2016Na24933 Transport charges

A Stock Company

Gyeongsan-si B

C Representative Director

Attorney Yellow-ho et al., Counsel for the defendant-appellant

D. Corporation

Port E

Representative Director F

Attorney Lee Jae-soo, Counsel for the plaintiff-appellee

Daegu District Court Decision 2015Da123136 Decided August 18, 2016

June 22, 2017

July 13, 2017

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 17,646,357 won with 15% interest per annum from the day following the service date of the application for modification of the claim and the cause of the claim of this case until the day of complete payment. 2. purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts are either not disputed between the parties, or acknowledged in full view of Gap evidence 1 through 5, 7 (including the number of branch offices; hereinafter the same shall apply), Eul evidence 1 through 9, witness G of the first instance court, and H's testimony.

A. The Plaintiff is a company that carries on petroleum products and petroleum chemical products sales and transportation business, and the Defendant is a company that carries on liquefied petroleum gas (LPG) charging business against the taxi located in the port of distribution.

B. On October 30, 2006, the Plaintiff entered into a LPG transport contract (hereinafter “instant transport contract”) with the Defendant (F at the time of representative director). The contents of the instant transport contract are as follows: (a) the Plaintiff transports liquefied petroleum gas to the place designated by the Defendant using freight cars; (b) the Defendant pays liquefied petroleum gas transport charges to that place; and (c) the contract provisions related to the instant issues are as follows.

A person shall be appointed.

A person shall be appointed.

C. At the time of the conclusion of the instant transport contract, the Plaintiff: (a) the Plaintiff: (b) the Plaintiff: (c) the Plaintiff: (a) the Plaintiff: (d) the Plaintiff required G to contain liquefied petroleum gas transport according to the instant transport contract; (b) the Defendant entered into a liquefied petroleum supply contract with Company I (i; hereinafter “I”); (c) the Defendant agreed to be supplied with liquefied petroleum gas only from I; and (d) thereby, G transported liquefied petroleum gas of the I plant.

D. After the J was appointed as the Defendant’s representative director due to F’s successor, G transported 671,930 km of liquefied petroleum gas, such as K, L, and M, which is not I’s product, from November 2008 to September 2009.

E. Although the instant transport contract is not terminated in the middle and the original contract term expires, the Plaintiff continued to transport liquefied petroleum gas even after October 30, 201, the original and the Defendant did not conclude a transport contract, and did not give a new notice of an extension before the expiration of the original contract term.

F. On January 19, 2015, F was reappointed by the Defendant’s representative director. On April 9, 2015, the Defendant notified the Plaintiff that “The Plaintiff would have transported other products although the Plaintiff would have to transport only I products, so the instant transport contract shall be terminated as of May 30, 2015,” and the Defendant entrusted another company with the transport of liquefied petroleum gas from May 31, 2015.

G. Meanwhile, from June 1, 2014 to May 30, 2015, the sum of monthly transport charges, which the Plaintiff received from the Defendant during one year from June 1, 2014 to May 30, 2015, is KRW 125,703,222. Of the monthly transport charges that the Plaintiff received as such, the Plaintiff collected KRW 8% of the monthly transport charges as transport charges, collected KRW 200,000 per month as transport charges, and paid the remainder of the transport charges to G. G because it was impossible for the Defendant to purchase goods after the termination of the contract.

2. Parties’ assertion

A. The plaintiff's assertion

The instant contract of carriage is the expiration date of this contract on October 30, 2016, as the contract term has been extended automatically by five years due to the automatic extension of the contract term. The Defendant illegally incurred damages equivalent to the Plaintiff’s transportation commission and the payment of the land rent during the remainder of the contract term on the wind of terminating the instant contract. The Defendant has the obligation to compensate the Plaintiff for the damages.

B. Defendant’s assertion

Since the termination of the contract by the defendant is lawful as follows, there is no liability for damages to the defendant.

1) The Plaintiff’s ground for termination is that the Plaintiff’s ground for termination of the instant contract, in collusion with J, transporting liquefied petroleum gas of another company that is not an I product, thereby violating the instant contract of carriage.

2) Although the contract period of the instant transport contract was automatically extended, the Defendant may terminate the instant transport contract without relation to the existence of grounds for termination at any time, since the contract period is changed not to a new extension of five years but to a contract with no fixed term of contract.

3. Determination,

(a) Occurrence of liability for damages;

1) The extended contract period

It is reasonable to view that the contract period which is automatically extended from the contract of this case to the automatic extension of contract is five years. The grounds are as follows.

1. ① Article 14 subparag. 3 of the instant transport contract provides that “If the Plaintiff and the Defendant notify in writing that the contract is terminated two months prior to the expiration of the contract term, the contract shall be automatically extended.” In this context, the extended contract shall be deemed to have been concluded under the same conditions as the contract prior to the renewal, barring special circumstances, such as that the contract is otherwise stipulated in the law and the contract. This is because, unless it is interpreted, the content of the renewed contract may not be determined, and it would also be consistent with the parties’ ordinary intent.

② Furthermore, as long as the renewed contract term is one of the contractual terms, it ought to be deemed as extending the same period as the contract term prior to the renewal to the other contractual terms and conditions (see Supreme Court Decision 85Meu2096, Feb. 25, 1986). Therefore, the renewed contract term is five years, such as the contract term prior to the renewal.

(3) The Civil Act provides that a contract under the terms and conditions of a contract for a lease contract or an employment contract shall be deemed to have been concluded again on the same terms and conditions as the previous contract is explicitly renewed. However, the parties may terminate the contract at any time, as in the case where the contract term is not agreed (Articles 639(1) and 662(1) of the Civil Act). However, in the case of a transport contract in this case, the proviso to the above Civil Act does not exist. Thus, the above provision of the Civil Act may not be interpreted by analogy that the parties may rescind the contract at any time, such as in the

④ Since the instant transport contract allows the Plaintiff to transport only the IPS designated by the Defendant and to spend the Plaintiff’s travel vehicle color and equipment purchase (the Plaintiff’s testimony as a witness of the first instance trial), it is necessary to set the contract term for the Plaintiff, and the Plaintiff appears to require a long-term contract for stable gas supply and transportation, and thus, the Plaintiff and the Defendant appears to have set the contract term prior to the renewal for five years. This is the same as the case of an implied renewed contract. The instant transport contract was automatically extended on October 30, 201 and the Defendant’s notice of termination was issued on April 9, 2015. Considering that there was no dispute over the renewal of the contract term as above, it would be consistent with the intent of the Plaintiff and the Defendant for five years.

2) Whether termination of the contract is lawful

A) In the instant transport contract, the Plaintiff and the Defendant determined that “vehicle engineers shall not arbitrarily transport other substances.” Therefore, this paper examines whether G, a vehicle engineer, transported “other substances” in the instant transport contract.

B) First of all, as to whether G was transported by 'W', it is difficult to believe the testimony of H of the first instance court to the effect that G transported the other company's products by "public offering with J and G" in view of the relationship between J and G, and the fact inquiry results of Eul's 9,11,12, and each fact inquiry results of N of this court's N of N of corporation,0 corporation,0 corporation, and stock association P are insufficient to recognize this, and there is no other evidence to acknowledge this differently. Furthermore, according to the above evidence, it is difficult to view that G transported the Defendant's products from November 2008 to September 200, as seen earlier, other company's products could not be seen as being transported by G of "the representative director of the K's branch office's order for the transportation of the Defendant's products in collusion with the Defendant's other company's products, and therefore, it is difficult to view that G's products were transported by the Defendant's representative director of the K-J's order for termination of the contract.

다 ) 나아가 앞서 든 각 증거에 의하면, G가 운송한 다른 회사의 제품 역시 I 제 품과 마찬가지로 액화석유가스인 사실을 인정할 수 있으므로, G가 운송한 제품이 다른 회사 제품이라는 이유만으로 '타 물질'을 운송하였다고 볼 수 없다. 설령 피고 주장과 같이 다른 회사의 제품이 I 제품보다 품질이 나빴다고 하더라도 '타 물질'로 보기는 어 렵다.

D) Ultimately, the termination of the instant transport contract, which is based on the premise that G arbitrarily transported other substances, is not legitimate.

3) Default

As above, since the defendant illegally terminated the contract of this case and did not perform the contract, the defendant is liable to compensate the plaintiff for damages caused by the non-performance of the contract.

B. Scope of liability for damages

1) It is reasonable to view that the Plaintiff, among the transport charges to be paid by the Defendant during the period from June 1, 2015 to October 30, 2016, the total sum of KRW 17,646,357 [1,03,021 (125,703,222 won (125,703,02 won for one year before termination) x 12 months x 00,000 won) x 17 months for the remainder of the contract term extended if the Plaintiff had not fulfilled the Defendant’s obligation (from June 1, 2015 to October 30, 2016, the Plaintiff sought from the Defendant), was able to obtain the income of KRW 17,646,357 in total from the transport charges and G. However, it is reasonable to view that the Plaintiff sustained losses due to the Defendant’s failure to perform his/her obligation.

2) Therefore, the Defendant is obligated to pay the Plaintiff damages for delay calculated by the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from June 30, 2016 to the day of full payment, following the delivery date of the application for modification of the claim and cause of claim of this case filed by the Plaintiff with respect to damages to the Plaintiff.

4. Conclusion

If so, the plaintiff's claim of this case should be accepted for the reasons, and the judgment of the court of first instance is justified with this conclusion, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Kim Jong-chul (Presiding Judge)

The grandchildren Hospital; and

[Judgment]