[1] The case holding that it is not permissible under the good faith principle to impose liability on a small and medium enterprise cooperative which is a mere formal party to a purchase contract on the ground of special conditions of the purchase contract

[2] Interpretation of the language that reduction or recovery may be granted if there is an error in the determination of the contract amount

[1] The case holding that if a local government cannot enter into a direct contract with a supplier under the relevant provisions, such as the former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Small and Medium Enterprise Cooperatives, and the cooperative merely takes the form as if it entered into a collective contract with a supplier and does not participate in the process before and after the contract, all the rights and obligations under the purchase contract belong to the actual contracting party immediately without going through the cooperative, and thus a local government enters into a direct contract with a supplier without following the procedures prescribed by the Act on the Promotion of Purchase of Small and Medium Enterprise Products and excludes the cooperative, and later, it is contradictory to the prior act to impose liability for reduction or recovery of the contract amount on the cooperative merely a formal party on the ground of the special conditions of the purchase

[2] The requirements for the right to claim a reduction or the right to claim a redemption under the special conditions for the purchase of goods are limited to the case where there is any error or error in the determination of the contract amount, and the reason for the reduction of the contract amount arises. However, considering that this provision is an inequal contract clause that is contrary to the principle of free competition, it should be interpreted that the said right to claim a reduction occurs only when the party under the contract uses unlawful means and caused a defect or error in the determination of the contract amount, and when the contract amount becomes unfairly high.

[1] Article 2 of the Civil Act of the former Promotion for the Purchase of Small and Medium Enterprise Products (repealed by Act No. 4825 of Dec. 22, 1994) / [2] Article 105 of the Civil Act

[2] Supreme Court Decision 91Da46885 delivered on April 28, 1992 (Gong1992, 1713)

[Judgment of the court below]

Korea Cedi Industrial Cooperatives and two others (Attorney Park Tae-young, Counsel for the plaintiff-appellant)

Seoul Civil District Court Decision 92Gahap71715 delivered on December 8, 1993

1. Of the judgment of the court below, the part against Defendant Korea Cright Industry Cooperatives shall be revoked and the plaintiff's claim against this shall be dismissed.

2. Of the lower judgment, the part of the lower judgment against the said Defendants ordering the Plaintiff to pay the Plaintiff the amount of KRW 214,594,030, and the amount of KRW 231,259,647 to the Plaintiff as to the Defendant’s Hahiness in excess of the annual interest rate of KRW 5% from December 22, 1992 to March 30, 1995, and KRW 25% per annum from the next day to the date of full payment, shall be revoked, and all of the Plaintiff’s claims for revocation shall be dismissed.

3. All remaining appeals filed by Defendant Volcanic Co., Ltd. and Dominant are dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Korea Cright Industrial Cooperative shall be borne by the Plaintiff in both the first and second instances, and the part arising between the Plaintiff and the Defendant Cright Industrial Cooperative and the private housing shall be borne by the said Defendants and the remainder.

The Plaintiff shall jointly and severally pay the amount of KRW 328,187,480, and the amount of KRW 352,571,020 and the amount of KRW 25% per annum from December 22, 1992 to the date of full payment.

The purport of appeal by Defendant Clin Industrial Cooperatives is as set forth in paragraph (1).

The purport of the appeal by Defendant Volcanc Enterprise Co., Ltd. and the non-permanent housing: The part of the judgment below against the above Defendants shall be revoked. The Plaintiff’s claim against the above Defendants shall be dismissed.

1. A purchase contract;

(a) Relationship between the Parties

The defendant Clin Industrial Cooperatives (from the following to the defendant association) is a cooperative established pursuant to Article 3 of the Small and Medium Enterprise Cooperatives Act; the defendant Co., Ltd. (the next to the defendant company), the defendant Clin Industrial Complex (the defendant company's name of the business), the defendant Clin Industrial Complex, and the non-party Kim Jong-sik are all the members of the defendant association; the fact that the representative director of the defendant company and the defendant's name of the defendant company are the civilian's name is no dispute between the parties.

(b) A collective free contract under the Small and Medium Enterprise Cooperatives Act and the former Promotion for Purchase of Small and Medium Enterprise Products (repealed by Article 2 of the Addenda to the Promotion of Purchase of Small and Medium Enterprise Products Act (Act No. 4825, Dec. 22,

The plaintiff is a public institution as prescribed in Article 2 of the Promotion for the Purchase of Small and Medium Enterprise Products Act, and if this public institution intends to purchase the goods, it shall increase the purchase of the goods produced by small and medium enterprise owners, and in this case, the public institution may enter into a collective free contract with the Small and Medium Enterprise Cooperatives under Article 3 of the Small and Medium Enterprise Cooperatives Act (Article 3 of the Promotion for the Purchase of Small and Medium Enterprise Products Act, and, in principle, a public institution shall make a collective contract to promote the economic interests of its members in accordance with the Budget and Accounts Act and the Local Finance Act. Accordingly, the small and medium enterprise cooperative may enter into a collective contract to promote the economic interests of its members, and this collective contract shall be entered into in writing stating that it is a collective contract, subject to prior resolution of the board of directors, and the collective contract shall be effective directly for its members (Article 35 and Article 36 of the Small and Medium Enterprise Cooperatives Act have the same provisions as the articles of incorporation of the defendant cooperative).

C. Details and details of the instant purchase contract

The following facts are without dispute between the parties, evidence Nos. 1, 3 through 6, evidence Nos. 7-1, evidence Nos. 2 through 8, evidence Nos. 1 through 8, evidence Nos. 9-1 through 7, evidence Nos. 10-1 through 7, evidence Nos. 12-1 through 7, evidence Nos. 13-7, evidence Nos. 14-1 through 7, evidence Nos. 14-1 through 7, evidence Nos. 15-2, evidence Nos. 1 through 5-2, evidence Nos. 6-1 through 7, evidence Nos. 16-1 through 8, evidence Nos. 17-1, evidence Nos. 2 through 5-2, evidence Nos. 5-1 through 7, evidence Nos. 5-2, evidence Nos. 1 through 17-3, and evidence Nos. 18-1 through 25-1

1) From December 22, 198 to January 18, 1992, the Plaintiff purchased 141,319, and 319, which were gathered from the members of the Defendant Union, for disaster relief supplies, for neighboring auxiliary goods procurement, for cargo supplies, for cargo supplies, or for stockpile supplies. Of the supply quantity on April 24, 1991, the mother 500 out of the supply quantity on January 18, 1992 was supplied from the non-party 139,919, the mother 919 was supplied from the non-party 1 and the defendant 1, as shown in the attached list except that the mother 90, out of the supply quantity on January 18, 1992 was supplied from the non-party 139,919 and the mother 139,919 were supplied from the non-party 1 and the defendant 2 were supplied from the non-party 2 at the time of supply (the defendant association and the defendant 1, the non-party 2, the defendant 1 and the remaining 1737.7.7.

2) As seen in the above paragraph (b), if a collective free contract was entered into for the purchase of products of small and medium enterprises at the market price of the Plaintiff, the Defendant association entered into a collective contract with the Defendant association first, and then the Defendant association should allocate the quantity of goods to the members to be given equal benefits in accordance with reasonable standards. The representative director of the Defendant company entered into a purchase contract under the name of the Defendant association, whereby the Defendant association would alter the Defendant association and negotiate the relevant public officials belonging to the Plaintiff association individually to agree in advance on the quantity, price, time of supply, place of supply, etc. of the quantity of the gather purchase, and according to the right of supply, the Defendant association would supply the volume of goods necessary for the Plaintiff company to the Defendant’s own wife (the next purchase contract of this case).

3) In the process of concluding the above purchase agreement, the Defendant Union did not participate in the determination of the terms of the purchase agreement, such as the volume, price, time of supply, and place of supply, and as mentioned in the above paragraph 2, the relevant public officials of the Plaintiff Union and the Defendant Company, and the representative director of the Defendant Company, notified the Defendant Union of the terms of the purchase agreement with the relevant public officials of the Plaintiff Company and the Defendant Company, thereby accepting it as is, as if the Defendant Union entered into the purchase agreement with the Plaintiff Company, and sent the above her name to the said her husband by accompanying the Defendant Union members and affixed the seal on the purchase agreement as mentioned above, or, as a case, sent the her name and seal to the Plaintiff at the time of the Plaintiff Company, and sent the her name and seal only on the her name and seal affixed to the her name and seal affixed to the her name of the Defendant Union before entering into the purchase agreement, and the Plaintiff Union was also subject to examination or ratification of the form of the agreement with the Plaintiff Association.

4) On the other hand, inasmuch as the ordinary village company, which operates the Defendant Company and the Defendant Non-Party Kim Jong-sik, purchased the quantity of the instant mother supply from Non-Party Kim Jong-sik (which is the Defendant’s member) who operates the sales agency of Taedong Industrial Co., Ltd., a large enterprise, and again supplied it to the Plaintiff at the Plaintiff.

5) On May 17, 191, 191, the ordinary village company, which is the Defendant’s civilian uniform, is not a manufacturer, but a mother and child was not a member of the Defendant’s association, and the husband’s her her her her her her her her her her her her her her her her her her her her her her her her

6) Even after entering into the instant purchase contract under the name of the Defendant Union, where the cause for the reduction of the contract amount arises due to defects or errors in the determination of the contract amount, a special clause was stipulated that the reduction or recovery of the amount determined by the Plaintiff’s public official in charge of contracts may be made (Article 7 of the special condition for the purchase of goods).

7) The price for purchasing the reproduction of this case from the Kim Jong-sik, that is, the price for purchasing the reproduction of this case from the defendant company and the defendant Kim Jong-sik, is the same as that for the column of (5) of the same list, and the price for which it was supplied to the plaintiff in the plaintiff city is the same as that for the column of (6) of the same list (it is clear that the defendant union and the defendant's civilian uniform were purchased from the Kim Jong-sik, because 105 of the product name "Neung" among the goods supplied to the plaintiff in the plaintiff city on December 22, 198, is not a product of Tae-sung Industrial Co., Ltd., but it is not a purchase from the Kim Jong-sik, in light of the evidence No. 8

D. Status of the plaintiff and the defendant under the purchase contract of this case

In fact, the purchase contract of this case is in the form as if the plaintiff Si and the defendant union entered into a collective contract as stipulated by the articles of association of the small and medium enterprise products purchase promotion law, the small and medium enterprise cooperative association, and the defendant cooperative. However, this is merely an appearance that the plaintiff Si and the supplier could not enter into a direct contract under the relevant provisions, and in substance, it should be deemed that the contract was entered into between the plaintiff Si and the defendant company, the defendant company, and the defendant's public and private-private partnership, and all rights and obligations under the above contract should be immediately deemed to belong to the above substantive parties without going through

2. Claim against the defendant union;

The plaintiff asserts as follows.

In other words, the contract price of the purchase of this case was set unfairly high as the difference between the price supplied by the plaintiff company or the defendant's civilian uniform to the plaintiff's city and the price supplied by the above Kim Jong-sik. Accordingly, the defendant association, as a party to the purchase contract of this case, should jointly and severally pay KRW 328,187,480 and KRW 352,571,020 to the plaintiff's city according to Article 7 of the Special Conditions for the Purchase of Goods.

As determined earlier, the purchase contract of this case has the form as if the plaintiff Si and the defendant union entered into a collective contract, but this is merely an appearance that the plaintiff Si and the supplier could not enter into a direct contract under the relevant provisions, and the defendant union did not participate in the contract before and after the contract. The purchase contract of this case is deemed to have been entered into between the plaintiff, the defendant company, and the defendant's happiness. All rights and obligations under the above contract are attributed to the above substantial parties immediately without going through the defendant union. Thus, it cannot be said that the defendant union did an unlawful act by participating in the purchase contract of this case, or that the defendant union was liable for the plaintiff's failure to comply with the procedure stipulated in the Product Purchase Promotion Act, etc., and the plaintiff union did not enter into the purchase contract of this case with the defendant union, which was the representative director of the defendant company, after setting all the contract terms and conditions, and the defendant union did not participate in the purchase contract of this case later on the ground that it cannot be held liable for reduction of the contract amount or the prior contract terms.

3. Claim against the defendant company and the defendant's re-appellant

A. The plaintiff's assertion

The plaintiff asserts as follows.

In other words, the contract price of the purchase of this case was set unfairly high as the difference between the price supplied by the plaintiff company or the defendant's civilian uniform to the plaintiff's city and the price received from the above Kim Jong-sik. The defendants are the parties to the purchase contract of this case, which are collective contracts, in accordance with Article 7 of the Special Conditions for the Purchase of Goods, to pay KRW 328,187,480, and KRW 352,571,020 to the plaintiff's city.

Therefore, it is acknowledged as above that the purchase contract of this case is a form only collective contract, and it is not actually existed between the plaintiff and the defendant association, and it shall be deemed that it was directly concluded between the plaintiff and the defendants. Therefore, the above defendants do not bear any liability under collective contract as asserted by the plaintiff at least any more. However, the plaintiff's assertion that the above defendants are liable under Article 7 of the Special Conditions for the Purchase of Goods as a party with the effect of collective contract, that is, the above defendants' assertion that the above defendants are liable under Article 7 of the special condition for the purchase of goods, which exists between the plaintiff and the defendants, shall be deemed to include the assertion that the above defendants are liable under the special condition for the purchase of goods of this case.

B. The occurrence of the claim to recover the purchase price

Even after entering into a contract under Article 7 of the Special Conditions for the Purchase Contract under the name of the defendant association, where the grounds for the reduction of the contract amount arise due to defects or errors in the determination of the contract amount, the fact that the plaintiff's public official in charge of contracts may reduce or recover the amount determined by the contract amount as seen earlier, and the fact that all the rights and obligations under the above purchase contract and the obligations immediately belong to the above parties without going through the defendant association is determined as above. Thus, the rights and obligations under Article 7 of the aforesaid Special Conditions for the Purchase of Goods shall also belong to the plaintiff and the above Defendants.

However, the requirements for the claim for reduction or the claim for recovery under Article 7 of the Special Conditions for the Purchase of Goods are limited to the case where there is any error or error in the determination of the contract amount, and the above provision cannot be interpreted as an occurrence of the above claim without limitation, considering that it is an inequal contract clause that is contrary to the original principle of free competition, and only when "the party to the contract uses unlawful means and caused error or error in the determination of the contract amount, and the contract amount was unfairly high," the above claim shall be interpreted as being caused. (Supreme Court Decision 91Da46885 delivered on April 28, 1992).

However, as seen earlier, it was well aware that the Defendant Company’s representative director and the Defendant’s agent should supply the products of small and medium enterprises in accordance with the Promotion of the Purchase of Small and Medium Enterprise Products Act, Small and Medium Enterprise Cooperatives Act, etc. (Provided, That this case’s purchase contract at the time of December 22, 1988 and the Plaintiff’s purchase contract at the time of December 30, 1989 requires the supply of the products of a large enterprise to the Plaintiff’s own at the time of the Plaintiff’s purchase, and even if it was well aware that the Kim Jong-sik, one of the Defendant’s members, could supply the same products at a price much higher than that of the Defendant Company or the Defendant’s public interest, it constitutes an unlawful act of purchasing the said products at the time of the Plaintiff’s request, and thus, it constitutes an unlawful act of purchasing the said products at a price higher than that of the Plaintiff’s direct production of the said products at the time of the Plaintiff’s purchase contract at the time of the Plaintiff’s request or its price.

Therefore, the issue of whether the contract price was unfairly high to the extent that the contract price should be reduced, as stipulated in Article 7 of the Special Conditions for the Purchase of Goods.

In this regard, the plaintiff argued that the above defendants should recover the amount of the contract price because the price was set unfairly high to the difference between the price supplied by the plaintiff city and the price supplied by the above Kim Jong-type. The above defendants asserted that the price supplied to the above defendants by Kim Jong-sik is the price normally formed in special business relations, so it should be calculated separately by the ordinary price excluded from this price. Further, the above defendants asserted that the above defendants' expenses, such as transportation expenses, cargo-to-land personnel expenses, personnel expenses, travel expenses, cooperative fees, packing expenses, value-added tax, income tax, employee pay, and stamp fee, etc., separately from the operation of the plaintiff's company, should be viewed as the reasonable price that the plaintiff's normal price could have been supplied by the defendant association members.

As recognized earlier, the price for purchasing the circulation of this case from Kim Jong-sik is the same as that of the list No. 5, and the price for which the Defendants supplied to the Plaintiff at the time of the Plaintiff is the same as that of the above list No. 33-1, Gap evidence No. 37-1, No. 37-2, Gap evidence No. 38-1, No. 2, No. 40, Gap evidence No. 41-1, No. 42-1, No. 43, No. 43, No. 45, No. 45, No. 14, and No. 45, No. 1, and No. 7 of the above evidence No. 5, No. 7 of the court below's evidence No. 5, and No. 1, No. 6 of the above evidence No. 7 of the evidence No.

Therefore, according to the above recognition, since the above Kim Jong-sik's price supplied to the above defendants is the appropriate price that the sum of the union fees (the total amount paid by the defendant company is KRW 21,624,579 and the total amount of the union fees paid by the defendant company is KRW 22,20,00,095) as shown in attached Table No. 7 of the list of the above defendants (the total amount of the union fees paid by the defendant company is KRW 21,62,200 and KRW 095) could have immediately been purchased at the market of the plaintiff, the difference between the price supplied by the defendant company to the plaintiff company at the time and the above reasonable price is 306,562,90 won [1,113,854,000 won + KRW 66,530 won + KRW 21,624,579] and the above reasonable price should be reduced to 330,370,290,297,7979,79,79.

Therefore, the plaintiff can exercise the right of recovery against the above defendants as stipulated by Article 7 of the Special Conditions for Goods Purchase Contract.

(c) Set-off of negligence;

Article 7 of the Special Conditions for the Purchase Contract of this case stipulates that in the event that the other party to the purchase contract of this case violates the obligation of good faith, such as making an illegal act in determining the contract amount, etc., the plaintiff would give the plaintiff Si a claim for damages equivalent to the difference due to the other party's breach of the duty of good faith. Thus, if the damage occurred or the damage was caused or expanded even to the plaintiff, it should be considered as a matter of course in calculating the liability and the amount of damages of the above defendants pursuant to Article 396 of the Civil Act (However, the above plaintiff's assertion is without merit since the plaintiff was audited by the Board of Audit and Inspection on March 3, 192 of the purchase contract of this case and submitted the statement of the witness Gap No. 2 to the plaintiff at the time of the plaintiff pursuant to Article 7 of the Special Conditions for the Purchase Contract of this case. However, in light of each of the above contents, even in light of the above contents, it shall be deemed that the plaintiff's claim for restitution is reasonable and reasonable.

However, according to the above evidence, the following facts can be acknowledged.

Upon entering into the instant purchase contract, the Plaintiff’s public official in charge of contracts could have used much knowledge and experience of the Defendant association, which would have been far more clear in the price information if it had been practically negotiated with the Defendant association pursuant to the Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Small and Medium Enterprise Cooperatives, etc., and could have used the considerable number of knowledge and experience in supervising the members of the Defendant association. As a result of direct negotiations with the suppliers, it was not found that the Defendant company was not a maternity-handling company, or that it was not actually a member of the Defendant association, but did not find a certain degree of the contract amount. In addition, in the case of selecting a large enterprise as a purchase product, it was negligent in not only reviewing the formally submitted estimate price by the Defendant association or supplier prior to the determination of the contract amount, but also having been directly investigating the factory price, wholesaler, and agent’s actual market price. If it was discovered that it was a small and medium enterprise product, it could not be determined at the time of the failure of the Plaintiff’s negligence.

Therefore, in determining the amount of the Plaintiff’s market price from the above Defendants, the above negligence at the time of the Plaintiff’s market should be taken into account. Considering that the Small and Medium Enterprise Purchase Promotion Act, etc. prevents public agencies, such as the Plaintiff, from purchasing the products of small and medium enterprises favorable to the quality of the products or the price of the products, and in order to protect the economic interests of the Small and Medium Enterprise Cooperative members, the obligation of the above members to faithfully present the purchase terms and conditions, such as the price, to the public agencies in response thereto should be much more larger than the obligation to observe the above law and to investigate the price carefully. In light of the above circumstances, it is reasonable to view that the negligence ratio at the time of the Plaintiff is 30%. Thus, the amount to be paid by the Defendant Company shall be calculated as 231,259,647 won (30,370, 370, 925 won x 10%) and the amount to be paid by the Defendant Company.

4. Conclusion; and

Therefore, the Plaintiff is obligated to pay 5% per annum as prescribed by the Civil Act from December 22, 1992 to March 30, 1995 (in this case, it is reasonable for the Defendant to resist the existence of liability with respect to the interest rate on delay damages until the final judgment is rendered) as to the amount of KRW 214, 594,030, and the amount of KRW 231,259,647, and each of the amounts of KRW 647, which the Plaintiff seeks, from the date of delivery of a copy of the complaint of this case on which the Plaintiff seeks.

Therefore, the plaintiff's claim against the above defendants shall be justified within the above scope and the remainder of the claim and the claim against the defendant Korean bed Industrial Cooperatives shall be dismissed unfairly. Since the part of the judgment of the court below as to the defendant's bed Industrial Cooperatives and part of the judgment of the court below as to the defendant's bed from the defendant's bed from the defendant's bed Industrial Cooperatives and part of the judgment of the court below as to the defendant's bed against the defendant's bed from the defendant's bed from the defendant's bed Industrial Cooperatives and the part against the defendant's bed against the defendant's bed against the defendant's bed against the defendant's bed against the defendant's bed, and

Judges Yellow upper (Presiding Judge) Dun-Wol Lee