(영문) 대전고등법원 2018.11.21 2018나11648

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Reasons

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글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 대전고등법원 2018.11.21 2018나11648

공사대금

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1. The plaintiff's appeal and the plaintiff's claim expanded by this court are all dismissed.

2. After an appeal is filed.

Reasons

1. The reasons why this court shall state this part of the facts are as follows: (a) the “production execution” of the third party 7 of the judgment of the first instance is dismissed as “production progress”; and (b) Gap may rescind all or part of the contract in question in the case of Article 9 (a) where the case of Article 9 (a) falls under any of the following subparagraphs; and (c) the case of violation of the terms and conditions of the contract in question is deemed to be impossible to achieve the purpose of the contract due to such violation; and (d) it is identical to the corresponding part of the reasons in the judgment of the first instance, and thus, they are cited pursuant to the main sentence of

2. Summary of the parties' arguments

A. The Plaintiff entered into the instant contract with Defendant C, and entered into the said contract with the same content as Defendant B at the request of the Defendants to pay the amount as government subsidies.

Although the Plaintiff supplied the instant machinery in accordance with the instant contract and was normally operated, the Defendants did not pay the remainder after paying only KRW 110 million out of the price.

Therefore, the defendants are jointly and severally liable to pay the remainder of the payment and the damages for delay from the day following each payment date under the contract of this case.

B. Defendants 1) The instant contract was concluded between the Plaintiff and the Defendant C, and Defendant B is not a party to the instant contract. (ii) The key content of the instant contract is that the instant machinery has to have the function and quality capable of producing the f,500 speed conventional melting the instant machinery, and the instant machinery failed to satisfy these performance and quality, and thus, cannot achieve the purpose of the instant contract. Accordingly, the instant contract was rescinded by delivery of preparatory documents dated November 9, 2015, including the Defendants’ declaration of intent to rescind the contract.

3. Determination

A. Whether a contract exists between the plaintiff and the defendant B.

참조조문

-민사소송법 제420조

유사 판례

-전주지방법원 2018.12.11 2017가단29325

-서울중앙지방법원 2016.01.29 2015가합524997

-서울고등법원 2017.09.29 2017나2004520

-대법원 1996. 8. 23. 선고 96다16650 판결

-서울중앙지방법원 2017.05.11 2015가합564797