The meaning of Article 3(2) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (hereinafter “Special Cases Concerning Expedition, etc.”) where an obligor is deemed reasonable to resist the existence or scope of an obligation to perform, and whether the interest rate for delay under Article 3(1) of the same Act applies until the appellate court rendered a judgment on appellate proceedings where the obligor’s assertion was accepted at the first instance trial, disputing the existence or scope of the obligation to perform (negative)

Article 3(1) and (2) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings

Supreme Court en banc Decision 86Meu1876 Decided May 26, 1987 (Gong1987, 1058) Supreme Court Decision 2010Da21696 Decided July 8, 2010

Samsung Distribution Co., Ltd. (Bae & Yang LLC, Attorneys Lee Dong-jin et al., Counsel for the defendant-appellant)

Korea Highway Corporation (Law Firm Chungcheong, Attorneys Bailment-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na22988 decided August 16, 2012

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

Article 3(2) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (hereinafter “Special Cases”) provides that “Where it is deemed reasonable for an obligor to resist the existence or scope of the obligation, prior to the adjudication of a fact-finding court that declares that the obligor has the obligation to perform the obligation to perform the obligation, paragraph (1) shall not apply to the reasonable extent.” The application of Article 3(1) of the Act on Special Cases Concerning the Settlement of Legal Interest Rates, which provides for special cases concerning statutory interest rates, which serve as the basis for calculating the amount of damages caused by the nonperformance of the obligation, may be excluded.” The term “where it is deemed reasonable for an obligor to resist the existence or scope of the obligation to perform the obligation,” as stipulated in Article 3(2) of the Act on Special Cases Concerning the Settlement of Legal Proceedings, refers to cases where the obligor’s assertion is deemed reasonable and reasonable. Whether such a dispute is reasonable or not, the court’s fact-finding and evaluation of the relevant case, even if the obligor asserted was accepted in the appellate court, the allegation can be deemed as reasonable until the appellate court’s ruling.

In this case, the first instance court accepted the defendant's argument and dismissed all the plaintiff's primary and conjunctive claims, and the lower court accepted the part of the claim for acceptance price by changing the conclusion of the first instance court concerning the conjunctive claims. As long as the defendant's argument was accepted in the first instance court, it shall be deemed that there are reasonable grounds for the argument. Thus, since the court below's order to pay damages for delay calculated at the rate of 6% per annum under the Commercial Act is reasonable from the day following the day when the defendant's obligation to take over rest area of this case was due to the day when the court below ordered the defendant to pay damages for delay calculated at the rate of 6% per annum under the Commercial Act for that period, and there

2. As to the Defendant’s grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed)

The court below acknowledged the facts as indicated in its reasoning based on its adopted evidence, and found that it was unfair to compel the Plaintiff to continue to operate the instant rest area due to the failure to operate the instant rest area during the remaining project period, on the ground that the Plaintiff continued to suffer losses due to the business of operating the rest area in this case with the care of a good manager due to the Plaintiff’s failure to perform its duty of care, including the substantial difference between the actual traffic volume and the estimated traffic volume, and the degree of future prospects, etc., on the grounds of the circumstances as indicated in its reasoning, including the following: (a) the Plaintiff’s failure to perform its duty of care; (b) the cumulative loss amount has already occurred in comparison with the Plaintiff’s initial investment costs; and (c) there is no room for any further improvement; and (d) it constitutes “the suspension of operation due to the failure to operate the instant rest area” as stipulated in Article 35(1) of the Prospectus, and therefore, the instant convention was terminated by the delivery of the duplicate of the complaint indicating the intention of termination, and accordingly, accepted the Plaintiff’s claim for this part of this portion.

In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error of law such as misconception of facts, incomplete deliberation, misapprehension of legal principles concerning interpretation of the agreement and violation of the good faith

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)