2014Na2003595 Penalty

Korea Electric Power Corporation

Law Firm Subdivision, Counsel for the plaintiff-appellant

Attorney Quota, Kim Jong-tae, and Kang Sung-tae

A Stock Company

Law Firm Barun (LLC)

Attorney Kim Jong-chul, and Gyeong-ju

Seoul Central District Court Decision 2012Gahap520802 Decided December 11, 2013

December 22, 2015

February 5, 2016

1.The judgment of the first instance shall be modified as follows:

A. The Defendant shall pay to the Plaintiff the amount of KRW 13,253,950,030 and KRW 9,684,334,285 from March 1, 2012, KRW 303,79,635 from July 21, 2012, KRW 3,265,816,110 per annum from September 5, 2013 to February 5, 2016, and KRW 20 per annum from the following day to the date of complete payment.

B. The plaintiff's remaining claims are dismissed.

2. 3/5 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

As to the Plaintiff KRW 31,069,489,94 and KRW 17,634,321,480 among them, the Defendant shall pay to the Plaintiff 6% per annum from March 1, 2012 to the service date of a duplicate of the complaint of this case, KRW 13,435,17,464 per annum from August 1, 2013 to the service date of a duplicate of the application for alteration of the purport and cause of the claim of this case, and KRW 20% per annum from the following day to the day of full payment.

2. Purport of appeal

A. The plaintiff

The judgment of the first instance shall be modified in the same manner as the purport of the claim.

B. The part against the defendant among the judgment of the court of first instance against the defendant is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

1. Basic facts

A. From around March 200, the Defendant entered into an electric use agreement with the Plaintiff on the chemical power plant, and received electricity from a new source substation. At present, the Defendant is currently being supplied with commercial power and spare power from a new source substation according to the electricity use agreement (hereinafter “instant First Agreement”) on March 13, 2008, and the contract power is 154kV 320 MW, respectively.

A person shall be appointed.

B. From around May 31, 2005, the Defendant concluded a contract on the use of electricity with the Plaintiff for the electric power of 345ccV 320 MW from a new source transformation station, and concluded a contract on the use of electricity with the Plaintiff for the purpose of increasing the supply of 154kV 240 MW electric power from the existing new source transformation station by amending the contract on the use of electricity to December 18, 2008, together with the common power and spare power supplied from the existing new source transformation station. From May 31, 2010, which is the Plaintiff’s credit extension, the Defendant concluded a contract on the supply of 345ccV 320 MW from the new power transformation station to the same 300 MM (the above contract on the use of electric power from the new power transformation station to the same 340mW 20mW from the new power transformation station to the same 340mW 20mW 200.

A person shall be appointed.

The above changes in the electrical power contract between the plaintiff and the defendant concerning the chemical two factories are as follows.

A person shall be appointed.

C. Meanwhile, around October 2008, the Defendant arbitrarily installed a powder that allows the supply of emergency power between the chemical1 factory and the chemical2 factory (hereinafter “instant tracks”) and the electric power system as of the chemical1 and the two factories are as follows.

A person shall be appointed.

D. Under the instant contract Nos. 1 and 2, the line Nos. 1 and 3, 4, and 5 are continuously paralleled and driven, but the line is not concurrently driven. E. On June 2010, the Plaintiff was aware of the installation of the line of this case by the Defendant, and on February 7, 2011, on the basis of the Plaintiff’s supply of spare power between customers of customer-owned tracks or under Section 3(d) of Section 2, Section 3, of the Plaintiff’s New Business Handling Guidelines, the Defendant filed a claim against the Defendant for spare power charges, etc. on the ground that the Defendant could be supplied with spare power from the credit substations and stations that supply spare power to e.g., a factory via the instant line 2.

On August 22, 2011 and January 10, 2012, the Plaintiff again filed a claim against the Defendant for the payment of penalty and reserve power charges for the instant tracks based on Articles 63 and 44 of the former Terms and Conditions of Supply. (f) Of the Plaintiff’s electric supply terms and conditions and the detailed rules of implementation incorporated into the terms and conditions of the instant contract, the provisions relating to the instant case are as follows.

○ The definitions of terms used in this Clause are as follows:

1. He shall not hold electricity sent from the outside of a substation at a place where the voltage is high or lower and it is re-owned for another purpose by means of a changer, etc. installed in the Gu;

2. It means that the electric lines (excluding the exclusive line for communications) between power stations, between substations, or between power plants and substations, and the closed, closed and other electric installations belonging thereto, owned by one electric power plant;

3. The term “electric lines” means the electric lines from the power station, transformation station or power transmission line to the point of supply and demand without going through other power stations or transformation stations, and the opening and closing devices belonging thereto, transformers and other electric installations owned by Han Power. It means the supply of emergency power as an alternative for supply of alternative power when electricity is not supplied due to repairs, accidents, etc. of the spare power supply facilities, which customers wish to supply as well as technical as possible;

23. It refers to an independent place classified by the owner or user of land, buildings, etc. to determine the conditions of supply, voltage, and other terms and conditions of supply;

1. If a customer violates the terms and conditions of the contract and the whole or part of the fee is not reasonably calculated, the penalty shall be paid up to three times the amount which is not reasonably calculated.

(2) The amount which is not properly calculated under paragraph (1) shall be the difference between the amount calculated according to the supply terms and conditions prescribed in this standardized contract and the amount calculated according to the improper method of use.

3. If it is impossible to confirm the period during which the charges are not calculated properly, the charges may be determined through consultation with the customer within six months. Article 63 (Reserve Power)

(1) It shall be applied to customers who are supplied with electricity due to high voltages or higher at all times to customers who wish to supply electricity as a substitute for regular power if electricity is not supplied due to any repair, accident, etc. of the supply facilities, which shall be classified as follows:

1. Reserve power to be supplied with the same voltage as the voltages regularly supplied at the transformation stations regularly supplying the reserve power;

2. Spare power to be supplied by the transformation stations other than those which are regularly supplied or reserve power to be supplied with any other voltage than the full-time supply voltage.

(5) The charges referred to in Article 67 (1) shall be applied in accordance with the following subparagraphs. In such cases, if the supply voltage or contract power of the reserve power is different from the supply voltage or contract power of the reserve power, the charges for each type of contract corresponding to the supply voltage or contract power of the reserve power shall be applied:

1. The basic charges for the reserve power shall be 5% (2%) of the basic charges for the reserve power, regardless of whether the reserve power is used for electricity and maximum demand power, and 10% of the basic charges for the reserve power (2%) and 10% (6%) of the basic charges for the reserve power: Provided, That if the reserve power is different from the contract power for the reserve power, the basic charges for the reserve power shall be calculated by adjusting the applied rates for the reserve power to the ratio of the reserve power for the commercial power to the ratio of the contract power for the reserve power, and by calculating the basic charges for the reserve power as the larger of the maximum demand power for the reserve power;

2. He/she shall apply the utility model fee for each type of contract to the commercial power: Provided, That if the voltage of the reserve power is different from the voltage of the supply of the commercial power, he/she shall apply the amount of electricity equivalent to the voltage of the supply of the reserve power.

0. Penalty for breach of Article 29 of the Enforcement Rule of the Electricity Terms and Conditions

(1) "The amount of penalty which is not calculated properly" in Article 44 (1) of the Terms and Conditions shall be calculated as follows:

1. Where electric installations are remodeled, altered, damaged, or fabricated to unlawfully use electricity: The difference between the charges calculated without including the illegally used portions and the charges calculated without including the illegally used portions;

2. Where electricity is used with facilities other than those contracted with the Korean Pharmacopoeia or those for voltage equipment;

(a) In cases where electricity is used without permission or at a place other than the place of electric use for which a contract is concluded without permission, the amount equivalent to the charges calculated on the assumption that the relevant facilities have been newly installed: Provided, That the difference between the amount of the charges already paid, if any;

(b) Where electric installations are enlarged without permission: The difference between the amount equivalent to the charges calculated on the basis of the facilities after the extension and the charges calculated on the basis of the existing contract: Provided, That the same shall not apply to customers subject to the imposition of excess charges under Article 67-3 (1) of the Terms and

[Reasons for Recognition] Facts without dispute, Gap 1, 3, Eul 1, and 4 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

The Defendant’s arbitrary construction of the instant line and provision of the reserve power from the substations other than the contract constitutes a case where electricity is unlawfully used by manipulating electric installations, or where electricity is used with equipment other than the equipment under the contract with the Plaintiff, and thus violates the first and second contract of this case. Thus, the Defendant is liable to pay to the Plaintiff penalty and damages for delay as stipulated in the first and second contract of this case.

B. Defendant

1) The Defendant did not intend to be supplied with electricity to the chemical 2 factory direction (hereinafter referred to as the “first supply system”) from the chemical 1 factory via the instant line, and it cannot be said that the Defendant secured the possibility that the Defendant would be provided with spare power to the chemical 2 factory via the instant line. Meanwhile, even if the Defendant could be provided with power to the chemical 1 factory direction (hereinafter referred to as the “second supply system”) through the instant line, it does not require the Plaintiff to secure additional power supply capacity, so the Plaintiff cannot impose penalty due to the installation of the instant line in all cases.

2) The Plaintiff’s “use of electricity” under the provisions for imposing penalty on the Defendant should be premised. However, the Defendant did not use electricity through the instant tracks, and thus, the Defendant does not bear the obligation to pay penalty.

3) As prescribed in Article 3 of the Regulation of Terms and Conditions Act, the terms and conditions of electricity that the Plaintiff failed to perform the duty to specify and explain the penalty provisions, and that if electricity is likely to flow, the terms and conditions of electricity that allow the Plaintiff to impose charges on the Plaintiff to be regarded as the reserve power are null and void as unfairly unfavorable terms

3. Determination

(a) Whether the case constitutes a spare power;

1) The meaning of reserve power and type of reserve power are classified into power secured as preliminary power in order to replace it so that the supply of commercial power can be achieved smoothly if a problem arises in the supply of commercial power, which is supplied with the same voltage as that of the common power (hereinafter referred to as "reserve power (A)") at a transformation station that supplies the common power, and power supplied at other transformation stations that supply the common power (hereinafter referred to as "reserve power (B)") or supplied with a different voltage from the common power (hereinafter referred to as "reserve power (hereinafter referred to as "reserve power") (Article 6 subparagraph 21 and Article 63 of the Terms and Conditions of Electricity Supply).

2) Whether the supply of electricity through the instant line constitutes a reserve power

(A)in the case of a first supply system:

(1) The fact that each transmission line (the above electric power line level 1, 47MW 1) between a new source substation and a chemical1 factory is capable of operating continuously is as seen earlier. According to the machinery of Eul 9-2, the above facts are acknowledged: ①, ② the maximum transmission capacity of the line 357M to 447 MW, respectively; ② the maximum transmission capacity of the line 298M to 372M is 298W, and the maximum transmission capacity of the line 298M to 372M is 294M. According to this, the above facts are acknowledged: ② the transmission of the line 714M to 894M (= 357MW 2) can be technically possible; ② the transmission capacity of the line 447MW X2) can be 640W 300W 200W 3200W 2000 to 37320 W 3730M 2030W 3203.2.37WM

Meanwhile, as seen earlier, the chemical two factories are supplied with 345kV power from new power stations (3rd line of the above electric power station), 345kV 800 M with spare power stations (4rd line), and 154kV 400 MM with independent power stations (4rd line), and are supplied with each of the above three lines (1rd line of 154kV 400 m.). According to this, the chemical two factories are i) if there is a problem in the above three lines, ii) if there is a need to secure additional power from new power stations (3rd line of 40 m. m. 2), iii) if there is a problem in the above line, ii) if there is a need to secure new power units (3) if there is a problem in the above line, iii) if there is a need to secure new power units (4) more than 2) if there is a problem in the supply of spare power units, iv) if there is a problem in the line 2).

Therefore, the first supply system functions as a reserve power that can substitute commercial power to a chemical 2 plant.

(2) Judgment on the defendant's assertion

(A) The Defendant asserts to the effect that the method of simultaneously operating the supply system leading to the supply system and the first supply system from the sick stations is impossible without the Plaintiff’s prior permission. As such, the power supplied as the first supply system alone cannot be substituted with 800 MW, which is the commercial power of the chemical two factories, and the first supply system cannot function as the reserve power. However, even according to the text of the terms and conditions of the terms and conditions of the electric use, the reserve power does not need to be replaced with the whole commercial power, and even if it is required under the contract to operate the supply system and the first supply system simultaneously from the sick stations, such operation cannot be technically impossible even if the Plaintiff’s prior permission is required to operate the supply system and the first supply system simultaneously. In light of the fact that the Defendant’s assertion is insufficient to deem that the first supply system does not replace the commercial power with the chemical2 factories. Therefore, the Defendant’s argument cannot be accepted.

(B) The defendant also asserts that he did not intend to use the first supply system as the reserve power for the chemical2 plant.

According to the evidence mentioned above and the statement in Eul 11, the defendant is installed at the end of each end of the line of this case. The part connected to the chemical1 factory is always 'OF', the part connected to the chemical2 factory is 'ON' at all times. The plaintiff first confirms the status of the electric power system of the chemical 1 and two factories and confirms the condition of the electric power system of the chemical 1 and two factories and demands the defendant to pay penalty and reserve power charges for the chemical 1 factory. On March 14, 2014, the plaintiff and the defendant concluded an electric use contract with the contents that restrict the power supplied to the chemical 1 factory from the new power transformation station to 320 MM and subsequently, it is practically difficult to use the power in accordance with the supply system.

However, in full view of the facts acknowledged earlier and the purport of the entire pleadings, i.e., the following circumstances: ① the situation of the above 'OFF' appears to have been changed to 'ON at any time according to the defendant's will; ② the line of this case does not have any reverse transmission prevention device to prevent electricity from being flown due to the first supply system; ③ the power supply through the first supply system is necessary, and the supply of electricity through the first supply system was technically possible, and the first supply system was operated from 00 to 2000 if the defendant had expressed the necessity and possibility of use of the first supply system; ⑤ it is difficult to view that the plaintiff had no intention to use the new supply system from 10 to 2000 to 1400 to 200 to 2000 to 300 to 140 to 200 to 30 to 1444 to 20 to 20 to 30 to 30 to 14 to 14 to 201 to mar1.

(B)in the case of a second supply system:

(1) The power of the 2nd supply system can be divided into: (i) the power of the 345km power of the transformation station or the 345km power of the transformation station, which is a new source power transformation station or credit, flows into 154 km power through the transformers within the chemical 2 plant; and (ii) the case where the 154km power of the 154km power transformation station flows.

First, in the case of i) the chemical 2 plant is supplied with the commercial power and spare power of 345ccV 800 MW (320 MW prior to the amendment of the contract made on September 30, 201) through three lines where it is possible for the chemical 2 plant to run continuously from the transformation station and the credit company of the new source. The permissible power quantity of the instant line is 298 MW to 372 MW, and the power necessary for the chemical 1 plant is 154ccV 320 MW, so the chemical 1 plant can secure sufficient spare power to replace the commercial power through the instant line.

On the other hand, in the case of paragraph (ii) above, there is an error in the chemical 2 plant's 345kV water supply system. Before increasing the capacity of the contract power of the chemical 2 plant due to the amendment of the contract made on September 30, 201, it is difficult to appropriate reserve power 154kV 240 MW to 320 MW, which is the demand of the chemical 2 plant. Likewise, even after increasing the capacity of the contract power of the chemical 2 plant due to the amendment of the above contract, it is difficult to appropriate 154kVV 400 MW, which is 80 MW, the demand for the power of the chemical 2 plant, in reality, cannot be appropriated for 150 MW, which is the demand for the power of the chemical 2 plant, in any case or through the second supply system. Therefore, in the case of the above ii), it is difficult to deem that the chemical 1 plant can not be substituted through the instant line.

Therefore, in the case of the above i), it is reasonable to view that the power of 154kV can be secured through the second supply system as the reserve power of the chemical1 factory.

(2) There is no dispute between the parties as to the fact that the Defendant intended to use the second supply system as the reserve power of the chemical 1 plant.

(b) Whether basic charges for spare power are imposed;

1) The Plaintiff does not impose a basic fee on all customers using the spare power under the provisions on the terms and conditions of the electricity supply, and imposes a basic fee on the spare power only when additional costs are required for the Plaintiff due to the installation of the line by the customer, or the possibility of additional power supply should be secured at the transformation station.

Then, I will examine whether the defendant's securing possibility of supply of spare power through the supply system of the first and second supply systems is subject to the plaintiff's imposition of the basic charges from the perspective of additional cost burden or securing possibility of supply of power.

(ii)the calculation of charges on reserve power;

The reserve power line consists of a large number of withdrawing devices and power distribution lines. According to Article 63 of the former Terms and Conditions of Supply, in the case of the reserve power line (A), if a customer directly constitutes the distribution line, the Plaintiff is required to install and maintain only the withdrawing devices, and the Plaintiff is required to impose 2% of the basic charges on the customer. However, in the case of the reserve power (B), 5% of the basic charges are imposed on the Plaintiff when the Plaintiff is required to install and maintain both the distribution line and the withdrawing devices. Meanwhile, in the case of the reserve power (B), 10% of the basic charges and 6% of the basic charges are imposed on the transformation station.

3) Supply of spare power and imposition of charges through the instant tracks

(A)in the case of a first supply system:

(1) First, as seen earlier, the instant line was installed by the Defendant on its own, and thus, the Plaintiff did not incur additional costs to constitute the instant line.

(2) Next, it is necessary to secure the possibility of additional power supply to a new source transformation station, on the following grounds: (a) whether the possibility of additional power supply should be secured in the new source transformation station; and (b) the possibility of the supply of new source power 54kVV 298M through 372M, which is the permissible quantity of the instant line; and (c) thus, the possibility of additional power supply should be secured in the new source transformation station.

(3) Therefore, in the case of the first supply system, it is reasonable to view that the basic charge for the reserve power is subject to the imposition.

B)in the case of a secondary supply system (if the power of a new source transformation station and a credit transformation station flows through a transformer of a thermal 2 plant, only to the extent that the power of a new source transformation station and a credit transformation station flows

(1) Since the instant tracks are installed by the Defendant himself, it is the same as above that the Plaintiff did not bear additional costs in order to constitute the instant tracks.

(2) Next, in a case where the power of the 345km of a new-source transformation station or a credit substation is pressured to 154 km through the transformers of the chemical two factories, and is supplied to the chemical 1 factory via the secondary supply system, whether it is necessary to secure the possibility of additional power supply to the new-source transformation station and the credit substation.

(A) In a case where the contractual power capacity of a chemical two plant is 320 MW (before September 30, 201), it is necessary to additionally require the possibility of supply of electricity of 154kV 298M through 372 MW, which is the permissible quantity of the line of this case, at the 320 MW stations, to secure the possibility of additional supply of electricity to new source transformation stations. In other words, according to the B-1, the contractual power of a chemical two plant as of May 31, 2010 is 345kV 320 MW and the supply capacity of a new power plant is 800 MM within the 300 m2 plant connected with new source transformation stations, which is 300 m20 m2, which is the above 300 m2, which is the supply range of the above new power transformation plant (the same applies to the case where the remaining supply capacity of the new power generator prior to such change exceeds the 3000 m2080 m2.

Therefore, in the case of the second supply system before September 30, 201, it is reasonable to view that the basic rate for the spare power is subject to the imposition.

As to this, the Defendant asserts that the 154kV mother line of a new source substation is supplied with electricity only through 345 kV mother line within the same substation, from the standpoint of the new source substation, the supply of electricity to the secondary supply system through the line of this case constitutes a connection between the factory being supplied with electricity at the same substation that does not essentially cause an issue of supply of additional electricity. However, according to the instant 1 and 2 contract, the e-one factory and the e-two factory are supplied with electricity from the new source substation, and the new source substation is supplied with 154kV voltage to the 34kV voltage of the electric power station through the strong voltage procedure, and thus, it is difficult to view that the e-one factory and the e-one factory are installed at the 5 kV transformation to the above 5-V transformation to the 154k power department, and thus, it is difficult to view that the Plaintiff was supplied with the same power department of the above 34k power department to the same part of the above 5-V transformation.

(B) According to the records of Gap 1-2 in a case where the contract capacity of the chemical power of the chemical power plant is 800W (after September 30, 201), the Plaintiff and the defendant extended the contract capacity of the chemical power of the new source transformation station and the transmitting station, credit, on September 30, 201, to 800W, limited the capacity of the primary transformers within the chemical-2 plant connected with each of the supply lines of the above transformation stations to 800W. Accordingly, according to this, since the voltage of the chemical-2 plant connected with the supply line of the new source transformation or credit, it is possible for the Plaintiff to additionally accommodate only 800W power generation of the original power generator, which is 345ccV 800W, to secure the remainder of the chemical-2 plant supplied through the above 250k power transformation and it is not necessary for the Plaintiff to use the above new power transformation to secure a maximum amount of 150cc power generation system.

Therefore, in the case of the second supply system after September 30, 201, it is reasonable to view that the basic rate for the spare power is not subject to the imposition.

(3) The Plaintiff asserts to the effect that, even if the secondary supply system does not require securing the possibility of additional electricity supply to a transformation or a credit substation of a new source due to the supply system, it may adversely affect the overall demand of electricity supply and the power network of the Plaintiff when using electricity in any place other than the contracted place of electricity use, and thus, this constitutes subject to the imposition of the basic charge for the reserve power. However, it is inconsistent with the Plaintiff’s assertion that the basic charge for the reserve power is imposed only where the Plaintiff bears the cost for the installation of the line and where it is necessary to secure the possibility of additional electricity supply to the substation, and the evidence submitted by the Plaintiff alone cannot be recognized that the overall demand of electricity supply and the power network of the Plaintiff would adversely affect the power supply of the Plaintiff when using the secondary supply system, and there is no other evidence to acknowledge otherwise, the Plaintiff’s assertion is rejected.

1) According to the method of calculating basic charges on the Plaintiff’s reserve power, if the Defendant is unable to impose basic charges on the supply of reserve power according to the Class 1 and the Class 2 system, even if the Defendant secured the possibility of the supply of reserve power by installing the instant line without the Plaintiff’s prior consent, this does not constitute “where the charges under Article 44 of the Electric Use Terms and Conditions are not properly calculated,” and thus, the Plaintiff cannot demand the Defendant to pay penalty, etc. due to the breach of the terms and conditions of the electric supply.

2) In the case of the first supply system and the second supply system in September 30, 201, the first supply system and the second supply system in the second supply system, the power supply to the second and second factories in the instant line constitutes the reserve power, and thus, the Plaintiff requires the Plaintiff to secure additional possibility of electricity supply. Thus, the Plaintiff is entitled to impose the reserve power charges on the Defendant for the first and second factories, and the Defendant should have paid the reserve power based on the supply of the reserve power by concluding a legitimate contract with the Plaintiff to be provided with the reserve power without justifiable grounds, so long as the Defendant secured the reserve power at a place other than the place of electric use stipulated in the instant contract through the instant line without justifiable grounds, it constitutes a violation of the first and second contracts, and thus, constitutes the case of denying the use of electricity stipulated in the electricity supply terms and conditions.

Therefore, the Defendant is obligated to pay to the Plaintiff the penalty (as for the supply system, limited to the portion arising before September 30, 201 in the case of the second supply system) prescribed in Article 44 of the former Terms and Conditions of Supply (as for the entire purport of entry and pleadings in Tables A2-1 and B4, according to Article 44 of the former Terms and Conditions of Supply, and Article 29 of the Enforcement Rule thereof, the difference between the amount equivalent to the charge calculated including the portion for illegal use pursuant to Article 29 of the former Terms and Conditions of Supply and the charge calculated without including the portion for illegal use (hereinafter referred to as "efforthing charge"), an additional collection charge equivalent to the same amount, the value-added tax on the evasion charge (10%), and damages for delay.

3) In the case of a second supply system after September 30, 2011

As seen earlier, in the case of the second supply system after September 30, 201, the Defendant arbitrarily installed the instant line and secured the reserve power for the chemical1 plant, and the Plaintiff cannot impose the reserve power on the Defendant for the period after September 30, 2011. Therefore, it cannot be deemed that the instant line constitutes “where the charges are not calculated fairly” under Article 44 of the Terms and Conditions of Electric Wage, and thus, the Plaintiff’s claim for penalty, etc. for this part of this case is without merit without further need.

4) Judgment on the defendant's assertion

A) The assertion that the distribution of power inside the defendant is merely a matter of distribution of power inside the defendant

The defendant asserts that the chemical workplace constitutes a single premises, and the defendant, a single accounting subject, manages it by strictly separating from the outside with the boundary wall, etc., and since the chemical1 plant was constructed first and later successively, an electricity use contract for the chemical1 and two factories naturally was entered into, and since the chemical2 plant was constructed later, the chemical1 and the chemical2 plant constitutes a single electric use site, and thus the power supply through the line of this case constitutes a single electric power distribution issue within the defendant.

The standard for the electrical use place, which is the unit of the electricity use contract, is established in order to specify the other party to the contract for electricity use and distinguish the place to be supplied by electricity. The defendant's terms and conditions of electricity supply enter into a single electric use contract for the place to be supplied by electricity use. The defendant's terms and conditions of electricity supply form one premises, one building form one building, one building into one electric use place (Articles 18 (1) and 18-2). The rules for the implementation of the terms and conditions of electricity supply can be divided into two or more electric use places where it is unreasonable to set one premises as one electric use place by topographical, economic or technically (Article 10 (2)).

In the case of this case, the chemical 1 factories and the chemical 2 factories are located in the chemical esisib, and the defendant who is the main accounting agent is managed by the defendant, but the contract of this case was concluded by distinguishing the chemical 1 factories and the chemical 2 factories, and it is reasonable to view that the parties concerned classified one premises into two or more electrical places and separately determines the chemical 1 and 2 factories as the separate electrical places. Accordingly, the defendant's above assertion cannot be accepted.

B) The assertion on whether to use electricity

The defendant asserts that there was no "use of spare power" through the line of this case, and thus did not meet the requirements for the imposition of penalty.

On the other hand, Article 44 of the terms and conditions of the electricity provides that the penalty may be imposed if the charges are not calculated properly by 'use of electricity in violation of the terms and conditions of the contract'. However, in light of the purport of the preliminary power so long as the Defendant secured the possibility of supplying additional electricity at any time by installing the line of this case, it shall be deemed as constituting 'use of electricity as stipulated in the terms and conditions of the electricity.' Furthermore, according to the entry of the contract of this case 1 and 2, the Defendant agreed to bear the reserve power charges for each line pursuant to Article 63 of the terms and conditions of the electricity supply without relation to actual use of the electricity. In light of these circumstances, it cannot be deemed that the penalty should be imposed only on the case where the Defendant actually supplied and consumed the electricity through the line of this case, and even if the Defendant did not impose the preliminary power through the line of this case, it is difficult to see that the Defendant's imposition of penalty and charges for breach of the basic terms and conditions of the contract of this case is unreasonable, as seen earlier.

C) Claim on violation of the duty to explain

With respect to this part, the corresponding part of the judgment of the first instance among the judgments (from 15 up to 16 pages) shall be quoted pursuant to the main sentence of Article 420 of the Civil Procedure Act.

(d) Reduction of penalty;

1) In light of the nature of the penalty in this case, it is reasonable to view that the penalty in this case also has the nature of liquidated damages and penalty for breach of contract as well as liquidated damages in consideration of the following: (a) the Plaintiff itself has the meaning of penalty for breach of contract and other relevant provisions; (b) the Plaintiff itself has the meaning of penalty for breach of contract; and (c) the terms and conditions stipulate that penalty shall be imposed not more than three times according to the terms and conditions of the contract; and (d) there is no provision that allows the evasion rate itself or damages to be claimed; and (e) there is no provision that only the evaded amount should be added to value-added tax equivalent to the evaded amount (see Supreme Court Decision 2011Da112032, Apr. 11, 2013).

In this regard, the part corresponding to the evasion rate of preliminary power out of the penalty shall be deemed to fall under the scheduled amount of compensation for damages. Since there is no room for reduction, and since the part corresponding to the penalty surcharge exceeding the evasion rate is the penalty for the violation of the contract on the use of electricity, it has the nature of penalty as a sanction for the violation of the contract on the use of electricity, it is argued that reduction under Article 398 (2) of the Civil Code on the Estimated Compensation for Damages cannot be allowed. However, Article 44 of the terms and conditions of the plaintiff's electric supply only sets the "three times limit of the amount which is not fairly calculated as penalty" as penalty, and it is reasonable to view that the penalty imposed by the defendant has the nature of the liquidated damages and the penalty as a whole, as seen earlier, it shall be deemed that the penalty imposed by the defendant together has the nature of the liquidated damages and the penalty for breach of contract. Therefore, this part of the plaintiff's assertion cannot be accepted.

2) The penalty to be borne by the Defendant is based on the facts that there is no dispute between the parties as to the elements for calculating the penalty, such as the application of the charge, and the amount calculated in accordance with Article 44 of the terms and conditions of the electricity supply and Article 29 of the Enforcement Rule thereof, and the following circumstances revealed in the aforementioned facts are comprehensively taken into account. From November 2008, after the construction of the instant line, until June 201, when the Plaintiff became aware of the instant line and is able to impose the reserve power fee, the penalty equivalent to the sum of the charges for evasion of the reserve power and the charges for collection of the penalty, as sought by the Plaintiff, and from the following day, it is reasonable to set the penalty equivalent to the evasion of the reserve power and the charges for penalty equivalent to the evasion of the reserve power.

① In the case of a chemical plant, since commercial power and spare power are supplied only from a new source transformation station, enormous property damage was inflicted upon the interruption of short-hour power, and there was a need to prepare for emergency situations, such as the suspension of the supply of electricity of a chemical plant. However, as the Plaintiff’s technical problem makes it difficult to conclude a contract for supply of spare power with a transformation station other than a new source transformation station, the Defendant appears to have installed the instant line with the main purpose of resolving the above problem.

② From June 2010, when the Plaintiff recognized the instant line, the Plaintiff and the Defendant agreed on whether to use the spare power in relation to the instant line and the scope thereof, but the concept of “reserve power” itself was an abstract concept on the premise of “ossibility” (in the case of the Seoul Central District Court Decision 2012Kahap300, the instant court received a provisional disposition seeking the suspension of the supply of electricity through the instant line from February 15, 2012, deeming that it is difficult to view that the Defendant was supplied with electricity and used through the instant line from the Defendant’s 1 factory to the Chosung 1st, 2012, and received the Defendant’s application for provisional disposition seeking the suspension of the supply of electricity).

③ In particular, the Defendant appears to have not actually used the reserve power through the supply system while maintaining the part connected to the chemical1 plant in the instant line in terms of “OF” at all times, and on March 14, 2014, the Plaintiff and the Plaintiff decided to limit the power supplied to the chemical1 plant from the new orchard substation to 320 mW, and the use of power through the supply system was practically impossible thereafter.00, when the Plaintiff became aware of the construction of the instant line, imposing penalty exceeding the amount of the reserve power equivalent to the reserve power charges from the time when the Plaintiff became aware of the construction of the instant line to the time when the dispute over whether it falls under the reserve power of this case is terminated, it seems to be unreasonable to impose an excessive burden on the Defendant.

3) 그렇다면 피고는 원고에게 별지 위약금 계산내역표 기재와 같이 화성1, 2공장에 대한 예비전력 부정사용에 따른 위약금으로 합계 13,253,950,030원(= 제1공급계통 7,641,536,606원 + 제2공급계통 5,612,413,424원) 및 그 중 제1공급계통의 경우 2008. 11. 1.부터 2011. 12. 31.까지, 제2공급계통의 경우 2008. 11. 1.부터 2011. 9. 30.까지 발생한 위약금 합계 9,684,334,285원(= 제1공급계통 4,071,920,861원 + 제2공급계통 5,612,413,424원)에 대하여 원고가 구하는 바에 따라 ① 2012. 3. 1.부터, 2012. 1. 1.부터 2012. 2. 29.까지 발생한 제1공급계통의 위약금 303,799,635원에 대하여 이 사건 소장 부본 송달일 다음 날인 ② 2012. 7. 21.부터, 나머지 2012. 3. 1.부터 2013. 7. 31.까지 발생한 제1공급계통의 위약금 3,265,816,110원에 대하여는 이 사건 청구취지 및 청구원인 변경신청서 부본 송달일 다음 날인 ③ 2013. 9. 5.부터, 각 피고가 그 이행의무의 존부 및 범위에 관하여 항쟁함이 상당한 이 판결 선고일인 2016. 2. 5.까지는 상법 이 정한 연 6%의, 각 그 다음 날부터 다 갚는 날까지는 소송촉진 등에 관한 특례법이 정한 연 20%의 비율에 의한 지연손해금을 지급할 의무가 있다(위 지연손해금 기산일과 관련하여, 먼저 위 ① 부분에 관하여 보건대, 이 사건 위약금 지급 채무의 이행기가 따로 정해져 있음을 인정할 만한 아무런 증거가 없으므로 이에 대한 지연손해금은 원고가 그 이행을 구한 다음 날부터 발생하는 것으로 보아야 하는바, 앞서 든 증거와 변론 전체의 취지에 의하면 원고가 2012. 1. 10. 및 2012. 2. 2. 피고에게 이 사건 선로의 설치와 관련하여 2011. 12. 31.까지 발생한 면탈요금 등을 납부기한 2012. 1, 26. 및 2012. 2. 13.로 정하여 그 이행을 구한 사실을 인정할 수 있으므로 위 2012. 2. 14. 이후로서 원고가 구하는 2012. 3. 1.부터 이 부분 위약금에 대한 지연손해금이 인정된다. 다음으로 위 ② 부분에 관하여 보건대, 원고는 이 부분 위약금에 대하여도 2012. 3. 1.부터의 지연손해금을 구하나 원고가 이 부분에 대하여 2012. 3. 1. 전에 이행청구를 하였음을 인정할 만한 아무런 증거가 없으므로 이 부분 지연손해금 청구는 이유 없다. 마지막으로 위 ③ 부분에 관하여 보건대, 원고는 이에 대하여 2013. 8. 1.부터의 지연손해금을 구하나, 원고가 이 부분에 대하여 2013. 8. 1. 전에 이행청구를 하였음을 인정할 만한 아무런 증거가 없으므로 이 부분 지연손해금 청구도 이유 없다).

4. Conclusion

The plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the appeal by the plaintiff and the defendant is accepted and the judgment of the court of first instance is modified as per Disposition

Colonel of the presiding judge;

Judge Dong-ju

Judges Yellow Dong-dong

1) At the time of 2005, 2008, 18 December 18, 2005, evidence between the Plaintiff and the Defendant, showing the content of the electric use contract for the chemical two factories, has been submitted.

However, in light of the terms of the Electric Use Agreement (B) dated May 31, 2010, the 345ccV 320 MW at the time of 2005;

At the time of December 18, 2008, it is presumed that at the time of 18 December 19, 200, the 345ccV 320 MW and the 145ccV 240 MW were set as contract power.

may be filed.

3) 894MW (Minimum Transmission Quantity) - 320 MW (Quantities of a factory) = 574M, 640 MW (Contract Electricity Quantity) - 320 MW (Quantities of a factory) -320 MW

4) On September 30, 2011, 201, 30, the Plaintiff and the Defendant, each of the contract capacity of the instant second contract 345kV 800 MW (new-source transformation stations, credit transformation stations), 154kV

400 MV 320 MW, each contract power is increased to 445kV 320 M (a new source transformation station, credit transformation station), 154kV 240 MW (the change of the disease point change)

(B) was a previous suit.

5) under the instant contract 1, the power to be supplied to the chemical1 plant. More strictly, 320 MW and reserve with commercial power capable of simultaneous transmission.

The term "electric power supply possibility" means the possibility of the supply of electricity of 640 MW, including 320 MW.