2017Na5159 Lawsuit filed for objection to a judgment in claim allowance proceedings

Cryst Handy C S.A.) Cryst Hand Hand S. E.S.

A, a joint owner of the original fishing boat Co., Ltd., the debtor;

Busan District Court Decision 2015Gahap567 Decided January 19, 2017

March 8, 2018

May 17, 2018

1. Revocation of the first instance judgment.

2. The final inspection judgment of Busan District Court is modified as follows:

3. All costs of the lawsuit are borne by the Defendant.

The same shall apply to the order.

1. Basic facts

A. Status of the parties

1) The Plaintiff is a company established in accordance with the laws of the Republic of Pakistan for the purpose of owning a ship. The Changsung Shipping Co., Ltd. (hereinafter referred to as the “ Changsung Shipping”) is a parent company of the Plaintiff, which aims at maritime cargo transport business.

2) The Orart Shipbuilding Co., Ltd. (hereinafter referred to as the “Liart Shipbuilding”) was engaged in the repair business of ships, etc., and was subject to the Busan District Court Decision 2012 Ma31, Mar. 22, 2007, which was decided to commence rehabilitation as the company that started the shipbuilding business. On July 25, 2012, A and B were appointed as the joint manager of Orart Shipbuilding, and was dismissed on March 13, 2017, and C was appointed as a new joint manager on April 17, 2017 (hereinafter collectively referred to as the “Defendant”).

B. Conclusion, etc. of the shipbuilding contract of this case

on July 11, 2007, the Changsung Shipping entered into a shipbuilding agreement with Oral Maritime Affairs Association No. OSN-1013 (hereinafter referred to as the “instant vessel”) with the amount of USD 33,80,000 as the shipbuilding cost (hereinafter referred to as the “instant contract”). The main contents of the instant contract are as follows.

Article I 2). 서술 및 선급3. 등급, 규정 및 규칙(a) 이 사건 선박은 한국선급의 현재 규정 및 규칙에 합당하게 건조되어야 한다.(b) 한국선급의 규정, 규칙 및 요건은 이 사건 계약 체결일 현재 공표되고 효력을 가지는 것을 포함하여야 한다.Article III. 선박건조대금의 조정1. 선박 인도의 지연(c) 그러나, 만약 선박의 인도가 이 사건 계약에서 건조자(오리엔트조선을 말한다. 이하 같다)의 선박 인도기한으로 정하고 있는 인도 기일을 180일 이상 경과하여 지연되는 경우, 위 180일이 경과한 시점에 매수인(창명해운을 말한다. 이하 같다)은 그 선택에 따라 건조자에게 전문을 송부하거나 팩스로 통지함으로써 이 사건 계약을 해제할 수 있다. 이와 같은 해제는 위 해제통지서가 건조자에게 도달한 날로부터 효력을 발생한다.Article IV. 조사 및 승인1. 선주감독관의 임명매수인은 적정한 시기에 자신의 비용과 위험부담으로 한 명 혹은 그 이상의 선주감독관을 파견, 유지할 수 있고, 이 선주감독관이 이 사건 선박, 장비, 기타 의장품을 적절하게 건조하고 있는지를 감독할 수 있는 권한을 받았음을 매수인이 서면으로 확인해 주어야 한다. 이 사건 계약에 따른 어떠한 작업을 시작하기 전에 건조자는 합리적으로 요구되는 경우라면 언제든지 그에 관한 모든 설계도면(plans and drawings)에 대해 사전에 선주감독관에게 보여주고 제공하며, 선주감독관 권한의 범위 내에서 선주감독관의 승인을 얻어야 한다.2. 선주감독관의 권한선주감독관은 이 사건 선박을 인도할 때까지 이 사건 선박의 건조작업 기간에 언제나 이 사건 선박, 의장품 기타 액세서리들, 진행중인 작업 혹은 선박건조에 투입되는 자재들을 그 작업이 이루어지는 장소 및 자재들이 보관된 장소를 불문하고 이 사건 선박, 의장품 기타 액세서리들이 이 사건 선박건조계약 및 사양, 계획도에 부합하여 건조되고 있는지 여부를 판단, 결정하기 위하여 검사할 권리를 보유한다.Article VII. 인도1. 시기 및 장소건조자는 2010. 1.말까지(이하에서 ‘인도기한'이라 한다) 조선소에서 선박이 적절하게 부양된 상태로 여러 검사의 통과 및 매수인의 승낙 하에 본 계약 제6조에 따라 선박을 매수인에게 인도한다. 다만, 건조자의 선박 인도의 지연이 본 계약이 허용하고 있는 인도 지연사유에 해당한다면 인도기한은 그에 따라 연장된다.Article X. 지급2. 지급조건선박건조대금은 계약의 효력이 유지되는 한 아래와 같은 방법으로 지급한다.(a) 1차 선수금매수인은 선박건조대금의 20%에 해당하는 금액인 미화 6,760,000달러를 건조자로부터 본조 제8항이 규정하고 있는 선수금환급보증서를 받은 날로부터 3영업일 이내에 지급한다.(b) 2차 선수금매수인은 선박건조대금의 20%에 해당하는 금액인 미화 6,760,000달러를 건조자로부터 강재절단(steel cutting)이 수행되었다는 통지를 받은 날로부터 3영업일 이내에 지급한다.(c) 3차 선수금매수인은 선박건조대금의 20%에 해당하는 금액인 미화 6,760,000달러를 건조자로부터 용골거치(keel laying)가 수행되었다는 통지를 받은 날로부터 3영업일 이내에 지급한다.(d) 4차 선수금매수인은 선박건조대금의 20%에 해당하는 금액인 미화 6,760,000달러를 건조자로부터 진수(launching)가 수행되었다는 통지를 받은 날로부터 3영업일 이내에 지급한다.(e) 5차 선수금매수인은 선박건조대금의 20%에 해당하는 금액인 미화 6,760,000달러에서 이 사건 계약서 제3조 및 제5조에 따라 선박의 인도 이전에 발생한 계약의 변경 또는 수정으로 인해 증감된 금액을 선박 인도(delivery)와 동시에 건조자에게 지급한다.(중략)건조자와 매수인은 자신들의 어떠한 분쟁이나 불일치를 이유로 하여 이 조항에 따른 모든 지급을 지체하거나 유보할 수 없음에 합의한다. 어떠한 분쟁이 있으면 이는 이하 제13조 3) 의 중재조항에 따라 해결되어야 한다.5. 건조자의 선수금환급의무매수인이 선박의 인도에 앞서 건조자에게 지급한 금원은 건조자에게 지급한 선수금으로 본다. 이 사건 계약상 조건에 의거하여 매수인이 선박의 인수를 거절하거나, 제11조에 따라 건조자가 이 사건 계약을 해제 또는 취소하는 경우를 제외하고, 만일 매수인이 이 사건 계약을 종료, 취소 또는 해제할 수 있도록 허용하고 있는 이 사건 계약상 어느 조항에 따라 매수인이 해제, 취소, 종료하면, 건조자는 즉시 미화로 매수인이 인도 전에 지급한 금원 전액 및 그에 대한 이자를 지급한다. (중략) 환급시 이자율은 각 선수금을 지급받은 날의 다음 날부터 계좌이체 등을 통한 환급이 이루어지는 날까지 연 7%의 비율로 한다.8. 선수금환급보증선수금의 환급을 담보하기 위하여, 건조자는 매수인에게, 매수인을 수익자로 하여 매수인이 인도 전에 지급한 금원 및 그에 대한 이자를 지급하는 것을 내용으로 한 대한민국 은행이 발행한 선수금환급보증서를 제공하여야 한다. 선수금환급보증서는 첨부한 양식과 실질적으로 동일한 형식 및 내용이어야 한다.(이하 생략)Article XI. 매수인의 채무불이행1. 채무불이행의 정의채무자는 다음의 각 경우에 이 사건 계약의 채무불이행에 해당한다.(a) 1, 2, 3차 및 4차 선수금 중 어떤 것이라도 해당 선수금의 각 지급기일 내에 건조자에게 지급되지 아니할 경우.2. 선박 인도전 매수인의 채무불이행 효과만약 매수인이 이 사건 계약상 의무 위반으로 상기 채무불이행에 해당할 경우,(a) 그러한 채무불이행이 계속되는 실제 기간 동안 선박의 인도일이 자동으로 연장된다.(d) 건조자가 매수인의 채무불이행을 통지한 날로부터 7일이 경과할 동안 매수인의 채무불이행이 계속될 경우 건조자는 그 선택에 따라 서면으로 건조계약을 해제할 수 있다.(e) 상기와 같이 매수인의 채무불이행에 따라 건조자가 건조계약을 해제하였을 경우, 건조자는 매수인으로부터 지급받은 선수금을 보유하며, 매수인의 채무불이행 및 그에 따른 건조계약의 해제로 인하여 건조자가 입은 손실 및 손해의 전보에 충당할 수 있고, 동시에 선박을 공매 또는 사적 매매의 방법으로 처분할 수 있는 권리를 갖는다.Article XIV. 중재1. 중재인의 선임아래에 규정된 내용, 작업 또는 건조 또는 이 건조계약과 관련된 문제와 관련하여 당사자 간에 분쟁이나 이견이 발생한 경우 및 이 건조계약에 따른 각 당사자의 의무와 책임의 모든 면에 있어서 분쟁이 있는 경우 그러한 분쟁 및 이견은 런던의 1인 중재인에게 회부된다.2. 적용되는 법모든 중재에서는 영국의 1996년 중재법 또는 이에 대하여 당시에 효력을 가지는 수정조항 및 변경조항에 따라 해석되고 적용된다. 중재판정은 양당사자에 대하여 최종적이고 구속력을 가진다.Article XVIII. 해석과 준거법이 사건 계약은 영문으로 작성되었고, 2통으로 만들어서 서명되었으며, 일방 당사자는 각각 추가적인 사본들의 작성을 요청할 수 있다. 건조자와 매수자는 계약의 유효성과 해석의 준거법으로 영국법이 적용됨을 합의한다.

(c) Payment, etc. of the first advance;

1) On September 10, 2007, the Plaintiff entered into an open agreement to change the status of the Changsung Shipping and Original Help Shipping and the Changsung Shipping under the instant contract to the Plaintiff.

2) On October 18, 2007, the Plaintiff received a letter of guarantee for advance refund issued by the Bank (No. 16 of the Republic of Korea, Leader, or Refundante), and paid USD 6,760,000 of the first advance payment to the Orart Shipbuilding.

D. Notice of cancellation of the contract of this case, report of rehabilitation claims, etc.

1) On April 22, 2009, Orart Shipbuilding notified the Plaintiff of the fact that he carried out the cutting of steel of the instant vessel, and filed a claim for the amount of USD 6,760,000 for the second advance payment. He notified the Plaintiff that he would cancel the instant contract on the ground of the non-payment of the second advance payment on November 5, 2009.

2) On October 7, 2010, the Plaintiff notified that he would cancel the contract of this case on the ground that he did not perform the force cutting of the instant vessel on the original shipbuilding, and that he would cancel the contract of this case on the ground that he did not perform the force cutting of the instant vessel on the original shipbuilding. The notification reached the original shipbuilding around that time.

3) The Plaintiff asserted that the Plaintiff had the first advance payment and the total interest thereon USD 7,237,752 against the original shipbuilding due to the restitution following the cancellation of the instant contract, and reported the aforementioned advance return claim as a rehabilitation claim on April 23, 2012 in the rehabilitation procedure of the original shipbuilding (Evidence 32-1-2), and the Defendant denied all the claims reported by the Plaintiff (Evidence 32-3) (No. 32-2).

4) The Plaintiff filed a final claim inspection judgment against the Defendant with the Busan District Court 2012.59, and on December 16, 2014, the said court rendered a final claim inspection judgment (Evidence A 1) to the effect that the Plaintiff’s Oral Shipbuilding does not exist any rehabilitation claim.

[Ground of recognition] Facts without dispute, Gap 1, 48 evidence, Eul 1, 3, 5, 16, 32 evidence (including virtual numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the parties' arguments

A. Summary of the plaintiff's assertion

1) If the Orart Shipbuilding intends to claim the second advance payment, it shall purchase the steel materials of the instant vessel and cut them in accordance with the design drawing, and shall notify the Plaintiff thereof 14 days prior to the date of the execution. However, the Orart Shipbuilding formally proceeded with the events to cut the steel materials of the instant vessel on April 22, 2009 without purchasing the steel materials to be used for the construction of the instant vessel, and then filed a claim for the second advance payment with the Plaintiff. In addition, the Orart Shipbuilding notified the Plaintiff that the steel cutting of the instant vessel was conducted in the Kui Heavy Industries Co., Ltd., and carried out it in another place, but the Plaintiff violated the duty of advance payment. Accordingly, the Plaintiff did not comply with the second advance payment claim of Oriart Shipbuilding, and thus, the termination notification of the instant contract in this case is invalid.

2) Although the instant contract is effective, Orart Shipbuilding refused to comply with it and did not deliver it from January 7, 2010, which was the date of delivery of the instant vessel, to the expiration of at least 180 days. Accordingly, the Plaintiff rescinded the instant contract on October 7, 2010, and accordingly, the Plaintiff was the first advance payment USD 6,760,00 for Orart Shipbuilding and the total interest thereon USD 7,237,752 for Orart Shipbuilding.

B. Summary of the defendant's assertion

The Orart Shipbuilding, on April 22, 2009, performed and notified the cutting of the instant vessel, and the second advance payment date of the Plaintiff was due on April 27, 2009. Nevertheless, the Plaintiff notified the cancellation of the instant contract on November 5, 2009 due to the Plaintiff’s failure to pay the second advance payment. As such, the instant contract was rescinded and the Orart Shipbuilding had the right to hold the first advance payment received from the Plaintiff under the instant contract.

3. Applicable law;

This case is to seek the confirmation of rehabilitation claims based on the contract of this case against the defendant, who is a joint manager of Oral Epic ships established in accordance with the law of the Republic of Pakistan and established in the Republic of Pakistan and established in accordance with the law of the Republic of Pakistan and established in the Republic of Korea. Accordingly, in this case, the governing law should be determined by the Private International Act, with foreign elements.

In the instant contract, the English law provides for the English law as the governing law for its interpretation and application, and the fact that the Plaintiff succeeded to the status of Chang Ho Shipping is as seen earlier. As to the existence of the Plaintiff’s secondary obligation to pay the advance payment under the instant contract, the validity of the notification of each termination of the contract by the original fishing boat and the Plaintiff, the existence and scope of the Plaintiff’s obligation to return advance payments against the original fishing boat, etc., the English law that the parties choose pursuant to Article 25(1) of the Private International Act is the governing law.

4. Judgment by issue

(a) Validity of the notification of the cancellation of the contract for the original art ship;

1) Facts of recognition

The following facts may be acknowledged in full view of the following facts in the statements or videos of Gap evidence 41-2, 44, 45, 49, 6-7, 50-5, 50-1-2, 58-60, 67-10-13, 25, 28, 32, 42, 68, 3-1-8, 3-1-8, 20-1, and 20-1 of the evidence Nos. 41-2, 44, 45, 50-60, 67-10, 67-13, 25, 28, 3-2,

A) Process, etc. for shipbuilding

(1) The main process of shipbuilding consisting of ① steel cutting (steel straw), ② string (keel string), ③ Jinching, ④ trial operation, completion (6), and delivery) order.

(2) The buildinger must purchase steel in advance prior to the initial process and prepare other materials. As such, the initial cost of shipbuilding constitutes more than 30% of the total cost of shipbuilding. As such, the shipbuilding contract is generally concluded by way of paying the shipbuilding cost in installments for each process. The instant contract also provides that the shipbuilding cost shall be paid in installments, and the amount of USD 6,760,000 equivalent to 20% of the shipbuilding cost of the instant vessel was paid in advance prior to the steel cutting.

(3) Since steel cutting is a work to cut steels to be used for the construction of a ship in accordance with the design drawing, it must not only conform to the specifications and the specifications of the ship set out in the design drawing but also be secured when steels are received in advance.

B) Prepaid of the instant vessel, the power of the vessel owner supervisor, etc.

(1) The instant contract is that the instant vessel should be constructed in conformity with the current regulations and regulations of the Korean vessel’s pay (Article 1(3)). According to the Korean vessel’s advance payment and lecture rules in 2008 and 2009 (Evidence 54-1, 2), and steel materials, such as steel materials, such as steel materials, are manufactured in a manufacturing plant approved by the Korean vessel’s pay, in accordance with the criteria separately determined by the Korean vessel’s pay.

(2) According to the instant contract, the vessel owner supervisor dispatched by the Plaintiff has the right to inspect materials input into the vessel building at any time during the course of the shipbuilding work (Article 4(1) and (2)).

(3) The Orart Shipping and the Oral Name Shipping entered into a shipbuilding agreement with the same content as the instant contract. The Korea’s level issued a process-based confirmation letter stating that the steel cutting of the said 101 Line (as of August 13, 2008) and 1012 Line (as of October 10, 2008) was enforced (as of October 50), and the Chang Name Shipping paid the said vessel the second advance payment to the Oral Name Shipping and the said vessel to the Oral Name Shipping.

C) The notification of the cutting of the instant vessel by the Oral Shipbuilding and the request for the payment of the second advance, etc.

(1) On December 22, 2008, the Orart Shipbuilding notified that he would hold the exercise of the forced cutting of the instant vessel on January 2, 2009, when taking into account the situation where the OSN-101 line, which 'the OSN-101 line, performed the forced cutting' on December 23, 2008 and the OSN1012 lines were not carried out at all, the schedule of the exercise of the instant vessel should be postponed.

(2) On December 24, 2008, the Orart Shipbuilding notified the Plaintiff on December 24, 2008 that he would normally use the Orart Shipbuilding in the domestic and foreign shipbuilding industry, asserting that it refers to the act of cutting the initial steel in accordance with the design drawings and actually starting the shipbuilding process after purchasing the steel in the first advance after the shipbuilding contract for the vessel, and that he would implement the steel cutting process of the instant vessel on January 8, 2009. The Plaintiff notified the Orart Shipbuilding of his intention to oppose the steel cutting process of the instant vessel on the grounds of the delay in the process of being elected prior to the Defendants’ election.

(3) On February 23, 2009, the Orart Shipbuilding notified the Plaintiff on February 20, 2009 that “the E/R (institutional room) of the instant vessel and 1,850 tons of steel product manufactured by players, players, and U.S. were put into storage and completed” (Evidence 67 No. 25 of the Evidence No. 67);

(4) On April 3, 2009, the Orart Shipbuilding notified the plaintiff, the supervisor D (hereinafter referred to as the "ship owner supervisor") dispatched by the plaintiff, and the inspector E (hereinafter referred to as the "Korean vessel inspector E (hereinafter referred to as the "Korean vessel inspector"). On April 22, 2009, the plaintiff notified the Orart Shipbuilding of his intention to object to the execution of the repair of the vessel of this case on the ground that the fairness of the pre-elections who had already performed the repair of the vessel of this case was not achieved at all. The plaintiff notified the plaintiff on April 15, 2009 that he would object to the execution of the repair of the vessel of this case.

(5) On April 22, 2009, 2009, the Orart Shipbuilding took part in the steel cutting event of the instant vessel under the influence of both the Plaintiff, the owner supervisor, and the inspector at the Korean level, and on the same day, he notified the Plaintiff of the fact that he requested the second advance payment by April 27, 2009 through an official document accompanied by a certificate of inspection on steel cutting, a lecture cutting drawing, an event photograph, etc. (No. 67-42). The Plaintiff notified the Plaintiff of the fact that he could not accept the steel cutting performed solely by Orart Shipbuilding, and that he could not receive the second advance payment by April 27, 2009 (No. 67-42).

2) Determination

A) In full view of the following circumstances acknowledged as above, comprehensively taking account of the aforementioned facts, the steam, Gap evidence 6, 15-1-2, 33-2, 61-2, Eul evidence 25-2, Eul evidence 25-2, Eul evidence 26-1-2, and the fact-finding results of the first instance court's inquiry into the Korea Maritime Technology Co., Ltd. in the first instance court, the plaintiff's second advance payment obligation as stipulated in the contract of this case cannot be deemed to have occurred or arrived, and there is no other evidence to acknowledge otherwise.

① Article 10(2)(b) of the instant contract provides that “The second advance payment shall be made within three business days from the date on which the Plaintiff was notified of the fact that the steel cutting was performed by the original shipbuilding operator.” As such, the Plaintiff’s secondary advance payment obligation is premised on the premise that the original UNCLOS performed the steel cutting.

② The certificate of inspection (No. 3-3) attached to the original ship was prepared in the Korean language while notifying the Plaintiff that the original ship carried out the cutting of the vessel of this case, and it cannot be known that the steel recorded therein correspond to the steel material stated in the strong cutting drawings (No. 3-4), and the Defendant did not explain its consistency. Furthermore, the number and size of the steel material stated in the management ledger (No. 419 of the evidence No. 25) and the strong cutting drawings (no. 3-4 of the evidence No. 3) are different. In light of these circumstances, it is impossible to ascertain whether the original ship’s cutting of the steel material to be used for the building of this case at the time and whether the steel material cuted at the time obtained the approval of the Korean vessel’s class.

③ There was no fact that Orart Shipbuilding entered into a design service contract for the instant vessel (the result of a fact-finding on the Korean Maritime Technology Co., Ltd. in the first instance court’s 26 evidence Nos. 26 and the result of a fact-finding on the Korean Maritime Technology), and Orart Shipbuilding notified the Plaintiff of the fact that the E/R of the instant vessel, players, and 1,850 tons of steel product from February 20, 209. However, the Orart Shipbuilding did not present relevant transaction data, such as a contract for the purchase of steel, corresponding thereto, to this court, and did not reveal even the details of steel material). In light of such circumstances, Orart Shipbuilding could have failed to secure the design drawing, steel material, etc. of the instant vessel necessary to cut steel around April 22, 2009.

④ Since 2008, Orart Shipbuilding experienced liquidity shortage phenomenon due to the lack of funds due to the investment in facilities, such as the establishment of a luminous shipbuilding station, the depression of shipbuilding market due to global financial crisis, the bankruptcy of the shipowner, and the increase in exchange hedging costs due to the increase in exchange rate. Accordingly, Orart Shipbuilding was under delay or suspension of construction of a number of vessels ordered during the active period of 2007. In other words, Orart Shipbuilding concluded a shipbuilding contract between Orart Shipping and Man-1006 US dollars 34.2 million US dollars from August 9, 2007 following the conclusion of the instant contract, and had 1,368,000 US dollars paid a total of 1,200 US dollarss until July 30, 2008, and 1,500 US dollarss paid a total of 1,500 US dollarss from July 30, 208 to June 1, 2009.

⑤ As seen earlier, it appears that the design service contract was not concluded even if the Orart Shipbuilding received USD 6,760,000 equivalent to 20% of the shipbuilding cost of the instant vessel from the Plaintiff, and the Plaintiff could not have been secured for the instant vessel construction without concluding the design service contract, and it could not be confirmed whether the steel materials on the steel cutting drawing attached when claiming the Plaintiff for the second advance payment coincide with the steel materials on the steel cutting drawing. Considering the operation, financial situation, and fund shortage at the time of the original shipbuilding, the Orart Shipbuilding is deemed to have proceeded with the formal steel cutting process on April 22, 2009 for the second advance payment of the instant vessel. This can not be deemed to have been seen as having been done by the Orart Shipbuilding, when taking into account the following: (a) the steel materials on the steel cutting drawings attached to the Plaintiff at the time of filing the second advance payment; and (b) the operation, financial situation, and other factors.

6. Article 10(2) of the instant contract provides that the payment of advance payment cannot be delayed or reserved on the ground of any dispute or disagreement between the parties. However, this provision applies to the case where the requirements for the second advance payment claim as stipulated in the instant contract are met.

7) According to Article 10(2) of the instant contract, if any dispute arises with respect to advance payment, it shall be resolved pursuant to an arbitration clause. This can be seen as an arbitration agreement to resolve all disputes with respect to the legal relations related to advance payment through arbitration. However, upon the occurrence of a dispute with respect to the existence of the obligation to pay advance payment, the parties to the instant contract cannot refuse advance payment without filing an arbitration application and an arbitral award. If such interpretation is made, the parties to the instant contract are unable to assert all other parties’ nonperformance of obligation without filing an application for arbitration, and further, it is reasonable to view that the ship owner’s failure to perform the requirements for advance payment, and if the ship owner claims advance payment in sequence, the second, third, and fourth, and fourth, the buyer is obliged to exercise the right to make advance payment by reason of the occurrence of each of the instant contract and defense, separately from the other party’s obligation to pay advance payment after the occurrence of an attack.

B) Therefore, it cannot be deemed that the Plaintiff’s secondary obligation to pay the advance payment as stipulated in the instant contract has occurred or arrived. Therefore, without having to determine the remainder of the Plaintiff’s assertion, notification of termination of the contract on the ground of the failure to pay the second advance payment is invalid, and thus, it cannot be deemed that the instant contract was rescinded.

B. The plaintiff's termination of the contract in this case

1) The contract in this case is valid since the termination notice of the contract is not effective as above. However, the fact that the original shipbuilding refused the performance of the construction of the instant vessel and the delivery of the instant vessel was not made by the lapse of 180 days after the expiration of January 2010, which is the time limit for delivery of the instant vessel stipulated in the contract in this case is clear in light of the parties’ dispute or the purport of the entire pleadings.

2) Therefore, the Plaintiff has the right to rescind the instant contract pursuant to Article 3(1)(c) of the instant contract and accordingly notify the Defendant of the rescission of the contract on October 7, 2010, and the instant contract was rescinded on the date the Plaintiff’s notice was delivered to the Defendant.

C. The existence and scope of the Plaintiff’s advance return claim

1) Since the contract of this case was terminated on the grounds attributable to the Orart Shipbuilding, the Orart Shipbuilding is obligated to pay to the Plaintiff the amount of USD 6,760,000 for the first advance payment and USD 7% per annum from October 19, 2007 to March 21, 2012, which is the day before the commencement of the contract of this case, pursuant to Article 10(5) of the contract of this case.

2) Therefore, the Plaintiff’s rehabilitation claim against the Orart Shipbuilding is USD 8,853,199 ($ 6,760,000 + USD 2,093,199), as the Plaintiff seeks, USD 7,237,752 as the Plaintiff seeks.

5. Conclusion

Thus, the plaintiff's claim shall be accepted on the ground of its reasoning. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal is accepted, and the judgment of the court of first instance is revoked, and it is decided as per Disposition by the court below that the plaintiff's rehabilitation claim against the original shipbuilding is US$ 7,752.

Judges Yoonn-heer of the presiding judge

Judges Yu Jong-woo

Judges Lee Sung-sung

1) On August 9, 2010, 2010, the Orart Shipbuilding was decided to commence rehabilitation proceedings as Busan District Court 2010 Gohap11. However, on January 27, 2012, the Orart Shipbuilding was again decided to commence rehabilitation proceedings as above.

2) In the case of “Article 1(3)(a)”, a translation shall be made as “Article 1(3)(a).”

3) It appears that “Article 14” was erroneous.

4) Evidence No. 45

(v) the "the ground steel" Doz. Doz.

6) The Orart Shipbuilding entered into a shipbuilding contract with the Cho River Shipping Co., Ltd. (hereinafter referred to as the "JT") and proposed a list (1-2 of 1009 evidence No. 15 evidence No. 1) on the ground that he/she entered into a shipbuilding contract with the Orart Shipping Co., Ltd. (hereinafter referred to as the "JTA") and carried out steel cutting of the vessel on July 30, 2009, and requested payment of the second advance payment to Cho River Shipping on July 30, 209. After the related lawsuit, it was revealed that the steel materials recorded in the above list were irrelevant to the vessel of 109, most of which were ordered to build the vessel of 1011, not to the vessel of 1009 (Evidence No. 201, No. 33-2, No. 21-2, No. 61-2).