2012Da97338 Undue gains

Future Tax Co., Ltd.

Dalio Co., Ltd.

Seoul High Court Decision 2011Na10084 Decided September 20, 2012

January 29, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Where a contract is generally concluded to cancel or terminate an agreement;

As seen above, the requirement is that the opposite expression of intent between the parties regarding the offer and the acceptance to terminate the validity of a contract is consistent. To establish such an agreement, the content of the intent expressed in both parties’ expression must be objectively identical. Although the contract may be implicitly rescinded or terminated, it may be impliedly agreed upon. However, in order to have the contract rescinded or terminated, it should be agreed that the parties’ intent not to realize the contract due to the lack or renunciation of the parties’ intent to realize the contract (see, e.g., Supreme Court Decisions 98Da17602, Aug. 21, 1998; 200Da5336, 5343, Jan. 24, 2003). Where a part of the contract has been fulfilled, the intent to reinstate shall also be agreed (see, e.g., Supreme Court Decisions 2010Da98412, 98429, Apr. 28, 2011).

2. According to the reasoning of the lower judgment and the record, the Plaintiff: (a) calculated the instant order for advance payment on October 25, 200 to the Defendant on the 20th day of the 1st day of the 20th day of the 20th day of the 1st day of the 20th day of the 20th day of the 1st day of the 20th day of the 1st day of the 20th day of the 1st day of the 1st day of the 20th day of the 1st day of the 20th day of the 1st day of the 20th day of the 1st day of the 20th day of the 1st day of the 20th day of the 1st day of the 6th day of the 1st day of the 20th day of the 2nd day of the 6th day of the 1st day of the 20th day of the 6th day of the 20th day of the 20th day of the 6th day of the 7th day of the 7th day. day. day.

3. Examining these facts in light of the legal principles as seen earlier, at the time of the conclusion of the amendment contract with the above GS Construction, the Plaintiff was unable to use any existing detailed drawings supplied by the Defendant, thereby demanding the Defendant to return the remainder of the advance payment and the progress payment, excluding the amount equivalent to value added tax. On the other hand, the Defendant was expected to have failed to comply with the Plaintiff’s request for return on the ground that the additional cost for preparing the detailed drawings under the modified contract was anticipated as it was impossible to utilize the aforementioned detailed drawings as it is in the modified contract with the GS Construction. Since the negotiations between the Plaintiff and the Defendant regarding the scope of return of the progress payment did not reach an agreement, it is difficult to deem that the instant contract was implicitly rescinded or agreed upon.

4. Nevertheless, the lower court determined that the Defendant is liable to pay the Plaintiff the balance calculated by deducting the amount equivalent to the actual service cost from the pre-paid payment and the progress payment, where the production corresponding to the actual service cost, was made. In so doing, the lower court erred by misapprehending the legal doctrine on the implied rescission of the contract or the termination of the agreement, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

5. Therefore, without further proceeding to decide on the remaining grounds, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Gin-bok, Counsel for defendant

Justices Lee In-bok

Justices Go Young-young

A person shall be appointed.