Legal nature of the tender bond;

The bid bond can not be deducted from the damage claim for compensatory damages because it is a kind of penalty for breach of contract with the nature of penalty for breach of contract.

Articles 398 and 565 of the Civil Act

Korea

Defendant corporation

Seoul Central District Court (62A651) in the first instance trial (Supreme Court Decision 62Da6651)

Supreme Court Decision 69Da1072 Delivered on March 12, 1974

Of the part against the plaintiff in the judgment of the court below, the part which is not revoked in the trial prior to the remand, but the part against the plaintiff regarding the money ordered to be paid under paragraph (2) shall be revoked

The defendant shall pay to the plaintiff 75,723,857 won with an annual interest rate of 6 percent from March 29, 1961 to the full payment.

The plaintiff's remaining appeal (including the request for extension of the trial) is dismissed.

All costs of the lawsuit shall be borne by the defendant.

The above paragraph (2) can be provisionally executed.

The defendant shall pay to the plaintiff 103,941,112 won with an annual rate of 6% from March 29, 1961 to the full payment system. The costs of the lawsuit shall be borne by the defendant (in the case of the refund transmission court, the defendant shall pay to the plaintiff the amount equivalent to the annual rate of 6% from March 29, 1961 to the full payment system. If the above U.S. dollars is not paid, the defendant shall pay to the plaintiff 60,977,233 won and the amount at the annual rate of 6% from March 29, 1961 to the full payment system). The claim for the lawsuit shall be amended to the court after remanding the case).

The part of the judgment of the court below against the plaintiff shall be revoked. The defendant shall pay to the plaintiff an amount equivalent to 96,628,207 won and an annual interest rate of 6 percent from March 29, 1961 to the full payment system. The costs of the lawsuit shall be borne by the defendant in both the first and second instances (the purport of the appeal is changed according to the amendment of the purport of the claim in the trial after the return).

1. On September 9, 1960, the Plaintiff: (a) as a result of international tendering procedures conducted on Sep. 9, 1960, 1960, purchased building timber from victims due to typhoons by I.C. (I.A); (b) as a supplier of wood; (c) as a result, Non-Party 1 Company, Japan, awarded a contract with the said Company as a supplier of wood; and (d) as a result, the Plaintiff was awarded a shipment of KRW 19,000,000,000,000 (B.F) under the international standards of the said Company, the Plaintiff would be supplied with the payment of US dollars 1,585,170 (1,00B.F. and other expenses) until November 30, 1960; and (d) until December 31, 1960, the second-lane 15,000,0000 tons until December 31, 1960.

2. The plaintiff asserted that the plaintiff participated in the contract with the non-party 1 corporation as a party to the contract of this case and sought compensation for damages since the contract was not fulfilled. The defendant merely participated in the bidding for the purchase of timber as a representative of the non-party 1 corporation. If the defendant has a joint and several liability with the non-party 1 corporation, it would follow the mutual indemnity relationship between the non-party 1 corporation and the non-party 1 corporation. According to Article 13 of the Foreign Capital Management Act of Korea, in principle, there is no joint and several liability relationship between the plaintiff and the non-party 1 corporation and the non-party 1 corporation (the non-party 1 corporation as a representative of the non-party 1 corporation and the non-party 2 corporation's non-party 1 corporation's non-party 1's non-party 1's non-party 1's non-party 1's non-party 2's non-party 9's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 9's counter-party 9's testimony.

Therefore, the defendant and the non-party 1 corporation are liable to the plaintiff for the obligations under the contract for the purchase of timber in this case caused by commercial activities, so the two companies are jointly and severally liable for the performance of their obligations. It is clear that Article 13 of the Foreign Capital Management Act cited by the defendant is prohibited from receiving foreign capital by fraudulent or other unlawful means, and that it does not prohibit legitimate foreign capital transactions, and even if there is any restriction on foreign exchange transactions with foreign corporations under the relevant laws and regulations of Korea, it is not sufficient to deny the joint and several liability between the defendant and the non-party 1 corporation, and it cannot be the grounds for denying the joint and several liability with the defendant and the non-party 1 corporation.

3. Therefore, the plaintiff paid 10 U.S. dollars No. 482, Gap evidence No. 5 (U.S. dollars No. 2), Gap evidence No. 67, Gap evidence No. 87, Gap evidence No. 98, Gap evidence No. 90, Eul evidence No. 106, Eul evidence No. 130, Eul No. 131, No. 166, No. 97, No. 197, No. 106, No. 13, No. 11, and No. 97, No. 96, No. 13, No. 97, and No. 13, No. 97, No.

However, the plaintiff brought about a timber 171,656.86 World Trade Co., Ltd., which was not an international verification, and received it through the above method, and thereby, it was worth 4,522.76 d'. In addition, the plaintiff was paid compensation for 31,323.60 d', which was the compensation for the damages that the non-party 5 Co., Ltd. caused the non-party 1 to mislead the non-party 5 to conduct the verification. Thus, it is clear that the amount of damages suffered by the plaintiff would be equivalent to US$ 216,874.38 d'.

4. However, the defendant asserts as follows.

(A) The plaintiff is claiming the return of the excess because it is so-called the so-called non-payment that the defendant cannot respond to it, but the plaintiff's claim of this case is seeking compensation for damages caused by the defendant's failure to fully perform the contract of this case, and it is clear that the defendant does not demand the return of the excess. Therefore, the defendant's defense is without merit.

(B) In addition, the defendant paid KRW 2,100,00 to the plaintiff with the bid bond of this case, according to the foreign investment bidding regulations prepared by the plaintiff, when the contractor fails to perform the contract within the contract period, the contractor's right to the portion that has not been performed may be suspended. In such a case, the contractor may confiscate the contract bond and purchase goods similar to the other party. If the price exceeds the original contract price, the contractor shall be liable to compensate for the shortage after deducting the contract bond confiscated from the excessive cost. The plaintiff shall not be liable to compensate for the shortage from the other party after the defendant confiscated the contract bond of this case as of April 3, 1961. However, it is clear that the foreign investment purchase regulations as above cannot be applied to this case as a provision on ex post facto treatment of the portion that the contract had not been rescinded after the termination. Therefore, the defendant's defense on this point is without merit.

(C) In the timber transaction of this case, the non-party 1 corporation was unable to load and perform the contract within the time due to force majeure occurred due to the 60 years ago and obsesses, etc., and thus, the defendant cannot be held liable for the non-performance of the contract against the defendant. However, the plaintiff's claim for this case is a claim for compensation for damages suffered by the plaintiff as to the part which the contract had not yet been performed, not for any responsibility as to the part on which the contract had not been performed, but for the part on which the contract had already been already been performed. Thus

(D) In accordance with the agreement at the time of the purchase of timber of this case, the non-party 1 corporation loaded the timber of this case through the examination of the non-party 5 corporation designated by the plaintiff prior to the shipment. Thus, the non-party 1 corporation is liable to compensate for the damage caused by the non-party's intentional negligence after the shipment and the non-performance of the non-party 5 corporation's quantity of the timber of this case is not attributable to the defendant, and the defendant is not liable to compensate for the damage, and even if it is not so, the damage caused by the defect in the official approval of the above authorized company should not be deemed to be concurrent with the plaintiff's negligence. However, as seen above, the plaintiff's claim of this case of this case is claimed for compensation for the damage on the ground that the non-party 1 did not discover the shortage or standard at the time of the examination of the timber of the above timber before the shipment by intention or negligence of the above authorized company, even if the plaintiff did not have any defect in the quantity or standard before the shipment. Further, the defendant's defense cannot be accepted.

(E) Finally, as seen earlier, the Plaintiff asserted that the bid bond amount of KRW 2,100,00,000 should be deducted from the amount of damages caused by the above recognition because it was confiscated from the Defendant at the time of the instant timber purchase contract. Therefore, in full view of the entire purport of the pleadings in the entries in the evidence No. 4 and No. 13, the Plaintiff could have known that the bid bond of KRW 2,10,000 received from the Defendant as alleged by the Defendant on April 3, 1961 was confiscated. However, in light of the interpretation of the evidence No. 1-3 and the evidence No. 2 of the above, the bid bond of KRW 2,10,000, which was received from the Defendant at the time of the instant timber purchase contract, should not be deducted from the damages claim for compensatory damages of the Plaintiff, the Defendant’s defense also remains without merit.

5. If so, the defendant, who is jointly and severally liable with the non-party 1 corporation for the performance of the wood purchase contract of this case, is liable to compensate the plaintiff for the damages of 216,874.38 D. The defendant also has no objection to this point, and there is no dispute between the parties as of February 12, 1976 regarding the conversion rate of 16 U.S. dollars as of 479 U.S. dollars as of 16 U.S. dollars as of 16.38 U.S. dollars as of this case's closing date, 103, 917, 527 U.S. dollars as of this case's 97 U.S. dollars as well as 97 U.S. dollars as of this case's 97 U.S. dollars as of this case's 97 U.S. dollars as of this point's 97 U.S. dollars as of this point's 97 U.S. dollars and 97. dollars as of this judgment's 9.

Judges’ advice (Presiding Judge) and Kim Young-jin’s high class