2019Na55738 Agreements

A

Law Firm Lplus et al., Counsel for the defendant-appellant

[Defendant-Appellee]

B A.

Law Firm Barun et al., Counsel for defendant-appellant

Attorney Dog-won

Seoul Central District Court Decision 2018Da39219 Decided September 3, 2019

May 19, 2020

June 16, 2020

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

[Claim] The defendant shall pay to the plaintiff 30,500,000 won with 12% interest per annum from the day following the delivery date of a copy of the complaint of this case to the day of complete payment.

[Purpose of appeal] The part against the defendant among the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revocation part is dismissed.

1. Quotation of the first instance judgment

The reasons for this Court are as follows, except for the addition of the following ‘2. Additional Judgment' as to the argument that the defendant emphasizes or adds to this Court, and therefore, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Additional determination

A. The defendant's assertion

The Plaintiff asserted that the instant officetel was leased to use as a P office and that the Plaintiff prepared an application for no punishment for the Defendant’s criminal case and arranged the instant officetel free of charge with the indication of audit and inspection. However, the lease contract date of the instant officetel is March 17, 2017, while H submitted an application for no punishment for the criminal case on April 13, 2017, conflict with the Plaintiff’s assertion. According to the instant contract, the Defendant is going to arrange the instant officetel to intermediate the instant officetel to the Plaintiff, and thus, the Defendant breached its duty to act as a broker for the instant officetel.

At present, P and E are currently being operated by using the Itel T as the address, and in light of this, it should be deemed that the Defendant’s introduction of the instant officetel to the Plaintiff into the E business place.

In addition, penalty is presumed as liquidated damages pursuant to Article 398 subparag. 4 of the Civil Act, and if this is excessive, it may be reduced ex officio. However, since penalty KRW 30,00,000 prescribed by the contract of this case is unfairly excessive, the judgment of the court below that admitted the whole penalty claimed by the Plaintiff is unreasonable.

B. Determination

1) Determination as to the Defendant’s default of obligation

① According to the evidence evidence No. 11, the Defendant’s representative director (“Defendant”) may recognize the fact that the Defendant’s application for punishment was submitted on April 13, 2017, which was after the contract for the instant officetel. However, the discussion on the preparation of a written application for punishment was deemed to have existed on or before April 13, 2017, and ② In full view of the written evidence No. 19 and the overall purport of oral argument, the Plaintiff appears to have been in physical coloring the first floor store of the instant officetel even after March 17, 2017. In light of the fact that the Plaintiff had been in physical color, the Defendant appears to have been engaged in mediating the first floor store of the instant officetel. ③ On October 17, 2017, H did not have any other reason to acknowledge that the Plaintiff’s address as the Plaintiff interfered with the Plaintiff’s sales business by restricting the Plaintiff’s entry, and thus, the Defendant’s assertion that the instant office did not have any other obligation under the instant provision.

2) Determination on whether penalty is excessive

According to Article 398 (2) of the Civil Code, "Where the estimated amount of compensation for damage is unreasonably excessive, the court may reduce it to a reasonable level." In this context, "the case where the amount of compensation for damage is unreasonably excessive" means cases where the payment of the estimated amount of compensation for damage is deemed to result in the loss of fairness by imposing unfair pressure on the debtor who is in the position of the economically weak in light of the general social concept, taking into account all the circumstances such as the status of the creditor and the debtor, the purpose and content of the contract, the motives scheduled for the amount of compensation for damage, the estimated ratio of the estimated amount of compensation for damage, the amount of expected damage, the amount of the expected damage, and the transaction practices at the time, etc. In addition, in order to determine whether the estimated amount of compensation for damage is unreasonably excessive or the scope of reasonable reduction is to be determined specifically, the court shall take into account all the above circumstances that occurred between them as at the time of the closing of the trial court as a whole (see, e.g., Supreme Court Decisions 95Da42393, Feb. 27, 19965).

In full view of the evidence and the whole purport of the pleading mentioned above (1) through (4) facts and circumstances, it cannot be deemed that the penalty of this case was unfairly excessive, where it is acknowledged that the penalty of this case resulted in the loss of fairness by imposing unreasonable pressure on the defendant. Therefore, the defendant's assertion on this part is without merit.

① In light of the developments leading up to the conclusion of the instant contract, it cannot be deemed that the instant contract was concluded against the Defendant on the basis of the Plaintiff’s superior position. Rather, at the time of the conclusion of the instant contract, the Plaintiff, who acquired ownership of the instant building leased by the Plaintiff, was in a superior position than the Defendant.

② The provision of penalty for breach of contract under Article 13(4) of the instant contract appears to be of a compensatory nature that allows the Plaintiff to deliver the instant store to G company as soon as possible for G company to implement the “marization of a single unit near the G company.”

③ The Plaintiff appears to have failed to receive a separate money while delivering the store to G company as above, while the Defendant appears to have obtained a certain economic benefit as delegated by G company with the service duties.

④ Since March 6, 2017, the Plaintiff appears to have suffered considerable loss due to the Plaintiff’s failure to conduct its normal business as to E, since transferred goods to the instant underground shopping mall.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff a penalty of KRW 30,00,000 and damages for delay calculated at the rate of 12% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from September 13, 2018 to the day of full payment, which is the day following the delivery of a copy of the complaint of this case. Thus, the plaintiff's claim is reasonable, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit

Judges Kim Yong-han

Judges No. Hun-Ba

Judges Kim Chang-chul