[1] Where a claim infringement by a third party constitutes a tort, and the standard for determining its illegality

[2] In a case where a person who agreed to supply specific goods only to a specific company, knowingly aware that the specific company granted a third party an exclusive right to sell the goods, discharges the goods to another place in violation of the above agreement, whether the tort against the third party is established (affirmative with qualification)

[3] The method of calculating the amount of damages sustained by the victimized company due to unlawful outflow that infringes on the company's exclusive right to sell specific goods

[1] Generally, an exclusive validity of a claim is denied and a claim is allowed between creditors and a third party and thus a claim is violated by a third party. However, the principle of free competition in a transaction is premised on fair and sound competition within the extent permitted by law and order. Thus, in a case where a third party knowingly interferes with a creditor, thereby infringing a creditor’s interest by committing an unlawful act, such as violating laws and regulations or violating good morals or social order, it cannot be said that the tort is established. Here, the illegality of a claim infringement should be determined individually by taking into account the content of the claim infringed, the attitude of the infringement, the intent of the infringer, and the existence of the year, etc., and the need to guarantee freedom of transaction, the public interest including economic and social policy factors, and the balance of interests between the parties.

[2] In a case where a person who received an order from a specific company to supply the specific goods to the specific company upon receiving an exclusive right to sell the goods supplied by the specific company, and a third party infringes on the third party's exclusive right to sell the goods by leaking them to another place in violation of the above agreement with the knowledge that the third party was in an exclusive seller's position as to the goods, such an act constitutes a violation of contractual obligation to the specific company and a violation of the third party's exclusive right to sell the goods. At the same time, the third party's violation of contractual obligation to the specific company, and as long as the act is deemed illegal, it constitutes a tort in relation to the third party, separate from the violation of contractual obligation to the specific company or tort against the specific company.

[3] In calculating the amount of damages suffered by a damaged company due to an unlawful outflow that infringes the company's exclusive right to sell specific goods, a specific principle is to calculate the amount of damages. Considering that it is not easy to clearly assert and prove that it is not a direct proof of damages suffered by the damaged company, but a method of comparing the profit amount of the company during the period during which the act occurred and not committed, it should be clearly stated that the increase in profit after the act of outflow was suspended is attributable to the suspension. Furthermore, in addition, in order to recognize the difference of profit calculated as the amount of damages as it is, in order to determine the amount of damages as it is, the increase in profit after the act of outflow was suspended is due to the suspension of the act of outflow. In addition, in addition, in addition to the large amount of profit of the company, there are parts which are not related to the sale of the above goods, it should be done by comparing the remaining amount after deducting it from the total profit ( even if it is proved that the increase in profit of the victimized company after the suspension of unlawful outflow occurred solely due to such interruption, the calculation of damages is more reasonable within the reasonable profit rate or net profit rate.

[1] Article 750 of the Civil Act / [2] Article 750 of the Civil Act / [3] Article 763 of the Civil Act

[1] Supreme Court Decision 99Da38699 delivered on May 8, 2001 (Gong2001Ha, 1323)

A. E.S.P. Co., Ltd. (Attorney Lee Dong-won, Counsel for the defendant-appellant)

Defendant 1 Co., Ltd and one other (Law Firm Future, Attorneys Park Jong-woo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 99Na7314 delivered on May 30, 2000

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

1. Summary of the judgment below

A. Factual relations

The facts of this case acknowledged by the reasoning of the lower judgment and the record are as follows.

(1) The nature of the original and the Defendant Company

The plaintiff company is a small and medium enterprise with the purpose of manufacturing and selling automobile glass and parts, and it is mainly engaged in selling safe glass among the parts of automobile produced by the non-party weather vehicle corporation (hereinafter referred to as "registered vehicle"). The defendant 1 company is a company that manufactures and sells construction materials comprehensively, and the defendant 2 company is a company that manufactures, processes and sells safe glass products and manufactures, processes and sells safe glass products in Korea.

(2) The supply contract of the defendant company

On January 1, 1990, the Defendant Company entered into a basic contract for automobile transaction (a separate supply agreement for automobile parts; hereinafter collectively referred to as “automobile transaction contract”) separately with the Aeronautical Automobile. Since the Defendant produced automobile safety glass and automobile safety glass for assembly use by means of OEM, and supplied them to the Aeronautical Automobile, each of the above parts transaction contract has been renewed every year. As for the 'automobile safety glass' of this case, the 'automobile' of this case has been changed to the Meal Automobile Co., Ltd. (a Meal Automobile Co., Ltd.) through the Meal Automobile Co., Ltd. (hereinafter referred to as the Meal Automobile Co., Ltd. on March 7, 1996), and the Meal Automobile Co., Ltd. was changed to the Meal Automobile Co., Ltd. to the Meal Automobile Co., Ltd., Ltd. on July 4, 1997, the Meal Automobile Co., Ltd. (hereinafter referred to as the Meal Automobile Co., Ltd.).

On the other hand, according to each of the above parts transaction contracts, the defendant company should supply the automobile safety glass for the above repair to the arche vehicle, and the safety glass for the above repair shall not be provided or sold to a third party without prior written consent of the arche vehicle.

(3) Characteristics of the goods and the exclusive sales contract of the Plaintiff Company

(A) Characteristics of the product

Goods at issue in this case are automobile safety glass (A/S) for the use of automobile (hereinafter referred to as "repair glass") with a trademark registered by KIA No. 32414 (hereinafter referred to as trademark registration), where the supply of net goods is important for the safety of consumers due to their characteristics, there is a need for separate containers for logistics because the rate of damage incurred in handling is high, and the expertise of packing is required.

(B) Exclusive sales contract of the Plaintiff Company

In the previous year, the Defendant Company supplied each of its own repair glass through a small-scale agency scattered across the country, not a exclusive sales special contract, but a small-scale agency with which the Defendant Company was directly supplied by the manufacturer. However, on June 25, 1992, the Plaintiff Company had collected existing glass agencies and attempted to provide the Plaintiff Company with exclusive remuneration benefits by concluding a special contract and a glass supply contract on July 14, 1992, but failed to supply the Plaintiff Company with exclusive remuneration benefits. On July 28, 1993, the Plaintiff Company entered into a new special contract with the non-party 1, the representative director of the Plaintiff Company, and became equipped with the Plaintiff Company on January 19, 194, and concluded a contract with the Plaintiff Company on the price competitiveness with the agent supplied by the manufacturer, etc., and obtained the Plaintiff Company’s right to supply the Plaintiff Company’s remuneration through a nationwide preferential supply contract with the Plaintiff Company, and then, the Plaintiff Company was granted the right to supply the Plaintiff Company’s remuneration to the Plaintiff Company.

(4) Violation of exclusive sales rights by the Defendant Company

The Defendant Company, while building a separate Defendant Company’s agency network in front of the price competitiveness as a favorable manufacturer for remuneration, has occupied the free supply market for remuneration with the Plaintiff Company by dividing it into the free supply market for remuneration. Since then, despite having concluded a supply contract with the Plaintiff and agreed not to sell the automobile safe glass for remuneration in the market without prior written consent, the Defendant Company continued to distribute the automobile safe glass for remuneration in violation of the contract (However, it appears that the Defendant Company violated the supply contract under the above clause (2) prior to granting the Plaintiff Company the exclusive right to sell the automobile in advance).

However, since Malaysia granted the exclusive sales right to the Plaintiff Company (including the private company of the representative director, who is the overall director of the Plaintiff Company), Malaysia also requested the Defendant Company to suspend the distribution of the Plaintiff Company over several occasions, including September 3, 1993 and October 27, 1993, for the establishment of the distribution order through the Plaintiff Company. However, the Defendant Company continued to release the Plaintiff Company without accepting its request on the ground that the granting of exclusive sales right to the Plaintiff Company may make it difficult to manage its inventory and bring about the opposition to the existing agency of the Defendant Company. On December 9, 1995, the Plaintiff Company filed an accusation against the Defendant Company against the prosecution on charges of violating the Trademark Act and received the suspension of the indictment from July 1, 1996.

(5) The subsequent situation

On or after July 1997, the defendant company unilaterally suspended the supply of glass to the plaintiff company for the repair of the plaintiff company, and on August 4, 1998, the plaintiff company filed the lawsuit of this case against the defendant company. On October 10 of the same year, the plaintiff company instructed the plaintiff company that the free supply contract with the plaintiff can be terminated unless the dispute resolution is desired. However, on the 16th of the same month, the plaintiff company notified the plaintiff company that the plaintiff company had no intent to withdraw the lawsuit, and on August 3, 1998, the defendant company notified the plaintiff company of the termination of the contract on July 30, 1998. On August 3, 1998, the Suwon District Court 9Kahap903 Special Agreement concluded with the plaintiff company, which was delayed to terminate the contract due to the termination of the contract with the plaintiff company on February 27, 199, and the defendant company supplied the plaintiff company's normal repair after the termination of the contract with the plaintiff company.

B. The judgment of the court below

The lower court determined as follows based on the above facts found.

(1) Occurrence of damages liability

In summary of the above facts, the plaintiff company acquired exclusive sales rights through the so-called special contract terms on the glass for remuneration from ABS, and the defendant company is to provide ABS only by ABS under the supply contract. Accordingly, the defendant company formed a contract system so that ABS glass for remuneration of ABS manufactured by the defendant company can be supplied to the plaintiff company and sold through the plaintiff company only through the plaintiff company. The defendant company is a party to this contract system with a clear knowledge of these circumstances, and in order to maintain the existing ones' interest, to supply ABS only to ABS under the supply contract, to ABS, and to grant exclusive sales rights to the plaintiff company more than once, despite its intention and demand for correction, the plaintiff company's exclusive sales rights were reduced for several consecutive years, and thus, the defendant company's exclusive sales rights to the third party (the defendant company) after the infringement of the exclusive sales contract cannot be recognized as unlawful, as long as there is a lack of awareness of the plaintiff's exclusive sales rights to the plaintiff company or the defendant company's exclusive sales rights to the plaintiff company.

(2) Calculation of damages

The amount of damages of the Plaintiff Company shall be 22,842,15 won for one year from July 1, 1996 to June 30, 197, immediately before the suspension of the supply of the Plaintiff Company to the Defendant Company, and the monthly net profit of the Plaintiff Company shall be 18,570,176 won (the monthly average net profit of the Plaintiff Company shall be 222,842,170,176 won) for which the Defendant Company shall be 200 won or net loss under the circumstances in which there is no illegal outflow by the Defendant Company. Thus, according to the records, the amount of damages of the Plaintiff Company shall be 40 won or net loss under the circumstances in which the Defendant Company would be 20 won or net loss under the circumstances in which there is no illegal outflow by the Defendant Company, 200 won or net profit under the circumstances in which the amount of damages would be 18,842,15 won or more under the circumstances in which the Defendant Company would be 964,6963,649636,4486,446, and46406.

2. Regarding ground of appeal No. 1

Examining the evidence in the record, we affirm the judgment of the court below that the plaintiff granted the plaintiff company an exclusive right to sell the glass for remuneration, and there is no error of violation of the rules of evidence or incomplete hearing as pointed out in the grounds of appeal.

3. Regarding ground of appeal No. 2

Generally, the exclusive effect of claims is denied, and the claims by a third party are allowed to be free competition between creditors and creditors and a third party. While the principle of free competition in a transaction is premised on fair and sound competition within the extent permitted by law and order, if a third party knowingly infringes on creditors' interests by violating laws and regulations or by committing any unlawful act such as violating good morals or social order, it cannot be deemed that tort is established. Here, the illegality of the infringement on claims should be determined individually by taking into account the contents of the claims infringed, the attitude of the infringement, the intent of the infringer, and the existence of the year. The need to guarantee freedom of transaction, the public interest including economic and social policy factors, and the balance of interests between the parties should be comprehensively considered.

In this regard, in a case where a person who received an order from a specific company to supply the specific goods to the specific company after receiving an order to manufacture the specific goods and agreed to give a third party an exclusive right to sell the goods supplied by the specific company, and a third party infringes on the third party's exclusive right to sell the goods by releasing the goods to another place in violation of the agreement, such act constitutes a violation of contractual obligation to the specific company and a violation of the third party's exclusive right to sell the goods, and at the same time, a third party's violation of contractual obligation to the specific company and a violation of the third party's exclusive right to sell the goods directly. Thus, as long as the act is deemed illegal, it shall be deemed as a tort in relation to the third party, separate from the default of obligation to the specific company

Upon examining the case, the defendant company's production of the goods of this case on the part of the plaintiff company, supplied them only to the part of the plaintiff, and continued to leak them to a third party while the defendant company violated the contract with the plaintiff company, such as entering into an exclusive sales contract with the plaintiff company and establishing a sales network for exclusive sale, etc., and requested the plaintiff company to suspend leakage over several times with the plaintiff company, but continued to refuse the request. The defendant company's act of leakage was suspended only after filing a complaint against the defendant company for violation of the Trademark Act. The defendant company's act of leakage at least from the point of time when the defendant company's acquisition of exclusive sales right of the plaintiff company came to know of the above exclusive sales right of the plaintiff company's act, and it did not infringe on the status of the above exclusive sales right holder or the interests of the plaintiff company, and in light of social norms and social norms, the plaintiff company continued to violate the Trademark Act's order and order. Thus, the plaintiff company's act of leakage should be viewed as an unlawful evaluation of the plaintiff company's profit.

In the same purport, the conclusion of the court below that the defendant company's infringement constitutes a tort against the plaintiff company is correct, and there is no error of law as otherwise alleged in the grounds of appeal (However, the court below stated that the leakage of the defendant company constitutes a tort from the time when the plaintiff company granted exclusive sales right to the plaintiff company, but it is correct that the defendant company's exclusive sales right was a tort from the time when the defendant

4. As to the grounds of appeal Nos. 3 and 4

For this reason, the defendant company is liable for damages caused by illegal acts against the plaintiff company. However, the method and amount of calculating the amount of damages by the court below is difficult to accept for the following reasons.

A. In calculating the amount of damages for the tort of this case, in principle, it is not easy to clearly assert and prove that the damages suffered by the plaintiff company due to each illegal outflow of the defendant company are calculated by comparing the profit amount of the plaintiff company for the period during which the tort occurred, such as the method employed by the court below, rather than directly proving the losses suffered by the plaintiff company, and even if the amount of damages is calculated by comparing the profit amount of the plaintiff company for the period during which the tort occurred and the period during which the tort occurred, it should be clearly stated in all circumstances, such as the increase in profits after the act committed by the plaintiff was suspended is attributable to the suspension. Furthermore, in addition, in addition to the large amount of profit of the plaintiff company, there are several revenue and expenditure factors reflected comprehensively in the sales of the above goods, and if there are parts, it shall be done by comparing the remaining amount after deducting it from the total profit ( even if it is proved that the increase of profit of the plaintiff company after the act by the defendant was interrupted only due to such suspension, the calculation of damages for the plaintiff company seems to be reasonable within the scope of net profit or net profit increase in accordance with evidence.

However, without undergoing an examination on the above point, the court below presumed that the difference between the net profit or net loss in the situation where there is no illegal outflow by the defendant company and the net loss in the situation where the illegal outflow occurred, would be the amount of damages in this case. On the premise that the whole amount calculated by deducting the net profit per period before the suspension of illegal outflow from the net profit per period of the plaintiff company after the suspension of illegal outflow was recognized as the amount of damages. Thus, the court below erred by misapprehending the legal principles on the amount of damages caused by tort, and failing to exhaust all necessary deliberations.

B. Also, just because the facts and records acknowledged by the court below revealed, it is difficult to see that the defendant company jointly committed a tort, and since each of the defendants' illegal acts cannot be combined with one of the damages, the defendant company's act constitutes a tort against the plaintiff, unless there is any proof of special circumstances. The damage should be viewed separately as the damage.

Nevertheless, the court below judged that the defendant company's act is jointly and severally liable to the defendants, which is erroneous in the misapprehension of the legal principles of joint tort, which affected the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

C. In addition, the court below pointed out that it is inappropriate to calculate the amount of damages for 22 months on the ground that the period of calculating the amount of damages is 22 months or more, and that it is not appropriate to calculate the amount of damages without specifying the time of the occurrence of damages.

5. Therefore, 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 Lee Ji-dam (Presiding Justice)