piracy Co., Ltd. (Attorney Park Jae-soo, Counsel for the plaintiff-appellant)

O2S Co., Ltd. (Attorney Or-young, Counsel for the plaintiff-appellant)

May 19, 2016

Changwon District Court Decision 2014Gahap16 decided August 21, 2015

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

The defendant shall pay to the plaintiff 155,139,421 won and this amount with 6% interest per annum from January 9, 2014 to July 7, 2016, and 20% interest per annum from the following day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. All costs of the lawsuit are borne by the Defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

The judgment of the court of first instance is revoked. The defendant shall pay to the plaintiff 155,139,421 won with 6% interest per annum from the day following the day of service of a copy of the complaint to the day of pronouncement of the judgment of the court of first instance, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

On March 26, 2008, the Defendant is a corporation established for chain business and its incidental business, food service business, etc., and runs a business of divisional sales with the trade name of “○○○”.

The Plaintiff supplied food materials, such as net bags and internal organs of swine (hereinafter “food materials, etc.”) to ○○○ Store from June 2010 to November 2013 (hereinafter “Defendant’s franchise store”) according to the terms and conditions stipulated by the Defendant, but was not paid KRW 155,139,421 out of the price.

[Reasons for Recognition] No dispute, entry in subparagraph 1 (including a serial number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Claim for the payment of goods;

A. The parties' assertion

The Plaintiff asserts that, after having entered into a basic contract on the supply of food materials with the Defendant around April 2010, the Plaintiff supplied food materials to the Defendant’s franchise store through distribution of the floor (hereinafter “ver distribution”) by November 2013 pursuant to this contract, the Defendant, as a party to a contract on the supply of food materials, is obligated to pay KRW 155,139,421 and damages for delay.

Accordingly, the defendant concludes a business management agreement that "the floor distribution and floor distribution shall purchase food materials, deliver them to the defendant's franchise store, and collect the proceeds of the goods therefrom," and accordingly, purchased food materials directly to the plaintiff and supplied them to the defendant's franchise store. Thus, the defendant, who entered into a contract for food materials supply with the plaintiff, as the party who entered into a contract for food materials supply with the plaintiff, is obligated to pay the proceeds of the food materials that are not paid to the plaintiff.

B. Basic legal principles on the determination of contractual parties

A party to a contract is a matter of interpretation of the intent of the party involved in the contract (see Supreme Court Decision 2012Da4471, Nov. 29, 2012). With respect to the determination of the parties to the contract, if both parties agree with one another, the parties to the contract must be determined according to the agreed intent. If the parties fail to agree with one another, a reasonable person should be determined based on the specific circumstances before and after the conclusion of the contract, such as the nature, content, purpose, and circumstance of the contract (see Supreme Court Decision 97Da22089, Mar. 13, 1998, etc.).

(c) Fact of recognition;

1) The defendant's franchise business

피고의 대표이사로 재직하는 소외 1은 피고의 설립 전부터 ‘○○’이라는 상호로 떡볶이 등 분식 판매 가맹사업을 하던 중, 2008. 3. 26. 피고를 설립하여 그 사업권을 피고에게 양도하였다. 피고는 피고의 가맹점사업자와 아래와 같은 내용이 포함된 계약서를 작성함으로써 가맹계약(이하 ‘이 사건 가맹계약’이라 한다)을 체결하였다.

Article 1 (Purpose) of the ○○○ Franchise Agreement included in the main sentence refers to prescribing terms and conditions of a franchise agreement between a franchisor (Defendant) and a franchisee to enter into a fair franchise business contract. Article 3 (Grant of Rights) ① A franchisor shall grant franchisees the following rights to engage in a franchise business developed by the franchisor. 4. The right to be supplied with goods or raw and subsidiary materials (hereinafter “goods and materials”) ① A franchisee shall pay KRW 2,00,000 (limited to the amount agreed by the franchisee to be responsible for the liability) to the franchisor at the time of entering into the contract in order to guarantee the payment of the amount of debt, such as the cost of goods and materials, advertising and promotion expenses (limited to the amount agreed by the franchisee) or the amount of compensation for damage. ① A franchisor shall supply goods and materials necessary to maintain the identity of brands to the franchisee. ② A franchisor may suspend the supply of goods and materials to the franchisee without good cause or cooperate with the franchiser in quality inspection directly with the franchisee.

The defendant selected a new supplier of food materials to be used at the defendant's franchise store (referring to the goods with the trademark of ○○, and excluding sugar products without the trademark of ○○; hereinafter the same shall apply) and set the major terms of supply, such as the unit price of supply, the scheduled quantity of supply (where multiple suppliers are selected for the same item, the scheduled quantity of supply by company was set for each company), quality, packing, etc., and notified the defendant's employees of the defendant's franchise store via Skikidoe, which is called Skikidoe.

2) Supply of food materials, such as the Plaintiff’s net straw

A) Selection of a supplier;

On April 14, 2010, the Defendant: (a) obtained sufficient information on food materials, such as the Plaintiff’s net belt, through product evaluation, verification at the Dog chain; and (b) requested the Plaintiff to send samples for the Plaintiff’s trial test to the Defendant’s store; and (c) immediately received samples for the trial test from the Plaintiff. At that time, the Defendant’s selection procedure for the Defendant’s supply company was conducted as a process of directly managing the Defendant’s delivery test for a period of one month after passing through the trial test.

On April 26, 2010, the Defendant sought a statement from the Plaintiff on the grounds that the Plaintiff’s product was lower than that of other companies, and stated that “the Plaintiff is a product recognized by the HCCP, and the unit price is lower than that of the product not recognized.”

On May 6, 2010, the Plaintiff submitted a written estimate of food materials, such as net belt, to the Defendant. From May 25, 2010 to the Defendant’s request, the Plaintiff supplied food materials, such as net belt, to the Defendant’s direct management store without compensation. On May 28, 2010, the Defendant’s employees in charge of Nonparty 2 provided the following specific explanations regarding the terms of supply, and the Plaintiff’s conditions of supply of food materials, such as net belt, were determined accordingly.

The Defendant’s place of delivery and volume included in the main text shall be in charge of Nonparty 2’s division. The delivery hours shall be determined by Nonparty 3’s director and Nonparty 3’s director. All of the ○○○ product packaging materials must be packaged as the ○○ self-design. The draft of packaging design design shall be determined and adjusted at the time of the completion of sealing after passing the design on the first week of June. The supply volume shall be determined and adjusted by including value-added tax at KRW 4,500, not in the case of ○○○, but in the case of ○○, the supply volume at KRW 4,500, not in the case of ○○. For example, the ○ approval shall be made in cash on KRW 15,00,000. When the ○○ supplied by the Plaintiff is more than 500, the supply volume shall not be traded

B) Cooperation between the plaintiff and the defendant

On June 24, 2010 when the Plaintiff supplied food materials, such as the instant supply terms, to the Defendant’s franchise store, only consumers’ payment was made at approximately 9m electric saving tape at the ○○○ glutinous rice glutinous glutinous glutinous rice 1st place. The Plaintiff sent the consumer payment to the Defendant on June 29, 2010, and on June 29, 2010, submitted a letter to the effect that “The Plaintiff is presumed to be mixed with the products without the prior processing operator’s discovery of the side and glutinous rice glutinous rice glutinous glutinous glutinous glutinous glutinous glutinous glutinous glutinous glutinous glutinous glutinous glus, thereby maintaining mutual cooperative relations and becoming an opportunity for mutual development.”

C) Preparation of an agreement between the Plaintiff and the Defendant’s ethical practice

On January 3, 2011, 201, the Defendant: (a) prepared a “Ethical practice agreement” with a subcontractor and received the Plaintiff’s name and affixed its signature and seal on the following grounds, on the grounds that: (b) ○○○ was required to receive the score from the portion of “whether a company is ethically managing” among the items to be evaluated as one grade from the franchise level evaluation; and (c) required to obtain the score from the goods

The defendant and the plaintiff agree to pursue common prosperity through fair trade and mutual cooperation, recognizing that ethical management is a source of social development and corporate competitiveness, and to comply with the code of ethics practice attached thereto, as an accompanying member of business activities, under the recognition that it is a source of business competitiveness. The two Parties also agree to accept any disadvantage in any transaction, including termination of the contract, and not to raise civil and criminal objections in relation to unfavorable measures.

(iii) Exclusive delivery of food materials in ridge distribution;

A) The defendant's exclusive logistics delivery company

The non-party 4, who serves as the representative director of floor distribution, was a company that exclusively delivers food materials to ○○ franchise store in the name of “△△△ Food,” prior to the establishment of the defendant, and received only specific orders from ○○ franchise store (referring to the defendant's franchise store after the establishment of the defendant corporation; hereinafter the same shall apply) and delivered them to the relevant franchise store and received orders from the food materials supplier company designated by the defendant and received orders, and delivered them to the relevant franchise store, and the supply price (in the previous way, the supply price was calculated by multiplying the supply price determined by the defendant by the actual order and delivery volume) was prohibited. On October 22, 2010, the non-party 4 established the floor distribution with the purpose of the company as food materials distribution agent, food materials wholesale business, retail business, etc.

On January 31, 2011, the Plaintiff and Nonparty 4 issued a tax invoice at the Defendant’s request on the basis of distribution of the floor to a person who is supplied with food materials, such as net studio, (it is not confirmed who was previously supplied).

B) Distribution of floors and conclusion of contracts for logistics and business management between the defendant

On March 28, 2011, the Defendant entered into a contract on the payment of logistics and business management fees (hereinafter “instant logistics contract”) with the following terms: (a) distribution of the floor and “the distribution of the floor provides the Defendant with logistics services, such as storage and delivery of raw materials, and the distribution of the floor shall pay the Defendant the business management fees.”

Article 4 (Keeping and Quality Control of Goods) 1. The defendant recognizes that the ridge distribution is the inherent authority of the defendant, with the exception of goods (such as sugar) to select purchasing places and designate quality specifications of goods, purchase price and sale price. The ridge distribution is in principle the delivery and delivery of goods to the places designated by the defendant, including the defendant's member stores and branch offices. 2. The defendant's or defendant's member stores orders the ridge distribution of the ridge distribution of the kind, quantity, etc. of goods requiring the delivery to the ridge distribution, and the ridge distribution of the ridge is to supply the goods to the ridge and branch offices without connection with the above order. 1. The defendant's efforts to collect the ridge distribution at 14.0% of the sales price of the goods under the contract shall be made to the defendant's direct cooperation and management of the ridge distribution at 20.1.4% of the sales price of the goods that the ridge distribution is to be made to the defendant pursuant to this contract.

On the other hand, on April 11, 2011, the Defendant’s branch office entered into a contract for the payment of business and management fees with △△ Food (business operator Nonparty 5), and the Defendant’s branch office with Daenam Co., Ltd. on April 25, 2011, respectively. The written contract states that the Defendant takes charge of the type and unit price determination of the goods, the selection and purchase price management of the purchasing agency, the management of the goods to the chain store, the education and the sales education for the chain store, and the said business entity takes charge of the purchase, delivery of the goods decided by the Defendant, and the receipts from the chain store.

C) The defendant's control over the execution of ridge distribution funds

The floor distribution was closed at the defendant's franchise store, and the defendant's profits were first paid to the defendant in accordance with the order of priority set by the defendant, and the remaining payment was made after 14% of the sales amount appropriated for expenses incurred in delivery of floor distribution, and the supply price was paid to food materials suppliers, including the plaintiff. In this process, the floor distribution was likely to cause a situation in which part of the credit sales amount could not be paid when the total sales amount was reduced.

In addition, when the floor distribution pays for the goods to a meal material supplier, the Defendant directed the distribution of the floor that “I Maa to some extent,” or ordered the accounting company that manages the Defendant’s accounts to visit the floor distribution once a week and check the settlement situation of the credit purchase amount. In addition, the floor distribution was completely opened to the accounting company Nonparty 6, which is the accounting system management program, to allow Nonparty 6 to access in real time, and reported the details of the above funds execution to the Defendant each month.

4) The defendant's checkup of the plaintiff's production facilities

On January 2, 2012, the Defendant issued a notice to the representative of ○○ Cooperative including the Plaintiff stating that “the management of facilities, sanitary management, and legal documents of all food manufacturing companies that are supplied to ○○○○” is “the management of facilities, and all food manufacturing companies that are supplied to ○○○”. Moreover, the Defendant visited the Plaintiff’s factory to check the manufacturing facilities, sanitary relations, etc. of the Plaintiff. The notice stated that “whether the business report certificate is provided, whether the requirements such as food materials are appropriate, whether the production date and raw material are prepared, whether the quality inspection is appropriate, whether the false indication of the distribution period and indication standards are appropriate, whether the employees are personal hygiene, sanitary management, whether the storage of raw material storage is sanitary management, whether the toilet is managed, etc.”

In addition, on November 28, 2012, the defendant's employees, non-party 7 and one other were visited the plaintiff at a regular level and checked and judged that the situation is good.

5) Strengthening the defendant's control over execution of floor distribution funds

Around September 2012, 2012, the floor distribution, as ordered by the Defendant, led Nonparty 6 accountants to build an OTP card for online banking in the floor distribution account.In the latter case, in order to transfer money from the floor distribution account to Internet banking, the head of the accounting team of the floor distribution first entered the necessary settlement details, and then entered the password, Nonparty 6’s input and approved the number. During the approval process, the Defendant directed the distribution of the floor to re-inform the settlement details in accordance with the Defendant’s instructions, unlike the settlement details by the company of floor distribution. However, the Defendant continued to control, as a conflict between the Defendant and the floor distribution, and around November 11, 2013, when the Defendant intended to change the logistics delivery company from the floor to another company, the distribution of the floor was suspended at the time of re-issuance of the OTP card.

6) Change of the defendant's logistics delivery company

From September 2013 to September 14, 2013, the Defendant began to attempt to change a logistics delivery company without floor distribution and prior approval. On November 14, 2013, all the shop owners of the Defendant’s franchise, “Guidance on the Change and Order Method of ○○ Logistics Company” is changed from the floor distribution to Awork Home (hereinafter “Awork Home”) distribution to November 16, 2013. From November 18, 2013, the Defendant is scheduled to deliver Awork Home Logistics. As regards the goods ordered to be Bwork home, the purchase price is set up within 50,000 won as existing, and the payment is newly made by each store. In the case of purchase of the deposited account, it is intended to make the final payment after the main sentence (day, Saturday, and Saturday), and to make the final payment after the closing of the order and payment by no later than the end of the order and payment after the closing of the delivery.”

On November 22, 2013, the Defendant agreed on distribution of the floor and “The instant logistics contract concluded on March 28, 201 with the Defendant, the delivery requester, to terminate the instant logistics contract as of November 30, 201.”

The Plaintiff did not receive an order for the supply of food materials, such as net stand, from the time of notification of the change of the Defendant’s logistics company, without prior explanation from the distribution of the Defendant’s floor, and the Defendant asked the Defendant to ask for the reasons therefor, and rejected the proposal, “If the Plaintiff does not claim the Defendant for the payment of food materials, the Defendant would have paid 1/3 of the food materials as management support to the Plaintiff as a continuous transaction.” Thereafter, the Plaintiff failed to supply the food materials, such as net stand used at the Defendant’s franchise store.

On December 2, 2013, the Defendant notified the Plaintiff of the purport that “Request for cooperation related to the change of logistics enterprise” was “the discontinuance of the transaction due to the floor distribution and inevitable circumstances in charge of the distribution of the Defendant, and the distribution company was changed to the Awork home from December 2, 2013. In this regard, the Defendant requested the Defendant to answer whether the transaction had been made or not. If the Defendant responded to the intention of the transaction, the Defendant would make preparations for contact to the Awork home.”

7) Illegal solicitation against Nonparty 4’s non-party 1

From August 29, 2008 to September 2012, Nonparty 4 made an illegal solicitation to Nonparty 1 to deliver food materials exclusively to the Defendant’s franchise store, and received KRW 2.7 billion in return. Accordingly, Nonparty 1 was indicted on June 4, 2015 with the Seoul Southern District Court (2015Gohap186) that “the Defendant violated the Defendant’s representative director’s duties, thereby receiving KRW 2.7 billion from Nonparty 4.”

When Nonparty 1, who is the representative director of the defendant, was investigated into the above suspicion and submitted to the criminal trial, at that time, the defendant published a letter on his own website stating that "the food materials delivery company is engaged in simple delivery business, the chain head office maintains the cost of the product, and resolves the quality control, the development of the product, and the complaint of the occupancy. Therefore, the defendant entered into a contract with the food materials delivery company, and received the management fee for the loan."

On November 20, 2015, the Seoul Southern District Court sentenced non-party 1 to a conviction of imprisonment. Non-party 1 and the prosecutor appealeded to the Seoul High Court (2015No3524) on this decision, and the Seoul High Court found the non-party 1 guilty of occupational breach of trust on May 27, 2016 and sentenced the suspended sentence of imprisonment. In other words, the non-party 1 and the prosecutor appealed to the Supreme Court.

소외 1에 대한 형사재판과정에서 피고의 가맹점 사업자들은 탄원서를 작성하여 법원에 제출하였는데, 그 탄원서에서 “○○ 가맹점이 ○○ 본사가 아닌, 개인적으로 구입하는 제품은 다음과 같습니다”는 부동문자 아래에 대체로 야채류(당근, 양파, 대파, 쑥갓, 고구마, 단호박 등)와 공산품(호일, 수세미, 주방세제 등)만을 기재하고 있다.

[Reasons for Recognition] Formal Facts, Gap's 1, 4 through 10, 11, 15, Eul's 16-5, Eul's 1 through 3, 7, 8, 21, 23, Eul's 30-1, Eul's 17, Eul's 8's testimony for non-party 8 of the first instance trial, part of non-party 2's testimony for non-party 2 of the first instance trial, the results of the inquiry and reply by the director of Msan Tax Office, the purport of the whole pleadings

[Evidence Evidence] Part of Evidence No. 17, and witness of the first instance court, part of Non-Party 2's testimony

D. Determination

In full view of all the above facts and the following circumstances revealed based on the above recognition basis, it is reasonable to view that the plaintiff supplied food materials such as net stand to be used at the defendant's franchise store according to the terms and conditions of the contract, such as the unit cost of supply determined by the plaintiff in consultation with the defendant, but the specific quantity of supply is determined by collecting the order quantity of the defendant's franchise store and delivering it to the plaintiff. Accordingly, it is reasonable to view that the plaintiff supplied food materials such as net stand to the defendant by delivering the order quantity of the defendant's franchise store to the defendant's franchise store through distribution of floor through the defendant's execution assistant and delivering it to the defendant's franchise store. Thus, the plaintiff's assertion is with merit.

① The major terms and conditions of the Plaintiff’s supply of food materials, such as whether to allow the Plaintiff to use the food materials, such as the net stand produced by the Plaintiff at the Defendant’s franchise store, and the delivery price, quality, packing paper, and approval conditions, are only the Defendant negotiated with the Plaintiff on his/her own behalf and subsequently, made a unilateral notification to the floor distribution or the Defendant’s franchise store. In addition, the Defendant continued to manage the Plaintiff’s supply of food materials within the period during which the Plaintiff supplied food materials to the Defendant’s franchise store.

In this process, the Defendant did not pre-consult with the floor distribution. In addition, the Plaintiff did not discuss the terms and conditions of the △△ Food or floor distribution representative or the employee in charge from the time of the conclusion of the contract until the transaction is completed. Moreover, there was no evidence that the Plaintiff, prior to the supply of food materials to the Defendant’s franchise store, had special relationship or transactional relationship with the △△△ Food or floor distribution side and caused the above delivery.

In light of these circumstances, it seems that there was no perception or indication that both the plaintiff and the defendant did not act on behalf of the plaintiff or the defendant on behalf of distributing the floor or on behalf of the defendant on behalf of distributing the floor, or on behalf of distributing the floor.

However, since food materials, such as the net stand, which the Plaintiff manufactured and supplied, are restricted by food, and the actual demand quantity is determined ex post by the Defendant’s franchise store, the Plaintiff’s quantity of supply is bound to be determined only when it is ordered by specifically setting the food materials at the Defendant’s franchise store that actually uses the food materials, such as the net stand, and the delivery of such materials to the Plaintiff is merely necessary conditions to conclude an individual supply contract according to the terms and conditions stipulated in the above basic supply contract between the Plaintiff and the Defendant.

② Article 3(1)4 of the instant franchise agreement provides that “The Defendant’s franchise store has the right to receive goods and materials from the Defendant,” and Article 25(1) provides that “The Defendant shall supply to the franchisee the goods and materials necessary to maintain the identity of the brand,” and Article 25(2) provides that “The goods and materials that the franchisor does not suspend or supply without good cause may be directly procured and sold by the franchisee.”

이 규정들의 문언과 내용, 체계 등을 종합하여 보면, 피고는 브랜드의 동일성을 유지하는 데 필요한 상품·자재 자체, 즉 피고의 가맹점의 음식의 맛을 일정하게 유지하기 위해 필요한 떡볶이 양념류 등 식자재(○○ 상표가 있는 상품을 의미하고, ○○ 상표가 없는 설탕 등 제품은 제외한다) 자체를 피고의 가맹점에 공급하여야 하고, 피고의 가맹점은 피고로부터 이러한 상품·자재 자체를 공급받을 권리가 있을 뿐 아니라 피고가 이러한 상품·자재를 공급하는 한 다른 상품·자재를 조달하여서는 아니 된다고 봄이 타당하다.

On the contrary, in order to maintain the identity of brand, it is sufficient for the Defendant to select a supplier of goods and materials and introduce them to the franchisees, or the Defendant’s franchise store must purchase goods and materials from the Defendant’s direct Defendant-designated enterprise rather than being supplied with the Defendant, or the Defendant’s franchise store does not mean that it can procure and sell other goods and materials from a third party company, not the Defendant’s designated supplier, to the extent that it does not impair the identity of brand at its own discretion. In fact, the Defendant’s franchise store merely known the Defendant of the ordered volume of the floor distribution in the sense that it receives the Defendant’s orders for food materials such as the Plaintiff’s patrol.

③ According to Article 8 of the instant logistics agreement, a claim for the amount of goods arising from the supply of goods to the Defendant’s franchise store shall be collected directly from the Defendant’s franchise store under his/her responsibility and may not be directly requested to the Defendant to recover the amount of goods.

However, this provision does not interfere with the Defendant’s becoming a party to a contract for the supply of food materials, such as net belt, between the Plaintiff and the Plaintiff. This is because the Defendant’s order collection and delivery of food materials ordered by the Defendant’s franchise store to deliver the relevant order quantity to each of the Defendant’s franchise stores and receive orders therefrom from the Defendant’s stores, and thereby, the Defendant’s distribution delivery and the simple execution of the price for supply resulting therefrom (not the decision-making tasks that determine the terms of the contract, etc.) may have the organization directly necessary for it, or may be entrusted to the distribution delivery business such as floor distribution, but among them, the contract that the Defendant selected the latter and delegated the execution to the distribution of the floor by proxy is considered as the instant logistics contract.

Even if the logistics contract of this case appears to be a contract between the defendant and the defendant and the defendant for the "purchase" of food materials, such as net sales, and the "sale" to the defendant's franchise store, unlike this interpretation, insofar as there is no sufficient proof that the floor distribution itself was the party to the purchase contract for food materials, such as net sales, and that the contract was entered into with the plaintiff through consultation on the terms and conditions of the contract, such other interpretation does not interfere with the establishment of the basic supply contract between the plaintiff and the defendant.

④ According to Article 7 of the logistics contract of this case, the floor distribution is obliged to pay to the Defendant an amount exceeding 14% of the sales price calculated by settling accounts for the supply price to be paid to the delivery company as sales commission.

However, while practically controlling the execution of the price collected from the Defendant’s franchise store, the Defendant, at each time, ordered the delivery company to pay the price for the goods and the amount to be paid in detail, and ordered the distribution of the floor. In this process, the Defendant has established his share of the price in advance. On the other hand, the distribution of the floor is limited to the amount equivalent to 14% of the sales, and the profits therefrom are limited to not only the distribution of the goods but also the distribution of the floor. Even if the profit ratio is high as a result of the supply of food materials such as net stand to the Defendant’s franchise store, the net profit of distribution of the floor was not increased as it is, and the increased net profit was mainly attributed to the Defendant.

In full view of these circumstances, the money that the floor distribution receives according to the instant logistics agreement is merely a preservation of expenses incurred in carrying out the business of collecting food materials from the Defendant’s franchise store and delivering them to the Defendant’s stores after receiving orders from the Defendant’s franchise store on behalf of the Defendant and delivering them to the Defendant’s stores and delivering them to the Defendant’s stores as food materials suppliers.

⑤ According to the evidence submitted in the instant case, the Plaintiff is deemed to have issued a tax invoice as a person who is supplied with floor distribution from January 31, 201. However, the Plaintiff concluded the instant logistics agreement with the floor distribution and the Defendant on March 28, 2011. Therefore, the logical conclusion that the instant logistics agreement was concluded between the Plaintiff and the floor distribution based on the instant logistics agreement is inconsistent with the conclusion of the food materials supply agreement.

Furthermore, according to the Defendant’s instructions, there was no change in the supply relationship of food materials between the Plaintiff, the Defendant, and the Defendant, before and after the issuance of the tax invoice in the future of the floor distribution. Rather, in relation to the issuance of the tax invoice, the Plaintiff or the verbing distribution of small scale of manufacturing business was difficult to refuse the Defendant’s request or instruction, which operates large franchises (the Defendant’s unilateral change of the logistics delivery company from the floor distribution to the unit, and the discontinuance of the transaction with the Plaintiff is also revealed as well.)

In addition, the fact that the Defendant issued a tax invoice stating that he/she was a person who is supplied with floor circulation from July 16, 2013 to October 18, 2013 (written evidence No. 2) is recognized, but it is insufficient to recognize that the evidence submitted in the instant case alone issued the said tax invoice during the remaining transaction period except for this period.

In full view of these circumstances, the Plaintiff did not deem that the Plaintiff concluded the instant supply contract with the floor distribution rather than the Defendant, on the ground that the Plaintiff issued a tax invoice in the future of the floor distribution.

6) The Defendant changed the food delivery company that is exclusively in charge of delivering food materials, such as net stand, to the Defendant’s franchise store without any prior approval from the Plaintiff, from the floor distribution to the unit home, and ordered the Defendant to not place orders to the Defendant’s franchisees any longer in the floor distribution. For this reason, the Defendant’s franchise store was no longer ordered in the floor distribution, and it was impossible to supply food materials, such as the Plaintiff’s net stand, to the Defendant’s franchise store.

If the Defendant, as alleged by the Defendant, merely simply selects food materials as the Plaintiff, etc., and does not directly purchase and supply food materials, it is not a matter of involvement of the Defendant, regardless of whether the Plaintiff supplied the food materials to the Defendant’s franchise store through the floor distribution, or through another logistics delivery company. Moreover, whether the Defendant’s franchise store is via the distribution of the floor provided by the Defendant’s designated suppliers, such as the Plaintiff, or via another logistics delivery company, does not involve the Defendant.

Furthermore, as alleged by the Defendant, if the logistics delivery company considers the logistics delivery company as a party to a contract for the supply of goods with the Plaintiff and the logistics delivery company is deemed to have the obligation to pay the price for the goods to the Plaintiff, the credit and financial ability of the new logistics delivery company are very important to the Plaintiff or the Defendant’s franchise store. Nevertheless, the Defendant unilaterally changed the logistics delivery company from the floor distribution to the unit, and simply notified the Plaintiff of the change, and asked the Plaintiff to have the intent to continue to deal with the unit home (the Defendant notified the Plaintiff of the change and confirmed the existence of a continuous transaction). Such behavior is contrary to the general practices regarding the conclusion of the contract.

In full view of these circumstances, it is reasonable to view that the Defendant ordered the Defendant’s franchise store to sell food materials to the Defendant’s franchise store instead of purchasing food materials to the Defendant’s own franchise store.

7) The defendant asserts that since the floor distribution is engaged in the distribution of food materials by other companies than the defendant, distribution of the floor is exclusively carried out by the defendant and it cannot be viewed as a company that provided simple food materials delivery services.

According to the statements Nos. 17, 18, and 30-2 of evidence Nos. 17, 18, and 30-2, it is recognized that Nonparty 4, who holds office as the representative director of floor distribution, establishes Samsung Co., Ltd. (hereinafter referred to as “Matrip”) and supplies food materials to the company of the ▽▽▽▽△ franchise business.

However, according to the statements in Gap evidence 18-3, the existence of sales on the defendant's store operated by non-party 4 in the year 2009 and the year 2010 is 10%, and the existence of sales on the defendant's store in 201 and the year 2012 is 98% and 99%, respectively, and the existence of sales on the defendant's store in 201 and 2012 is 2% and 1%, respectively.

Furthermore, the time when the floor distribution or tridroid distribution and the distribution of food materials by companies other than the defendant appeared to have conflict with the defendant, and its size is extremely low compared to the total trading size of the floor distribution. The defendant prevented the distribution of the floor from delivering other goods when it delivers the defendant's franchise to the defendant's franchise store. In light of these circumstances, considering the following: (a) considering the circumstance and purpose of the illegal money transaction between the non-party 1 and the non-party 4, distribution of the floor seems to have been carried out exclusively for the defendant only; and (b) thus, the defendant's assertion in this part is rejected.

8) As seen earlier, the Plaintiff’s major contractual terms, such as whether to supply food materials and unit prices, based on the Plaintiff’s intention to supply food materials to the Defendant’s franchise store in consultation with the Defendant and supply them to the Defendant. Even so, distribution of the floor and the Defendant’s obligation to pay food materials to the Defendant may exist in the distribution of the floor pursuant to the instant logistics agreement (Provided, That this is not an important issue in the instant case, and it is not determined on a conclusive basis). In light of such circumstances, the distribution of the floor is sufficiently acceptable and inconsistent with the Defendant’s determination that the Defendant is a party to the instant goods supply contract (written evidence No. 25).

E. Sub-decision

Therefore, the Defendant is obligated to pay damages for delay calculated at the rate of 20% per annum as stipulated in the main sentence of Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (wholly amended by Presidential Decree No. 26553, Sep. 25, 2015) from January 9, 2014, which is the day following the delivery date of a copy of the complaint to the Plaintiff, to July 7, 2016, where it is deemed that there is considerable reason to dispute the existence and scope of the Defendant’s obligation to perform as to the amount unpaid to the Plaintiff.

3. Conclusion

Thus, the plaintiff's claim shall be accepted only within the scope of the above recognition, and the remainder shall be dismissed. The judgment of the court of first instance shall not be justified in some different conclusions. The plaintiff's appeal shall be accepted only for the extent of the above recognition. This part of the judgment of the court of first instance which ruled against the plaintiff as ordered to pay the above amount shall be revoked, and the payment of the amount shall be ordered to the defendant.

Judges Lee Young-jin (Presiding Judge)