2017Na23241 Prices for goods

A person shall be appointed.

Gumi-si

B Representative Director

Law Firm Han-ro, Counsel for defendant-appellant

Attorney Lee Jong-soo, Counsel for the plaintiff-appellant

A person shall be appointed.

Essung simuls

Representative In-house Directors D

E. Manager

Attorney Lee Jae-ok, Counsel for the plaintiff-appellant

Daegu District Court Decision 2016Gahap16316 Decided June 23, 2017

April 13, 2018

May 11, 2018

1. The plaintiff's appeal is dismissed.

2. Upon the plaintiff's preliminary claim added in the trial, the defendant shall pay 129,520,000 won to the plaintiff at the same time as the plaintiff's or F's delivery of 5,00 finished products of G radio shock.

3. The plaintiff's remaining conjunctive claims added at the trial are dismissed.

4. 50% of the total litigation costs shall be borne by the Plaintiff, and 50% shall be borne by the Defendant.

5. Paragraph 2 can be provisionally executed.

The judgment of the first instance is revoked. The defendant, as his primary and conjunctive, KRW 215,285,000, and this shall apply to the plaintiff.

The rate of 6% per annum from April 25, 2016 to May 29, 2017, and the rate of 6% from the next day to the day of full payment.

15% interest shall be paid at each rate of 15% (the plaintiff shall make the preliminary claim, and the court of first instance shall

In the case of the Gu, the claim for the amount of money was added in the trial of the party).

1. The portion of the primary claim (Dismissal);

A. The plaintiff's assertion 1)

The Plaintiff entered into a contract with the Defendant for the production and supply of radio shock machines. The Plaintiff produced 5,00 radio shock machines, but refused to receive them. As such, the Defendant is obliged to pay 215,285,000 won and delay damages to the Plaintiff pursuant to the above contract.

2) Defendant’s assertion

The Defendant did not order the Plaintiff to produce and supply radio shock machines, but ordered F to produce and supply radio shock machines, so the Defendant cannot respond to the Plaintiff’s request.

B. Legal principles

Generally, who is a party to a contract constitutes a matter of interpretation of the intent of the party involved in the contract. In the event of a conflict of opinion on the interpretation of a juristic act between the parties, the parties’ interpretation should be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the contents of the juristic act, the motive and background of such juristic act, the purpose to be achieved by the juristic act, the genuine intent of the parties, etc. (see, e.g., Supreme Court Decision 2016Da238212, Jan. 25,

C. Determination

2) In light of the facts of recognition as indicated below 1) or evidence Nos. 21 and part of evidence Nos. 21 are insufficient to recognize that the Plaintiff entered into a contract with the Defendant to produce and supply radio shock machines to the Defendant, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s assertion is without merit. The following facts are acknowledged according to Gap’s evidence Nos. 2, 7, 8, 9, 15, 18, 11-1, 2, 3, 12-1 through 5, 14-1 through 8, 16-1, 1-2, 1-2, 2-2, 2-5, and 5-2, and 5-3, 11-1, 12-1 through 5, 14-1, 16-2, 2-2, and 5-2, respectively.

① F ( 변경전 상호는 I였는데 2015. 3. 26. 현재 상호로 상호가 변경되었고, 이하 변경 전후를 통틀어 ' J ' 라고 한다 ) 는 2014. 5. 8. 경 원고에게, 피고가 작성한 ' Purchase Order ' ( 갑 제15호증 구매발주서 ) 를 교부하였다. 위 발주서의 내용은, 휴대전화에 전기를 충전하는 장치인 ' G 무선충전기 완제품 세트 ' ( 배터리가 장착된 TX 모듈과 어댑터 세트 포함, 이하 ' 이 사건 충전기 ' 라고 한다 ) 5, 000개를 대금 188, 920, 000원 ( = 5, 000개 X 단가 37, 784원 ) 에 제작하여 공급하여 줄 것을 발주한다는 것이다 .

② 어댑터, 배터리팩 및 PBA ( Panel Board Assembly, 이하 ' 이 사건 PBA ' 라고 한다 ) 는 이 사건 충전기의 제작에 필요한 부품이다. 피고는 원고에게 ① 2014. 5. 13. 에 어댑터 2, 500개를 공급하고, 2014. 8. 19. 에 어댑터 2, 500개를 공급하여 어댑터 합계 5, 000개 공급하고, ㉡ 2014. 5. 13. 배터리팩 5, 000개를 공급하였다. 피고는 K 주식회사 ( 이하 ' K ' 이라 한다 ) 로부터 이 사건 PBA 5, 000개를 공급받아 2014. 8. 25. 이를 원고에게 5, 940만 원 ( 부가가치세 포함 ) 에 공급하였다 .

③ 원고는 2014. 8. 경부터 2014. 10. 경까지 피고와 사이에 여러 차례 이메일을 통하여 이 사건 충전기와 관련하여, 제품박스의 도안, 매뉴얼 작성, 부품의 불량 현황 등을 협의하였다. 피고는 원고에게, 2014. 9. 30. 어댑터와 배터리팩 결제 조건을 언급하며 , 첨부 견적서 ( 어댑터와 배터리팩 ) 를 참조하여 원고가 개발한 TX Board 가격 및 향후 물량용 무선충전기 완제품 가격의 회신을 요구하였고, 2016. 2. 22. 매뉴얼 및 박스에 대한 추가요청사항을 전달하였다 .

④ The Plaintiff, using the instant PBA as a part, produced 5,00 charging machines of this case and demanded the Defendant to receive the instant charging machine, but the Defendant refused to receive the instant charging machine. The Plaintiff entered the Defendant’s log in the stuff and manual of the product melting the instant charging machine.

⑤ The instant PBA failed to meet the requirements for Qi certification, and there was a problem that the instant charging machine does not charge a part of the instant charging machine when using the instant charging machine on the mobile phone type.

Qi is a technology used generally among self-informed radio shock technology, which is defined by the international organization called WPC (Wireless Plower). ‘i' certification is a certification program that verifies Qi, which is established in WPC, to verify the suitability of the above radio shock technology.

It is also possible to produce products made in accordance with the certification standard even if Qi is not certified. For products made in accordance with Qi's certification standard, which can be radio shocked, i.e. Qi's compatibility.

④ On February 18, 2016, the vice president of the Defendant stated the scheme to pay the Plaintiff’s director for the instant charging period to the Plaintiff’s M, and the content of the scheme includes “A plan to continuously maintain and compensate the Plaintiff and the business,” and “a plan to redeem the Plaintiff’s other businesses where sales, such as cable, are generated, inasmuch as the Plaintiff’s radio shock machines wish to sell Korean products, and the sales of the Plaintiff’s model continuously accrue profits.”

7) On December 13, 2016, K filed a lawsuit against the Defendant to claim the price of the instant PBA (hereinafter referred to as “K-Defendant lawsuit”), and received a favorable judgment of the first instance court (Seoul District Court Decision 2015Da43079) on December 13, 2016, and was sentenced to a judgment against the second instance on January 26, 2018 by the Defendant’s appeal (Seoul District Court Decision 2017451280, Suwon District Court Decision 2017Da213855). Accordingly, the final appeal is in the pending pending pending appellate trial (Supreme Court Decision 2018Da21385).

The purport of the judgment of the second instance is that "K and the defendant agreed to comply with Qi criteria even if Qi does not obtain certification of the instant PBA, and since the instant PBA did not meet Qi criteria, the defendant may refuse to perform the paid-in liability until K performs the defect repair obligation."

In the first instance of the Defendant’s lawsuit, the Defendant asserted that “The Defendant entered into a contract between the Plaintiff and the Plaintiff to manufacture the instant charging machine using the instant PBA and supply it to the Defendant.”

2) However, in light of the facts without dispute, Gap evidence 3, 15, 18, Gap evidence 16-3, 4, Eul evidence 6, 9, 10, and 13-1, 2, Eul evidence 8, 11, and Eul evidence 12-1, 2, and 3, the following facts are acknowledged in light of the overall purport of the pleadings.

① On May 5, 2014, the Plaintiff did not prepare a disposal document, including the instant charging contract, with the Defendant. The J sent a written estimate (No. 13-2) for the instant charging machine to the Defendant on May 5, 2014. The Defendant drafted an order based on the said written estimate and sent it to the J on May 7, 2014. The content of the said written order is that the Defendant placed an order for the production and supply of the instant charging machine to the J.

② On June 26, 2014, K notified Defendant and J of the PBA development schedule of this case, and on November 2014.

22. As a result of the J’s review of the defective radio shock sample, K confirmed the need for circuit revision. K did not notify the Plaintiff of the foregoing.

③ On July 17, 2014, J requested the Defendant to review manuals, and sent a file for printing operations on August 4, 2014. On October 21, 2014, the final approval institute and the additional quantity were sent a quotation. The final approval institute included a suitability registration certificate for broadcasting and communications equipment, such as the name of the equipment, 'unexpact strength radio equipment', - G - basic model name - 000 - G - manufacturer, 'I', 'I', 'the name of the equipment, and 'the suitability registration certificate for broadcasting and communications equipment, etc. received by the head of the National Radio Research Institute pursuant to Article 58-23 of the Radio Waves Act.

④ On August 11, 2014, the Plaintiff sent the Packing price to J, and asked the Defendant to consult with the unit price discount at that price. On August 22, 2014, the Plaintiff requested the Defendant to reflect any additional increase in the Packaging price. On August 26, 2014, the J requested the Defendant to pay a unit price discount for the Packing materials.

⑤ On January 7, 2015, the Defendant asked J of the necessary period of time for the supply of radio shocks, and the J asks for 2015.

1.8. Considering the air quantity (4,970) to the Defendant, the Defendant was informed that it is possible to deliver the goods on the day.

④ On December 9, 2015, the J received a written estimate from the Plaintiff for raw material costs and assembly costs, and sent the said quotation to the Defendant on the same day. On January 11, 2016, the J received the Defendant’s request from the Defendant to send four products necessary for correcting radio shock pumps of radio shock, as well as the notification from the end of February 2016 that the entire amount of the radio shock that the Plaintiff would be entirely purchased.

7) On April 25, 2016, the Plaintiff requested the Defendant to take measures for the postponement of shipment of the instant charging machine, and the details thereof are as follows: (i) the Plaintiff was supplied with the instant PBA, etc. by the Defendant under the PO (Purch O, purchase order note) prepared by J; (ii) the Plaintiff was unable to release from the mobile phone type that is not supported by radio shock due to the failure to meet Qi specification due to the defect of the instant PBA following the war war; and (iii) the order from the customer was revoked at the present time and may destroy all the products due to the cancellation of the order from the customer; and thus, (iv) the Plaintiff requested the Defendant to compensate for the finished amount of KRW 208,800 for the cost of shipment of finished products, KRW 800,000.

viii In the second instance of the Defendant’s lawsuit, the Defendant received the instant PBA from K and supplied it to the Plaintiff, and the Plaintiff made use of the instant PBA and sold it to J, and the J again decided to sell it to the Defendant.

(9) According to Article 58-2 (3) of the former Radio Waves Act (amended by Act No. 13233, Mar. 27, 2015), a person who intends to manufacture, sell, or import broadcasting and communications equipment, etc. which is not subject to suitability certification shall confirm that the relevant equipment conforms to the standards for suitability evaluation of designated testing bodies after testing the suitability evaluation standards and shall register the fact with the Minister of Science, ICT and Future Planning. A person who has completed the suitability registration of the instant charging machine pursuant to the aforementioned Act and subordinate statutes is not

2. The preliminary claim part

(a) Part of the claim for damages (a)

The plaintiff's assertion is that the defendant refuses to receive the payment even though the defendant ordered the plaintiff to manufacture and supply the filling machine of this case. Thus, the defendant is obligated to pay 215,285,000 won and delay damages equivalent to the price of the filling machine of this case due to the non-performance of obligation.

As seen earlier, the Plaintiff and the Defendant concluded the instant charging machine production and supply contract.

Therefore, even if the defendant refused to receive radio shock machines, it cannot be deemed that the defendant did not pay the debt. Therefore, the plaintiff's assertion is without merit without examining any further.

(b) The occurrence and transfer of a claim (part cited in part)

1. The facts found in the above 1. C. 1 and 2, the above quoted evidence and the statements in Gap evidence 19, 20, and part of the testimony of the witness H at the trial, and the purport of the entire pleadings. The defendant entered into a contract with J on May 7, 2014 to manufacture and supply to the defendant 18, 920,00 won ( = 5,000 X 37,784 won) for the charging period in this case. ② around May 8, 2014, J delivered the plaintiff 1 with the "Purchase Or" (No. 15 No. 15) prepared by the defendant to the plaintiff on May 8, 2014, the plaintiff made the above filling documents to the defendant on May 5, 5,000, and the plaintiff made the filling documents of this case to the defendant on May 17, 201, and the plaintiff completed the filling documents of this case.

According to the above facts of recognition, the defendant entered into a contract with the J to manufacture and supply 5,00 of the filling machines of this case with the defendant, and 5,00 of the filling machines of this case had already been completed. Thus, the J had already acquired the claim against the defendant for KRW 188,920,00 for the filling machines of this case, and the plaintiff was transferred the above claim, and the defendant is obligated to pay the above amount to the plaintiff, barring any special circumstances.

The Plaintiff’s assertion is that the amount of claims against the Defendant transferred by J exceeds the above recognized amount: KRW 215,285,00 [the amount of claims against the Defendant = KRW 191,650,00 for radio shock machines + KRW 5,000 ( KRW 38,30 for radio shock machines x 5,000 + KRW 900,000 for rink-type equipment + KRW 2,100 for product packing + KRW 00 for product packing + KRW 635,00 for printing films of product boxes];

The plaintiff's assertion in excess of the above recognition amount is without merit, since there is no evidence to prove that the defendant agreed to pay the above recognition amount in excess of the above recognition amount, and that the defendant agreed to pay the gold and silver expenses necessary for the production of radio shocks separately, and there is no evidence to prove that the defendant agreed to pay the above recognition amount in excess of the above recognition amount (negative).

A) Defendant’s assertion

The Defendant is unable to comply with the Plaintiff’s claim because the Plaintiff already agreed with J to terminate the instant charging period supply contract before acquiring the instant charging period claim from J, and ② even if not, there was a defect in the instant charging period completed after concluding the instant charging period supply contract with J, and Information and Communications Technology changed rapidly. As such, the instant charging period was no longer usable for the Defendant. Accordingly, the Defendant may rescind the instant charging period’s contract on the grounds of such change in circumstances, and thus, the Defendant cannot comply with the Plaintiff’s claim.

B) Legal principles

A contract may be rescinded if the purpose of the contract cannot be achieved due to the defect in the object completed (Article 668 of the Civil Act). However, this shall not apply if the defect in the object is attributable to the nature of the material provided by the contractor or to the order of the contractor (Article 669 of the Civil Act). The cancellation of the contract is established by an implied agreement between the parties, but it is insufficient to say that the contract has been performed for a long time without any intent to realize the contract, or that the contract has been abandoned for a long time due to the motive for the waiver of the contract (see, e.g., Supreme Court Decision 191Da2821, Feb. 28, 1992).

The rescission of a contract due to change of circumstances occurs due to a significant change in circumstances that the parties could not have anticipated at the time of the formation of the contract, and the change in such circumstances occurred due to a cause not attributable to the party who acquired the right to cancel. If the binding force is recognized pursuant to the terms of the contract, it is recognized as an exception to the principle of contract observance in cases where the result is substantially contrary to the good faith principle. Here, the circumstances referred to in this context refer to the objective circumstance which served as the basis of the contract, not to mean the subjective or personal circumstance of one party. In addition, even if a change in circumstances that are not the basis of contract formation makes it impossible for one party to achieve the intended purpose of the contract at the time of the contract and thereby suffers damage, barring any special circumstance, maintaining the effect of

29. See, e.g., Supreme Court Decision 2004Da31302, supra)

C) Determination

The fact that the Plaintiff’s radio shock machines are not charged in part of mobile phone type, and that the Plaintiff demanded the Defendant to receive the instant charging machine, but the fact that the Defendant refused to do so is the same as seen earlier.

In light of the following circumstances, it is insufficient to recognize that the fact of the above recognition alone agreed with the defendant to rescind the instant charging production contract with the defendant, or that there was a significant change in circumstances that could not have been predicted at the time of concluding the contract after concluding the instant charging production contract between the J and the defendant, and there is no other evidence to acknowledge it. Thus, the defendant's assertion is without merit.

① The Defendant did not prepare a document with J to rescind the instant contract for the production and supply of the filling machines.

② As seen earlier, the Defendant supplied the instant PBA to the Plaintiff; the Plaintiff completed the instant PBA by using the instant PBA as its parts; the instant PBA failed to meet the requirements for Qi certification; and accordingly, the instant PBA did not have to be filled when using the instant charging machine on a part of the mobile phone type. (3) Whether the instant filling machine constitutes abuse of rights (negative)

A) Defendant’s assertion

The plaintiff's claim constitutes an abuse of rights, since there is a defect in the charging machine of this case, the defendant has lost an opportunity to sell the charging machine of this case, and therefore the defendant is unable to enter into the radio shocking electric business as well as the opportunity to sell the charging machine

B) Determination

In order for the exercise of the right to be an abuse of the right, a subjective purpose of the exercise of the right should be to inflict pain and damage on the other party, and there should be no benefit to the person who exercises the right. In an objective view, the exercise of the right should be viewed as a violation of social order. Unless it does not fall under such cases, even if the loss of the other party is significantly higher than the benefit that the exercise of the right has gained by the exercise of the right, such circumstance alone does not constitute an abuse of the right (see Supreme Court Decision 2009Da58173, Feb. 25, 2010, etc.).

According to the above facts of recognition, although there are defects in the filling machines of this case manufactured by the plaintiff, it is reasonable to see that such defects were caused by the defects in the PBA of this case supplied by the defendant, so the plaintiff's claim cannot be viewed as abuse of rights. Thus, the defendant's argument is without merit (negative)

A) Defendant’s assertion

The claim for the instant charging period is "the price for the products and goods sold by the producer and merchant" under Article 163 subparagraph 6 of the Civil Act, and the period of extinctive prescription is three years pursuant to Article 163 subparagraph 6 of the Civil Act, and the period of extinctive prescription expires from May 7, 2014 when the Defendant ordered the Defendant to manufacture and supply the instant filling period to J. The claim for the instant filling period expired after the three-year extinctive prescription period as of November 21, 2017 when the J notified the Defendant of the transfer of the claim.

B) Determination

The so-called contract for the supply of goods that one of the parties agrees to supply goods made of his/her own use of his/her own materials according to the order of the other party and the other party shall pay the price for the manufacture. Since the so-called contract for the supply of goods has the nature of contract and the nature of sale and contract in terms of supply, the applicable law applies to the sale and purchase of goods to be manufactured and supplied under a contract, but if the goods are substituted by an accessory to satisfy the demand of a specific client, the supply of the goods and the manufacture of the goods become the main purpose of the contract (Supreme Court Decision 2010Da56685 Decided November 25, 2010). The payment of the remuneration claim that becomes the starting point of the extinctive prescription in the contract for construction works shall follow if there is a special agreement between the parties, and shall follow customs unless there is any special agreement, and shall be deemed to have been completed (see Articles 665(2) and 656(2) of the Civil Act, special agreement or custom, etc.).

According to the above facts, since the Defendant’s contract for the production and supply of the filling machines of this case concluded with J is deemed to be the contract for the manufacture and supply of the ancillarys, it shall be deemed to constitute a contract for the manufacture and supply of the ancillarys. Thus, the extinctive prescription of the instant filling machines shall be

In full view of the purport of the arguments in the evidence No. 16-3 and No. 17, the defendant, on January 11, 2016, requested J to send 4 wireless shock machines to K. Upon the defendant's request, the plaintiff delivered 4 wireless shock machines to K on January 12, 2016. Thus, it is reasonable to view that the period of completion of production 5,00 of the charging machines in this case was around January 12, 2016. Accordingly, the extinctive prescription period of the claim for the payment for the charging machines in this case acquired by J against the defendant should be calculated from January 12, 2016. Since the plaintiff added the claim for the payment for the charging machines in this case to the preliminary claim in this court before the expiration of three years from that time, the defendant's assertion is not reasonable.

5) Whether to offset (Partial cites)

A) The Defendant’s assertion is that the Defendant offsets the Defendant’s claim against the Plaintiff by using the instant PBA payment claim against the Plaintiff as the automatic claim.

As seen earlier, on August 25, 2014, the Defendant supplied the Plaintiff with the instant PBA 50 million won in KRW 50,940,000, and the instant charging machine 5,000 was completed on January 12, 2016.

The Defendant’s claim for the payment of the instant PBA, which the Defendant acquired, arrived at the due date on August 25, 2014, and the Plaintiff’s claim for the payment of the instant filling period arrived at the due date on January 12, 2016, and on December 18, 2017, the Defendant expressed his/her intent to offset the said two claims against an equal amount on the date of delivery of the preparatory document ( December 19, 2017). As such, both claims were extinguished within the extent of an equal amount, and the remaining amount of the claim for the payment of the instant filling period after offsetting is KRW 129,520,00 ( = 188,920,00 - 59,400,000 - 59,400,000). The Defendant’s assertion has merit.

B) The Defendant’s assertion reveals that there is a defect in the charging machine of this case, and the Defendant failed to sell it, thereby causing damage equivalent to KRW 207,812,00 ( = 188,920,00 for radio shock machines + value-added tax 18,892,00 + damages not entering the radio shock machines business, and thus, the Defendant’s damage claim against J is offset against the Plaintiff’s debt for the charging period of this case by the amount equal to the Plaintiff’s debt.

Where there is a defect in the completed object, the contractor may claim damages (Article 667 of the Civil Act), but this shall not apply if the defect is due to the nature of the materials provided by the contractor or due to the instructions of the contractor (Article 669 of the Civil Act).

As seen earlier, the Defendant supplied the Plaintiff with the instant PBA, and the Plaintiff completed the instant PBA by making the instant PBA as a part, and the instant PBA failed to meet the requirements for certification of Qi, and thereby, the instant PBA caused a problem not to be filled when using the instant charging machine on a part of the mobile phone type. As such, the defect in the instant charging machine is deemed to have been the nature of the materials provided by the Defendant, the contractor, or the order of the contractor.

Therefore, even if there is a defect in the charging machine of this case, the defendant cannot acquire the damage claim due to the defect, and the defendant's argument is without merit on different premise.

The defendant's assertion is that the defendant refuses the plaintiff's claim until the filling machine of this case is delivered in an incomplete state.

In the case of a contract, remuneration shall be paid simultaneously with the delivery of the completed object (Article 665 of the Civil Code). If there is a defect in the completed object, the contractor may claim compensation in lieu of or together with the repair of the defect (Article 667 of the Civil Code). However, if the defect in the object is due to the nature of the materials provided by the contractor or the direction of the contractor, this shall not apply (Article 669 of the

As seen earlier, the Defendant’s contract for the manufacture and supply of the instant charging machine concluded with J constitutes a contract for work, and the Defendant is obliged to pay the instant charging machine simultaneously with 5,00 India. However, as seen earlier, as the defect of the instant charging machine was based on the nature of the materials provided by the Defendant as the contractor or the order of the contractor, the Defendant cannot claim for defect repair of the instant charging machine, and the Defendant cannot refuse its receipt on the ground of the defect of the charging machine.

Therefore, the defendant is obligated to pay 129,520,00 won to the plaintiff at the same time with the delivery of 5,000 filling machines of this case from the plaintiff or J (the plaintiff also claims damages for delay after the date of the claim for payment. However, the plaintiff's claim for damages for delay after the date of the claim for payment does not delay the performance of the payment until the defendant receives 5,00 filling machines of this case. Thus, the plaintiff's claim for damages for delay is without merit). The defendant's claim is justified within the above scope of recognition and the remainder

3. Conclusion

The part of the plaintiff's main claim and the conjunctive claim for damages should be dismissed as it is without merit. Since the judgment of the court of first instance is just, the plaintiff's appeal is dismissed as it is without merit. The plaintiff's claim for the amount of money additionally added at the court of first instance for the reasons within the above recognition scope, and the remainder is dismissed as it is without merit. It is so decided as per Disposition by the assent of all.

Judges of the presiding judge;

Judge Dominio

Mobilization of Judges