a person operating the gas station above (hereinafter referred to as the “gas station in this case”).

B. On January 2, 2007, the Plaintiff entered into a petroleum product supply contract with the Defendant (hereinafter “instant supply contract”).

A. The main contents of the instant supply contract are as follows.

Article 3 (Quantities and Quality) (1) In order to ensure the stable maintenance of Defendant’s business activities, the Plaintiff shall provide the Defendant with various services related to the products and deliver all the products to the other party at the gas station. This contract term is as of December 31, 2007 (1) from the date of conclusion of the contract to the other party, or as of December 31, 2007 without any separate notice for modification to the terms of the contract, the contract term shall be extended automatically for 1 year under the same conditions (3) if one party notifies the other party of the termination of the contract at the latest 1 month before the expiration of the contract term, or if one party notifies the termination of the contract of all the products and all other claims under the preceding paragraph, the contract term shall be extended automatically. Article 11 (Management of Trademarks, etc.) (1) The Defendant shall be obliged to maintain and manage the Plaintiff’s trademark and facilities at the expiration of the contract term, and the Plaintiff shall not be obliged to change the terms and conditions of the contract to the other party’s facilities.

E. On November 24, 2011, the Defendant requested the Plaintiff to remove the facilities installed by the Plaintiff up to November 30, 201 on the premise that the contract was terminated. Around that time, the Defendant began to suspend the transaction with the Plaintiff and to be supplied with products, including petroleum, from △ Maz, other companies.

【Uncontentious facts, entry of Gap 1 through 5, and 7 evidence (including branch numbers for those with branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination

A. According to the facts of recognition (1) of liability for damages, the Defendant agreed to exclusively supply petroleum products to be sold at the gas station in the instant case by October 6, 2014 under the instant supply contract, the agreement to purchase the entire quantity of the instant goods, and the agreement to exclusively supply them to the Plaintiff by October 6, 2014. Nevertheless, the Defendant was liable to compensate the Plaintiff for damages caused by the breach of the instant contract, barring special circumstances, since the Defendant, from around December 2, 2011 where the instant supply contract and the instant facility loan contract are in existence, was supplied with petroleum products by another oil company, and sold them, and violated the instant supply contract and the instant facility loan agreement by refusing to supply petroleum products from the Plaintiff, and thus, violated the instant supply contract and the instant facility loan agreement. (2) The Defendant’s assertion on the Defendant’s assertion (A) is the Defendant, including the Defendant’s declaration of intent to terminate the instant supply contract.

11. Upon request for removal of a facility on December 31, 201, the instant supply contract was terminated at the expiration of the period of validity on December 31, 2011, and accordingly, the instant contract was terminated. Accordingly, the instant contract asserts that, even if it was subsequently supplied with petroleum products by another oil company and sold them, and refuses to supply petroleum products from the Plaintiff, it does not violate the instant supply contract and the instant contract for free use of the facility.

However, as seen earlier, the instant supply contract is deemed to have been extended to October 6, 2014 by the agreement to purchase the entire quantity of the instant facilities and by the loan agreement to use the instant facilities until the end of the contract to use the facilities of this case. Therefore, the Defendant’s above assertion is without merit.

(B) Next, the Defendant’s written agreement at the time of the agreement to purchase the entire quantity of the instant case is deemed to be the terms and conditions that the Plaintiff prepared against the gas station customers. In the event that the Plaintiff received the facility free of charge, the supply contract of this case is extended by the expiration date of the period of the loan to use the facility

Since the above terms and conditions, such as the "Act", were not explained to the defendant, they cannot be incorporated into the terms and conditions of the supply contract of this case, and accordingly, the supply contract of this case cannot be extended by the expiration date of the loan for use of the facilities of this case.

However, the following circumstances, which are acknowledged by comprehensively taking into account the respective descriptions and arguments of evidence A7 through 9, namely, ① the agreement on the purchase of the whole quantity of the instant case is merely 1 page A4, and is not much specific, ② the agreement on the purchase of the entire quantity of the instant case, ② the agreement on the purchase of the instant case is written “I have heard and understood that I have sufficiently explained the above major contents, and I have signed and sealed it,” and the Defendant directly signed and sealed it. In light of the above, the Plaintiff’s employee appears to have explained to the Defendant of the entire content of the agreement on the purchase of the instant case, and thus, the Defendant’s assertion is without merit.

B. Scope of damages (1) The Plaintiff’s assertion that damages incurred from the breach of the supply contract of this case (A)

The Plaintiff’s operating income for the latest one year under the instant supply contract against the Defendant is KRW 27,247,61. The Plaintiff terminated the instant supply contract by serving a duplicate of the instant complaint. The Defendant is obligated to return KRW 77,201,560, operating income for about 2 years and 9 months from the day following the delivery of a duplicate of the instant complaint to October 6, 2014.

On February 6, 2012, the Plaintiff’s declaration of intention to terminate the instant supply contract on the ground of the Defendant’s refusal to trade is apparent in the record that the duplicate of the complaint in this case was served on the Defendant on February 6, 2012, and thus, it is reasonable to deem that the instant supply contract was terminated on February 6, 2012 due to the Defendant’s cause attributable to the Defendant. In addition, in full view of the entries and the purport of the entire pleadings, the Plaintiff’s supply of petroleum products to the Defendant under the instant supply contract, thereby recognizing the fact that (i) the Plaintiff acquired operating income of KRW 12,522,263, and KRW 27,247, and611 for one year from November 209 to October 2010, by supplying the petroleum products to the Defendant under the instant supply contract.

If so, it is reasonable to deem that the monthly average operating income of the Plaintiff is = (12, 522, 263 won + 27, 247, 611 won)/24 months, and less than KRW 12, 657, 078. Barring special circumstances, it is confirmed that the Plaintiff obtained the above profits even after the date of discontinuance of the supply contract of this case. Thus, for two years and eight months from February 7, 2012 to October 6, 2014 sought by the Plaintiff, the Plaintiff’s operating income for two years and eight months from the date of discontinuance of the supply contract of this case is 49,294, 590 won calculated at the present price as of November 30, 201 as of November 30, 2011 by the Defendant’s suspension of the supply contract of this case. (1,657, 78 won x 3542) - 5858).

Therefore, the Plaintiff’s above assertion is with merit within the scope of the above recognition. (2) Damage arising from the violation of the contract for the loan of use to the instant facilities.

The Defendant agreed to pay to the Plaintiff the full amount of the facility and 30% of the amount of the facility in compensation for damages if the contract for the loan for use of the facility in this case is terminated due to the Defendant’s fault. The total amount of the facility in this case under the loan for use of the facility in this case = KRW 42,251,00 [2, 17,380,000 + 15,800,000,000 + 1,580,000 additional tax + 2,8,206,000,000 won (= subsidies of KRW 7,460,000 + KRW 746,000 + KRW 746,000 + KRW 16,665,000 for the loan for use of the facility in this case + KRW 15,505,000 for the reason that the contract was terminated,50,000 won for the loan for use in this case.

Since the fact that the duplicate of the complaint in this case stating the Plaintiff’s declaration of intent was served on the Defendant on February 6, 2012 is clear, it is reasonable to view that the contract for the loan of use of the facilities in this case was terminated on February 6, 2012 due to the Defendant’s cause attributable to the Defendant.

Furthermore, with respect to the scope of damages, the above payment agreement for damages is scheduled for the amount of damages, and barring special circumstances, the defendant is obligated to return to the plaintiff the amount equivalent to 54,926,300 won ( = 42,251,00 won x 130%) equivalent to 30% of the amount of the facility and the amount of the facility.

However, in full view of the following circumstances, i.e., the Plaintiff’s exclusive supply of petroleum products to the Defendant: (a) extended the period of the instant supply contract by providing the above facilities as part of compensation liability or consideration; and (b) would have been expected to recover the cost of support for the above facilities from the profits derived from the supply of petroleum products to the Defendant during that period; and (c) the Plaintiff’s damages incurred by the Plaintiff in breach of the contract for the loan of use of the facilities in this case would have been compensated by the Defendant for operating losses arising from the violation of the contract for the supply of the facilities in this case; and (b) considering the fact that the Plaintiff’s compensation for damages incurred by the violation of the contract for the loan of use of the facilities in this case would have been suffered from the Defendant, the estimated amount of compensation for damages in this case would be unfairly excessive, and therefore, it is reasonable to reduce

C. Sub-committee

Therefore, the Defendant’s KRW 76,757,740 ( = Damages 49, 294,590 caused by the breach of the instant supply contract + Damages 27,463,150 due to the breach of the instant contract for the loan for use of a public structure) and the following day after the delivery of a copy of the complaint of this case, which is the date of February 7, 2012, which is deemed reasonable for the Defendant to dispute as to the existence or scope of the instant obligation.

12. By the 13. conclusion, 5% per annum under the Civil Act and 20% per annum from the next day to the day of full payment under the Civil Act are liable to pay damages for delay calculated by the rate of 5% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.

Judges

Judges Kim Sung-sung

The financial resources of judges

Judge Lee Jae-soo

Note tin

1) Although the contents of each contract are different from each other, the main contents are as follows:

2) The number of months in 34 months and less than a month for the convenience of calculation shall be rounded off.

3) The number of months for less than two months, and the number of months for the convenience of calculation shall be rounded off.

참조조문

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